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By PORAC | April 1, 2018 | Posted in PORAC LDF News

Calecpa: There Might Be More Protection For Your Cellphone Than You Think

Attorney at Law
Rains Lucia Stern St. Phalle & Silver, PC

When the California Electronic Communications and Privacy Act (CalECPA [California Penal Code Section 1546 et seq.]) was first debated on the state Senate floor, the California State Sheriffs’ Association became vigorous opponents of the bill. Cops everywhere feared the passage of this law would make their jobs harder, protect the criminals and make the warrant application process incredibly burdensome. Well, the law passed, and it went into effect in January 2017. I’m not sure how it has affected the warrant application process for catching bad guys on the street. But, I can tell you that in an era when police officers have less and less privacy, anonymity and protection over their own personal information, CalECPA provides us with powerful means to protect our own privacy in digital communications.

But first, some background.
When I was a cop, smartphones were just getting rolling. Most people still carried flip-phones. I considered myself somewhat cutting edge because I had a Blackberry with a full keyboard that made typing a breeze, and the idea of being able to access the internet from your phone was still somewhat novel. It was common practice for the officers I worked with and myself to open an arrestee’s phone and see if there was anything interesting or incriminating in there — who was this person associating with? Were there any pictures of weapons or contraband? I always figured that if I could legally search their pockets, then I could legally peek into their phone.

In 2014, Riley v. California, 134 S.Ct. 2473, changed all of that. The Supreme Court ruled that search of a cellphone is not like search of anything else found in someone’s pockets. The Riley decision championed the importance of privacy and had a lot to say about just how personal and invasive a cellphone search can be. In fact, the Court declared that when the government searches a typical cellphone, the search can and does reveal even more than would ransacking that person’s home. And I must admit, what the Court said about cellphones actually makes sense, because who in the world has a stash spot in their house where they keep every piece of mail they have sent or received, every medical record, every photograph, every phone call, every instant message, all their doctor’s appointments and every internet search? No one.

Now fast forward to 2017. In response to Riley, the California Legislature passed CalECPA with the goal of bolstering protections for electronic data. Unfortunately, in at least some cases involving law enforcement officers, it appears that the new law is not being followed. Our firm has encountered several police officers who have found themselves the target of a criminal investigation, and because of that investigation, the officers’ personal cellphones were seized through a warrant. Thank goodness that in these cases, the criminal investigations washed out as unfounded. However, the trouble didn’t end there. Because much like the days before Riley, when officers such as myself would snoop through an arrestee’s phone to see what they could find, police departments are doing the same thing with officer phones seized pursuant to criminal warrants. Once the criminal case washes out, the cellphone data is handed off to internal affairs investigators, who rifle through it in search of anything that offends the administration or looks like a potential policy violation.

We believe this type of search is unconstitutional under the U.S. Constitution because it is overbroad and likely strays outside of whatever the warrant listed was the target of the search. But even if somehow the search was allowed under the Constitution, it is definitely illegal under CalECPA. Know your rights under this new law and protect your cellphone and the cellphones of your members from unlawful searches.
The Fourth Amendment has always required that a warrant “state with particularity” what is being searched for, and any search that strays outside that description is susceptible to being labeled overbroad, and thus unconstitutional. However, CalECPA goes even further than that. CalECPA requires any search warrant of an electronic device to list the following information: the time periods covered, the target individuals or accounts, the “apps” or services covered and the “types of information” sought. What’s more, CalECPA mandates that any information acquired that falls outside these listed parameters must be sealed and not subjected to further review, use or disclosure without a court order.

Translation: The searches described above, where IA rifled through officer phones looking for policy violations, are illegal under CalECPA. Unless policy violations are explicitly described in the warrant, the department is barred from digging through your cellphone to look for them. This includes reading your texts, examining your internet searches, evaluating your Facebook friends, peering at your photographs or using any data it finds for any purpose at all. What’s more, the statue declares that if the government ignores CalECPA, then any seized data can be suppressed.  

This part about suppression is really important. Traditionally, suppression has been a remedy only available to criminal defendants. So if you were to find yourself the subject of administrative (not criminal) action, even if the data was illegally seized, suppression was probably not available to you. Furthermore, under traditional rules of suppression, only the person whose phone was searched illegally would have the right to protest about the information seized. So if you were to send policy-violating texts to your buddy, and his cellphone was seized, you would have no legal right to protest the department’s illegal discovery of your texts on his phone. 

But, CalECPA has changed that. The statute states that “any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment…or of [CalECPA].” Notice that “any person” (not just defendants) can seek suppression of “any information” (not just what came from your own phone) that was illegally searched. Notice also that this option is not just available during trials; it can also apply in hearings and proceedings. It’s very broad.

But what if your department does not use the data to press charges? Is there a way to keep departments from violating your personal privacy and snooping through your phone just to satisfy their own curiosity about your personal life? CalECPA has an answer for that, too. The statute empowers courts, either on their own or upon a request from the target of a warrant, to appoint a “special master” to conduct the search. This way, the special master examines the warrant application to determine what the department is looking for, and if that information can be found on the phone then that is exactly what the department will get — no more, no less.

We have seen multiple cases of departments across the state conducting overbroad searches of personal cellphones, so we recommend the following: If a member of your department has his or her cellphone seized through the service of a search warrant, call your attorney immediately. Your attorney can petition the court to appoint a special master to prevent the kind of overbroad phone snooping your department might otherwise be tempted to do. And if you have members who have fallen victim to any violations of the CalECPA provisions described above, there’s a chance your attorney can help have the illegally-seized information suppressed.

About the Author

Nicole Pifari is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense of Peace Officers Practice Group. She represents officers in administrative investigations, disciplinary appeals, criminal investigations and prosecutions and Brady list appeals.