What 4th Amendment?

While most were rushing to protect their 2nd Amendment rights against non-existent threats last week in the wake of the Gabrielle Giffords shooting, the California Supreme Court issued a ruling that further erodes what is left of our 4th Amendment rights and we hardly blinked.

In California’s People v Diaz (pdf), it was determined that the police had not violated the defendant’s rights by searching the text message folder of his phone without a warrant ruling that it was “valid as being incident to a lawful custodial arrest“.

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 recedent, such a search is valid as being incident to a lawful custodial arrest. We affirm the Court of Appeal?s judgment.

Until recently, legal warrantless searches had been limited under common law to those that focused on weapons concealment or destruction of evidence such as looking for items that could harm law enforcement personnel but with this ruling we have continued to slide down the proverbial slippery slope started a few years ago during the restructuring of FISA. Under FISA the government had already been granted wide latitude to listen in on our phone calls without first getting warrants and now they can search your phones. So what’s next?

Never bothered to pattern or code lock your smart phone? Maybe its time as I still think the 5th Amendment is still valid…

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