The American Civil Liberties Union of Northern California filed suit on Wednesday against San Francisco and its police chief on behalf of an East Bay homeless rights activist whose cell phone was searched without a warrant.
The suit - claiming that two San Francisco police officers violated the activist's privacy rights by conducting a warrantless cell phone search - is the first of its kind in California.
Police Chief Gregory Suhr is named as a defendant. Sgt. Michael Andraychak wrote in an email that the department does not comment on civil suits.
"It's not just his privacy that was violated, ACLU's lead attorney Linda Lye told NBC Bay Area on Wednesday. "But everyone who that person talked to."
What's at issue here arose on Jan. 27, 2012 when Bob Offer-Westort, who worked at the San Francisco Coalition on Homelessness, pitched a tent at a parklet in San Francisco where Market, 17th and Castro streets converge.
The now-Oakland resident was there, his lawyers said, protesting a law that he felt unfairly targeted homeless people. He was specifically challenging Supervisor Scott Wiener's ordinance making it illegal to camp, and during certain hours, sleep in Harvey Milk and Jane Warner Plaza.
Officers arrested Offer-Westort for on an "anti-lodging" charge and took his cell phone, his lawyers said. At the station, one of the officers took his phone out of his pocket and began scrolling through Offer-Westort’s text messages and reading them out loud, according to the suit.
When Offer-Westort asked what the officer was doing, the officer responded: "Looking for text messages - how do you feel about that?" according to the suit. Offer-Westort said he didn't give the officer consent. The officer retorted: "The California Supreme Court gives me the right after I arrest you," the suit claims.
Offer-Westort was released from custody and received his cell phone back almost six months later. During that time, the suit claims that someone had been reading his texts because they were no longer marked as unread.
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Offer-Westort is extremely upset. He worries that his relationships could be damaged if private text messages he sent, and the people he communicated with, were made public.
“I rely on my cell phone to communicate. We shouldn’t have to worry that our personal information, and that of everyone in our phone, will be up for grabs every time we go to a political protest,” Offer-Westort said.
The ACLU suit charges that warrantless cell phone searches at the time of arrest violate the constitutional rights not only of arrestees but also of their family, friends, co-workers, and anyone whose information is in their phones. This practice violates the right to privacy, and the right to speak freely without police listening in to what we say and who we talk to.
In 2011, the California Supreme Court ruled in People v. Diaz that the police can search the cell phone of arrestees without violating the Fourth Amendment to the United States Constitution.
Lye said that the current suit filed on behalf of Offer-Westort brings a challenge under the California Constitution’s stronger guarantees of privacy and freedom from unreasonable search and seizure and the state's guarantees of freedom of speech and association.
The law firm Pillsbury Winthrop Shaw Pittman LLP is providing pro bono assistance in the suit.
Contact Lisa Fernandez at 408-432-4758 or lisa.fernandez@nbcuni.com.
