In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc.
To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox. Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these waivers at their arraignments.
Criminal defendants who have signed the waiver have essentially signed away their rights. By the terms of the agreement, they have agreed to disclose any and all passwords used to access those devices or accounts, including fingerprint that unlocks an electronic device. Do not sign these types of waivers if you are asked. It is recommended you consult with a criminal defense attorney right away.
In effect, “law enforcement” is attempting to repeal the state law by way of individual contracting. The Public Defender’s Office, and private defense lawyers in San Diego County claim they were left out of those initial conversations about the use of these waivers. The contend these waivers are not only overly broad, far-reaching, and vague, but possibly unconstitutional. Some judges have refused to use the waivers while some were all too eager.
Fourth Amendment ‘Waivers’
The Fourth Amendment of the U.S. constitution either reasonable suspicion or a warrant before a law enforcement official is legally allowed to invade a person’s personal privacy (aka search them). In historical practice, waivers of fourth amendment rights have been used as terms for a criminal defendant’s probation. These waivers have allowed law enforcement to search a probationer’s person, auto, or home without justification, in exchange for the probationer’s freedom.
In theory, as long as a defendant voluntarily gives consent, they have waived any Fourth Amendment protections. In today’s digital age, things like a social media post can count as waivers. While fourth amendment waivers been controversial, the idea use of a fourth amendment waiver on a defendant who has not even been convicted yet is arguably a novel and dangerous slippery slope.
San Diego Criminal Defense, Constitutional Rights, and Jail Process Attorney
The Law Office of David M. Boertje has been defending people’s constitutional rights for decades. We handle all misdemeanor and felony criminal cases with zeal and expertise. If you have been arrested and charged with a crime, call or email us at the Law Offices of David Boertje today for a free and confidential consultation.