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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.
Either submitter has their double negatives mixed up, or I'm really confused here:
The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and terefore not searchable without a warrant
Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?
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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.
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Taking guns away from the 99% gives the 1% 100% of the power.
"He compared the data contained within an address book that would be searchable."
In the future, so too would be human thoughts. Human heads are simply containers for memories stored in synaptic format.
but what if the suspect had a laptop or netbook on his person; wouldn't the police need a separate search warrant to search that specific machine? A cell phone is not different, is it?
I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.
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If I recall correctly, the original rationale for concluding that warrantless searches incident to arrest are "reasonable" is that: 1) the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices; and 2) the police need to be able to inventory the subject's possessions in case a future dispute arises over their proper return.
I don't see either of those rationales making sense for searching electronic devices. Unlike with a physical container, where the suspect might be concealing a weapon (point 1), a suspect cannot conceal weapons within the data contained on electronic devices (at least for definitions of "weapon" relevant to ensuring a police officer's safety). An arrestee might, I suppose, later claim that the police stole a valuable item that was never in fact there (point 2), but I think this is considerably more far-fetched than with physical containers--- we're not talking about stealing gold coins out of a purse or something, but maybe destroying data that the arrestee claims is valuable and irreplaceable. Is that concern sufficient to allow police to routinely inventory all data on arrestees' devices? And how would they even inventory it?
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
There aren't many cases where I think requiring the police to get a warrant is too large an imposition. If they have reason to believe there's information of use on that cell phone, they can go get a warrant and then search the phone.
but the pattern in rulings related to "Terry stops" seems to be the other way. Florida recently ruled that a search of a car someone just left was approprite "to ensure officer safety", though a search of a house was not.
I'm trying to figure out how a knife in a car would pose a danger to a police officer when the owner is sitting in the back of a patrol car.
Sadly: the tendancy for decades seems to be away from protection of the citizen's rights.
It seems very reasonable that an officer could look through a person's purse or day-timer if they are arrested. Since phones and digital devices are often similar, it really is just another kind of day-timer. However, computers are often a great deal more. It is reasonable for an officer to secure his safety. It is not reasonable for an officer to search through a suspect's family photos or personal messages. For evidence gathering, I would hope most judges and DA's are sophisticated enough to include digital records with other targetted records searches. However, searching a computer at a tarry is unreasonable.
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The logic used is that:
(1) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court), in general, law enforcement searches without request require a warrant to be reasonable;
(2) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court) that a search incident to arrest of the person arrested, including closed containers in their immediate control, is reasonable without a warrant because of the potential for such containers to contain objects which may pose a danger to the arresting officers or the public.
(3) While a cellphone may "contain" data, the date it "contains" is not the same as physical contents of a container discussed in #2 in the manner which makes warrantless searches reasonable.
(4) As a consequence of #3, in the absence of some other exception to the warrant requirement that would apply, the general rule in #1 applies, and a warrant is required.
What part this reasoning do you object to?
Why do the police have the right to search an address book without a warrant? Doesn't that violate the 4th amendment?
because the police have a lot of guns and they work for the government which has a military with even more guns.
Snowden and Manning are heroes.
I just find it interesting that whether or not a cell phone is a container that holds objects -- something one might discuss with their two-year old -- is being debated in a state supreme court.
J