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Cellphones Privacy The Courts

Cell Phone Searches Require Warrant 161

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:What if... (Score:5, Informative)

    by XxtraLarGe ( 551297 ) on Tuesday December 15, 2009 @03:36PM (#30448660) Journal
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  • Re:Not not? (Score:5, Informative)

    by IndustrialComplex ( 975015 ) on Tuesday December 15, 2009 @03:38PM (#30448698)

    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.

  • by RingDev ( 879105 ) on Tuesday December 15, 2009 @03:49PM (#30448804) Homepage Journal

    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.


  • Re:Not not? (Score:5, Informative)

    by clone53421 ( 1310749 ) on Tuesday December 15, 2009 @03:55PM (#30448870) Journal

    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 [state.oh.us]

    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.

  • by kingbilly ( 993754 ) on Tuesday December 15, 2009 @03:56PM (#30448888)
    I'd mod this +1 Insightful if I had the points.
  • by RingDev ( 879105 ) on Tuesday December 15, 2009 @04:04PM (#30448984) Homepage Journal

    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 [dillonprecision.com]

    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.


  • by Trepidity ( 597 ) <delirium-slashdo ... g ['kis' in gap]> on Tuesday December 15, 2009 @04:23PM (#30449196)

    Ah, found it, from Wikipedia [wikipedia.org]:

    This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

  • by HTH NE1 ( 675604 ) on Tuesday December 15, 2009 @04:50PM (#30449532)

    It was at Heathrow Terminal 5 [theedgeofmadness.com]. 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.

"The whole problem with the world is that fools and fanatics are always so certain of themselves, but wiser people so full of doubts." -- Bertrand Russell