California holds that a cell phone text message folder can be seized incident to arrest, 90 minutes into the arrest finding “binding Supreme Court authority,” albeit cases from the '70's before cell phones were even imagined. The police arrested the defendant after listening to an ecstacy sale on a wire. The cell phone was removed from his person. At the police station, the officer manipulated the phone to find the text message folder which had incriminating messages. People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 (2011):

Resolution of this issue depends principally on the high court’s decisions in Robinson, Edwards, and Chadwick. In Robinson, a police officer arrested the defendant for driving with a revoked operator’s permit. (Robinson, supra, 414 U.S. at p. 220.) The officer conducted a patdown search and felt an object he could not identify in the breast pocket of the defendant’s coat. He removed the object, which turned out to be a crumpled up cigarette package. He felt the package and determined it contained objects that were not cigarettes. He then opened the package and found 14 heroin capsules. (Id. at pp. 222-223.) The high court held that the warrantless search of the package was valid under the Fourth Amendment. (Robinson, supra, at p. 224.) It explained that, incident to a lawful custodial arrest, police have authority to conduct “a full search of the [arrestee’s] person.” (Id. at p. 235.) This authority, the court continued, exists whether or not the police have reason to believe the arrestee has on his or her person either evidence or weapons. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search [of the person] incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and ... 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.” (Ibid.) Applying these principles, the court held: “The search of [the defendant‟s] person ... and the seizure from him of the heroin, were permissible under established Fourth Amendment law. ... Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. [Citations.]” (Id. at p. 236, fns. omitted.)

In Edwards, after lawfully arresting the defendant late one night for attempting to break into a post office, police took him to jail and placed him in a cell. (Edwards, supra, 415 U.S. at p. 801.) Ten hours later, suspecting that his clothes might contain paint chips from the window through which he had tried to enter, police made the defendant change into new clothes and held his old ones as evidence. (Id. at p. 802; see also id. at p. 810 (dis. opn. of Stewart, J.).) Subsequent examination of the old clothes revealed paint chips matching samples taken from the window. (Id. at p. 802.) The high court held that both the warrantless seizure of the clothes and the warrantless search of them for paint chips were valid as a search incident to lawful arrest. (Id. at pp. 802-809.) It expressly rejected the argument that, because the search occurred “after the administrative mechanics of arrest ha[d] been completed and the prisoner [was] incarcerated,” the search of the clothes was too remote in time to qualify as a search incident to arrest. (Id. at p. 804.) The court explained: “[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” (Id. at pp. 807-808, fns. omitted, italics added.)

. . .

Under these decisions, the key question in this case is whether defendant’s cell phone was “personal property ... immediately associated with [his] person” (Chadwick, supra, 433 U.S. at p. 15) like the cigarette package in Robinson and the clothes in Edwards. ...

. . .

Moreover, in analogous contexts, the high court has expressly rejected the view that the validity of a warrantless search depends on the character of the searched item. ...

. . .

Regarding the particular focus of defendant and the dissent on the alleged storage capacity of cell phones, for several reasons, the argument is unpersuasive. First, the record contains no evidence regarding the storage capacity of cell phones in general or of defendant’s cell phone in particular. Second, neither defendant nor the dissent persuasively explains why the sheer quantity of personal information should be determinative. Even “small spatial container[s]” (dis. opn. of Werdegar, J., post, at p. 3) that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries.

Also note 6:

Given our conclusion, we need not address the People‟s argument that an exigency existed because a cell phone‟s contents “are dynamic in nature and subject to change without warning — by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the “cleanup‟ function on the cellular phone, which limits the length of time messages are stored before they are automatically deleted.” We note, however, that the People have offered no evidence to support this claim. Nor have they offered evidence as to whether text messages deleted from a cell phone may be obtained from the cell phone‟s provider. (See Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183, 199 [“text messages are feasibly accessible for about two weeks from the cellular provider”].)

Also mentioned in note 12 was the use of disposable cell phones by drug dealers. In note 17, the court compares other decisions:

Only a few published decisions exist regarding the validity of a warrantless search of a cell phone incident to a lawful custodial arrest. Most are in accord with our conclusion. (See, e.g., United States v. Murphy, supra, 552 F.3d at p. 412 [citing Edwards in holding that “once [the defendant’s] cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents ... without seeking a warrant”]; United States v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7 [arrestee's cell phone “does not fit into [Chadwick’s] category of „property not immediately associated with [his] person? because it was on his person at the time of his arrest”]; United States v. Wurie (D. Mass. 2009) 612 F.Supp.2d 104, 110 [upholding delayed search of cell phone, finding “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that” have been upheld under Edwards].)

In a closely divided (four to three) opinion, the Supreme Court of Ohio held otherwise, reasoning that “because a person has a high expectation of privacy in a cell phone’s contents,” police, after seizing a cell phone from an arrestee?s person, “must ... obtain a warrant before intruding into the phone's contents.” (State v. Smith (Ohio 2009) 920 N.E.2d 949, 955.) The Ohio court's focus on the extent of the arrestee’s expectation of privacy is, as previously explained, inconsistent with the high court’s decisions.

The court seems handcuffed by its constitutional limitations on following SCOTUS cases. It is hard to believe this is the court that came up with the gay marriage case a few years ago.

I go with the dissent on this one because the Supreme Court's cases all predate technology, and a cell phone is more like a computer than a mere “small spatial container”:

The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user’s telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.

Although the record does not disclose the type of mobile phone defendant possessed, I discuss smartphones as well as other mobile phones for two reasons. First, the rule adopted by the majority — that an electronic device carried on the person is for Fourth Amendment purposes indistinguishable from an individual's clothing or a small spatial container — is broad enough to encompass all types of handheld electronic data devices, including smartphones such as iPhones and BlackBerry devices, as well as other types of handheld computers. While I disagree with the majority’s holding on the validity of the search here, I agree that the permissibility of a search incident to arrest should not depend on the features or technical specifications of the mobile device, which could be difficult to determine at the time of arrest. Second, smartphones make up a growing share of the United States mobile phone market and are likely to be pervasive in the near future. (See Gershowitz, The iPhone Meets the Fourth Amendment, supra, 56 UCLA L.Rev. at p. 29 [“It does not take a crystal ball to predict that such devices will be ubiquitous in the United States within a few years.”].) The question of when and how they may be searched is therefore an important one.

Hat tip to PogoWasRight. See Forbes Blog Why Your Cell Phone Is More Private in Ohio than in California.