Skip to content


SB 914 or leave your cell phone at home

When I was last in Rio de Janeiro, Brazil I had two cell phones. One I kept with me during the day and in safe areas. The other was a cheap old one with no data and no logs that I could use at night and in areas where I was uncertain about losing control of portable electronic devices that I carried. This was normal practice in Rio. Californians may find themselves facing a similar situation for different reasons.

The recent California Supreme Court decision on cell phone searches means a law enforcement officer can review all information on an electronic device as part of an arrest, including call logs and messages. It is now argued that warrantless search has been legalized in California — a cell phone can be searched without the need for criminal charges filed or to prove relevance to an arrest.

The California Supreme Court, in People v. [Gregory] Diaz, 51 Cal.4th 84 (2011), held that the information in these [portable electronic] devices may be subject to search incident to an arrest without a warrant or other judicial supervision.

An arrestee already could be searched by law enforcement under circumstances of officer safety and to protect evidence against destruction. However, contents of memory and disk, such as with cell phones, generally were not included in the search.

Prior to the California Supreme Court decision a warrantless search of electronics during an arrest was widely believed to be prohibited by state constitutional privacy protections in the public access “Shield Law” and in conflict with penal code 1524. Also, other state supreme courts (Ohio) have ruled specifically that cell phone searches require a warrant while Federal law enforcement agencies follow a protocol that require a warrant for cell phone searches.

Senate Bill 914 subsequently was introduced (updated July 1, 2011) in an attempt by the state legislature to clarify that portable electronic devices only can be accessed with a warrant, except in circumstances of an immediate threat to public safety or to an arresting officer.

It is the intent of the Legislature in enacting Section 1542.5 of the Penal Code to reject as a matter of California statutory law the rule under the Fourth Amendment to the United States Constitution announced by the California Supreme Court in People v. Diaz. The Legislature finds that once in the exclusive control of the police, cellular telephones do not ordinarily pose a threat to officer safety. The Legislature declares that concerns about destruction of evidence on a cellular telephone can ordinarily be addressed through simple evidence preservation methods and prompt application to a magistrate for a search warrant and, therefore, do not justify a blanket exception to the warrant requirement. Moreover, good forensic evidence practice supports the use of search warrants to obtain information contained in a cellular telephone seized incident to arrest. Except as otherwise stated in this section, it is not the intent of the Legislature to curtail law enforcement reliance on standard established exceptions to the warrant requirement.

SB 914 last week passed the Assembly Public Safety Committee with a 5-0 vote.

Posted in Security.


0 Responses

Stay in touch with the conversation, subscribe to the RSS feed for comments on this post.



Some HTML is OK

or, reply to this post via trackback.