Diaz

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…

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 Background

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 *89 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…

The majority holds that the police may, without obtaining a warrant, view or listen to information electronically stored on a mobile phone that a suspect was carrying when lawfully arrested. The dissent disagrees. I explain why I join the majority rather than the dissent.

On June 8, 1982, California voters enacted an initiative measure known as Proposition 8. Among other things, Proposition 8 added to the California Constitution a “Right to Truth-in-Evidence” provision (Cal. Const., art. I, § 28, former subd. (d) [now subd. (f)(2)]). That provision generally prohibits exclusion of relevant evidence in a criminal proceeding on the ground that the evidence was obtained unlawfully. Because the federal Constitution is “the supreme law of the land” (U.S. Const., art. VI, § 2), and thus prevails over conflicting state constitutional provisions, the state Constitution’s “Right to Truth-in-Evidence” provision does not apply when relevant evidence must be excluded because it was obtained in violation of the federal Constitution’s Fourth Amendment, which prohibits “unreasonable searches and seizures.” As a result, in California criminal proceedings all issues related to the suppression of…

I respectfully dissent. The majority concludes police may search the data stored on an arrestee’s mobile phone without a warrant, as they may search clothing (see United States v. Edwards (1974) 415 U.S. 800 [ 39 L.Ed.2d 771 , 94 S.Ct. 1234 ] (Edwards)) or small *104 physical containers such as a crumpled cigarette package (see United States v. Robinson (1973) 414 U.S. 218 [ 38 L.Ed.2d 427 , 94 S.Ct. 467 ] (Robinson)) taken from the person of an arrestee. In my view, electronic communication and data storage devices carried on the person—cellular phones, smartphones and handheld computers—are not sufficiently analogous to the clothing considered in Edwards or the crumpled cigarette package in Robinson to justify a blanket exception to the Fourth Amendment’s warrant requirement. A particular context-dependent balancing of constitutionally protected privacy interests against the police interests in safety and preservation of evidence led the United States Supreme Court, over 30 years ago, to hold searches of the arrestee’s person reasonable despite the lack of probable cause or a warrant and despite substantial delay between the arrest and the search. (See United States v. Chadwick…