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Cell Phone Searches Require Warrant
schleprock63 writes "The Ohio state supreme court has decided that a cell phone found on a suspect cannot be searched without a warrant. The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and therefore not searchable without a warrant. The argument of the majority contended that a cell phone does not contain physical objects and therefore is not a container. One dissenting judge argued that a cell phone is a container that simply contains data. He argued that the other judges were 'needlessly theorizing' about the contents of a cell phone. He compared the data contained within an address book that would be searchable." The article notes that this was apparently the first time the question has come up before any state supreme court.
He compared the data contained within an address book that would be searchable.
How is an address book not "papers" as in the 4th ammendment's person, papers and effects?
When information is power, privacy is freedom.
I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.
So... anything besides a closed container requires a warrant or what? I'm assuming an "open container" would not require a warrant. Then again, I usually find logic has no place in the legal system.
I'm also confused about the case. Was the searching the cell phone superfluous to the case? TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it. Is it somehow against the law to answer the phone? Like maybe he was under probation and barred from talking to his old clients or something?
Wouldn't that allow them to open almost anything in these times when 100ml of liquid or a nail file could be and sometimes are considered weapons?
I think that's the idea. We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time. To complete this, now anything and everything is a "weapon" anytime an official needs an excuse to search you. The reason why you have basically unenforcable laws like this, is so that you can enforce them anytime you want against anyone. I'm sure it's quite "handy" for political opponents or anyone who is an outspoken critic or otherwise a nuisance to whoever is in power or is otherwise well-connected.
We have this situation because the average American is a hell of a lot more concerned about football, the Top 40 charts, and American Idol than they are about their own freedom and well-being. That saying about how our system causes us to get the government we deserve probably has some truth to it.
It is a miracle that curiosity survives formal education. - Einstein
Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items.
I guess that a reasonable standard would be to perform a physical search of the phone to insure that there is no object hidden in the phone (maybe some pills were placed behind the battery, or the like, or to insure that the device is actually a functional phone, and not a bomb contained in a phone case). An electronic search of the data is a completely different beast, and there is no reason for the arresting officer to access the data without a warrent.
On the other hand, I would hope that the same rules apply to wallets. Over the last couple of years, I have been in the habit of carrying a USB flash stick in my wallet, and if I ever got arrested (God forbid), it would be reasonable for them to search the wallet, but not to plug the flash device into a computer without a wallet.
Thank you, you're the kind of police officer we need on the streets.