Prof. Martin got this right. I'll put this more bluntly. I have experience as a criminal defense lawyer, a crime victim including armed robberies, burglaries, and illegal searches of privileged and confidential paper and computer client files, and civil rights crimes under color of law, represented an awful lot of child and adult survivors of mostly incestuous child sexual abuse, some of it, and other sex offenses, committed by politicians and officials palmed off on us by both political parties, and trying to get various authorities to shut down wide open drug dealerships the police admitted knowing about, which led to such searches and state and federal civil rights crimes. I cannot imagine how the California Court of Appeals got this so wrong and hope the decision is overturned on appeal. Your cell phone, your computer, your USB flash drive, and your ISP, off-site backup service, etc.'s records from these, are the modern equivalent of the Founders' roll-top desks and their journals in their saddlebags. If they really had enough to make a search of the subject's cell phone "reasonable" under the 4th Amendment's guarantee--not grant--of fundamental natural human rights, they could apply for a search warrant, only rarely denied, but apparently didn't.
The so-called "war on drugs," or whatever the Obama Administration is calling that this week, is a sham and a scam. You don't have to look beyond the DEA Web site to see that everyone knows we have been and still are losing, and the money, like a lot of the rest of the federal budget, is going into the politicians' and officials’ pockets. With several of us neighbors, and uniformed police, having witnessed the buying and selling of crack cocaine on this block across the street from a state university and in plain sight of a police station, I went all the way up the chain from local to county to state to federal DEA to the White House Drug Czar’s office, under both parties, and every one of them refused to act. After nearly two years, I finally got Building Inspection to close it down. The argument that eroding First and Fourth Amendment and other fundamental rights to privacy implicated by such searches is either reasonable or right on the theory that it might tend to help fight this fake "war" is specious circular reasoning and an outright lie.
We started to go off course when the Supreme Court was persuaded to hold that your bank’s copy of your checking account records, which reveal your religious, political, medical, and other relationships, were not yours to control and you had no standing to object to their rummaging through them without a warrant. We went farther down that wrong road with holdings that upheld laws that allowed police officers complete and unreviewable discretion to take your wife or daughter to jail, where the could be strip-searched, and maybe body-cavity searched, if that was standard practice, but issue a summons to somebody else, for a traffic violation, conviction of which carried no jail time as a penalty, or, for that matter, for a million-dollar embezzlement or insider trading scam. And we went completely off into the swamp with a Supreme Court holding that the officers’ motive and intent in anything they did that could arguably be brought within the outer range of their authority, tested solely against their version of what they saw or heard, was irrelevant and could not be questioned in criminal or civil court. It’s almost impossible to win a federal civil rights case if the officer says he didn’t know or think what he did was unreasonable, such as if smart phones were new technology. There are other cases where they have erred the other way.
Don’t kid yourself that the honest person has nothing to fear from this erosion of privacy. The now-familiar warning that “Anything you say can, and will, be used against you in a court of law,” is all too true in practice, whether you are innocent or guilty. There is something practically everybody would do almost anything to avoid having published. Unfortunately, the hardest thing to do in a civil or criminal case is to get your client to shut up, especially if he happens to be another lawyer. Just about everything, including your or your daughter’s abortion can usually be dug into in pretrial discovery in most personal-injury or many other cases. My cell phone, like my computer and off-site backup service, contain, for example, information, some of which is, and some is not, legally privileged and confidential, but disclosure of which the average person would consider outrageous, about old clients’ and friends’ experiences including being raped, my wife’s and my doctors and medical histories, nobody else’s business, their views on sensitive issues, and whether or not they have told me things that could get them seriously injured or killed. With access to your smart phone or laptop computer, I can steal your identity, or frame you for child pornography, and no police officer or politician will ever get busted for this, or most of their other crimes.