Constitutional law - warrants required to search cell phones seized incident to arrest - State v. Smith.

• Author: Theriault, Alexis P.

The Fourth Amendment to the United States Constitution guarantees that persons shall be free from searches that invade their reasonable expectation of privacy without a warrant issued on the basis of probable cause. (1) Search incident to an arrest represents one of four primary exceptions to the requirement for search warrants. (2) In State v. Smith, (3) the Supreme Court of Ohio confronted a modern question about the scope of searches incident to arrest: when police arrest a person with a cell phone, may the arresting officers search the information stored in the phone? (4) Concluding that a cell phone should not be characterized as a closed container, the Supreme Court of Ohio held that a cell phone's storage capacity creates and justifies a high expectation of privacy in the cell phone's stored information and the state may not invade that interest without a warrant. (5)

On January 21, 2007, the Beavercreek Police arrested Antwaun Smith prior to a crack cocaine sale. (6) During Smith's arrest, the police seized and later searched his cell phone without a warrant or Smith's consent. (7) After his indictment, Smith filed a pretrial motion to suppress the evidence obtained by searching his cell phone. (8) During the trial, the court relied on United States v. Finley (9) to allow testimony regarding Smith's call records and phone numbers discovered during the search. (10) A jury found Smith guilty and the trial court imposed a sentence of imprisonment. (11)

Smith appealed to the Second Appellate District of the Court of Appeals of Ohio assigning five errors, including the trial court's failure to suppress the cell phone record evidence obtained from the search of his phone. (12) A divided court rejected Smith's contention that a search is unreasonable when police have ample opportunity to obtain a search warrant and fail to do so. (13) The court held that the trial judge properly admitted Smith's call records and address book containing an informant's number. (14) Because the trial court granted Smith's motion to suppress incriminating photographs obtained during the search, the appellate court did not consider other broader privacy interests that Smith may have possessed in the contents of his cell phone. (15) The Supreme Court of Ohio reversed the Ohio Court of Appeals, refusing to analogize a cell phone to a closed container and maintaining that Smith had a protected privacy interest in the information stored in his phone, which could not be invaded during a search incident to arrest. (16)

The United States Supreme Court announced the permissible scope of a lawful search incident to arrest under the Fourth Amendment in Chimel v. California. (17) A search is reasonable when it is justified by the arresting officer's need to protect his safety and to prevent the concealment or destruction of evidence. (18) The extent to which these justifications are present varies with the scope of the search--that is, whether the search is of an arrestee's person or an area within an arrestee's immediate control. (19) Similarly, the location of the search and the amount of time between the arrest and the search are both factors courts use to determine if a search was reasonable. (20) These justifications support the reasonableness of a search of a closed container incident to a lawful arrest. (21)

The United States Supreme Court has not expressly defined closed containers or when they should be associated with an arrestee's person as opposed to the area within an arrestee's immediate control. (22) Traditionally, the scope of a closed container search was limited to the physical objects the container held, but the development of digital devices has altered traditional, physical conceptions of containers. (23) Without clear guidance from the Supreme Court, lower courts have attempted to apply traditional legal rules to the new challenge of digital information. (24) The proliferation of cell phones in the United States has sparked several disputes regarding the lawfulness of searches of phones made incident to arrest. (25)

Courts considering the lawfulness of searches of cell phones incident to arrest typically classify cell phones as closed containers. (26) Two approaches have emerged, however, to determine if a cell phone should be associated with the arrestee's person or treated as an item in the arrestee's possession. (27) When police arrest an individual carrying a cell phone, courts following the Finley approach will uphold the police's search of the information stored in the phone, because such courts consider the phone to be part of the arrestee's person. (28) Courts following the Park approach do not accept the search incident to arrest exception as a foundation for searching a cell phone, because those courts consider the phone a possession within the control of the arrestee. (29) Although the Park court recognized the evidence-destruction justification for these searches, it concluded that seizing the phone was sufficient to prevent destruction of evidence stored in it. (30)

In State v. Smith, the Supreme Court of Ohio sought to answer the question of whether police officers may search the data stored in an arrestee's cell phone incident to the arrest without a warrant. (31) Recognizing that the reasonableness of any search is fact-driven, the court first attempted to classify cell phones for the purposes of a Fourth Amendment analysis. (32) Accepting a physical and tangible conception of containers, the court rejected the comparison between cell phones and closed containers because cell phones can store large amounts of digital information unlike any physical object found in a container. (33) Deciding that cell phones defy easy categorization, the court did not analogize them to other objects that contain information with defined expectations of privacy but instead attempted to determine the legitimate expectation of privacy cell phone owners have in the information stored in their phones. (34) Because a phone can store large amounts of personal and private information, the Supreme Court of Ohio concluded that a cell phone owner's higher expectation of privacy in the stored information is reasonable and justifiable. (35) By conceptually separating the cell phone from the information stored within it, the court held that while police may seize a phone from an arrestee in order to meet the state's need to collect and preserve evidence, police may not search the information stored within the phone without a warrant. (36)

The Supreme Court of Ohio took a bold step for privacy by recognizing cell phone owners' privacy interest in the information stored in their phones and protecting that information from warrantless searches. (37) Unlike other courts considering searches of cell phones incident to arrest, the Supreme Court of Ohio focused on separating arrestees' interest in their phones from their interest in the information stored in their phones. (38) To achieve the separation, the Supreme Court of Ohio relied on the United States Supreme Court's definition of a container in a footnote to its 1981 decision in New York v. Belton (39) and concluded that a cell phone is not a container. (40) The Supreme Court of Ohio then used this separation to side-step an analysis of the search of the phone in favor of an analysis of the search of the information stored within the phone, using the search incident to arrest justifications the United States Supreme Court announced in Chimel (41) By doing so, the Supreme Court of Ohio has foreclosed any search incident to arrest of a cell phone's information, even as the United States Supreme Court has demonstrated its willingness to reevaluate the standards courts use to judge the reasonableness of searches incident to arrest. (42)

A cell phone is an electronic device capable of storing information and...