Navigating Suppression of Electronic Evidence Under CalECPA

By: Craig Long, CIPP/US
3L J.D. Candidate at Santa Clara Law⁽ⁱ⁾

I. INTRODUCTION

As people in today’s society have developed an ever-increasing reliance on the use of internet-connected devices to navigate daily life, the electronic information contained in our phones, vehicles, social media accounts, and cloud service accounts often constitutes evidence that law enforcement can use to solve crimes. The digital breadcrumbs that we leave behind are offering opportunities for law enforcement to investigate crimes in a manner unheard of decades ago. In an effort to develop boundaries that constrain law enforcement’s ability to seize an individual’s electronic information, the California Legislature passed in 2015 the California Electronic Communications Privacy Act (“CalECPA”).^[ii]

Although CalECPA has imposed statutory requirements on law enforcement, it appears that California Courts of Appeal have relied, for the most part, on Fourth Amendment jurisprudence to strike a balance between enforcing a strict interpretation of CalECPA and enabling law enforcement to make good faith attempts to comply with CalECPA in their efforts to protect the public. As we approach the 10th anniversary of CalECPA’s enactment, it is still unclear when law enforcement’s violation of CalECPA would result in the suppression of electronic information.

II. CALECPA’S INITIAL IMPACT ON CALIFORNIA LAW ENFORCEMENT

In January of 2011, the California Supreme Court held in People v. Diaz that law enforcement officers may search the text messages of an arrestee’s cell phone incident to arrest if the cell phone was in the arrestee’s immediate possession at the time of arrest.ⁱⁱⁱ However, the United States Supreme Court overruled Diaz in June 2014 and held that the contents of a cell phone may only be searched by a government agency upon the issuance of a search warrant.^iv

When CalECPA was enacted the following year, it was evident that CalECPA was intended to expand the search warrant requirement to law enforcement’s seizure of electronic information, but it was unclear to what extent accidental non-compliance with CalECPA would trigger suppression of the electronic information.

III. RELEVANT FOURTH AMENDMENT DOCTRINES

Under the Fourth Amendment, a search is presumptively unreasonable unless it is supported by probable cause and a valid search warrant. Courts examine three main factors to determine the validity of a search warrant: 1) probable cause, 2) particularity, and 3) overbreadth. CalECPA imposes an additional particularity requirement in which a warrant must “…describe with particularity the information to be seized by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts…”

The exclusionary rule generally requires the suppression of evidence seized pursuant to a subsequently invalidated search warrant. However, current Fourth Amendment jurisprudence provides that the ‘good faith’ exception to the exclusionary rule allows the admission of otherwise excludable evidence where a search has been conducted in objectively reasonable reliance on a subsequently invalidated search warrant. CalECPA also provides a statutory provision under Cal. Pen. Code § 1546.4(a) that entitles an individual to move to suppress any electronic information seized or maintained in a manner inconsistent with CalECPA or the Fourth Amendment.

IV. AREAS OF TENSION BETWEEN CALECPA AND CASE LAW

As of this writing, a California Court of Appeal has yet to construe CalECPA’s particularity requirement to be any more restrictive than the particularity requirement derived from the Fourth Amendment. In People v. Meza, the court appeared to suggest that the CalECPA particularity requirement is less restrictive than its Fourth Amendment counterpart when it held that the search warrant in question violated the particularity requirement under the Fourth Amendment without violating CalECPA.

Although the defendant in DiMaggio v. Superior Court argued that the search warrant in question violated both the CalECPA and the Fourth Amendment particularity requirements, the court only conducted an analysis of the particularity requirement under the Fourth Amendment when it held the search warrant was invalid. In both cases, the courts conducted an analysis of whether reliance on the ‘good faith’ exception to the exclusionary rule was warranted without addressing whether the ‘good faith’ exception was applicable to Cal. Pen. Code § 1546.4(a).

CalECPA also imposes notification requirements directing law enforcement to inform targets of electronic information search warrants of the seizure of their electronic information pursuant to the service of a search warrant (Cal. Pen. Code § 1546.2(a)(1)). In both Price v. Superior Court and People v. Campos, a California Court of Appeal declined to suppress the electronic information seized in reliance on the search warrants in question under CalECPA’s suppression statute even though the courts found the notification to the defendants by law enforcement was not compliant with CalECPA’S statutory requirements.^vii

Instead of construing CalECPA to require the suppression of evidence in every instance law enforcement fails to comply with CalECPA’s notification requirement, the courts in Price and in Campos adopted a reasoning based on jurisprudence related to the notification requirements for California wiretap investigations to determine whether suppression was appropriate. Both courts determined that the notifications the law enforcement agencies eventually provided the defendants were sufficient as their conduct did not undermine the purpose of the CalECPA notification statutes. In Campos, the court ultimately held that the notification the defendant received via the discovery process was sufficient.^viii The court in Campos also contemplated whether suppression was ever the appropriate remedy for violations of the CalECPA notification requirements, but did not resolve that question as neither party raised the issue.^ix

V. POTENTIAL TENSION WITH CALECPA’S PURPOSE LIMITATION REQUIREMENT

Traditionally, when law enforcement lawfully seized evidence during one investigation, it can use it in an unrelated investigation without the need for an additional court order. For example, if it was determined that a firearm seized during a firearm-possession arrest had also been used in an unrelated homicide, the firearm could then be obtained by a neighboring police agency and used as evidence in the homicide investigation. However, if a law enforcement investigator determines electronic information seized pursuant to a search warrant is relevant for an investigation unrelated to the subject matter of the search warrant, CalECPA’s purpose limitation statute requires the investigator to show probable cause to obtain a court order authorizing the use of the electronic information in the unrelated investigation (Cal. Pen. Code § 1546.1(d)(2)).

Although courts have demonstrated a willingness to apply the ‘good faith’ exception to deficiencies in the particularity requirement of a search warrant, a necessary requisite for the application of the ‘good faith’ exception is some effort made toward the compliance with that requirement. To that end, CalECPA’s purpose limitation requirement could conceivably impede a court from applying the ‘good faith’ exception to instances in which law enforcement uses electronic information seized under search warrants from an unrelated investigation without a separate court order. In such a scenario, it is uncertain whether a court order would have to be obtained prior to the use of the electronic information in the unrelated investigation, or whether a subsequent court order obtained after the arraignment of a defendant would be sufficient under the statute.

VI. CONCLUSION

Instead of construing CalECPA to impose strict statutory requirements on law enforcement, California Courts of Appeal have relied upon the ‘good faith’ exception and jurisprudence related to wiretap investigations to establish case law allowing law enforcement to make good faith attempts to comply with CalECPA. However, it is not certain that the ‘good faith’ exception will be applicable to violations of CalECPA’s purpose limitation requirement and courts may have strong grounds for suppressing evidence for non-compliance with the requirement.

While CalECPA’s purpose limitation requirement may be burdensome on law enforcement, the benefit of ensuring electronic information that is collected through criminal investigations is afforded a high degree of care and confidentiality offsets that burden. The onus should be on California law enforcement administrators and the supervisors of elected prosecutors’ offices to establish clear procedures that ensure investigators maintain compliance with Cal. Pen. Code § 1546.1(d)(2).

[i] Craig is a 3L at Santa Clara Law, where he is a candidate to receive the Privacy Law Certificate with Honors upon graduation in December of 2025. Prior to entering law school, Craig served as a Logistics Officer in the Marine Corps Reserve and he was a sworn police officer in California for almost a dozen years.

[ii] S.B. 178, 2015-2016 Leg., Reg. Sess. (Cal. 2015).

[iii] People v. Diaz (2011) 51 Cal.4th 84, 101.

[iv] Riley v. California (2014) 134 S.Ct. 2473, 2495.

[v] People v. Meza (2023) 90 Cal.App.5th 520, 526.

[vi] DiMaggio v. Superior Court (2024) 104 Cal.App.5th 875, 892.

[vii] Price v. Superior Court (2023) 93 Cal.App.5th 13, 63; People v. Campos (2024) 98 Cal.App.5th 1281, 1298.

[viii] Campos at 1297. [1] Id.