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Published: Tuesday, 12/15/2009

Ohio justices: Cell phone searches require warrant

ASSOCIATED PRESS

COLUMBUS, Ohio — Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger, a divided Ohio Supreme Court ruled Tuesday on an issue that appears never to have reached another state high court or the U.S. Supreme Court.

The court ruled 5-4 in favor of Antwaun Smith, who was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant.

Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it. They found a call history and stored numbers that showed Smith had previously been in contact with the drug user.

Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools.

During his trial, Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure.

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. Smith was convicted of all charges and sentenced to 12 years in prison.

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, Supreme Court Justice Judith Ann Lanzinger said the only case law available to guide the court appeared to be the conflicting federal court decisions. The U.S. Supreme Court hasn't taken up the issue and there appeared to be no decisions from top-level state courts on the matter, she wrote.

Lanzinger said the majority didn't agree with the state's argument that a cell phone was akin to a closed container.

"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. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.'

"Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container," Lanzinger wrote.

Justice Robert R. Cupp wrote the dissenting opinion. He argued that the contents of a cell phone are similar to a traditional address book found on a suspect and therefore open to search without a warrant when obtained during an arrest. He said the majority "needlessly theorized" about what a cell phone is capable of doing and the data it can store.



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