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Virginia Deane Abernethy, M.B.A., Ph.D., eclectic* "Eclectic" describes better than any degree, book, or article the news commentary on this website. Its origin could well be history lessons absorbed at my first school, Northlands, the highly regarded British ... more

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Last Updated on:
May 05, 2014

Parsing the Fourth Amendment
November 1, 2011

 

 

 
11/1/2011
Paper Treated Differently Than Smartphones in Automobile Searches
Courts, lawmakers wrestle with differing standards on whether warrant needed to search cell phone during a traffic stop.

NY Supreme Court, Appellate DivisionMotorists searched during a traffic stop may find their iPhone data electronically grabbed by police in ways that would not be possible or acceptable with written material. Some police departments, including the Michigan State Police, are equipped with a mobile forensics device able to extract images, videos, text messages and emails from smartphones. In some cases, the device is able to bypass password protection. Several states have been reluctant to curtail law enforcement access to this information.

In January the California Supreme Court ruled in California v. Diaz that a police officer did not need a warrant to read the text messages on a cell phone grabbed during a search incident to arrest. A Court of Appeal ruling in September (view opinion) found a Blackberry in an automobile was nothing more than a "container" subject to warrantless examination. Golden State lawmakers recoiled at the precedent being set and moved quickly to introduce legislation requiring police to obtain judicial approval before searching a phone. The state Senate approved the measure in June by a vote of 28-9 and the state Assembly unanimously passed it in August. Governor Jerry Brown (D), however, used his veto power last month to prevent the measure from becoming law.

"I am returning Senate Bill 914 without my signature," Brown wrote in his message to the Senate. "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections."

Nationwide, the courts do not agree on how such cases should be handled. On Tuesday, New York's Supreme Court, Appellate Division ruled that police had no right to read a driver's paper notebook during a search. The case began when a Suffolk County Police officer pulled over Cristobal Perez for driving while talking on his cell phone and weaving in his lane. Perez had been operating on a suspended license, so his car was impounded. Police did not wait to ask a judge for a warrant before reading the papers found in the vehicle. The state's second-highest court saw no reason why law enforcement could not wait for a judge.

"Here, the police officer's initial entry of the defendant's impounded car to leaf through notebooks located in the back seat was an unjustified unconstitutional search, and the notebooks and any information gleaned therein by the officer must be suppressed," the unanimous court ruled. "Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent."

Lawmakers in the Empire State have not addressed the issue of electronic searches. A copy of the New York decision is available in an 85k PDF file at the source link below.

Source: PDF File New York v. Perez (New York Supreme Court, Appellate Division, 10/25/2011)
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