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Privacy and modern technology

Interesting week for Blackberry users.  On Monday the US Supreme Court granted cert in a case on the question of whether a police department violated an employee's constitutional rights by inspecting personal text messages he sent on a government pager.  On Tuesday, the Ohio Supreme Court rendered a 4th Amendment decision so defense-friendly it has me looking for other signs of the Apocalypse.

The police department of the City of Ontario, California, issued pagers to the members of its SWAT team.  An inspection of Sgt. Jeff Quon's pager determined that he was using the pager almost exclusively for personal matters; in one month in 2002, only 57 of the 450-plus messages were related to official business.  The rest were related to monkey business; the trial judge found many of the messages "were, to say the least, sexually explicit in nature."  To say the least?  What's the most you can say, man? 

While we await the filing of the merit briefs to learn the answer to that question, we turn our eyes southward to Columbus, for the opinion in State v. Smith.  Smith was arrested for drug dealing, and his cell phone confiscated.  Police searched the phone and confirmed that it had been used to call the informant who'd set up the buy which brought down Smith.  The question presented was whether the police needed a warrant to access the phone's contents.  By a 4-3 vote, the court decided they did.

While the result is laudatory, at least to those on this side of the criminal bar, the path to it is somewhat uneven.  This was a warrantless search, and, for the most part, the State relied upon the search-incident-to-arrest exception to the warrant requirement.  The court begins by stating that the resolution depends on how a cell phone is characterized, and then segues immediately into what it determines are the two leading cases presenting the opposite sides the issue of admissibility:  a 5th Circuit case,  US v. Finley, holding that the police don't need a warrant, and US v. Park, a US District Court decision from California saying they do.

In Finley the court determined that the cell phone was analogous to a "closed container," which the US Supreme Court has held can be searched incident to arrest.  In Park, the court held that cell phones are more analogous to laptop computers, and thus an owner has a heightened privacy expectation; because the phone's contents were not searched out of concern for the officer's safety or to preserve evidence, the search was invalid.

The Smith opinion is at its weakest when it turns to the issue of closed containers, relying on the Supreme Court's language in New York v. Belton which, Smith claims, "implies that the container must actually have a physical object in it."  A cell phone obviously does not, ergo, it's not a closed container, and the analysis in Finley doesn't apply.  (The majority notes that in Finley the defendant conceded the phone was a closed container.)

The opinion gets its stride back when it moves to what should be the ultimate issue:  the privacy interest.   A cellphone's "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."  Thus,

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.

The majoritywould have been better served by spending more time on the justifications for the search-incident-to-arrest doctrine rather than the detour into the closed-container issue.  Indeed, one gets the impression that the latter was included primarily as a means of distinguishing Finley, and in that respect, the game wasn't worth the candle:  Finley's treatment of the issue consists of a paltry two paragraphs, probably dictated by his counsel's unfortunate concession that the object the police searched was no different from other objects which the Supreme Court had already declared could be searched.  When the Smith majority does get to the justifications for the doctrine -- "officer safety and the preservation of evidence" -- however, it is spot-on: 

There is no evidence that either justification was present in this case. A search of the cell phone's contents was not necessary to ensure officer safety, and the state failed to present any evidence that the call records and phone numbers were subject to imminent destruction.

The court gets points both for recognizing the changes in cell-phone technology, and of applying a clear line for such searches; it specifically declined the dissent's invitation to make the determination dependent upon the sophistication of the particular phone (and, by necessity, the individual officer's calculation on that point).  You wind up with a clear instruction:  police need a warrant to search a cellphone they seize during an arrest.

The court addresses one other question, and seems close to resolving it as well.  I've suggested that attorneys argue both the Ohio and Federal constitutional provisions, because the court has on two occasions held that the former provide greater protection than the latter.  (In State v. Brown it held that the Ohio constitution prohibited an arrest for a minor misdemeanor, and in State v. Farrah it ruled that evidence found as a result of a Miranda violation was suppressible; both decisions were contrary to established federal constitutional law.)  Two years ago, though, in State v. Buzzard, the court noted that because of the text of the federal and state provisions on search and seizure were "virtually identical, we interpret the two provisions as affording the same protection."  The court does the same thing in a footnote in Smith, although seemingly limiting it to felony cases.  The bottom line is that it's unlikely the court's going to deviate from federal law in 4th Amendment cases.

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