activist defense

on the intersection of activism and legal systems

Tag: bob offer-westort

settlement reached in lawsuit seeking to stop warrantless searches of arrestees’ cell phones

In March 2013, activist Bob Offer-Westort sued San Francisco to stop warrantless searches of arrestees’ cell phones. The parties put the case on hold until the U.S. Supreme Court ruling on June 25, 2014, in which the court held that searching an arrestee’s cell phone generally requires a warrant. Yesterday Offer-Westort dismissed his case in exchange for the San Francisco Police Department’s agreement to stop conducting warrantless searches of arrestees’ cell phones.

Even after the Supreme Court ruling, however, law enforcement agencies can still demand that cellphone carriers provide subscriber information, including text messages and caller locations. In 2012, cellphone carriers reported that they responded to 1.3 million such demands from law enforcement agencies in 2011. They turned over records thousands of times per day in response to police emergencies, court orders, law enforcement subpoenas, and other requests. According to a New York Times article dated July 9, 2012:

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough.

lawsuit seeks to stop warrantless searches of arrestees’ cell phones

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.