Governor Brown Vetoes Bill on Searching Cell Phones Incident to Arrest

Orin Kerr • October 10, 2011 2:29 am

The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. Meanwhile, over the summer, California state legislators passed SB 914, a bill limiting searches incident to arrest in California. Just today, however, California Governor Jerry Brown vetoed the bill and released the following statement:

This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.

I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux for the reasons I developed in this article. In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy. For these reasons, legislatures are much better equipped than courts to strike the balance between security and privacy when technology is in flux.

Perhaps the major disadvantage of legislatively-made search and seizure rules is that the head of the executive branch that oversees law enforcement also generally has the veto power over the legislature’s efforts. The head of the executive branch can therefore block limits on the executive’s own power, at least in some circumstances. I don’t follow California politics much, but I would guess this reality, not institutional advantages of courts and legislature, is what really led to Governor Brown’s veto.