No search of cellphone without warrant?

Thanks to howappealing.law.com, here is a Ohio State Supreme Court opinion in State v. Smith. The issue is warrantless searches of cell-phones. While this issue may have been raised in a court-martial, I don’t see a relevant military appellate decision. So the issue is apparently an open one for court-martial cases.

Here is a link to a New York Times editorial on the Ohio case.

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

However, fourthamendment.com has these items.

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009). Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant’s booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime. United States v. Yockey, 2009 U.S. Dist. LEXIS 67259 (N.D. Iowa August 3, 2009), USMJ R&R affirmed, United States v. Yockey, 2009 U.S. Dist. LEXIS 77373 (N.D. Iowa August 28, 2009). Search incident of defendant’s cell phone was reasonable: “The search of Wurie’s cell phone incident to his arrest was limited and reasonable. The officers, having seen the ‘my house’ notation on Wurie’s caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie’s suspected drug stash.” The court, however, has doubts about the breadth of cellphone search incident and summarizes the law. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009).

In Wurie, the summary begins:

Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone’s contents, and if it does, how thorough the search might be. It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007) (defendant had a sufficient privacy interest in his cell phone’s call records and text messages to challenge their search; the search of the stored text messages, however, was permissible as incident to a valid arrest). Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager tecology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.

United States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009), but see:

The actual facts of Diaz’s case are sufficiently different to warrant a different conclusion. The warrantless search of Diaz’s cellular telephone cannot be justified as a search incident to arrest.

Commonwealth v. Diaz, 26 Mass. L. Rep. 94 (Mass. Super. Ct. 2009).

A quick LEXIS check for “cell-phone” in military cases didn’t find one questioning a cell-phone search. United States v. Huchel, ACM 34824 (A. F. Ct. Crim. App. June 16, 2003) (unpub.) involved a consent search and was resolved on the voluntariness of the consent, and appears primarily related to a house search.