Calif. bill wouldn't limit cell phone evidence

Calif. legislation would allow cell phone evidence even if officers extracted the information without asking a judge

By Bob Egelko
The San Francisco Chronicle

SAN FRANCISCO — Legislation that would require police to get a warrant before searching a cell phone wouldn't prevent prosecutors from introducing evidence of the phone's contents, even if officers defied the law and extracted the information without asking a judge.

The bill's author, state Sen. Mark Leno, D-San Francisco, acknowledged that his SB914 lacks the usual penalty for an illegal search - that the evidence be excluded from court. Because of a prosecution-sponsored ballot measure approved by California voters nearly 30 years ago that narrowed defendants' rights, the evidence could still be admitted. But Leno said he's confident that police will comply with the measure if it becomes law.

"I believe in the integrity of our law enforcement officers and have every reason to believe they will abide by the warrant requirement," Leno said in an interview this week.

SB914 would largely overturn a state Supreme Court ruling in January that allowed police to search the cell phones of people they arrested without first getting a warrant from a judge, based on probable cause that the phone held evidence of a crime.

The majority in the 5-2 ruling noted that officers have broad authority to conduct searches at the time of arrest and said arrestees lose their right of privacy over anything they carry when they're taken into custody.

Dissenters, and Leno, said the court ignored the amount of personal information that today's cell phones can store - much like a laptop computer, which police cannot search without a warrant.

The bill, supported by privacy rights groups and media organizations and opposed by police and prosecutors, cleared the state Senate last month and is awaiting an Assembly vote. Leno said he's not sure whether Gov. Jerry Brown would sign it.

Its scope is limited by a 1982 initiative, Proposition 8, which required California courts to admit all "relevant evidence" - that is, anything police find in a search that meets federal constitutional standards, regardless of state law.

Because the California court ruled that warrantless cell phone searches were constitutional under federal standards, prosecutors could still introduce evidence from those searches even if SB914 became law. Prop. 8 allowed the Legislature to exclude such evidence, but only by a two-thirds majority vote, a difficult requirement that Leno has not attempted to meet.

Victims of illegal searches, however, could sue police for damages.

Copyright 2011 San Francisco Chronicle

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