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.
Not not? (Score:4)
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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Seconded. We nead clarification, especially since the majority can't even RTFA.
Re:Not not? (Score:5, Informative)
From TFA (all emphasis mine):
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]
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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.
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That would lead to an insane level of judicial bureaucracy. I'm against the war on drugs and would much rather police have much more limited powers than they do now, but even I'm prepared to accept that the police should be entitled to search your person on the event of your arrest.
I'm glad police, in the USA at least, have to have a warrant to search your phone though. I don't think they should have the power to do that unless you're suspected of some crime involving your phone, in which case they'd have t
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Insane judicial bureaucracy? Yes, but not in the way you think!
It would lead to judges serving along-side police, to issue on-the-spot warrants. Eventually, as a money-saving initiative, judges themselves would begin to also handle the duties of the police. We then find ourselves starring in Judge Dredd, and summary executions stop becoming abominable and instead become more akin to winning the lottery. Anything but deal with banter between Rocky and Deuce.
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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 c
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Ah ... nice ideal, but the brick wall of reality makes things fuzzier. What if someone is arrested for trying to kill somebody with a knife? Seems reasonable to most people that the need to check the guy for other weapons can't wait for a search warrant.
That's part of the bigger problem, that anyone arrested should be searchable for weapons or anythong which could be dangerous to the police.
A purse can certainly hold a weapon. A wallet not so much, but still possible. A cell phone, once you've done the
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That is true. And the logic runs counter to searching cell phones.
At least, I've never heard of a cop injured by a phone number.
I also like that this should become a bright-line rule against cops deleting people's cell-phone pictures because some Member of the Public took a picture the cop doesn't want seen. On the down-side, it might lead to more phones that are accidentally broken when a photographer, ahem, disturbs the peace. (Of course, my phone locks automatically, and I've never been under the impres
Re:Not not? (Score:4, 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.
Re:Not not? (Score:5, Interesting)
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.
Re:Not not? (Score:5, Insightful)
Thank you, you're the kind of police officer we need on the streets.
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We can, we just won't.
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It's for safety, not for evidence. The intent is to remove any weapons from your possession. But if they find weed, I suspect that is admissible evidence for your weed trial.
Re:Not not? (Score:5, 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?
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I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.
Really? That seems a little backwards, I mean obviously an open container wouldn't require a warrant to search because you don't really have to DO anything to search it, just peer in its direction.
But then basically that makes it sound like a container, regardless of its condition, is searchable without a warrant, so it makes no difference whether judges would argue if a phone is a container or not.
Unless of course, by logic, an Open container must have a warrant to search it, which explains why judges are
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There are other objects in the universe besides containers, whether open or closed. Obviously an open container is searchable, generally by trivial inspection. A closed container can be searched if it's incidental to an arrest (as opposed to arbitrarily at the officer's whim), but apparently a cell phone is like a laptop, which cannot be searched even if it appears to the officer related to the arrest.
The moral of the story: store your weed in your laptop or cell phone.
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Open containers can be searched by one set of rules. Closed containers another set of rules. "non containers" like laptops and, in this case, a cell phone, require their own warrant. The same is true of a locked container requiring a separate warrant.
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The search is for weapons that might be kept on a purse or other similar closed container, whereas an open container obviously doesn't need a warrant because it is open to public view anyway.
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I'd think that answering a call from a client would constitute probable cause anyway.
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a closed container is searchable without a warrant
Correct.
[searching] an “open container” would not require a warrant
Also correct.
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"TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it."
THAT sounds like the cops knew they could not search the data on the phone unless they had some valid reason attributable to the case.
So what do they do? They instruct an informant(someone working with them...) to call the phone, someone they knew was a coke user, and thus CREATED a connection between the phone and they case they were pursuing.
Sounds like they knew exactly what the limitatio
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Not entrapment.
Planting "evidence".
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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.
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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?
Re:Not not? (Score:5, 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.
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That saying about how our system causes us to get the government we deserve probably has some truth to it.
Yes, people always get the government they deserve, because governments cannot exist without consent of the governed. Tyranny would seem to be an obvious exception, but it's really not. If the people don't overthrow tyranny, then they are implicitly accepting it. A government may put down insurrections, even successfully, but if that fails to incite *even more* insurrection, then again, the people ar
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because governments cannot exist without consent of the governed.
They can if the governed aren't armed.
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Those tank crews weren't manned by Hungarians were they? Hungary was for all practical purposes an occupied state at that time.
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We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time.
Laws which are impossible to avoid breaking are effectively a "writ of assistance," and are unconstitutional.
In fact, until it was repealed, the 55 mi/hr speed limit qualified - most of the time anyone driving on a freeway could either be cited for driving faster than 55 mi/hr or obstructing traffic.
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I think you're missing the operative words: incident to arrest.
They can't just stop people going about their business and demand to see the contents of their backpacks in the hopes of finding something incriminating.
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And yet, they can stop everyone driving past a sobriety checkpoint in the hopes of finding someone whose breath smells like booze.
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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 monitor
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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.
How does walking you around the outside of your car give them the authority to search the inside?
Did I misunderstand your statement?
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I believe that's for the safety of the officer.
I believe it's also to protect the officer from a later civil suit. If you have an Altoids tin that ends up missing, or you get it back later and claim the priceless diamond that was inside is now missing, it becomes your word against the officer's. If he opens it and checks the contents and sees that there is no priceless diamond and makes a proper note of the actual contents, you can't pull that later.
The dissenting judge seems to miss the point that you can store razor blades or valuables in a phone book
Re:Not not? (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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Ah - see now THAT makes more sense. Thank you for clarifying - I feel like an idiot for posting rants up above.
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Yes, and is real nice to NOT be a female officer when a 400# female makes such a claim! "Sorry mam but you are going to have to book this one in, she wants a full body cavity search and there seems to be a LOT of body and cavities, so have fun!"
You poor bastards really don't get paid enough money for doing the job that you do.......
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Looks like I am going to start carrying my cell in a zip lock bag. Wonder if that works?
The contents of a clear ziplock bag would be in plain view, and no reasonable person would have an expectation of privacy regarding the observation of such materials. An opaque or translucent ziplock bag would probably instantly cause the officer to open and inspect the bag.
I can kind of see where you are going with this one. Is this your line of reasoning? Since the cell phone was in plain view, and if there was no
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to keep it dry
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Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?
Yes. In Ohio, a closed container found on the arrestee or within reach can be searched without a warrant. The argument being made is that a cell phone is more like a computer which would require a warrant to search, and not a box containing physical items.
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That’s three different courts... the trial court, the appeals court, and the state Supreme Court. They could, perhaps, have been a little clearer on this significant fact, but once you understand that they were three separate courts it makes perfect sense.
The trial court admitted the evidence and convicted Smith.
The appeals court upheld the trial ruling on a 2-1 decision in favor of the state, with the lone dissenting justice arguing that a cell phone is not a “container” and thus not subj
What if... (Score:2)
I can't read TFA since I don't have a NYT account, 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? It sounds like a good decision to me.
Re:What if... (Score:5, Informative)
password: slashdotnyt
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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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Because you might well be carting around several Libraries of Congress worth of data on the computer, but not in ink and paper.
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>> 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.
wrong.
please see above.
Persons, papers and effects... (Score:4, 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?
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One more example of how the word "reasonable" was certain to be misinterpreted by the courts in the state's favor.
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That's a very good point. I'd like to hear an attorney's view. Certainly there are enough on Slashdot.
But that's not the first time I see this. Hell, even Law and Order has episodes where they go through the suspect's address book. I guess putting everything under encryption would work, as you could probably plead the 5th and not share the password.
Re:Persons, papers and effects... (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
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Some airport screeners don't even allow pictures of guns. Not even pictures of fictional guns held by giant robots on T-shirts, even if was an Autobot and not a Decepticon.
Re:Persons, papers and effects... (Score:4, Informative)
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.
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Not much surprise there. They surrendered any pretense of caring about civil liberties a long time ago.
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Wait until they break out the “malware is a WMD” mind-twist. ^^
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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.
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It is. The basis on which they could be reviewed in a search incident to arrest is not that they are an exception to the reasonableness requirement (which admits to no exception), but an exception to the implied warrant requirement. You'll note that the language of the amendment doesn't ever explicitly requires warrants for searches, it requires reasonableness and it limits the conditions in which warrants can be issue
Re:Persons, papers and effects... (Score:4, 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.
Re:Persons, papers and effects... (Score:4, 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 [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.
-Rick
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FTA:
As someone else said, an add
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I think if you give them permission to search your car for e.g. guns and they find e.g. pot they can still arrest you and charge you and convict you because the search was, at the time, reasonable, even though they found stuff they weren't supposed to be looking for. IANAL.
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If you gave them permission to search your car for anything you deserve to go to jail for stupidity.
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They are allowed to search your persons, papers, and effects.
This ruling makes absolutely no sense. Under this ruling a physical address book is open to search upon arrest, but the virtual address book in a cell phone is not.
That they ruled the cell phone to not be a closed container is actually what limits the police. Kind of crazy, right?
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Irrelevant. Once someone is under arrest, a search of their person, papers and effects is "reasonable." Go RTFA.
Tangibility is Irrelevant (Score:5, 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.
I'm not sure how to feel. (Score:2)
The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.
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Welcome to the US legal system.
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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 que
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How 'bout the fact that they CAN flip through notebooks which would seem to be a very similar type of non-container. If they can't flip through the digital contents of a phone, they shouldn't be able to flip through the analog contents of a notebook.
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Using books, notebooks, and anything that is a bound set of pages, particularly with front-and-back covers, to conceal physical items, including weapons, is a well-attested practice in history.
A notebook is a physical container (not a "non-container"), which usually contains physical pages, and may also be used to conceal other physical items. It is also a data container. Because of the manner
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Okay, I'm a little less annoyed.
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Reading comprehension (Score:2)
Read the text of the amendment which you posted: the guarantee regarding "papers and effects" is against unreasonable, not warrantless searches. The second clause governs the conditions in which warrants will be issued, but does not state that warrants are required. Warrants are (despite the absence of any express requirement) generally held to be presumptively requ
makes sense given the original rationale (Score:3, Insightful)
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?
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Recording devices? Recording your own interrogation is a physical threat to the arresting officer?
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I may have misremembered that part--- don't recall what the Supreme Court decision establishing the search-incident-to-arrest doctrine was and haven't read it recently, so it might well have only had weapons as a justification.
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Ah, found it, from Wikipedia [wikipedia.org]:
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the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices
...wait, what?
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Recording devices? Why should the police care if the suspect had a recording device? But if fear of recording devices is a legitimate concern that warrants a search, certainly electronic devices would be potential recording devices.
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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;
Actually they can search you for weapons without arresting you, if they have a reasonable suspicion that you are armed. It's called a Terry stop [wikipedia.org]. The search is supposed to be limited to a pat down for weapons but they can seize other contraband if the nature of said contraband is readily apparent to the officer during the course of the frisk, i.e: he's searching you for a knife or firearm but comes across your glass bowl and stash of weed.
The ruling sounds right (Score:5, 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.
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Which is why searches incident to arrest no longer include cars when the person arrested doesn't have access to the car.
Arizona v. Gant, 129 S.Ct. 1710 (2009) [wikipedia.org].
Somewhat complicated... (Score:2, Insightful)
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The reason that this viewed as a "reasonable" search is to protect the physical safety of officers and the public, searching for information rather than physical hazards this way is really a violation of the purpose of the exception but since the exception makes anything found in the course of such a sa
Searches "without a warrant" (Score:2)
Many cell phones are physical containers. (Score:2)
"The argument of the majority contended that a cell phone does not contain physical objects and therefore is not a container."
SIM CARD. BATTERY. MICROPROCESSOR. RAM. PCB. THOSE ARE PHYSICAL OBJECTS.
Looks like the majority of these judges are ignorant of the very language they are using. How/why are they in the position they hold, again?
funny, (Score:2, Insightful)
If a cell phone is not a container (Score:2)
then a computer is not a container. Neither is a hard drive. Neither is anything containing data.
OTOH, if it is a closed container, you would have to surrender necessary keys (in the case of data, to decrypt it) if a warrant is present.
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You can stick/hide a physical object, including illegal and/or dangerous objects, in an address book. That makes the address book a "closed-container" during an arrest. Officers can search a closed container in the possession of someone being arrested to ensure there is nothing dangerous in the closed container.
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because the police have a lot of guns and they work for the government which has a military with even more guns.