Hard to believe that James Madison, the father of America’s unique Bill of Rights (recently recited by the U.S. Congress while in session), wouldn’t have a problem with  warrantless searches of a cell phone once he figured out what a cell phone was and, more importantly, what  information the typical phone contains. Given that the Fourth Amendment to the Constitution was intended to prevent similar government intrusions by King George III and his loyalists, admittedly in a much lower technological way, Madison would likely say the California Supreme Court’s decision in People v. Diaz,^[1] creates an exception that swallows the intent of the whole amendment.

Interestingly, as hostile as the U.S. Supreme Court has been in the past decades to any expansion of rights under the Bill of Rights (with the noted exceptions of gun ownership and the right to trial of all important legal issues) in 2009, the Court signaled (do I dare say) a halt to the erosion of our privacy rights in the case of Arizona v. Gant,^[2] at least in the arrest situation — a case which was ignored by the majority in the California Supreme Court’s Diaz decision. Pay no attention to those pesky decisions that don’t fit our reliance on 30-year-old cases, says the Wizard of Oz.  Ignore them and maybe they will go away, says a majority of the California Supreme Court.

Although what constitutes an arrest has become complicated under a plethora of higher and lower court opinions, suffice it to say the conventional thought of an arrest consisting of being handcuffed and taken down to the police station, may or may not be an arrest under the law. Depending on the circumstances and the jurisdiction you are in at the time, a speeding ticket could be an arrest that could lead to a search of your cell phone, including those sexy pictures of your significant other. I would suggest password protecting your whole phone which could potentially force the police to properly get a warrant which the Fourth Amendment requires.

To those of you who say, “what is the big deal, I have nothing to hide,” I say send me your Iphone, your Droid or your Palm so I can take a look through the whole thing to see if there is anything I might find embarrassing to you. Then, if I felt like it, I could find a way to introduce the information in some court hearing which would make it public, then put it on the internet, and before you know it, you have the latest claim to fame of a YouTube video or picture “gone viral.” All because you might have been speeding.

Here are the historical and legal details:

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

First, in my homage to U.S. Supreme Court Justice Antonin Scalia’s originalist view of how we should interpret the Bill of Rights, that is, look to the historical record at the time of passage to determine the real confines of these rights, I say historically Madison would have disapproved of the California Supremes’ decision. I turn to the scholarly work of noted Yale law professor Akhil Reed Amar in his book The Bill of Rights.

Amar argues that there was a linkage between the First and Fourth Amendments in the founders’ minds. That is, great “exactitude” would be necessary before a search would be considered reasonable if the search yielded material covered by the First Amendment. Needless to say, most of our phones contain material covered by the First Amendment, e.g. who we associate with, what religion, if any, we adhere to, and perhaps some of our proclivities kept in the sanctity of our homes.

Additionally, Amar says the founders thought there were safeguards of this right in the Seventh Amendment protecting our rights to civil trials. This, of course, was before the 20^th century development of the controversial exclusionary rule. That rule prevents the use of unconstitutionally obtained evidence in a criminal case because the courts concluded it was the only way to attempt to prevent unconstitutional conduct by government officials, i.e. law enforcement. An unreasonable search was considered a trespass in the 18^th century, which would be actionable for damages in the courts.

Amar says the founders at the time of the adoption of the Fourth Amendment were mindful of the 1763 English case of Wilkes v. Wood^[3] in which, Wilkes, a critic of King George III, was awarded a “king’s ransom” in damages by Lord Camden after the King’s henchmen broke into Wilkes house and rummaged though his personal papers (similar to what we now might have in our phones). Wilkes was also sent to the Tower of London and freed by Lord Camden in a habeas corpus procedure. They both became pop star heros in the colonies, and it is why we have several cities and counties in the original colonies named Wilkes, and that the Baltimore Orioles play in Camden Yards.

Second, the U.S. Supreme Court precedents relied upon by a majority of the California Supreme Court found certain warrantless searches reasonable and therefore valid when they were incident to an arrest. These included searching for weapons to protect the safety of the law enforcement involved in the arrest, and searching for evidence closely associated with the body (such as clothing or something in a person’s pockets) to protect the destruction of such evidence. Both sound reasonable.

As often happens, however, law enforcement took those decisions to mean they could search everything about the person, e.g. their car even hours after the arrest. Cases where these extended searches took place began to be proscribed by the Supremes. In United States v. Chadwick^[4] the Court said the arrest of a person when he got off a train from San Diego to Boston didn’t allow the officers to go into a double‑locked footlocker in the trunk of his car.

In the Gant case, the court said the warrantless search incident to an arrest was unconstitutional when the officers searched his car (finding cocaine in a coat pocket) after he had been arrested for driving on a suspended license and placed in the rear of the police car. The court said:

1. police could not reasonably have believed that the defendant could have accessed his car at the time of the search (he was already in the back of the police car); and,

2. police could not reasonably have believed that evidence of the offense for

which respondent was arrested might have been found in the car since he was arrested for driving with a suspended license.

Bear in mind that we are talking about warrantless searches. The government authorities under the Bill of Rights have the express right to go to a magistrate (judge) establish probable cause (pretty simple process in this day) and obtain a warrant for the search of the phone. But they can’t just do it for the fun of it.

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^[1]_/ 2011 Cal. LEXIS 1 (S166600, January 3, 2011)

^[2]_/ Arizona v. Gant, __ U.S. __ [173 L. Ed. 2d 485, 129 S. Ct. 1710, 1714](2009).

^[3]_/ 98 Eng. 489 (C.P. 1763)

^[4]_/ 433 U. S. 1 (1977).

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You can see my brief comments on this subject by clicking on the two links below.

Video

To read the opinion, click here.

My opinion of the debate over reform of the laws, policies and procedures involving violent sexual criminals in California, published yesterday on the Dialog page of the San Diego-Union Tribune:  http://www.signonsandiego.com/news/2010/may/23/tough-enough-defense-lawyers-argue/

It’s not often you hear a California Associate Supreme Court Justice attack his own court and criticize a part of the California political landscape that has become an institution. Those who heard Justice Carlos R. Moreno impugn the California initiative system at the “feel-good” Defender Dinner earlier this month also got a history lesson.

Singling out several past propositions, but focusing on Propositions 115, 21 and 8 (the so-called Victim Bill of Rights as distinguished from the recent same-sex marriage Prop. 8 about which Moreno pointed out he dissented from the upholding of it), Moreno castigated his court for failing to enforce the “one-subject” rule — a rule, according to Moreno, ironically passed by a proposition in 1948. It was intended to limit just what has occurred in modern times. That is, long, convoluted propositions in which few, if anyone, can digest all that the future law contains.

The proposition process began, according to Moreno, as a progressive notion by Republican Governor Hiram Johnson in 1910. The Southern Pacific Railroad was controlling California politics and the referendum process was seen as a way to check that power. But by 1948, the process needed some refinement.

The single-issue voters’ pamphlet stated, “The busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio or picked up in general conversation. If improper emphasis is placed upon one feature and the remaining features ignored, or if there is a failure to study the entire proposed amendment, the voter may be misled as to the overall effect of the proposed amendment.”

How prophetic those words have become in current times. Yet the California Supreme Court has refused to enforce that proposition, time and time again, according to Justice Moreno. He listed off all the divergent issues contained in Propositions 8, 115, and 21, lamenting the state’s highest court’s refusal to curtail the damage created by this bastardization of the process. For his part, Moreno cites former Justice Stanley Mosk’s insistence on the enforcing of the single-subject rule, but mostly in dissent. Moreno was appointed to the bench to take Mosk’s seat and has continued his allegiance to the single-subject rule.

Moreno detailed a litany of problems with the proposition process:

• they are often drafted quickly and poorly;
• they are labeled with names that are intended to evoke emotions and passion;
• they have become the darlings of  special interests;
• the court’s abdication of maintaining the single-subject rule has led to those working the process to add into a measure, something for everyone. Moreno said that process even has a nickname – “logrolling”;
• the California Supreme Court spends much more time interpreting ambiguities in propositions than legislation that has gone through a multi-level vetting process.

Justice Moreno says if he is ever asked to sign a proposition by one of the ubiquitous solicitors making up to $2 per signature, he declines, saying it could come before the court.

If I am asked to sign a proposition, I ask, “Is this a proposition to end all propositions?” In the likely event it is not, I refuse.

The dust has settled and the gods on Mt. Olympus have decreed that we, the public, are not capable of handling the information amassed for and against same-sex marriage, currently being adduced in a lone San Francisco federal courtroom. The five Republican-appointed Supremes dodged the main question on the televising of the civil, bench (no jury) trial by saying the Ninth Circuit (which includes most of the Western states) acted too quickly to allow this experiment to be properly commented on before effecting this radical change.

It was a 5-4 opinion, as has become commonplace with this Court. The Democratic-appointed Justices (with good-old Professor John Paul Stevens, appointed by Republican Gerald Ford thrown in, as he has sided with the so-called liberal wing of the party for several decades now), in the voice of avuncular Justice Steven Breyer (the Republican appointees refused to say who their author was using the per curium designation), called the majority opinion wrong. He pointed out that the court received 138,574 comments on the televising plan. Breyer said “how much more ‘opportunity for comment’ does the Court believe necessary . . .” He said the high Court had no business butting into the Ninth Circuit’s decisions at this point in time.

The dissent also pointed out that the Ninth Circuit Judicial Conference (I once co-chaired the Southern District’s — covering San Diego and Imperial Counties — delegation to this august body) comprised of lawyers and judges voted for the pilot program to allow televised hearings back in 2007. The Ninth Circuit Chief Judge Alex Kozinski, a Ronald Reagan appointee and a bit of a rogue, maverick himself, pointed this out to the head of the Judicial Conference of the United States, a body essentially controlled by Supreme Court Chief Justice John Roberts.

Historically, this issue wasn’t on the Judicial Conference’s radar screen until this highly charged trial came up. When the televising scheme became public, the chair of the Conference’s Executive Committee, Anthony J. Scirica, sent a terse, one-paragraph letter to Kozinski stating the policy of the conference “does not allow courtroom proceedings in civil and criminal trial in district courts to be broadcast, televised, recorded, or photographed for the purpose of public dissemination. . . we ask you to consider the Judicial Conference policy.”

This is how polite judicial talk takes place. When they say “we ask you to consider . . .” there is the implied threat of – or else! Kozinski, who as I said, is somewhat of a maverick, fired back a six-page response stating the pilot project “was developed after considerable deliberation and careful research.” He also cited legal authority seeming to belie the Conference position. He added “the public has demanded greater access to our courtrooms, we have provided it and it has not caused problems.”

Additionally, Kozinski pointed out that there is federal legislation pending that would authorize broadcasting of federal proceedings aptly named the Sunshine in the Courtroom Act of 2009. He finished by saying “Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages given us by new technology. If we do not, Congress will do it for us.”

Regardless, the Supreme gods spoke and vanquished the proposed broadcast of the Prop. 8 gay marriage trial. Perhaps, like a Greek myth, it will soon rise again.

Meanwhile, at the trial this week, San Diego’s Republican mayor testified for the pro gay marriage forces. According to reported account in the San Jose Mercury News (since we can’t watch it ourselves) he gave as strong a statement as his 2008 tearful press conference (with his lesbian daughter at his side) when he announced his switch in position from against to for. Videotape of his emotional press conference was actually played at the trial, according to the Associated Press.

Apparently the San Diego Union-Tribune didn’t see fit to send a reporter to San Francisco as there is no dateline on the U-T story and the tag line states the AP contributed to the article. Interestingly, that when both the police and fire chief testified on behalf of then San Diego City-Councilman Michael Zucchet in the recent “Strippergate” case, it was deserving of both front-page treatment and editorial comment by our local town crier.

The public came as close as the Florida vote in the 2000 Presidential election to having a peek into what really goes on in federal court. (Coincidentally, or perhaps not, the adversaries in the deciding case of Bush v. Gore, David Boies for Gore and Theodore B. Olson for Bush, are on the same side in this struggle.)

Once again the U.S. Supreme Court rained on the public’s parade. This time they thwarted San Francisco Chief Judge Vaughn R. Walker’s attempt to allow the delayed broadcast of Perry v. Schwarzenegger in which the constitutionality of California’s Proposition 8, same-sex marriage ban is being tested. The case has been likened in a recent New Yorker article to the landmark 1954 case of Brown v. Board of Education, which struck down the discriminatory separate but equal school policy.

Judge Walker wanted to allow the transmission of the trial to other federal courthouses for the public’s consumption and for later broadcast on YouTube. The high Court has shown a sedulous concern for the perceived threats to the proponents of Prop. 8 (opponents of same-sex marriage) by this decision and a previous one out of the state of Washington. There the Court issued an emergency order to prevent the posting online of the names of 138,000 citizens who had signed petitions seeking to overturn a law giving gays and lesbians equal benefits, according to the Los Angeles Times.

Historically, the federal courts have been down-right truculent as to any attempt to allow cameras in the courts. For many years the federal courts would force you to check in your cell phone at the door if it had a camera contained in it. They finally gave up when virtually no cell phone was sold without a camera, and the court officers were sick of having to take care of everyone’s phone.

We can thank University of California at San Diego Professor Peter Irons for paving the way to crack the Supreme’s cone of silence. He courageously breached his contract with the National Archives which allowed access to, but prohibited the distribution of  Supreme Court oral argument recordings. He published May it Please the Court, which consisted of the recordings from 23 arguments before the court including such hits as Roe v. Wade, Miranda v. Arizona, Loving v. Virginia (interracial marriage), New York Times v. United States (Pentagon Papers) and United States v. Nixon (Watergate Tapes).  (Blogger’s note: I have utilized these tapes extensively in my teachings of Constitutional Law and Constitutional Litigation. Additionally, I argued along with Irons the infamous “Cross Cases” in San Diego before the Ninth Circuit Court of Appeals.) Irons contumacious conduct incurred the wrath of the Supremes, who went to the point of issuing a press release stating Irons was in “clear violation of… contractual commitments.”

The Court said at the time, that legal remedies were being explored, but nothing ever came of it and a short time later Irons released more tapes called May it Please the Court: The First Amendment, with such chart-toppers as Abington School District v. Schempp (school prayer), Barnes v. Glen Theatre, Inc. (nude dancing where the esteemed court discusses how much G-string is really a G-string), Employment Division v. Smith (religious use of peyote – not!), Texas v. Johnson (flag burning – yes, you can) and the reporters’ bill of rights case, New York Times v. Sullivan.

So, now we have recordings available very quickly and we don’t have to rely on National Public Radio’s Nina Totenberg’s paraphrasing what happened at the Supreme Court’s argument. Not that there is anything wrong with Totenberg’s accounts, but at least hearing the actual argument is tasty fruit for legal junkies and the public, and better than nothing.

Perhaps someday we will also see what is happening behind that iron curtain called the federal court.