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Cellphones Privacy The Courts

Cell Phone Searches Require Warrant 161

Posted by kdawson
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.
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Cell Phone Searches Require Warrant

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  • Re:Not not? (Score:2, Insightful)

    by Anonymous Coward on Tuesday December 15, 2009 @03:35PM (#30448642)

    Seconded. We nead clarification, especially since the majority can't even RTFA.

  • by Jah-Wren Ryel (80510) on Tuesday December 15, 2009 @03:35PM (#30448648)

    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?

  • Re:Not not? (Score:5, Insightful)

    by interkin3tic (1469267) on Tuesday December 15, 2009 @03:35PM (#30448656)

    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?

  • by Trepidity (597) <delirium-slashdo ... org minus author> on Tuesday December 15, 2009 @03:51PM (#30448824)

    It is, but the 4th amendment only prohibits "unreasonable" searches. In the general case, a "reasonable" search is one authorized by a warrant, but the courts have held that some kinds of warrantless searches are presumptively reasonable. Search of an arrestee incident to arrest is one of them.

  • by IndustrialComplex (975015) on Tuesday December 15, 2009 @03:54PM (#30448858)

    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.

  • by Trepidity (597) <delirium-slashdo ... org minus author> on Tuesday December 15, 2009 @03:57PM (#30448896)

    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?

  • by DaveV1.0 (203135) on Tuesday December 15, 2009 @04:00PM (#30448932) Journal

    FTA:

    The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. ...
    ''We do not agree with this comparison, which ignores the unique nature of cell phones,'' Lanzinger wrote. ''Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects.

    As someone else said, an address book would be considered a "container" as it can contain other items between the pages. They can search the address book for other items.

    Interestingly, I am not sure the data contained in the address book would be admissible under the theory put forth. This could have interesting side effects.

  • Re:Not not? (Score:3, Insightful)

    by HTH NE1 (675604) on Tuesday December 15, 2009 @04:02PM (#30448960)

    IANAL, but maybe if they found some sort of a closed box on the suspect, the police could open it to see if there is, for example, a gun inside.

    I believe that's for the safety of the officer. Cell phone data though is not an imminent threat to anyone. At most they could disassemble the phone physically such as removing its battery, but that should not extend to the data on the phone.

    This is often why an officer will walk you around your car so that the whole car can be seen as being within your reach giving them authority to search for weapons.

    It sounds like the officers in this case were seeking confirmation of the phone call of which they monitored the other end with their informant, but forgot to or could not get a warrant for the phone or the records from the phone company beforehand. Or seeking to ID a suspect by making a call to the phone and have the phone confirm the call and thus the ID, seeking an exigent circumstances exception before the suspect ditches the phone or clears the memory.

    I wonder if it matters whether or not it is a flip-phone or had a locked control panel/screen.

  • Re:Not not? (Score:2, Insightful)

    by Anonymous Coward on Tuesday December 15, 2009 @04:06PM (#30449006)
    I'd be perfectly happy if nothing was ever searchable for any reason without a warrant. If there is a reasonable suspicion that someone has committed a crime, then getting a warrant should be no problem. If there is no such reasonable suspicion, then there should be no search.

    Arrange that, then tell our legislators that "if your law requires a police state to enforce, it's a bad law." Then we can end this miserable failure of a War on (some) Drugs and get our 4th Amendment back.
  • by selven (1556643) on Tuesday December 15, 2009 @04:12PM (#30449082)

    Recording devices? Recording your own interrogation is a physical threat to the arresting officer?

  • Re:Not not? (Score:5, Insightful)

    by causality (777677) on Tuesday December 15, 2009 @04:14PM (#30449106)

    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.

  • Re:Not not? (Score:4, Insightful)

    by surmak (1238244) on Tuesday December 15, 2009 @04:25PM (#30449212)

    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.

  • by gedrin (1423917) on Tuesday December 15, 2009 @04:41PM (#30449426)
    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.
  • by Shakrai (717556) on Tuesday December 15, 2009 @05:31PM (#30450138) Journal

    Not much surprise there. They surrendered any pretense of caring about civil liberties a long time ago.

  • by DragonWriter (970822) on Tuesday December 15, 2009 @05:32PM (#30450168)

    The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.

    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?

  • Re:Not not? (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 15, 2009 @05:36PM (#30450236)

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

  • Re:Not not? (Score:3, Insightful)

    by Dan Ost (415913) on Tuesday December 15, 2009 @05:42PM (#30450332)

    Not entrapment.

    Planting "evidence".

  • Re:Not not? (Score:3, Insightful)

    by DavidTC (10147) <{slas45dxsvadiv. ... } {neverbox.com}> on Tuesday December 15, 2009 @06:54PM (#30451350) Homepage

    Well, allowing police to look for weapons is reasonable.

    And if someone taken into custody is holding a 'container', that container should certainly be taken away. Who knows what is in there? There could be a weapon.

    But they should not be searched.

    And I'm failing to see why cell phone should be taken away at all, unless the officer is going to get a warrant and search it. Which, I believe, allows them to withhold it from the person so they can't destroy data.

    Likewise, there might be cases where a phone call might allow them to get someone else to destroy evidence, or warn them off, so i can see a case being made there...but a case has to, in fact, actually be made.

    If neither of those are true, people should be allowed to keep their cell phones while in custody of the police. Or, at least, have access to their cell phones. (It's absurd how much calls from jail cost.)

    I don't really understand why anyone gets to take them away. From actual convicted people, fine. For when the phone is actual evidence, fine. From a mafia boss that the police can make a compelling argument that he could use code to order a hit on someone, fine. (Such a claim should be part of the arrest warrant.)

    Anything else, no. I've never understood why the police are allowed to punish people who've been detained and possibly not charged with a crime, and certainly not convicted of one.

  • funny, (Score:2, Insightful)

    by jtgd (807477) on Tuesday December 15, 2009 @06:58PM (#30451420)
    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.
  • Re:Not not? (Score:2, Insightful)

    by Sabriel (134364) on Tuesday December 15, 2009 @08:58PM (#30452666)
    You'd prefer the alternative?

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