Wednesday, January 5, 2011

Unreasonable Search and Seizure Okayed in California

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  So says the Fourth Amendment to the United States Constitution.

Keep that in mind when reading this story from the San Francisco Chronicle.  The story arises at the confluence of modern technology and the Fourth Amendment.  It seems that every human being on the planet these days is carrying a cell phone.  Typically one that does much more than make and receive telephone calls.  Modern "smart" phones contain schedules, photos, video, financial documentation or access to such information, contact lists, call histories, text and data files, music, and much, much more.  So what happens to those cell phones when a police officer confiscates it upon request.  In California at least, the police can seize it and search its contents, without any limit.

That ability has passed constitutional muster at the California Supreme Court.  Dissenting Justice Kathryn Mickle Werdegar aptly declared that "the decision allows police '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.'"

It is patently, unambiguously, and ridiculously unreasonable for police to search the entire contents of a person's cellular phone or computer without warrant upon an arrest for jaywalking - or anything else for that matter.

Look, I'm no ACLU liberal - and I doubt I've ever before been accused of that.  I don't believe that a drug dealer's Blackberry is sacrosanct.  However, I do believe in the Constitution and Bill of Rights.  If the police arrest a bad guy, and he's got a cell phone which likely has specific incriminating evidence on it, no problem.  Get a warrant!  Then have at it.  Without probable cause and a warrant, however, the police need to keep their nose out of folks "effects".

Thankfully, the California decision is not binding nationwide.  In fact, the Ohio Supreme Court issued a decision just over a year ago that reached the opposite conclusion.  The issue is now quite likely to wind up at the U.S. Supreme Court.  Keep your fingers crossed that the men and women in black robes will do their job and defend the Constitution whenever that time comes.

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