Constitutional Law - Warrants Required to Search Cell Phones Seized Incident to Arrest - State V. Smith

By Theriault, Alexis P. | Suffolk University Law Review, Winter 2011 | Go to article overview

Constitutional Law - Warrants Required to Search Cell Phones Seized Incident to Arrest - State V. Smith


Theriault, Alexis P., Suffolk University Law Review


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. …

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