SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

allowing for a warrantless search of that container. (United
States v. Cardona-Rivera (7 th Cir. 1990) 904 F.2 nd 1149.)
Searches of Cell Phones, Disks, Computers and Other High Tech
“Containers:”
Issue: The legality of searching and retrieving information from
cell phones, computer disks, thumb drives, computers, and other
such high tech “containers” of information, seized from suspects
or found during the search of a residence, etc., when done without
a search warrant, can be an issue.
As a rule, however, it should be assumed that the general law on
“containers” will be applicable, and that a search warrant will be
required. (See Smith v. Ohio (1990) 494 U.S. 541, 542 [108
L.Ed.2 nd 464].)
Arguably, exceptions to the warrant requirement might be found
when the high tech device is:
Seized from the suspect’s person incident to his arrest
(Carroll v. United States (1925) 267 U.S. 132 [69 L.Ed.
543]; United States v. Finley (5 th Cir. 2007) 477 F.3 rd 250,
254, 255, fn. 2, 259-260; People v. Diaz (Jan. 3, 2011) 51
Cal.4 th 84.)
Contrary case law from another jurisdiction (State
v. Smith (Ohio 2009) 920 N.E. 949), makes this
issue ripe for United States Supreme Court review.
However, the US Supreme Court has denied
certiorari. (Diaz v. California (Oct. 3, 2011) 132
S.Ct. 94; 181 L.Ed.2 nd 23.)
In a car for which there is already probable cause to
search. (California v. Acevedo (1991) 500 U.S. 565, 580
[114 L.Ed.2 nd 619].)
In the person’s possession when that person is booked into
jail. (People v. Rogers (1966) 241 Cal.App.2 nd 384, 389.)
When the container is seized under authorization of a
search warrant and to inspect its contents, using
“technological aids,” requires further expert assistance.
E.g., seizing an undeveloped roll of film, as authorized by
a warrant, does not require a second warrant to develop
© 2012 Robert C. Phillips. All rights reserved
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