State v. Smith

• Decision Date: 15 December 2009
• Docket Number: No. 2008-1781.,2008-1781.
• Citation: 124 Ohio St.3d 163,920 N.E.2d 949,2009 Ohio 6426
• Parties: The STATE of Ohio, Appellee, v. SMITH, Appellant.
• Court: Ohio Supreme Court

920 N.E.2d 949

124 Ohio St.3d 163

2009-Ohio-6426

The STATE of Ohio, Appellee, v. SMITH, Appellant.

No. 2008-1781.

Supreme Court of Ohio.

Submitted September 15, 2009.

Decided December 15, 2009.

Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant Public Defender, for appellant.

John D. Ferrero, Stark County Prosecuting Attorney, and Kathleen O. Tatarsky, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

Jeffrey M. Gamso, Legal Director, and Carrie L. Davis, Staff Attorney, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

LANZINGER, J.

{¶ 1} In this appeal concerning the scope of federal protection against unreasonable searches and seizures, we are asked to determine whether the Fourth Amendment to the United States Constitution prohibits the warrantless search of data within a cell phone when the phone is lawfully seized incident to an arrest. Given the particular facts of this case, we hold that the trial court improperly admitted the call record and phone numbers from appellant's phone. We therefore reverse and remand to the trial court for a new trial.

I. Case Background

{¶ 2} On January 21, 2007, Wendy Thomas Northern was transported to Miami Valley Hospital after a reported drug overdose. While at the hospital, she was questioned by Beavercreek police. Northern agreed to call her drug dealer, whom she identified as appellant, Antwaun Smith, to arrange for the purchase of crack cocaine at her residence. Beavercreek police recorded the cell phone conversations between Northern and Smith arranging for the purchase.

{¶ 3} That evening, the Beavercreek police arrested Smith at Northern's residence. 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.

{¶ 4} While the record does not show exactly when they first searched Smith's cell phone, at some point police discovered that the call records and phone numbers confirmed that Smith's cell phone had been used to speak with Northern. There was testimony that at least a portion of the search took place when officers returned to the police station and were booking into evidence the items seized from the crime scene. The police did not have either a warrant or Smith's consent to search the phone.

{¶ 5} Smith was indicted on one count of trafficking in cocaine in violation of R.C. 2925.03(A), two counts of possession of criminal tools in violation of R.C. 2923.24(A), one count of possession of cocaine in violation of R.C. 2925.11(A), and one count of tampering with evidence in violation of R.C. 2921.12(A)(1). He filed a pretrial motion to suppress evidence, objecting in part to the warrantless search of his cell phone. The trial court conducted a hearing and informed the parties that it would issue a decision when the state offered the evidence at trial.

{¶ 6} During trial, the trial court ruled that it would permit testimony regarding the cell phone's call records and phone numbers but would not allow use of photographs that had been discovered in the phone. The trial court based its decision on a decision from the United States Court of Appeals for the Fifth Circuit, in which cell phones were likened to containers found on an arrestee's person and subject to search for the preservation of evidence for use at trial. United States v. Finley (C.A.5, 2007), 477 F.3d 250.

{¶ 7} A jury found Smith guilty on all counts. After finding that the possession of and trafficking in cocaine were allied offenses of similar import, the trial court merged them for a single conviction and sentenced Smith on all four counts to an aggregate sentence of 12 years' imprisonment, a $10,000 fine, and five years of mandatory postrelease control.

{¶ 8} Smith appealed, arguing in part that the trial court had erred in refusing to suppress the evidence found on his cell phone. State v. Smith, Greene App. No. 07-CA-47, 2008-Ohio-3717, 2008 WL 2861693, ¶ 36. After agreeing with the trial court that Finley was correct, the court of appeals overruled the assignment of error, holding that the trial court had not erred in refusing to grant the motion to suppress. Id. at ¶ 46-48. Judge Donovan dissented, citing United States v. Park (N.D.Cal.2007), No. CR 05-375 SI, 2007 WL 1521573, and asserting that the data retrieved from the phone should have been suppressed as the result of an unreasonable warrantless search. State v. Smith, 2008-Ohio-3717, 2008 WL 2861693, at ¶ 63-65.

{¶ 9} We accepted jurisdiction over Smith's discretionary appeal and the proposition that the Fourth Amendment prohibits the warrantless search of contents of a cellular telephone when it is seized incident to a valid arrest. State v. Smith, 120 Ohio St.3d 1486, 2009-Ohio-278, 900 N.E.2d 197.

II. Legal Analysis

A. The Fourth Amendment Preference for a Warrant

{¶ 10} Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures.¹ 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), 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564.

{¶ 11} 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. Chimel v. California (1969), 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685. This exception "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." Arizona v. Gant (2009), 556 U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485, citing United States v. Robinson (1973), 414 U.S. 218, 230-234, 94 S.Ct. 467, 38 L.Ed.2d 427, and Chimel v. California, 395 U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685.

{¶ 12} These searches need not necessarily be conducted at the moment of arrest. The United States Supreme Court has held that "searches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention." United States v. Edwards (1974), 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771. But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies. United States v. Chadwick (1977), 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538, abrogated on other grounds by California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619.

{¶ 13} Searches may also extend to the personal effects of an arrestee. We have held that the search of a purse is reasonable under the Fourth Amendment in certain circumstances, State v. Mathews (1976), 46 Ohio St.2d 72, 75 O.O.2d 150, 346 N.E.2d 151, and the United States Supreme Court has held that it is reasonable for police to search any container or article on a defendant's person—including a shoulder bag—in accordance with established inventory procedures. Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65. We must determine whether the police may search data within an arrestee's cell phone without a warrant.

B. Characterization of a cell phone

{¶ 14} The question in this case is a novel one. In part, whether the warrantless search of a cell phone passes constitutional muster depends upon how a cell phone is characterized, because whether a search is determined to be reasonable is always fact-driven. It appears that neither the United States Supreme Court nor any state supreme court has ruled on the warrantless cell phone search.² At present, the two leading cases are those discussed by the majority and dissenting opinions of the court of appeals.

1. The Approach of United States v. Finley

{¶ 15} In United States v. Finley (C.A.5, 2007), 477 F.3d 250, 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. Id. at 260. 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. Id. at 254.

{¶ 16} 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. Id. at 259-260.³ Notably, Finley had conceded that a cell phone was analogous to a closed container. Id. at 260. He chose to rely on a case in which the Supreme Court had held that the defendants' Fourth Amendment rights were violated when the FBI viewed without a warrant films it had acquired from a private third party to whom they had been mistakenly delivered by a carrier. Walter v. United States (1980), 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410. The Fifth Circuit rejected Finley's argument, noting that Walter did not involve a search incident to an arrest, an exception to the warrant requirement, and so was inapposite. Finley, 477 F.3d at 260. Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely...