More on search warrants and electronic data

Varying a bit from this item, last week the California state Supreme Court decided that police can seize and search a mobile device that an suspect has with him when he’s arrested.

This differs from the first decision in a couple of ways. For one thing, the former was by the U.S. Sixth Circuit Court of Appeals, a court that covers Michigan, Ohio, Kentucky, and Tennessee; California is covered by the Ninth Circuit, and the Sixth Circuit’s decision is not binding there. For another, this decision is by a state court, not a federal one, so it applies in the state of California only.

But more significantly, this is specifically about things that someone who’s arrested has on his person at the time of arrest. The decision is based on a more general rule that police are allowed to examine whatever a suspect has when he’s arrested:

Under U.S. Supreme Court precedents, this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body ... but also to open and examine what they find, the state court said in a 5-2 ruling.

The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.

As in many other cases, this highlights a need to be clear that data storage devices and devices that can access online information are not like cigarette packages and clothing. I don’t think any of us doubt that the police can and should look for cocaine hidden in a cigarette pack, or a switchblade in the back trouser pocket. But if I’m carrying my laptop when I’m arrested, do they have reasonable access to all my stored email and other personal and financial information?

The minority of two justices say no, as do I:

The dissenting justices said those rulings shouldn’t be extended to modern cell phones that can store huge amounts of data.

Monday’s 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, said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.

They argued that police should obtain a warrant - by convincing a judge that they will probably find incriminating evidence - before searching a cell phone.

The courts need to sort out these differences, and set up a legal understanding of where personal effects end and private data begins. Unfortunately, the current U.S. Supreme Court does not have the composition to come up with a reasonable answer to that question.