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A cell phone is not a package- a note about the Fourth Amendment

Posted by Josh M. Solberg | Aug 19, 2014 | 0 Comments

A nice editorial appeared in today's Los Angeles Times, stating the newspaper's support for a bill introduced in the California legislature by state Senator Mark Leno which would require police to obtain a warrant before searching a suspect's cell phone. This bill is in response to the California Supreme Court's misguided decision in People v. Diaz, in which it recently decided that, because a cell phone is just like any other container that a person might carry, police can search it's contents without a warrant, as an incident to a person's arrest.

The editorial doesn't question the rationale of the Supreme Court's opinion, probably because so many others have. I will too: how many other packages that a person can carry with them can contain evidence of past, confidential conversations?

Hmm, maybe a laptop, which is obviously, much more similar to a modern pda than, oh, say, a wallet, but not a single court  has decided that a laptop is akin to a wallet. Thus, our firm was able to successfully argue in a federal child pornography case that Border Protection agents couldn't hold a computer for an extended period of time and subject it to multiple forensic searches without getting a warrant.

The California Supreme Court disregarded common sense and sound reasoning in Diaz, in order to further the encroach of the modern police state into the personal liberties that our nation's founders held much more dear. It is good news that a legislator has taken the initiative to reign it in.

About the Author

Josh M. Solberg

Joshua M. Solberg possesses the keen analytical insight and attention to detail required of a successful Law & Motions practitioner. His understanding of the intricacies of federal and state Constitutional and criminal law, his tireless devotion to research and his ability to recognize winning issues make him an invaluable asset for those represented by The Criminal Defense Group.


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