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PEOPLE v. DIAZ
51 Cal.4th 84 (2011)
THE PEOPLE, Plaintiff and Respondent,
v.
GREGORY DIAZ, Defendant and Appellant.
No. S166600.
Supreme Court of California.
January 3, 2011.
Lyn A. Woodward, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Lawrence M. Daniels, Paul M. Roadarmel, Jr., and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINIONCHIN, J.— We granted review in this case to decide whether the Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. We hold that, under the United States Supreme Court's binding precedent, such a search is valid as being incident to a lawful custodial arrest. We affirm the Court of Appeal's judgment. FACTUAL BACKGROUNDAbout 2:50 p.m. on April 25, 2007, Senior Deputy Sheriff Victor Fazio of the Ventura County Sheriff's Department witnessed defendant Gregory Diaz
participating in a police informant's controlled purchase of Ecstasy. Defendant drove the Ecstasy's seller to the location of the sale, which then took place in the backseat of the car defendant was driving. Immediately after the sale, Fazio, who had listened in on the transaction through a wireless transmitter the informant was wearing, stopped the car defendant was driving and arrested defendant for being a coconspirator in the sale of drugs. Six tabs of Ecstasy were seized in connection with the arrest, and a small amount of marijuana was found in defendant's pocket. Defendant had a cell phone on his person. Fazio transported defendant to a sheriff's station, where a detective seized the cell phone from defendant's person and gave it to Fazio. Fazio put it with the other evidence and, at 4:18 p.m., interviewed defendant. Defendant denied having knowledge of the drug transaction. After the interview, about 4:23 p.m., Fazio looked at the cell phone's text message folder and discovered a message that said "6 4 80."1 Based on his training and experience, Fazio interpreted the message to mean "[s]ix pills of Ecstasy for $80." Within minutes of discovering the message (and less than 30 minutes after the cell phone's discovery), Fazio showed the message to defendant. Defendant then admitted participating in the sale of Ecstasy. Defendant was charged with selling a controlled substance (Health & Saf. Code, § 11379, subd. (a)). He pleaded not guilty and moved to suppress the fruits of the cell phone search—the text message and the statements he made when confronted with it—arguing that the warrantless search of the cell phone violated the Fourth Amendment. The trial court denied the motion, explaining: "The defendant was under arrest for a felony charge involving the sale of drugs. His property was seized from him. Evidence was seized from him. [¶] . . . [I]ncident to the arrest[,] search of his person and everything that that turned up is really fair game in terms of being evidence of a crime or instrumentality of a crime or whatever the theory might be. And under these circumstances I don't believe there's authority that a warrant was required." Defendant then withdrew his not guilty plea and pleaded guilty to transportation of a controlled substance. The trial court accepted the plea, suspended imposition of sentence, and placed defendant on probation for three years.
1. Fazio had to manipulate the phone and go to several different screens to access the text message folder. He did not recall whether the cell phone was on when he picked it up to look through it.
2. The area within an arrestee's immediate control is "`the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.' [Citations.]" (Chadwick, supra, 433 U.S. at p. 14.)
3. The People do not contest that defendant had a protected expectation of privacy in the contents of his text message folder. For purposes of this opinion, we therefore assume defendant had such an expectation, and do not consider the issue.
4. Defendant does not question the legality of either his arrest or his phone's warrantless seizure. He challenges only the validity of the warrantless search of the phone's text message folder.
5. The approximately 90-minute delay between defendant's arrest and the search of his cell phone was substantially similar to the 90-minute delay the high court held to be too remote in Chadwick.
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"].)
7. Defendant's argument implicitly recognizes that courts commonly hold that delayed warrantless searches of wallets found on arrestees' persons are valid searches incident to arrest. (See, e.g., U.S. v. Passaro (9th Cir. 1980) 624 F.2d 938, 943-944.)
8. In reaching this conclusion, the high court in Ross rejected the view of several lower court judges who had concluded that, based on differing expectations of privacy, the warrantless search of a brown paper bag in Ross's stopped car was valid, but the warrantless search of a zippered leather pouch was not. (Ross, supra, 456 U.S. at p. 802.)
9. In Arizona v. Gant (2009) 556 U.S. ___, ___ [173 L.Ed.2d 485, 129 S.Ct. 1710, 1714], the high court limited Belton, supra, 453 U.S. 454, by holding that police may not search containers in a vehicle's passenger compartment "incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle," unless "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." At the same time, the court reaffirmed Belton's holding that whether a particular container may be searched does not depend on its character or the extent of the arrestee's expectation of privacy in it. (Gant, 556 U.S. at p. ___ [129 S.Ct. at p. 1720] [in permissible warrantless search, police may search "every purse, briefcase, or other container within" the car's passenger compartment].) Gant is not otherwise relevant here, as it involved a search of the area within an arrestee's immediate control, not of the arrestee's person. (Id. at p. ___ [129 S.Ct. at p. 1714].)
10. The dissent does not question that police may examine personal photographs found upon an arrestee's person, but objects that the high court has not held that police may read the contents of a letter or diary seized from an arrestee's person. (Dis. opn. of Werdegar, J., post, at p. 109, fn. 8.) However, several of the court of appeals decisions the high court in Edwards cited with approval on the issue of delayed searches (Edwards, supra, 415 U.S. at pp. 803-804, fn. 4) upheld the warrantless examination, incident to arrest, of diaries or personal papers found upon the arrestee's person. (See U.S. v. Gonzalez-Perez (5th Cir. 1970) 426 F.2d 1283, 1285-1287 [papers contained in pockets, wallets, and purse]; U.S. v. Frankenberry (2d Cir. 1967) 387 F.2d 337, 339 [diary]; Cotton v. U.S. (9th Cir. 1967) 371 F.2d 385, 392 [papers contained in pockets]; Grillo v. U.S. (1st Cir. 1964) 336 F.2d 211, 213 [paper contained in wallet].)
11. Were the rule otherwise, those carrying small spatial containers, which are legally subject to seizure and search if found upon the person at the time of arrest, would find little solace in discovering that their intimate secrets would have been protected if only they had used a device that could hold more personal information.
12. According to the United States Department of Justice, drug traffickers commonly use disposable cell phones, because they are relatively inexpensive and difficult to trace. (National Drug Intelligence Center, United States Department of Justice, Midwest High Intensity Drug Trafficking Area Drug Market Analysis 2009 (Mar. 2009) <http://www.justice.gov/ ndic/pubs32/32775/distro.htm> [as of Jan. 3, 2011].) Such phones have limited storage capacity. (Ferro, Cell phones: disposable mobile phone finally hits the US (May 31, 2008) TECH.BLORGE Technology News <http://tech.blorge.com/Structure:%20/2008/05/31/cell-phones-disposable-mobile-phones-finally-hits-the-us/> [as of Jan. 3, 2011].)
13. Defendant insists that Edwards is "limited by its facts to the delayed search of an article of clothing." However, the court's discussion more broadly addressed "other belongings" (Edwards, supra, 415 U.S. at p. 804) and "effects in [the arrestee's] possession" (id. at p. 807). We do not consider ourselves free to disregard this discussion, especially in light of Robinson, which did not involve clothing, and Chadwick, which reaffirmed the validity of delayed warrantless searches of "personal property . . . immediately associated with the person of the arrestee." (Chadwick, supra, 433 U.S. at p. 15.) Defendant alternatively suggests that Edwards validates delayed warrantless searches only of "`effects still in the defendant's possession at the place of detention, such as the defendant's clothing.'" Again, the high court's opinion is not so limited; the court stated that a delayed warrantless search is valid "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." (Edwards, supra, at p. 807.)
14. The word "container" does not appear in Robinson and Edwards. It appears once in Chadwick, in a footnote where the high court explained that the defendant's principal privacy interest in the footlocker was "not in the container itself . . . but in its contents." (Chadwick, supra, 433 U.S. at pp. 13-14, fn. 8.)
15. The high court did discuss containers in the decisions we have cited as involving "analogous contexts." (Ante, at p. 95.) In this respect, our analysis is consistent with the weight of authority. (State v. Boyd (2010) 295 Conn. 707 [992 A.2d 1071, 1089, fn. 17] ["A number of courts have analogized cell phones to closed containers and concluded that a search of their contents is, therefore, valid under the automobile exception or the exception for a search incident to arrest."].) Moreover, contrary to the dissent's analysis, nothing in these analogous decisions purports to limit the rule of Robinson, Edwards, and Chadwick to property that classifies as a container.
16. Not satisfied with the high court's explicit explanations, the dissent, citing just two of the 20 court of appeals decisions Edwards string-cited on the point (see Edwards, supra, 415 U.S. at pp. 803-804, fn. 4), asserts that the high court's "rationale is to avoid logistically awkward or embarrassing public searches." (Dis. opn. of Werdegar, J., post, at p. 107.) This assertion finds no support in the language of the high court's decisions, no doubt because making the validity of a delayed search turn on the logistics or potential embarrassment of a public search would, like the dissent's quantitative approach, require "the sort of ad hoc determinations on the part of officers in the field and reviewing courts" that the high court has condemned. (Thornton v. United States, supra, 541 U.S. at p. 623.)
17. 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., U.S. 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"]; U.S. 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"]; U.S. 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 (2009) 124 Ohio St.3d 163 [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.
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. The separately concurring justice correctly observes that we must follow directly applicable decisions from the United States Supreme Court even if we think them due for reexamination. (Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 484 [104 L.Ed.2d 526, 109 S.Ct. 1917].) But where high court precedent is not on all fours with the case at bar, we also must remember that the language of Supreme Court decisions is to "be read in the light of the facts of the case under discussion" and that "[g]eneral expressions transposed to other facts are often misleading." (Armour & Co. v. Wantock (1944) 323 U.S. 126, 133 [89 L.Ed. 118, 65 S.Ct. 165].) Indeed, the Supreme Court recently emphasized that stare decisis should not be used "to justify the continuance of an unconstitutional police practice. . . . in a case that is so easily distinguished from the decisions that arguably compel it." (Arizona v. Gant (2009) 556 U.S. ___, ___ [173 L.Ed.2d 485, 499, 129 S.Ct. 1710, 1722].)
The facts of the present case, as I will explain, differ in important respects from those that gave rise to the United States Supreme Court decisions in Robinson, Edwards and Chadwick. These precedents, therefore, provide no basis for evading this court's independent responsibility to determine the constitutionality of the search at issue. While we of course have no authority to overrule them, we may and should refrain from applying their language blindly to new and fundamentally different factual circumstances.
2. PCMag.com's online encyclopedia defines a smartphone as "[a] cellular telephone with built-in applications and Internet access. Smartphones provide digital voice service as well as text messaging, e-mail, Web browsing, still and video cameras, MP3 player and video and TV viewing. In addition to their built-in functions, smartphones can run myriad applications, turning the once single-minded cellphone into a mobile computer." (<http://www.pcmag.com/encyclopedia_term/0,2542,%20t=Smartphone&i=51537,00.asp> [as of Jan. 3, 2011].)
3. Apple's iPhone 4, HTC's Droid Incredible, and the BlackBerry Torch all can store up to 32 gigabytes of data, which could include thousands of images or other digital files. (See <http://www.apple.com/iphone/specs.html>; <http://www.htc.com/us/products/droid-incredible-verizon?view=1-1&sort=0#tech-specs>; and <http://us.blackberry.com/smartphones/blackberrytorch/#!phone-specifications> [all as of Jan. 3, 2011].) On the capabilities of smartphones generally, see Gershowitz, The iPhone Meets the Fourth Amendment (2008) 56 UCLA L.Rev. 27, 29-30.
4. But see Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183, 222 (proposing to distinguish smartphones from "older generation cellular phones" by presence of a touch screen or full keyboard, and to impose stricter limits on searches of smartphones).
5. In the third quarter of 2010 alone, for example, more than 20 million smartphones were reportedly sold in the United States, up from about 14.5 million in the second quarter of 2010 and 9.7 million in the same quarter of 2009. (Bilton, The Race to Dominate the Smartphone Market, the New York Times Bits Blog (Nov. 1, 2010) <http://bits.blogs.nytimes.com/2010/11/01/apple-and-google-excel-in-u-s-smartphone-growth/> [as of Jan. 3, 2011]; Hamblen, OS war has Android on top in U.S. smartphone sales (Aug. 12, 2010) Computerworld <http://www.computerworld.com/s/article/9180624/OS_war_has_Android_on_top_in___U.S.___ smartphone_sales> [as of Jan. 3, 2011].)
6. Defendant did not challenge the seizure of his phone, only the search of the data stored on it. Nor do I contend the police needed a warrant or probable cause to take defendant's phone from him and secure it. Once secured, the phone could have been searched later if a warrant, founded on probable cause, issued for the search.
7. At oral argument, the Attorney General noted that data on some smartphones can be remotely wiped, which might allow an accomplice to destroy evidence on the phone even while the arrestee remains in custody and the phone in police control. As an argument for warrantless searching, this proves too much. A suspect arrested in his or her home or office might also leave behind a computer with evidence that could be destroyed by an accomplice while the arrestee is in custody, but this possibility does not entitle police to search the contents of such computers without probable cause or a search warrant. In either circumstance (home computer or handheld computer) an immediate search without waiting for a warrant might be desirable from the perspective of efficient policing, but "the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment." (Mincey v. Arizona (1978) 437 U.S. 385, 393 [57 L.Ed.2d 290, 98 S.Ct. 2408].) In any event, it appears that remote wiping can be avoided by removing the smartphone's battery and/or storing the phone in a shielded container, as law enforcement officers are being trained to do. (See Grubb, Remote wiping thwarts secret service, ZDNet (Australian ed., May 18, 2010) <http://www.zdnet.com.au/remote-wiping-thwarts-secret-service-339303239.htm> [as of Jan. 3, 2011].)
8. The majority observes that substantial private information can be carried in the nondigital forms of letters and diaries. (Maj. opn., ante, at p. 96.) Implicit in the majority's argument is the assumption that police may not only take a letter or diary from an arrestee and inventory it, but may, without a warrant, read through all of its contents. Neither this court nor the United States Supreme Court has so held.
9. The Belton court stated: "`Container' here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." (New York v. Belton, supra, 453 U.S. at pp. 460-461, fn. 4.) As Belton clearly spoke only of objects physically containing other objects, the majority's reliance on that case for the proposition that any "container," whatever the extent of the arrestee's expectation of privacy in it, may be searched incident to arrest (maj. opn., ante, at p. 95) is misplaced when it comes to mobile phones and other electronic communication and data storage devices. Still less on point is United States v. Ross (1982) 456 U.S. 798 [72 L.Ed.2d 572, 102 S.Ct. 2157], which did not even involve a search incident to arrest. That the high court in Ross declined to distinguish among probable cause searches of "paper bags, locked trunks, lunch buckets, and orange crates" carried in automobiles (id. at p. 822) hardly requires that an arrestee's mobile phone, smartphone or handheld computer be treated the same as clothing or a crumpled cigarette package.
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