Legal Commentary

Supreme Court of Ohio Rejects Search of Cell Phone Incident to Arrest

By Orin Kerr

The decision in State v. Smith is here, and the vote was 4?3. The majority?s reasoning is that while you can search a ?closed container? found on a person incident to arrest, a cell phone is not a ?closed container.? From the majority opinion:

The state argues that we should follow [United States v. Finley, 477 F.3d 250 (5th Cir. 2007)] 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. 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), 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768, fn. 4. One such example is a cigarette package containing drugs found in a person?s pocket, as in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

We acknowledge that some federal courts have likened electronic devices to closed containers. E.g. United States v. Chan (N.D.Cal.1993), 830 F.Supp. 531, 534 (finding that a pager is analogous to a closed container), United States v. Ortiz (C.A.7, 1996), 84 F.3d 977, 984 (following Chan in holding that a pager is a closed container), United States v. David (D.Nev.1991), 756 F.Supp. 1385, 1390 (finding a computer memo book ?indistinguishable from any other closed container?). 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.

So what is a cell phone if not a ?closed container?? From the opinion:

Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers.

Hmm, not a lot of clarity there. But then the Court announces this conclusion:

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. 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.

I hope to have more commentary on the decision later, but for now I just wanted to flag the very interesting decision. Thanks to reader Andrew King for the link.

Full post as published by The Volokh Conspiracy on December 15, 2009 (boomark / email).