Michael Risher, ACLU of Northern California staff attorney
Image: Jason Doiy/The Recorder
SAN FRANCISCO — Two years after the California Supreme Court OK'd warrantless cell phone searches, a new suit aims to force a closer look at the issue.
The American Civil Liberties Union Foundation of Northern California and Pillsbury Winthrop Shaw Pittman filed suit Wednesday against the city and county of San Francisco and Police Chief Gregory Suhr on behalf of Robert Offer-Westort, a civil rights activist whose cell phone was searched after he was arrested for camping in a local plaza.
The plaintiffs want to bar the city from executing warrantless searches of arrestees' cell phones, arguing that such searches violate the individuals' rights to privacy and free speech provided by the California Constitution and the First Amendment to the U.S. Constitution.
Offer-Westort does not have a smart phone, but he is joined by another plaintiff, Elizabeth Zitrin, an attorney who fears the wealth of personal information stored on her iPhone could be compromised if she or one of her acquaintances were arrested, according to the complaint filed in San Francisco County Superior Court, CGC-13-529730..
"Mobile devices contain a treasure trove of information both about their users and about the people with whom their users interact, with the volume of information far exceeding what would be found in a home office, and at least as detailed and intimate as would be contained in a personal diary," the complaint states.
As technology advances, the law needs to keep up, said Pillsbury associate Marley Degner, who signed the complaint. "Just as the police would need a warrant to search a home office, they should be required to get a warrant to search our phones."
Degner is working on the case with a team that includes ACLU staff attorney Michael Risher. A spokesman for the city attorney declined to comment, saying the office had not yet reviewed the complaint.
The case revisits questions raised by People v. Diaz, the 2011 state Supreme Court ruling that upheld, on a 5-2 vote, police review of text messages in an arrestee's cell phone when he was arrested. Analyzing the search under Fourth Amendment precedents, the majority said the phone was property in the possession of the arrestee. Noting the outcome of Diaz, Offer-Westort's attorneys challenge the searches on the basis of the First Amendment and the heightened privacy protections afforded by the California Constitution.
Offer-Westort was arrested in January 2012 for pitching a tent in Jane Warner Plaza, in violation of a city ordinance. Before his booking, the arresting officer removed Offer-Westort's cell phone from his pocket and began reviewing the text messages. Offer-Westort objected to the search, the complaint states, but the officer responded that the California Supreme Court had given him the right to do so.
