Can the police search my phone in San Diego?

Cell phone searches are a hot topic right now especially in California.  Riley v. California, which was a landmark 2014 Supreme Court case that originated in San Diego, is the case that started the litigation about cell phone searches. In Riley, the court said that officers need a search warrant to search someone’s phone even if that person has been lawfully arrested of a crime. The court felt that there is so much personal and private information in a cell phone that it is not something that police should just be able to automatically go through. The court said that we have a “reasonable expectation of privacy” in our cell phones and to search them without a warrant would be terribly invasive, citing the 4th amendment of the US constitution, which protects against unreasonable searches and seizures.  

In October 2015 Jerry Brown the governor of California took this even one step further signing into law the California Electronic Communications Privacy Act, which has been said to be maybe only the second or third privacy act like this in the United States. It explains that law enforcement needs to get a warrant to search phones no matter what, even if that person is on probation. However, the San Diego Courts disagree with this decision and were not happy that the governor was writing laws and now require a waiver of this act for each person who pleads guilty.

 Now recently with the San Bernardino shootings, Apple has come under fire because they are saying they do not want to create software in order to unlock a cell phone. Apple does not have encryption software where they can just see inside peoples phones and the reason they don’t have that is because if there were a software breach or if that software got into the wrong hands then millions of not billions or people would have their personal information in jeopardy.

What is Apple’s argument against the FBI?

 Now Apple defense lawyers have two arguments that they are coming forward with. First that this violates the first amendment. They are saying that the coding they will have to produce is considered speech which would be compelled and in violation of the constitution. The first amendment protects against compelled speech. For example, no one can ever be forced to say or do something they do not want to do. In recent years, the courts have ruled that websites and intellectual property has been considered speech. Apple wants to take this argument one step further and argue that the coding they would have to create would be another form of speech.

Second they also cite the Fifth Amendment claiming that this is a government intrusion. They are saying that this is in violation of the substantive law clause. They cite the substantive law clause but do not further expand on why they believe this really applies to this amendment.

What Apple should be arguing is that this is a violation of the 13th amendment. The FBI is asking to have Apple employees work for the FBI against their will. This would be against the prohibition laid out in the 13th amendment against involuntary servitude. The US government cannot make someone work against their will for the government and this is what they are doing. If the case goes to the Supreme Court, this may be one of the most viable arguments.

Supreme Court Implications

If Apple loses this battle they have said that they will likely appeal to the Supreme Court which will be very interesting. With the vacancy from Judge Scalia, one of the biggest decisions in history could come down to a newly appointed judge. The decision will be huge to see what direction the US is heading. Do we care more about privacy rights of individual citizens or do we want to give the FBI more power and control in order to fight terrorism?

How will this impact the rest of the world?

So currently China is Apple’s second biggest market aside from the US, and one reason Chinese people buy IPhones is because they like the idea that apple will stand up to Chinese government. However, if the FBI wins this case, China will be asking for an even bigger backdoor so their government can access IPhones as well. This will make Chinese people not want to buy IPhones anymore and that will hurt Apple significantly as a brand.

What do I do if police ask to search my phone?

Have the police illegally searched your phone in the county of San Diego? Whether it is a drug offense, a traffic violation or just a casual encounter by a police officer, you need to know that they cannot search your phone unless they have a warrant. You have a right to privacy in your phone and everything inside it. Do not be afraid to not give consent to an answer for the search and to ask for your lawyer. If an officer has unlawfully searched your phone and criminal charges have resulted from this search, then feel free to call our san diego criminal lawyer  for a free consultation.