According to the California Supreme Court, police don’t need a warrant to start digging through your phone’s contents.
[the defendant] had argued that the warrantless search of his phone violated his Fourth Amendment rights, but the trial court said that anything found on his person at the time of arrest was “really fair game in terms of being evidence of a crime.”
The decision was not unanimous, though. “The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects,” Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.
They went on to argue that the court majority’s opinion would allow police “carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.”
I wonder if the police can force you to unlock your password-protected phone, or if that order would constitute the unreasonable part of the search?
Also, I’m surprised to not hear any argument about the data not actually existing on your person, the same way a piece of hair or a paint chip would. Sure, the cell phone’s physical case travels in your pocket, but identifying exactly where the incriminating data resides is a bit more tricky. A text message certainly is stored on the phone itself, but what about emails? They’re downloaded to the phone, but would most accurately be described as living in the cloud – because they can be accessed from numerous different portals.
And this is no small point. Whereas a piece of hair from a murder victim or a fingerpriont does pretty much conclusively show your physical presence at the location, given we can only exist in one place, data does not. The text message could have been sent from any number of devices, and consumed from afar, even by people other than the defendant. It seems an extraordinarily shirtsighted decision to treat ephemeral data as if it had a physical presence – and to therefore applies to same rules of physics to it.