When San Diego defense lawyers returned to court after the start of the new year, many were shocked to learn that their clients were being asked to sign a newly-drafted waiver, allowing police to search cellphones, computers and other types of electronics without first obtaining a warrant.

The one-page document 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.

By signing the waiver, criminal court defendants would also agree to disclose any and all passwords used to access those devices or accounts. Even a fingerprint that unlocks an electronic device would be fair game.

San Diego Superior Court judges began using the waivers just days after a new law took effect in California, requiring police and probation officers to get a search warrant before examining a person’s emails and other forms of “electronic communication.”


“Our clients were told they have to sign a waiver, this expansive waiver, which basically (requires them) to give up the rights that the Legislature had just come up with, and the governor had signed,” said county Public Defender Henry Coker, whose office represents thousands who could not otherwise afford lawyers.

“In effect, the Superior Court of San Diego was repealing a new statute.”

So far, San Diego is the only county in the state using a waiver of this kind.

A Superior Court spokeswoman said last week that court officials began reviewing the new state law, called the Electronic Communications Privacy Act, last year after it was passed by the Legislature. Additionally, the court was contacted by members of a working group representing the District Attorney’s Office, Probation Department and county counsel that raised questions about how the new law would affect probation cases.


Court authorities responded by developing the one-page waiver, which they say was intended to provide guidelines for judges to consider in cases where appropriate.

It became available for “use and consideration as a resource” starting Jan. 4.

The Public Defender’s Office, and private defense lawyers in San Diego County, said they were left out of those initial conversations, and contend that the waiver as written currently is not only vague, but overly broad and possibly unconstitutional.

“The change was made... no one in my office was notified,” Coker said last week. He said his office is considering whether to file a challenge in appeals court, arguing that the waiver was a significant change in a court rule implemented without proper notice and input from the legal community.


Many defense lawyers contend that the waiver poses a host of problems for their clients, who, by agreeing to allow access to their text messages, photos and Facebook accounts, could be exposing themselves to additional prosecution, and giving police access to privileged attorney-client discussions.

Over the past week, public and private defense lawyers have had discussions about the new waiver with court authorities, including new Presiding Judge Jeffrey Barton and Assistant Presiding Judge Peter Deddeh, as well as the District Attorney’s Office.

The document has been revised several times to address some of the defense bar’s concerns, but those changes have yet to be approved and disseminated to the bench.

“After the language had been in use for a few days, the Court heard concerns from criminal justice stakeholders regarding the new document,” spokeswoman Karen Dalton said on behalf the San Diego Superior Court, in a written statement.


“Realizing misinterpretation by some,” the statement continues, “the Court made it clear to judges on January 6 that as with other conditions of probation, judges are to use their discretion as to whether a particular person in a specific case should be ordered to consent to warrantless searches of their electronic devices as a condition of probation.”

At a time when it’s common to carry the details of a person’s life on a cellphone, and share them via the Internet, electronic privacy concerns have become a major issue in criminal justice, causing lawmakers — and the courts — to respond.

The Electronic Communication Protection Act, signed by Gov. Jerry Brown in October, prohibits the government from compelling access to a person’s digital information and devices without a warrant, wiretap order or the owner’s consent, except in emergency situations.

The American Civil Liberties Union called it the most comprehensive digital privacy law in the country.


The California law followed a landmark ruling by the U.S. Supreme Court in 2014, that barred police from searching an arrestee’s cellphone without a warrant. The opinion, stemming from the case involving a San Diego gang member, recognized that cellphones contain massive amounts of personal data more akin to what could be discovered in a person’s home, rather than in a wallet or pocket.

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice John G. Roberts Jr. wrote in the opinion. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant.”

Judge David Danielsen, whose term as presiding judge for San Diego Superior Court ended last month, said he learned of the change in state law late last year. He asked for legal research to prepare a memo for distribution to the other judges, and was planning to put together an education session in mid-January to discuss the law’s potential impacts.

Then he went on vacation.


“I came back and it was done... ,” said Danielsen, now the criminal supervising judge for San Diego County. “I thought that was going to be on the back burner until we had a chance to figure out what was going on.”

Representatives from the Public Defender’s Office, the Alternate Public Defender’s Office and the county Office of Assigned Counsel — all of which represent indigent clients — said this week that some San Diego judges appear to be requiring the waiver frequently at sentencings or at hearings where the defendant admits to certain charges as a result of a plea agreement.

In some cases, the attorneys said, defendants have been to sign the waivers at arraignment, when a judge sets bail or determines whether the defendant should be released on a promise to return to court for all subsequent hearings.

Some judges are declining to use the waiver at all, the attorneys said.


“Those folks are all independent contractors and they do what they want,” said Randy Mize, a chief deputy in the Public Defender’s Office, noting that Superior Court judges are either elected by the voters or appointed by the governor. “And that’s what’s been interesting to watch in the last week around the county, who’s jumped on board and who said ‘I want no part of this.’”

The lawyers conceded there are cases in which such a waiver would be appropriate, particularly when there’s a link between the criminal behavior and the types of electronic communication discussed in the document. That would include, for example, cases in which the defendant is convicted of possessing child pornography on a cellphone, or making online threats.

“It should depend on the crime,” said Kurt Hermansen, president of the San Diego Criminal Defense Bar Association. “Why should a shoplifter have to go to a probation officer and let them search his cellphone? It’s not necessary.”

The document distributed to San Diego judges indicates it would apply only in cases in which the defendant is also subject to a Fourth Amendment waiver, meaning that person can be stopped and searched by law enforcement at any time without a warrant. Fourth Amendment waivers are common in cases in which a defendant, who is convicted of crime, is placed on probation or mandatory supervision instead of being sent to prison.


Both the court and the District Attorney’s Office contend it was generally understood within the criminal system before the new law went into effect that when a probationer agreed to a warrantless search of their property, phones and computers were included.

“We believe this legislation does not change the way in which law enforcement implements Fourth waivers,” said Chief Deputy District Attorney David Greenberg.

Asked for clarification on what role — if any — the District Attorney’s Office may have had in driving use of the new waivers, a spokeswoman said in a written statement that the office is complying with the court’s orders.

“Even though there is a difference of opinion among opposing parties, we expect it to be clarified and decided by the appellate courts.”