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Cops need warrant to search phones, say Ohio Supremes

First top-level US ruling on celly seizures

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Police officers must obtain a search warrant before snooping through the contents of a suspect's cell phone, Ohio's supreme court ruled on Tuesday.

The issue of whether mobile phones fall under US Fourth Amendment rights against unreasonable searches and seizures appears never to have been weighed by any other US state supreme court or the federal Supremes.

The Ohio court's narrow, 4-3 majority decision in favor of Antwaun Smith reversed a ruling of the 2nd District Court of appeals. It determined that even the most humble of modern cell phones hold a sufficient wealth of personal data that it provides the device with a high expectation of privacy.

Smith was arrested on drug-related charges after responding to a call on his cell phone made by a crack cocaine user acting as a police informant.

An arresting officer pocketed Smith's cell when he was placed inside a police cruiser. Cops later recovered bags containing crack cocaine at the scene. When searching the contents of Smith's phone without a warrant or his consent, officers discovered allegedly incriminating photos and call records that confirmed prior calls between Smith and the informant. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence, and two counts of possession of criminal tools.

In pretrial proceedings, Smith attempted to suppress evidence police had obtained from his cell phone, arguing they conducted the search without a warrant. The trial court ruled it wouldn't allow the state to use photos on Smith's phone, but denied the motion to quash call records, claiming a cell phone is similar to a closed container found on a suspect's person and therefore subject to search without a warrant.

Smith was convicted on all counts and sentenced to 12 years in prison. His subsequent appeal affirmed the action of the trial court.

But Tuesday's decision ruled that the lower courts did not account for technological advances in mobile phones.

Justice Judith Lanzinger, who wrote the majority decision, noted that neither the US Supreme court nor any other high level state court appears to have ruled on Fourth Amendment protections against a cell phone search. She wrote the two leading federal cases that have likened electronic devices to closed containers not only both fail to consider the Supreme Court's definition of a "container" as something that actually has a physical object in it, but also antiquated technology — a pager and computer memo book. She argues modern cell phones require the same higher expectations of privacy that are afforded to laptop computers:

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. 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.

In the court's dissenting opinion, Justice Robert Cupp said the majority was "needlessly theorizing" about cell phone capabilities rather than following similar decisions that found police officers can search closed containers without a warrant. ®

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