Tuesday, October 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

ACLU Challenges Cops’ Cellphone Searches

SAN FRANCISCO (CN) - San Francisco police unconstitutionally search arrestees' cellphones without warrants, two people and the ACLU claim in court.

Robert Offer-Westort, Elizabeth Zitrin and the ACLU of Northern California sued the City and County of San Francisco and its Police Chief Gregory Suhr, in Superior Court.

Zitrin is an attorney. She does not claim she was arrested nor that her iPhone was searched, but says she keeps an enormous amount of confidential data on it, about clients, cases, and herself. She says she "is concerned that, in the event she were arrested in San Francisco, the police could have access to all of this private information."

Offer-Westort, an advocate for the homeless, claims he was "arrested for an act of civil disobedience" on Jan. 27, 2012.

He pitched a tent in Jane Warner Plaza to protest a state "illegal camping" law. He says the officers who arrested him "engaged in an intrusive and warrantless search of private communications contained on Offer-Westort's cell phone."

He says he was "extremely concerned about the government reading his private text message[s]," including some he had not read yet.

The complaint states: "Offer-Westort asked Officer Chambers what he was doing. Officer Chambers stated something to the effect of: 'Looking for text messages-how do you feel about that?'

"Offer-Westort objected to the search, stating: 'I don't give you consent.'

"Officer Chambers did not cease the search upon Offer-Westort's objection, instead responding with a statement to the effect of: 'The California Supreme Court gives me the right after I arrest you.'"

The California Supreme Court ruling in People v Diaz (2011) 51 Cal.4th 84, "held that a warrantless search of an arrestee's cell phone did not violate the United States Constitution," according to the complaint.

But, the complaint continues: "The California Constitution provides greater privacy protections than the federal constitution. Cell phones today are essentially compact home offices that can be carried on the person or in a briefcase, and searching them poses special privacy concerns beyond what is typical in the search and seizure context. The California Constitution and First Amendment of the United States Constitution also safeguard the rights of free speech and free association against governmental interference, in particular, against the compelled disclosure of speech and associational information."

Plaintiffs' attorney Marley Degner told Courthouse News in an interview: "Our suit is under the California Constitution, which is more protective of the rights to privacy, and in the areas of search and seizure, than the federal constitution."

She added: "One of the biggest points is that cell phones are virtual home offices. Police need a warrant to search your home office, so they should need a warrant to search your cell phone."

The complaint points out that many people no longer have land lines, but use their cell phones to "contain a treasure trove of information both about their users and about all the people with whom their users interact, with the volume of information far exceeding what would be found in a home office, and at least as detailed and intimate as would be contained in a personal diary."

Offer-Westort says in the complaint that the police officer appeared to be taunting him by reading his cell phone messages aloud: "Officer Chambers continued with his search of Offer-Westort's cell phone, reading many of Offer-Westort's text messages and relaying their contents to him, including three text messages Offer-Westort had not yet read himself, as they had been received after he was arrested," the complaint states. "Officer Chambers then left Offer-Westort handcuffed in the waiting room and continued his search of Offer-Westort's cell phone. At least twice over the next two hours, Offer-Westort could see Officer Chambers in other parts of the station either scrolling through his cell phone or holding his cell phone."

Offer-Westort claims the police held onto his cellphone for four months.

Plaintiffs seek declaratory judgment, an injunction and costs.

A spokesman for the San Francisco Police Department said the police "don't make comments on civil suits."

The San Francisco City Attorney's Office did not respond.

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.