lawsuit seeks to stop warrantless searches of arrestees’ cell phones

by Tim Phillips

On January 27, 2012, Bob Offer-Westort pitched a tent in Jane Warner Plaza in San Francisco, put a sleeping bag inside, and sat at the entrance until two police officers asked him to leave. He refused and was arrested. The arrest was a means to an end, effectively showing that a proposed ordinance targeting homeless people was duplicative of existing law.

One of the officers who arrested Offer-Westort searched his cell phone without a warrant, reading his text messages. The police didn’t return Offer-Westort’s phone for three or four months, during which time he went without a phone. (Thankfully he had it back in time to participate in the successful campaign against the proposed sit/lie law in Berkeley.)

In People v. Diaz (2011), the California Supreme Court decided that a warrantless search of an arrestee’s cell phone did not violate the Fourth Amendment. The California Constitution, however, provides greater privacy protections than the U.S. Constitution; so this week, Offer-Westort and the ACLU sued San Francisco¬†to stop warrantless searches of arrestees’ cell phones.