The California Supreme Court doesn't think there is any real difference between a crumpled up cigarette package, the clothing on your back or your cell phone: All three are intimately associated with you. Hence, should you be arrested, police officers can search all three items under an exception to the Fourth Amendment's warrant requirement known as "search incident to arrest." A majority of the elected high court in California so ruled this week in People v. Diaz. The ruling reminds me once again that we get the government we deserved.
California from time to time tries to opt out of the republic. With an economy larger than that of many third world countries, the state's efforts to go its own way is perhaps understandable. Not long ago, California voters approved something known as Proposition 8, a so-called "truth in Evidence" rule that prohibits courts from refusing to use relevant evidence in criminal trials on the grounds that the evidence was unlawfully obtained. The people of the Republic of California are prepared to forgive police officers their errors so long as the state gets tough on crime. All that stands in the way of making Proposition 8 more than the wet dream of the police state is the Fourth Amendment to the United States Constitution. Suppression remains a viable remedy to unlawful police activity.
The Diaz decision is not a frontal assault on the Fourth Amendment. It is something more dangerous, and more insidious: By expanding the scope of an exception to the requirement that police officers get a warrant before search our papers and effects, the high court engaged in the sort of judicial activism that neuters a key component of the Bill of Rights. Shame on Justices Chin, Kennard, Baxter, Corrigan and George.
A police informant was wired up when he bought a small amount of Ecstacy from Gregory Diaz. Police listened to the tape, and, moments after the sale was completed, arrested Diaz. The defendant lied to police about selling drugs at the time of his arrest. An officer looked in the text messages stored in his cell phone, and confronted Diaz with what appeared to be an incriminating message. Diaz then confessed. At the trial-court level, his lawyer sought to suppress both the evidence gathered from Diaz's cellphone and his confession. The trial court refused to permit suppression, so Mr. DIaz entered a guilty plea, and took the appeal that found its way to the California SUpreme Court.
There search incident to arrest exception to the warrant requirement recognizes that officers making an arrest may need to take steps to assure their own safety, or to secure evidence that might easily be destroyed. The United States Supreme Court gives officers a limited right to search an area within an arrestee's immediate control. Evolving case law has defined the scope of the area permissibly searched to be that intimately associated with the person of the arrestee: thus, a crumbled cigarette package in a person's pocket at the time of arrest can be searched; so can the clothing on his back. California now holds that a cellphone, and all the information within it, is so intimately associated with a person that it, too, can be searched.
This is a specious and threadbare decision devoid of any meaningful conception of the need to limit the police power of the state. It is what one would expect of elected justices in a state whose citizens think the end of combatting crime justifies the means. But this sort of Proposition 8-type thinking should have no role in our federal jurisprudence. I suspect the Diaz decision will find its way to the United States Supreme Court, the final arbiter on just what the Fourth Amendment does and does not require.
Of course, there is no telling what the federal Supreme Court will make of this case. I fear it will endorse the California court's conservative judicial activism by blessing the expansion of this exception to the requirement that police officers get a warrant before searching our papers and effects. Indeed, I fear far more.
The seminal case regarding what limits are to be placed on police officers conducting searches arose in response to the search of a now-antiquated piece of technology: the pay phone situated in a phone booth. In the Katz decision, the Court held that in order for the Fourth Amendment to apply, a person had to assert a right to privacy that was both honestly held, and one that the rest of society was prepared to respect. Recall that the Fourth Amendment does not bar all searches, only unreasonable searches. In the case of phone booths, the court held there was no expectation of privacy society as a whole was prepared to respect, no matter what an individual caller expected. As a result, listening devices could intercept pay phone calls without a warrant. In that case, the person whose calls were listened to was not arrested before the eavesdropping. The Court simply said there was no expectation of privacy, hence the government could listen in to anyone's pay phone conversations.
It would be an easy matter to apply this sort of reasoning to cell phones, and I fear the Court may tilt in that direction when it decides Diaz. The Court does not, however, typically decide more than it needs to in a decision. It may well limit its ruling in Diaz by resort to the silent rule of interpretation known as "the heinous crime exception" to the Bill of Rights. This doctrine generally holds that it is just fine and dandy to screw the accused.
Diaz is bad law. I fear it may well be bad law about to get worse when the case makes its way to Washington. Nowhere is the specious nonsense about judicial activism spouted by the right more apparent than in the context of the Fourth Amendment. When conservatives read the Bill of Rights in such a manner as to render moot fundamental protections against government abuse of power few protest. That's because we don't care what happens to the accused. We don't care until we or a loved one are accused. Crime is something that happens to others. Or so it seems. I wonder how many of you want the government rummaging through your cell phone or eavesdropping on your calls?