The state’s highest court reversed course and ruled that officers could not search cell phones unless they had probable cause to believe that a crime had occurred.
People v. Macabeo is a case that originated here in the Los Angeles area. Two Torrance detectives pulled over Paul Macabeo on his bicycle after he rolled through a stop sign. He was neither riding erratically nor trying to evade the officers, but it was rather late at night. The detectives immediately grilled Mr. Macabeo about his probation status, even though they had no reason to believe that he even had a criminal record. Mr. Macabeo, who had indeed been recently discharged from probation, answered the officers’ questions but gave somewhat inconsistent and uncertain responses; one officer later testified that Mr. Macabeo was “fidgety.” Immediately thereafter, the officers ordered him over to the squad car, and when Mr. Macabeo asked if he was under arrest, one officer simply responded “I’ll explain everything in a second.” Mr. Macabeo gave the officers permission to search his pockets, and they also searched his phone. After about ten minutes, an officer said he found no suspicious text messages but he did find pictures of underage girls, and so they arrested Mr. Macabeo for possession of child pornography.
At trial, the judge essentially agreed that the officers had no probable cause to search Mr. Macabeo, especially since before they found the pictures, they discovered that he had been discharged from probation seven months earlier. Nevertheless, the judge ruled that since the officers had the right to arrest Mr. Macabeo, the phone’s images were admissible as a search incident to an arrest. The Court of Appeals reached basically the same result.
Writing for a unanimous court, Justice Carol Corrigan observed that although the United States Supreme Court has consistently held that a search incident to an arrest is an exception to the warrant requirement, that same law holds that each incident must be evaluated on a case-by-case basis. Furthermore, in most cases, police may only seize items in such cases that are germane to the arrest, such as weapons or criminal instruments. That’s because such searches are really to protect officer safety, and images on a computer are not threatening. Finally, the court recently held that individuals have a heightened privacy interest in their cell phones.
Previous California Law
Macabeo runs directly counter to 2011’s People v. Diaz, which is the last time this court addressed warrantless cell phone searches. In that case, which involved an illegal drug sale, the court held that officers could conduct warrantless searches to protect themselves in the field and to prevent evidence from disappearing. Similarly, such searches do not require probable cause, so under this logic, any arrest for any crime or infraction could justify an intrusive search.
The court was slightly troubled by the fact that officers had to navigate through several parts of the phone to find an incriminating text message, but the justices allowed the search.
So why the sudden reversal? Although Diaz is only about five years old, a lot has happened in those five years. First, the United States Supreme Court implicitly overruled Diaz in Riley v. California. In that case, the Justices unanimously overturned a conviction in a San Diego County case in which officers obtained, inter alia, pictures, phone contacts, and video clips that pointed to Mr. Riley’s membership in a local street gang. Second, cell phones have changed a lot in the last few years. When Gregory Diaz was arrested in Ventura County in 2007, most people still had feature phones that had limited memory and rudimentary functionality. Today, almost everyone has a smartphone, and searching through a smartphone is much more invasive.
The Next Step
Riley is significant for another reason, because 2014 is that last time that the Supreme Court sided against law enforcement in a major case. Most recently, in April 2016, the Court handed down Birchfield v. North Dakota, a case that partially upheld so-called “refusal to submit” laws that make it a crime to refuse chemical tests in DUI cases. The case started out very ominously for defense attorneys, with Justice Samuel Alito stating that “Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.” With that in mind, the Court basically ruled that administrative license suspension was not a sufficient punishment to give people incentive to submit to chemical tests. While the Court upheld refusal-to-submit laws as applied to breath tests, it did rule that officers still needed search warrants to perform blood draws.
Given the fact that the new Republican president will almost certainly select a conservative Justice to fill the late Antonin Scalia’s seat, if the cell phone search question goes back before the Court, it will be interesting to see how the majority rules.
Search and seizure law is constantly changing. For a free consultation with an experienced criminal defense attorney in Los Angeles, contact the Rodriguez Law Group. Mr. Rodriguez is a former prosecutor who has handed thousands of cases.