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Cell Phone Searches Require Warrant

Posted by kdawson on from the don't-search-me-bro dept.

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.

16 of 161 comments (clear)

  1. Not not? by Hatta · · Score: 3

    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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    1. Re:Not not? by interkin3tic · · Score: 4, Insightful

      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?

    2. Re:Not not? by IndustrialComplex · · Score: 5, Informative

      Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

      If I had a 4 liter tin cookie can when I was arrested, it could potentially contain knives, guns, maybe even a bomb. It is reasonable for a police officer to be able to search such a container when they take you into custody. It could be dangerous.

      That is what they mean by a closed container. A cell phone cannot contain a physical dangerous object within its data.

      However, if the police suspected that the phone was just a shell and contained bullets instead of a battery, they might have authority to search it for bullets, but that doesn't involve turning it on and going through the data.

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    3. Re:Not not? by clone53421 · · Score: 5, Informative

      From TFA (all emphasis mine):

      A state appeals court upheld the trial 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.

      Writing for the majority in Tuesday’s ruling, [state] Supreme Court Justice Judith Ann Lanzinger ... said the majority didn’t agree with the state’s argument that a cell phone was akin to a closed container.

      The state won the case in the appeals court – but the judge who sided with Smith in that court argued that the cell phone was not a “container”.

      Smith won the case in the state Supreme Court – and once again, the judges siding with Smith accepted the idea that the cell phone was not a “container”.

      So, what’s the significance of a “container”? We’ll dig further.

      http://www.sconet.state.oh.us/PIO/oralArguments/09/0915/0915.asp#081781

      ISSUE: When a criminal suspect has been taken into custody and his cell phone has been lawfully seized by police incident to his arrest, do police officers violate the defendant’s Fourth Amendment right against unreasonable searches and seizures by conducting a warrantless search of the electronic files stored in the cell phone?

      In this case, [attorneys for Smith] point out, the search of Smith’s phone was conducted hours after he had been taken into custody and his phone had been in the secure possession and control of the police. Under those circumstances, they assert, the phone search was not “incident to” Smith’s arrest and therefore required a warrant. Rather than functioning as a “container” like a box or bag, they assert that current-generation cell phones are much more analogous to personal computers, in which their owners store a wide range of electronic information of a personal nature for which they have a strong expectation of privacy, and which courts have held may not be searched by police without first obtaining a warrant.

      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.

      --
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    4. Re:Not not? by causality · · Score: 4, Insightful

      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
    5. Re:Not not? by surmak · · Score: 3, Insightful

      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.

    6. Re:Not not? by KC7JHO · · Score: 5, Interesting

      Ok, first off, I am a Police Officer in the state of Oklahoma (I know each state is different...) so with that being said, the search of a closed container during an arrest is for safety/inventory purposes.

      I have never even thought I had a right to examine the contents of the phone past the initial screen (no pushing buttons, etc) OR a flash drive with out a warrant. Even when I server a search warrant on a house to retrieve and search electronic storage devices I must always specify that I will be searching the contents of every object found including any phones, disk, computers, cameras, etc. If, during my warranted search I find evidence of the suspect using an online e-mail service (I.E. g-mail) I must again obtain a warrant for this service as well. This is to protect the peoples right to freedom of speach. If I can not convince the judge that the suspect was using the service to conduct illegal activity pertaining to my previous warrant then the Judge will not grant my warrant. In my opinion this is perfectly logical!

      If I am arresting some one for suspicion of dealing narcotics, I can justify a warrant on the phone to look for contacts, messages, etc. If I am arresting them for DUI, what reason could I have for needing to search the contents of the phone? If I am sworn to protect the public, I am just as sworn to protect the civil rights of the public! If I go to a neighboring city/state I would expect the same protection.

    7. Re:Not not? by Anonymous Coward · · Score: 5, Insightful

      Thank you, you're the kind of police officer we need on the streets.

  2. Persons, papers and effects... by Jah-Wren+Ryel · · Score: 3, Insightful

    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.
    1. Re:Persons, papers and effects... by RingDev · · Score: 5, Informative

      If you have an address book, or day planner, you could use it to hold a gun or a knife. So an arresting officer has the right to open it and ensure that there is nothing that could jeopardize their safety in it. They should not be reading the papers, BUT, if you have a 8x10" glossy photo of you putting a round into someone...

      The argument here, as I understand it, is that the majority felt that there is no need to peruse the DATA on the phone to ensure that it will not jeopardize the officer's safety. You can not store a gun or a knife in binary format. So while the cops could crack the case and ensure that there are no hidden contents in side the case, they can not flip through your address book, recent calls, or text messages.

      -Rick

      --
      "Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
    2. Re:Persons, papers and effects... by IndustrialComplex · · Score: 3, Insightful

      How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

      That's what happens when people forget that the Constitution is a limitation on the government, and mistake it for a permission slip for the people.

      But mostly it's a byproduct of the concept that Reasonable means "Everything as long as it didn't involve a nightstick up your rear". We just regained that last clause recently, but only just.

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    3. Re:Persons, papers and effects... by RingDev · · Score: 3, Informative

      This isn't some gross abuse of the bill of rights. This is for items just like this: http://www.dillonprecision.com/content/p/9/pid/23863/catid/14/Dillon__039_s___039_Plan_B__039__Day_Planner

      A Closed Container, when you are being arrested, could contain a weapon. A day planner is large enough that it could easily contain a weapon. A cell phone could be used to smuggle a weapon, ammo, or a bomb, BUT, as the majority has rightfully ruled, those threats are not contained in the DATA on the phone. So if a police were to arrest you, and feared that you may have a shiv stashed in your phone, they are completely with in their rights to pop the case on your cell phone and ensure that there are no weapons inside of it. This ruling reiterates that they are NOT with in their rights to turn on your phone, flip through your address book, recent calls, and text message to ensure that there are no weapons in it.

      -Rick

      --
      "Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
    4. Re:Persons, papers and effects... by HTH+NE1 · · Score: 3, Informative

      It was at Heathrow Terminal 5. That's the UK. The person affected had to change into a different shirt and pack the T-shirt, and was threatened with arrest if he were to put it back on, but was allowed to fly.

      A Google search will find many more articles about the incident.

      --
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  3. Re:What if... by XxtraLarGe · · Score: 4, Informative

    username: slashdotnyt
    password: slashdotnyt

    --
    Taking guns away from the 99% gives the 1% 100% of the power.
  4. Tangibility is Irrelevant by Prysorra · · Score: 4, Funny

    "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.

  5. The ruling sounds right by JerryLove · · Score: 4, Interesting

    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.