Ohio court: Cell phone searches require warrant

[jimmy olsen]

Good decision.

http://www.msnbc.msn.com/id/34434516/ns/us_news-crime_and_courts/

Ohio court: Cell phone searches require warrant
'Wealth of digital information' stored on devices cited; ACLU hails decision
   
updated 1:08 p.m. PT, Tues., Dec . 15, 2009

COLUMBUS, Ohio - Police officers must obtain a search warrant before scouring the contents of a suspect's cell phone unless their safety is in danger, a divided Ohio Supreme Court ruled Tuesday on an issue that appears never to have reached another state high court or the U.S. Supreme Court.

The Ohio high court ruled 5-4 in favor of Antwaun Smith, who was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant.

Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it. They found a call history and stored numbers that showed Smith had previously been in contact with the drug user.

Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools.

During his trial, Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure.

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. Smith was convicted of all charges and sentenced to 12 years in prison.

A state appeals court upheld the trial judge's ruling in a 2-1 decision. The dissenting judge based his opposition on a different federal court case, which found that a cell phone is not a "container" as the term had been used previously.

No U.S. high court precedent
Writing for the majority in Tuesday's ruling, Supreme Court Justice Judith Ann Lanzinger said the only case law available to guide the court appeared to be the conflicting federal court decisions. The U.S. Supreme Court hasn't taken up the issue and there appeared to be no decisions from top-level state courts on the matter, she wrote.

Lanzinger said the majority didn't agree with the state's argument that a cell phone was akin to a closed container.

"We do not agree with this comparison, which ignores the unique nature of cell phones," Lanzinger wrote. "Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. ... Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container."

Stephen Haller, a Greene County prosecutor, said the court created a new section of law pertaining to cell phones. He said he will decide within two weeks whether to appeal the decision to the U.S. Supreme Court.

'Razor-thin' decision
"I'm disappointed with this razor-thin 4-3 decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."

Smith's attorney and the American Civil Liberties Union of Ohio, which described Tuesday's ruling as a landmark case, said the law needs to account for technological advances.

"People keep their e-mail, text messages, personal and work schedules, pictures, and so much more on their cell phones," Craig Jaquith, Smith's attorney, said in a statement. "I can't imagine that any cell phone user in Ohio would want the police to have access to that sort of personal information without a warrant. Today, the Ohio Supreme Court properly brought the Fourth Amendment into the 21st century."

Justice Robert R. Cupp wrote the dissenting opinion. He argued that the contents of a cell phone are similar to a traditional address book and therefore open to search without a warrant when obtained during an arrest. He said the majority "needlessly theorized" about what a cell phone is capable of doing and the data it can store.

Copyright 2009 The Associated Press.

[DontSayBanana]

Not sure why this is such big news.  Modern cell phones have data functions very similar to most laptops, and no judge would be stupid enough to say that the police don't need a warrant to pull data from a laptop carried by a suspect.

[Strix]

This is why I love the fact that parolees give up their right to unlawful search and seizure when they leave prison. It makes my job so much less of a headache. 

[Ed Anger]

Stephen Haller, a Greene County prosecutor, said the court created a new section of law pertaining to cell phones. He said he will decide within two weeks whether to appeal the decision to the U.S. Supreme Court.

'Razor-thin' decision
"I'm disappointed with this razor-thin 4-3 decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."

As an elected official, he isn't that bad.

[dps]

Not sure why this is such big news.  Modern cell phones have data functions very similar to most laptops, and no judge would be stupid enough to say that the police don't need a warrant to pull data from a laptop carried by a suspect.

It's news because of this bit:

the only case law available to guide the court appeared to be the conflicting federal court decisions

Some federal courts have allowed this kind of crap.

[derspiess]

Not sure how I feel about this.  All they did was look through his call history on his cellphone (which I assume was on him when he was arrested) *after* he was arrested. To me it looks like they had probable cause.

What am I missing?

[dps]

Not sure how I feel about this.  All they did was look through his call history on his cellphone (which I assume was on him when he was arrested) *after* he was arrested. To me it looks like they had probable cause.

What am I missing?

Nothing, really.  Yeah, they had probable cause--so they should have gotten a warrant.  Just like they would normally have probable cause to search someone's house after arrest, but they should bet a warrant first.

[Barrister]

Not sure how I feel about this.  All they did was look through his call history on his cellphone (which I assume was on him when he was arrested) *after* he was arrested. To me it looks like they had probable cause.

What am I missing?

You're mixing your law.

If it's a search, you need 'probable cause' (reasonable and probable grounds here), and a warrant.

If it isn't a search, you don't need probable cause, and you don't need a warrant.

[derspiess]

You're mixing your law.

If it's a search, you need 'probable cause' (reasonable and probable grounds here), and a warrant.

If it isn't a search, you don't need probable cause, and you don't need a warrant.

Okay, I thought there were instances where probable cause is sufficient to where a warrant is not required for search.

[dps]

You're mixing your law.

If it's a search, you need 'probable cause' (reasonable and probable grounds here), and a warrant.

If it isn't a search, you don't need probable cause, and you don't need a warrant.

Okay, I thought there were instances where probable cause is sufficient to where a warrant is not required for search.

There are, but they're very limited. 

[The Brain]

Antwaun? Sigh.

[Barrister]

By the way the ruling is crap.

You don't (or shouldn't) consider the cell phone as separate from where and how it is found.  If the cell phone is on the person, and police are entitled to search the person, then they are entitled to look on the cell phone.  If police are not entitled to search the person, they can't search the cell phone. 

It's as simple as that.

[DontSayBanana]

Antwaun? Sigh.

And the sweet ride of his the police impounded:

[dps]

By the way the ruling is crap.

You don't (or shouldn't) consider the cell phone as separate from where and how it is found.  If the cell phone is on the person, and police are entitled to search the person, then they are entitled to look on the cell phone.  If police are not entitled to search the person, they can't search the cell phone. 

It's as simple as that.

No, it's not that simple.

For example, when taking a suspect into custody, the police are allowed to search him for concealed weapons, but if he happens to be carrying his appointment book on his person, they don't have the authority to look through that--the warrantless search is allowed in this instance to ensure the safety of the police and any bystanders, but it's limited to that purpose.

Of course, it's entirely possible that Canadian law differs on this subject.

[Barrister]

By the way the ruling is crap.

You don't (or shouldn't) consider the cell phone as separate from where and how it is found.  If the cell phone is on the person, and police are entitled to search the person, then they are entitled to look on the cell phone.  If police are not entitled to search the person, they can't search the cell phone. 

It's as simple as that.

No, it's not that simple.

For example, when taking a suspect into custody, the police are allowed to search him for concealed weapons, but if he happens to be carrying his appointment book on his person, they don't have the authority to look through that--the warrantless search is allowed in this instance to ensure the safety of the police and any bystanders, but it's limited to that purpose.

Of course, it's entirely possible that Canadian law differs on this subject.

Not substantially.  If detaining a suspect (not taking him into custody) police are allowed to do a cursory search for weapons.  They would not be entitled to go through a cell phone.

However if police are arresting someone, they are actually obliged to search and catalogue all of that person's effects.  As such they are entitled to search the cell phone.