A lawsuit has been filed in connection with the warrantless police search of a nonviolent protester’s cellphone in the Castro district last year.
On Wednesday, the American Civil Liberties Union of Northern California filed the civil suit against The City and Police Chief Greg Suhr on behalf of homeless advocate Bob Offer-Westort, who was arrested Jan. 27, 2012, after setting up a tent in Jane Warner Plaza and refusing to leave.
In 2011, the California Supreme Court ruled in People vs. Diaz that police can search an arrestee’s cellphone without violating the Fourth Amendment of the U.S. Constitution.
But the Offer-Westort case is being used to show that such searches violate the California Constitution, which offers stronger guarantees of privacy and freedom, the ACLU said.
A cellphone search “violates the right to privacy, and the right to speak freely without police listening in to what we say and who we talk to,” said Linda Lye, an ACLU staff attorney.
At the time of his arrest, Offer-Westort worked for the San Francisco Coalition on Homelessness and was protesting an ordinance making it illegal to camp or sleep during certain hours in Harvey Milk and Jane Warner plazas.
Following his arrest, the lawsuit said, one of the officers scrolled through Offer-Westort’s text messages and read some of them aloud, despite being told he did not have consent.
The officer cited the 2011 ruling as to why he could search Offer-Westort’s cellphone.
Marley Degner, an attorney with Pillsbury Winthrop Shaw Pittman LLP, which is providing pro bono services in the case, said cellphones are virtually home offices that contain personal, professional and financial information about their owners and others.
“Police need a warrant to search our home office,” Degner said. “Our cellphones should be treated the same way.”