Ct.App. 2/6 B203034 Ventura County Super. Ct. No. 2007015733
The opinion of the court was delivered by: Chin, 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.
About 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."*fn1 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.
The Court of Appeal affirmed, finding that under governing high court precedent, because the cell phone "was immediately associated with [defendant's] person at the time of his arrest," it was "properly subjected to a delayed warrantless search." We granted defendant's petition for review.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Under this provision, as the United States Supreme Court has construed it, warrantless searches -- i.e., "searches conducted outside the judicial process, without prior approval by judge or magistrate" -- "are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.)
One of the specifically established exceptions to the Fourth Amendment's warrant requirement is "a search incident to lawful arrest." (United States v. Robinson (1973) 414 U.S. 218, 224 (Robinson).) This exception "has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. [Citation.]" (United States v. Edwards (1974) 415 U.S. 800, 802-803 (Edwards).) As the high court has explained: "When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless 'search of the arrestee's person and the area "within his immediate control" . . . .' [Citations.] [¶] Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the 'immediate control' area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. [Citations.]" (United States v. Chadwick (1977) 433 U.S. 1, 14-15 (Chadwick).)*fn2
The People argue that the warrantless search in this case of the cell phone's text message folder was valid as a search incident to defendant's lawful arrest.*fn3 Defendant disagrees, arguing that the search "was too remote in time" to qualify as a valid search incident to his arrest.*fn4 In making this argument, he emphasizes that the phone "was exclusively held in police custody well before the search of its text message folder."
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.)
In Chadwick, supra, 433 U.S. 1, the high court cut back on the seemingly broad rule Edwards had announced. In Chadwick, federal narcotics agents observed the defendants load a 200-pound, double-locked footlocker into the trunk of a car. Having probable cause to believe the footlocker contained illegal contraband, the agents arrested the defendants and transported them to a federal building, along with the car and the footlocker. There, 90 minutes after the arrest and without obtaining a warrant or consent, the agents opened the footlocker and found marijuana inside. (Chadwick, supra, at pp. 4-5.) The high court rejected the argument that the warrantless search was valid as a search incident to arrest. It first reaffirmed the principle that, because of "[t]he potential dangers lurking in all custodial arrests," police may conduct a warrantless search incident to arrest "whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence." (Id. at p. 14.) "However," the court explained, "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest,' [citation], or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (Id. at p. 15, italics added.) Under this principle, the court held, because "the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after [the defendants] were securely in custody," it could not "be viewed as incidental to the arrest or as justified by any other exigency." (Ibid.) In reaching this conclusion, the court did not overrule Robinson or Edwards, but distinguished them as involving warrantless searches "of the person" rather than searches "of possessions within an arrestee's immediate control." (Chadwick, at p. 16, fn. 10.) The former searches, the court explained, are "justified by" the "reduced expectations of privacy caused by the arrest"; the latter are not. (Ibid.) Thus, the defendants' "privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest." (Ibid.)
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. If it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. If it was not, then the search, because it was " 'remote in time [and] place from the arrest,' " "cannot be justified as incident to that arrest" unless an "exigency exist[ed]."*fn5 (Chadwick, supra, at p. 15.)
We hold that the cell phone was "immediately associated with [defendant's] person" (Chadwick, supra, 433 U.S. at p. 15), and that the warrantless search of the cell phone therefore was valid. As the People explain, the cell phone "was an item [of personal property] on [defendant's] person at the time of his arrest and during the administrative processing at the police station." In this regard, it was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant's coat pocket in Robinson, and it was unlike the footlocker in Chadwick, which was separate from the defendants' persons and was merely within the "area" of their " 'immediate control.' " (Chadwick, supra, 433 U.S. at p. 15.) Because the cell phone was immediately associated with defendant's person, Fazio was "entitled to inspect" its contents without a warrant (Robinson, supra, 414 U.S. at p. 236) at the sheriff's station 90 minutes after defendant's arrest, whether or not an exigency existed.*fn6
In arguing otherwise, defendant first asserts that, in deciding whether his cell phone is "the equivalent of" the cigarette package in Robinson or the footlocker in Chadwick, we should focus on its "character," not on the mere fact he was carrying it on his person. As defendant interprets the high court cases, a warrant is necessary for a delayed search unless the seized item is "clothing, or an article or container typically kept on or inside of clothing, or otherwise by its very nature carried on the arrestee's person." For two reasons, defendant argues, cell phones do not meet these criteria. First, they "are not necessarily or routinely worn, carried in a pocket, or attached to a person or his clothes," but are "more often kept near [their] owner[s], within [their] reach . . . inside a briefcase, backpack, or purse, or on a car seat or table, or plugged into a power source, or stashed inside any manner of separate bags or carrying containers." Second, cell phones "contain quantities of personal data unrivaled by any conventional item of evidence traditionally considered to be 'immediately associated with the person of the arrestee,' such as an article of clothing, a wallet, or a crumpled cigarette box found in an arrestee's pocket," and therefore implicate heightened "privacy concerns" that warrant treating them "like . . . the footlocker in Chadwick."*fn7 The dissent endorses defendant's latter point, asserting that all cell phones should be exempt from the rule of Robinson, Edwards, and Chadwick, because the amount of personal information cell phones can store "dwarfs that which can be carried on the person in a spatial container." (Dis. opn. of Werdegar, J., post, at p. 8.)
The relevant high court decisions do not support the view that whether police must get a warrant before searching an item they have properly seized from an arrestee's person incident to a lawful custodial arrest depends on the item's character, including its capacity for storing personal information. As noted above, Chadwick explains that a delayed warrantless search "of the person" (Chadwick, supra, 433 U.S. at p. 16, fn. 10) -- which includes property "immediately associated with the person" at the time of arrest (id. at p. 15), but excludes property that is only "within an arrestee's immediate control" (id. at p. 16, fn. 10) -- is valid because of "reduced expectations of privacy caused by the arrest." (Ibid.) Robinson states that if a custodial arrest is lawful, then a "full" search of the arrestee's person "requires no additional justification." (Robinson, supra, 414 U.S. at p. 235.) Edwards states that "once 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." (Edwards, supra, 415 U.S. at p. 807.) Nothing in these decisions even hints that whether a warrant is necessary for a search of an item properly seized from an arrestee's person incident to a lawful custodial arrest depends in any way on the character of the seized item.
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. In United States v. Ross (1982) 456 U.S. 798, 825 (Ross), the court held that police who have probable cause to believe a lawfully stopped car contains contraband may conduct a warrantless search of any compartment or container in the car that may conceal the object of the search. As relevant here, the court stated that whether a particular container may be searched without a warrant does not depend on the character of the container, explaining: "[A] constitutional distinction between 'worthy' and 'unworthy' containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction." (Id. at p. 822, fn. omitted.) "The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted."*fn8 (Ross, at p. 824.) In New York v. Belton (1981) 453 U.S. 454 (Belton), the court held that police making a lawful custodial arrest of a car's occupant "may, as a contemporaneous incident of that arrest," "examine the contents of any containers found within the passenger compartment." (Id. at p. 460, italics added.) As relevant here, the court rejected the proposition that whether a particular container may be searched without a warrant depends on the extent of the arrestee's reasonable expectation of privacy in that container, explaining: "[A]ny container . . . [in] the passenger compartment . . . may . . . be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."*fn9 (Belton, at pp. 460-461, italics added.) Under Ross, Belton, and the other high court decisions discussed above, there is no legal basis for holding that the scope of a permissible warrantless search of an arrestee's person, including items immediately associated with the arrestee's person, depends on the nature or character of those items.
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.*fn10 If, as the high court held in Ross, "a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [has] an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case" (Ross, supra, 456 U.S. at p. 822), then travelers who carry sophisticated cell phones have no greater right to conceal personal information from official inspection than travelers who carry such information in "small spatial container[s]."*fn11 (Dis. opn. of Werdegar, J., post, at p. 3) And if, as the high court held in Belton, differing expectations of privacy based on whether a container is open or closed are irrelevant to the validity of a warrantless search incident to arrest (Belton, supra, 453 U.S. at p. 461), then differing expectations of privacy based on the amount of information a particular item contains should also be irrelevant. Regarding the quantitative analysis of defendant and the dissent, the salient point of the high court's decisions is that a "lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have" in property immediately associated with his or her person at the time of arrest (ibid., italics added), even if there is no reason to believe the property contains weapons or evidence (Robinson, supra, 414 U.S. at p. 235). Third, even were it true that the amount of personal information some cell phones can store "dwarfs that which can be carried on the person in a spatial container" (dis. opn. of Werdegar, J., post, at p. 8) -- and, again, the record contains no evidence on this question -- defendant and the dissent fail to explain why this circumstance would justify exempting all cell phones, including those with limited storage capacity, from the rule of Robinson, Edwards, and Chadwick.*fn12 A warrantless search, incident to a lawful arrest, of a cell phone with limited storage capacity does not become constitutionally unreasonable simply because other cell phones may have a significantly greater storage capacity.
Finally, adopting the quantitative approach of defendant and the dissent would create difficult line-drawing problems for both courts and police officers in the field. How would a court faced with a similar argument as to another type of item determine whether the item's storage capacity is constitutionally significant? And how would an officer in the field determine this question upon arresting a suspect? Defendant and the dissent offer no guidance on these questions. Their approach would be "inherently subjective and highly fact specific, and would require precisely 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. U.S. (2004) 541 U.S. 615, 623; see also Belton, supra, 453 U.S. at pp. 458-459.) Similar concerns led the high court in Robinson to adopt the "straightforward," "easily applied, and predictably enforced" rule that " 'a full [warrantless] search of the person' " is constitutionally permissible, and to "reject the suggestion that 'there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.' [Citation.]" (Belton, supra, 453 U.S. at p. 459, quoting Robinson, supra, 414 U.S. at p. 235.) Adopting the quantitative approach of defendant and the dissent, under which the validity of a warrantless search would turn on the amount of personal information a particular item might contain, would be contrary to these high court precedents. (See U.S. v. Murphy (4th Cir. 2009) 552 F.3d 405, 411 [in upholding warrantless search incident to arrest, refusing to distinguish cell phones based on their "large" storage capacity because of difficulty quantifying that term "in any meaningful way"].)
Defendant next argues that, in determining whether a warrant was necessary, we should distinguish between the cell phone itself and its contents. According to defendant, "[t]here is little about a cell phone's content that is conceptually linked to or inextricably associated with the physical body or the inherent attributes of the arrestee's person. A cell phone's data content is not at all like a pair of pants or even a piece of paper folded up inside a wallet that has been tucked inside the pocket of a pair of pants." It "cannot be worn or 'carried' on one's person." "[T]he nature of the evidence that a cell phone may contain, and the fact that the cell phone 'container' is readily differentiated from the cell phone 'content,' warrants treating the cell phone content differently from the seized cell phone itself." The dissent makes a similar argument, distinguishing between "the arrestee's actual person" and the cell phone's content -- i.e., the stored data -- and ...