Cal. 2d: Search incident of cellphone for text messages 90 minutes after arrest was valid

Defendant’s cellphone was seized from his person at the time of arrest, and it was searched incident to the arrest 90 minutes later. It was valid as a search incident. People v. Diaz, 165 Cal. App. 4th 732, 81 Cal. Rptr. 3d 215 (2d Dist. 2008). The court explains the rationale for cellphone search incident:

(3) In reliance upon this authority, courts have upheld delayed warrantless searches of wallets (see, e.g., United States v. Passaro (9th Cir. 1980) 624 F.2d 938, 944), purses (People v. Decker (1986) 176 Cal.App.3d 1247, 1252 [222 Cal. Rptr. 689]), address books (United States v. Rodriguez (7th Cir. 1993) 995 F.2d 776, 777–778) and pagers (United States v. Chan (N.D.Cal. 1993) 830 F.Supp. 531, 536). Recently, one federal court applied the same rationale in upholding the warrantless search of a cell phone seized from the defendant incident to his arrest. In rejecting the defendant’s claim that the search was not substantially contemporaneous with his arrest, the court stated: “In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. [Citations.] Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.” (United States v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7.) The court also rejected the defendant’s claim that his cell phone was a possession within his immediate control as contemplated by Chadwick, reasoning as follows: “Chadwick held that, [o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. [Citation.] Finley’s cell phone does not fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of his arrest.” (Ibid.)

(4) We reach the same result here. Cell phones may contain personal information, but so do wallets, purses and the like. The fact that electronic devices are capable of storing vast amounts of private information does not give rise to a legitimate heightened expectation of privacy where, as here, the defendant is subject to a lawful arrest while carrying the device on his person. Whether Diaz could have kept his cell phone in a briefcase or backpack is of no moment. Because he had the phone on his person at the time of his arrest, it was taken “out of the realm of protection from police interest” for a reasonable amount of time following the arrest. (United States v. Passaro, supra, 624 F.2d at p. 944; see also United States v. Edwards, supra, 415 U.S. at pp. 808–809 [“‘While the legal arrest of a person should not destroy the privacy of his premises, it does-for at least a reasonable time and to a reasonable extent-take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence’”].)

(5) Diaz also contends that “a cell phone text message search exceeds the original rationale for searches incident to arrest: to ensure officer safety and to preserve evidence that could be concealed or destroyed.” The United States Supreme Court has recognized, however, that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (United States v. Robinson, supra, 414 U.S. at p. 235.) In any event, “[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones or pagers.” (United States v. Mercado-Nava (D. Kan. 2007) 486 F.Supp.2d 1271, 1278.)