CELL PHONE AND ELECTRONIC DEVICE LAW 2018

CELL PHONE AND ELECTRONIC DEVICE LAW 2018

The United States Supreme Court in 2014 ruled in Riley v. California, 134 S.Ct. 473
(2014) that the Fourth Amendment requires a search warrant before an officer may search a cell phone taken from an arrested or detained individual. If the owner or legal possessor of the cell phone gives consent to the search, law enforcement does not need a search warrant. There are two types of consent.

Consent #1: If the owner of the phone is the parent, guardian, or other legal owner, and law enforcement obtains their consent to seize and search the phone, even over the objection of the person possessing the phone, then law enforcement has arguably obtained valid consent. If your child/minor consents to a search without a warrant, the courts would find there has been a valid consent. This is because the possessor of the electronic device is an authorized possessor.

Consent #2: The Court may order a waiver of search and seizure rights as part of probation conditions for adults and minors. Prior to the enactment by California on January 1, 2016, of the Electronic Communication Privacy Act (ECPA), California Penal Code sections 1546 et seq, waiver of search and seizure rights as part of probation conditions would permit law enforcement to search the phones and electronic devices of the probationer. Since the enactment of ECPA on January 1, 2016, a California government entity shall not access electronic device information without a warrant except where the government entity obtained the specific consent of the authorized possessor of the device. Effective January 1, 2017, another exception was added to the Act permitting law enforcement to seize and search the electronic device where the authorized possessor has a search and seizure waiver of electronic devices which is a CLEAR AND UNAMBIGUOUS (emphasis added) condition of probation, mandatory supervision, or pretrial release.

In 2017 in People v. Sandee, 15 Cal.App. 5 294, a California Court of Appeal upheld the search and seizure of a phone of a probationer who had waived her Fourth Amendment rights as a condition of her probation. However, the infraction which led to her being stopped, a failure to stop at a stop sign while riding her bike, took place prior to the passage of the Electronic Communications Privacy Act on January 1, 2016. The court set forth the ECPA requires a clear and unambiguous waiver of one’s search and seizure rights of one’s electronic devices for a government entity to search without a warrant or valid consent.

Law enforcement has software to obtain all deleted texts, emails, sites one has visited on the web, pictures, and anything you believe you have deleted from your electronic device. There may be stored information on your electronic device which is very incriminating and against the law. DO NOT CONSENT TO A SEARCH AND SEIZURE OF YOUR ELECTRONIC DEVICES WITHOUT CAREFUL CONSULTATION BEFORE DOING SO. INSTRUCT WHOMEVER YOU AUTHORIZE TO POSSESS THE ELECTRONIC DEVICE YOU OWN TO NOT CONSENT TO A SEARCH AND SEIZURE OF THE PHONE OR OTHER ELECTRONIC DEVICES WITHOUT CAREFUL CONSULTATION.

In 1986, the United States Congress passed the Electronic Communications Privacy Act. Check to see if your state has passed their version of the ECPA.

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