Does a Police Officer need a Warrant to check your Cell Phone?
This week the Ohio Supreme Court issued a ruling in State v. Smith regarding search warrants and cell phones.
The court determined,“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.”
It is believed the Ohio Supreme Court ruling is the first of its kind in State Supreme Courts or the the United States Supreme Court. There is a case making its way through the California Court System, People v. Diaz, concerning the validity of a warrantless search of a cell phone but no decision has yet been rendered by the state’s highest court.
Generally officers are allowed to search items on a person being arrested for issues of safety or to preserve evidence. 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.
The Fourth Amendment us understood to protect an individual’s subjective expectation of privacy if that expectation is reasonable and justifiable. Cell Phones contain large and growing amounts of private data, addresses and phone numbers, calendars, web browsing history, emails and text messages.
Currently most if not all New Jersey police officers are instructed that a warrant must be issued to search a cell phone or cell phone records. Many warrants allowing for the search of a residence or business will include also language allowing for the officers to search for and seize cell phones discovered on the premises.
While New Jersey has yet to have a case similar to State of Ohio v. Smith rise to its highest court, in the near future it would be reasonable to expect a similar case to be heard by our state’s Supreme Court or the United States Supreme Court.
You can read the preliminary decision in State of Ohio v. Smith (2009-Ohio-6426) at the Ohio Supreme Court Website.
Published by: admin on December 17th, 2009 | Filed under General
One Response to “Does a Police Officer need a Warrant to check your Cell Phone?”
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James Schroeder, Esq.
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