On August 23, 2010, Judge Kimbler filed a journal entry denying a motion to suppress in the case of State of Ohio v. Michael A. McCarty, Case No. 10-CR-0163. A copy of the body of the motion appears below:
Case History
Mr. McCarty is charged with five crimes. He filed a motion to suppress on June 16, 2010 alleging that the State obtained both physical evidence and statements from Mr. McCarty by unconstitutional means. The Court heard Mr. McCarty’s motion on August 12, 2010. This entry sets forth the Court’s findings of fact, conclusions of law, and ruling on Mr. McCarty’s motion.
Findings of Fact
Early in the morning of April 19, 2010, Patrolman Matt Markley of the Wadsworth Police Department was on duty. That day he was working the 10 pm to 6 am shift. At approximately 1:20 am he made a traffic stop of a vehicle in which Mr. McCarty was a passenger.
Officer Markley made the stop after his cruiser’s radar unit clocked the car in which Mr. McCarty was a passenger doing 65 mph in a 50 mph zone. The car was driven by a Mary Moser.
At the start of his shift, Officer Markley was told that the day before there had been a series of car break-ins in Wadsworth. Property taken from the cars included electronic devices such as mp3 players and cell phones.
After making the stop, Officer Markley began to run the registration and license information for the vehicle and the driver. While he was running that information, he asked his dispatcher to contact a canine unit from Seville. Officer Markley wanted the canine unit to do a sniff around the car.
The request to dispatch the canine unit came in at 1:23 through the Medina County Sheriff’s Office Dispatch Center. The Seville Officer received the dispatch at 1:26 and he arrived at the scene at 1:31. When he arrived at the scene with his canine partner, Officer Markley briefed him on what he wanted done. The Seville officer then walked his canine partner around the stopped car. The dog alerted on the vehicle and the two officers began to search the car.
While they were searching the vehicle, Officer Markley discovered a bag with several cell phones in it, mp3 players, white wires, other electronic cords, and gloves. At that point Officer Markley gave both the driver and Mr. McCarty the warnings regarding their constitutional rights.
After receiving the warnings, Mr. McCarty told the Officer that he had bought the bag and its contents for $50.00 from a person in a park. He also said that he knew the items in the bag were stolen. At that point, Officer Markley arrested Mr. McCarty for receiving stolen property.
After arresting Mr. McCarty for receiving stolen property, Officer Markley took him down to the Wadsworth Police Station. Over the next few hours Mr. McCarty admitted to stealing the items in the bag on April 18 and 19. During this time he was not deprived of food or drink, wasn’t under the influence of drugs and/or alcohol, and the Officer didn’t make any promises or threats to get him to make statements.
Conclusions of Law
A stop is constitutional if it is supported by either a reasonable suspicion or probable cause." State v. Molek, 11th Dist. No. 2001-P-0147, 2002 Ohio 7159, at P25. In order to make an investigative stop within constitutional parameters, a police officer must be able to cite articulable facts that give rise to reasonable suspicion of criminal behavior. Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889.
The scope and duration of an investigative stop must not exceed what is necessary to complete the purpose for which the initial stop was made. Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229; State v. Robinette (1997), 80 Ohio St.3d 234, 1997 Ohio 343, 685 N.E.2d 762, paragraph one of the syllabus; State v. Chatton (1984), 11 Ohio St.3d 59, 63, 11 Ohio B. 250, 463 N.E.2d 1237.
"In conducting an investigative traffic stop, an officer may detain a motorist for a period of time sufficient to run a computer check on his license, registration, and vehicle plates and to issue him a warning or a citation." State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660.
An officer, however, cannot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime. State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.
Whether or not a detention is reasonable depends upon the totality of the circumstances and the facts of each case. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489.
Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, protects a defendant's Fifth Amendment right against self-incrimination by prohibiting admission of inculpatory statements resulting from custodial interrogation unless law enforcement officers have followed enumerated procedural safeguards.
Those safeguards include the arresting officer advising the arrested persons that he or she has a right to remain silent; a right to stop answering or talking to the police at any time; a right to have an attorney present during any interrogation; and the right to have a court-appointed attorney if the arrested person cannot afford to hire an attorney.
An officer may make a warrantless arrest if he has probable cause to believe that the person being arrested committed a crime. Probable cause exists if the facts and circumstances known to the officer warrant a prudent person in believing that the person being arrested had committed a crime. Beck v. Ohio (1964), 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142.
Reasonable suspicion of drug-related activity is not required, prior to subjecting an otherwise lawfully-detained vehicle to a canine sniff. State v. Ramirez, (2004) Ohio 6541 (9th District, Dec. 8, 2004); State v. Lynn (2000), 137 Ohio App.3d 402, syllabus at paragraph six; State v. Rusnak (1997), 120 Ohio App.3d 24, 28-29; and State v. Carlson (1995),102 Ohio App. 3d 585 (9th District, April 19, 2005); State v. Blednick (1997), Ohio App. LEXIS 4884 (9th District, Nov. 5, 1997); State v. Ray (2004), Ohio App. LEXIS 3045 (9th District, June, 30 2004).
A canine sniff by a well-trained narcotics detection dog is sui generis and does not constitute a "search" under the Fourth Amendment to the United States Constitution or under the Ohio Constitution. United States v. Place (1983), 462 U.S. 696, 707, (canine sniff of luggage at airport); see also United States v. Reed (6th Cir. 1998), 141 F.3d 644, 649-50 (canine sniff of dresser while police were lawfully present inside residence); State v. Lynn
(2000), 137 Ohio App.3d 402 (canine sniff of inoperable and undetained vehicle); State v. French (1995), 104 Ohio App.3d 740, syllabus at paragraph nineteen; State v. Carlson (1995), 102 Ohio App. 3d 585; State v. Palicki (1994), 97 Ohio App.3d 175, syllabus at paragraphs four and five; and State v. Riley (1993), 88 Ohio App.3d 468, syllabus at paragraph one (canine sniffs of lawfully detained vehicles).
Once the drug sniffing dog had “hit” on the vehicle, the trooper had probable cause to search the vehicle without a warrant. See State v. Carlson (1995), 102 Ohio App.3d 585.
The United States Supreme Court has held that the constitutional right to due process of law is violated when a conviction is founded upon an involuntary or coerced confession, even if there is ample evidence apart from the confession to support the conviction. Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 84 S. Ct. 1774; Lynumn v. Illinois (1963), 372 U.S. 528, 537, 9 L. Ed. 2d 922, 83 S. Ct. 917. A suspect's waiver of his right not to incriminate himself and his subsequent confession must be made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Absent evidence that a suspect's will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct, the decision of a suspect to waive his Fifth Amendment privilege is made voluntarily. State v. Dailey (1990), 53 Ohio St. 3d 88, 91-92, 559 N.E.2d 459.
To determine voluntariness, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the defendant; the length, intensity, and frequency of the interrogation; and the existence of physical deprivation or mistreatment, or the existence of any threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31, 40-41, 358 N.E.2d 1051, vacated as to death penalty (1978), 438 U.S. 911, 98 S. Ct. 3135, 57 L. Ed. 2d 1154.
After a suspect is arrested the police must advise of the suspect of the constitutional right not to incriminate himself; that anything the suspect says can and will be used against the suspect; that if the suspect starts talking, the suspect can stop at any time; that the suspect has the right to an attorney; and that if the suspect can’t afford one, one will be appointed to represent the suspect. Miranda v. Arizona (1966), 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 1966 U.S. LEXIS 2817; 10 A.L.R.3d 974.
Holding
The Court finds that the motion to suppress should be overruled. Officer Markley had a reasonable and articulable suspicion that the driver of the car in which Mr. McCarty was a passenger was violating the traffic laws of Ohio. This suspicion was based on the reading he got from his cruiser’s radar unit.
Once he stopped the vehicle, he had the right to ask for a drug sniffing dog, provided that he did not drag out the stop in order to get the dog to the car. Since the dog arrived at the scene within about 10 minutes of the stop, and since a stop under 20 minutes is presumed reasonable, the sniff was constitutionally permissible.
Once the dog alerted on the vehicle, Officer Markley had probable cause to search the vehicle. Finding the bag gave him the basis to interrogate Mr. McCarty concerning the bag’s contents. Mr. McCarty’s statements about buying the bag and knowing the contents were stolen then gave Officer Markley probable cause for a warrantless arrest.
Officer Markley’s interrogation of Mr. McCarty was constitutional. He advised Mr. McCarty of his constitutional rights and did not apply unconstitutional coercion to obtain the statements.
Order
Mr. McCarty’s motion to suppress is denied.
SO ORDERED.
Showing posts with label search and seizure. Show all posts
Showing posts with label search and seizure. Show all posts
Monday, August 30, 2010
Wednesday, December 16, 2009
Ohio Surpeme Court Bars Warrantless Cell Phone Search Unless Necessary for Officer Safety or to Preserve Evidence
The case summary below was prepared by the staff of the Ohio Supreme Court
008-1781. State v. Smith, Slip Opinion No. 2009-Ohio-6426.
Greene App. No. 07-CA-47, 2008-Ohio-3717. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.
The Supreme Court of Ohio ruled on December 15, 2009 that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.
During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.
He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2nd District Court of Appeals affirmed the action of the trial court. The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the constitutionality of the phone search.
In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’ Jones v. United States (1958). ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”
Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District’s majority and dissenting opinions.
She wrote: “In United States v. Finley ...the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”
“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation. They arrested Park and took him to booking, where they searched him and found a cell phone. Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. ... Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”
In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”
While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. 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. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”
“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger. “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.
Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee. He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. ... The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.
Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.
“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence. The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us. I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”
Contacts
Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.
Craig M. Jaquith, 614.644.1568, for Antwaun Smith.
Greene App. No. 07-CA-47, 2008-Ohio-3717. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.
The Supreme Court of Ohio ruled on December 15, 2009 that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.
During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.
He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2nd District Court of Appeals affirmed the action of the trial court. The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the constitutionality of the phone search.
In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’ Jones v. United States (1958). ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”
Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District’s majority and dissenting opinions.
She wrote: “In United States v. Finley ...the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”
“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation. They arrested Park and took him to booking, where they searched him and found a cell phone. Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. ... Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”
In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”
While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. 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. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”
“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger. “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.
Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee. He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. ... The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.
Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.
“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence. The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us. I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”
Contacts
Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.
Craig M. Jaquith, 614.644.1568, for Antwaun Smith.
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