A new form is being used at San Diego Superior Court that some defense attorneys say is unconstitutional.
It allows law enforcement and probation officers to check a defendant’s digital information “anytime, day or night, with or without a search warrant, and with or without reasonable cause,” according to the document obtained by NBC 7.
Some members of San Diego’s legal defense community say attorneys did not have a say in the creation of the new waiver.
“Our attorneys showed up and were told by judges there was a new form, a waiver of the Fourth Amendment rights and the new rights provided by the Electronic Privacy Act,” said Frank Birchak with the Office of the Public Defender, San Diego. “Our attorneys were surprised. Our office was surprised. We had no notice this was coming.”
On January 1, a state law took effect requiring law enforcement to obtain search warrants before seizing and analyzing anyone’s electronic property and its contents.
Birchak said the waiver essentially reverses the new law. According to the form, if signed, a defendant would consent to handing over cell phones, computers, gaming consoles, passwords, fingerprints and “information required to gain access into any of the aforementioned devices of social media accounts.”
Birchak believes the form, in its current form, is unconstitutional.
“The breadth is why it’s so concerning. The fact that it doesn’t restrict things and doesn’t say things found ago can’t be used against you,” he said.
A spokesperson with San Diego Superior Court told NBC 7, before the digital privacy law took effect January 1, the Court was contacted by the District Attorney’s office on behalf of Probation and County Counsel. They had concerns about the new law’s impact on judges’ abilities to exercise discretion in Fourth Amendment waiver cases. Hence, the Court developed the document.
“Realizing the misinterpretation by some, the Court made it clear to judges on January 6th 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 their probation,” spokesperson Karen Dalton wrote.
She continued, “Prior to January 1, 2016, it was generally understood in the criminal system that when a criminal defendant agreed to a warrantless search as a condition of probation (a "4th waiver"), the property subject to search included a probationer's phones and computers.”
Birchak said the form isn’t just signed by those on probation, but also by some who have not been convicted.
NBC 7 also reached out to the San Diego County District Attorney’s Office. A spokesperson replied through e-mail, “We are complying with orders of the court. Even though there is a difference of opinion among opposing parties, we expect it to be clarified and decided by the appellate courts.”
Currently, the Court is listening to concerns from the defense community and reviewing the waiver. Both sides told NBC 7 they feel hopeful they’ll reach a resolution. The waiver is expected to be challenged in court.