Attorneys for a San Francisco man are trying to set a legal precedent that would force police to obtain a search warrant before going through the cell phone of a person who has been arrested.
The issue is a highly contested one because technology has made it possible to carry a wide array of personal information on phones, including photos, e-mail messages and documents such as tax returns, attorneys said.
Under current state law, police can search cell phones at the time they arrest someone. However, privacy advocates say that is a violation of a person's Fourth Amendment rights, which guard against unreasonable search and seizure.
A San Mateo County Superior Court judge will consider the issue at a hearing Thursday. A separate but similar case is currently before the California Supreme Court.
The San Mateo case began Nov. 4, when Daly City police arrested 32-year-old Christian Taylor on suspicion of identity theft after officials said he tried to buy 30 BlackBerrys at a Sprint PCS store with someone else's personal information.
His co-attorney, Marcia Hofmann of the digital watchdog group Electronic Frontier Foundation, said the phones were for his business, Hype Univercity Online, which helps put celebrity photos on prepaid Visa cards. County prosecutor Chris Feasel argued that Taylor was on parole for identity theft at the time, has a history of theft convictions and had already been turned away by a suspicious clerk after
Hours after the arrest, Daly City police began to look through Taylor's phone in search of evidence, Hofmann said. Based on what they found, the officers asked for and received a warrant to do a complete search of the phone.
Police are allowed to do a limited search of a suspect's phone when they think it might contain information relevant to the investigation, Feasel said. They have to get a warrant to go further, he added. In this case, police thought the man's phone might be part of the plan to buy the phones illegally.
However, Hofmann said the police went on a fishing expedition through Taylor's phone to see if they could find any evidence. When they found something they were interested in, they finally obtained a warrant, which she said violated Taylor's Fourth Amendment rights. She wants the judge to toss out the search warrant and any evidence pulled from Taylor's phone. She hopes a victory will set a precedent.
"It's the fruit of the poisonous tree," she said, referring to evidence that's been collected improperly. "You shouldn't be allowed to do an illegal search and use that to justify a legal search after the fact."
This case and others like it shine a light on the legal effects of a technological revolution. When search and seizure rules were formulated, devices such as the iPhone didn't exist. Now that they are here, the judicial system has to catch up, said Ryan Calo, a residential fellow at the Stanford University Center for Internet and Society.
"Similar questions are popping up all over the place," he added.
Police are allowed to search a person in order to keep that person from destroying evidence or bringing contraband into a jail, he noted. They can seize a phone as well, but they should turn the phone off and wait for a warrant before searching it, Calo said.
One of those cases is before the California Supreme Court, and it involves a man convicted in 2008 of selling Ecstasy pills to an undercover officer in Thousand Oaks. Gregory Diaz is fighting his conviction, saying the police used information illegally taken from his cell phone in their case against him. Prosecutors expect a decision sometime this year, said Steve Wagstaffe, San Mateo County's chief deputy district attorney.
"It would mean we would have to go through the warrant process every time," he said regarding possible consequences of a rule banning the cursory searches. "It consumes resources and time."