Ohio Supreme Court Rules that Police Cannot Search Personal Electronics as Part of a "Search Incident to an Arrest"

On December 15, 2009, the Ohio Supreme Court ruled (4-3) that the police could not search a person’s personal electronics as part of a search incident to an arrest. State v Smith, Ohio Supreme Court No. 2008-1781.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.
During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison. Ohio’s 2nd District Court of Appeals affirmed the ruling. The Ohio Supreme Court reversed.
Justice Lanzinger writing for the majority noted: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”
Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2
nd District’s majority and dissenting opinions.
She wrote: “In United States v. Finley ...the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant.  During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search.  While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”
“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation.  They arrested Park and took him to booking, where they searched him and found a cell phone.  Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. ... Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”
In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. 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.’ New York v. Belton (1981).” 
While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.  Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. 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.  We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”
“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.
Justice Robert R. Cupp entered a dissenting opinion.