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.
This is the conflict between the “technology neutral” approach espoused by Orin Kerr, which would apply existing 4th Amendment law (and naturally the exceptions to the law) rather than develop a new jurisprudence that accommodates the distinctions between current and developing technology, the digitized information that can be found on any new device commonly used, from cell phones to PDAs to computers, and the physical world.
The Ohio Supreme Court rejected the attempt to pigeonhole cell phones as “closed containers,” and would enable police to search them without a warrant.
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.
Not only does this decision reflect a meaningful understanding that devices, replete with digitized information so vastly beyond the mundane physical evidence for which the exceptions were developed, bear no comparison with the antiquated closed container analogy, but the court returned to the basic rule, that warrantless searches are presumed unconstitutional rather than start from the premise that there must be an exception for everything. It’s a return of vitality to the 4th Amendment.
The court also refused to distinguish cell phones based on the specific attributes of each particular device, concluding that they all contained a “wealth of digitized information wholly unlike any physical object.” As obvious as this statement may be, it’s a huge departure from the pigeonhole approach that would extend the old exceptions from the physical to digital world.
Given how ubiquitous the use of technology has become, with almost everyone carrying around a large part of their life story in a tiny piece of electronics, this decision is very significant. The view that the law can accommodate every new technological development by some facile analogy to search exceptions for physical evidence left us in a position where our privacy was at the mercy of the latest bit of technology, where every new toy that happened to be on or near someone’s person at the time of arrest would give the government access to almost any aspect of their lives given the vast quantity of personal information stores in computer chips.
By rejecting the pigeonholing of new technology into antiquated and inapplicable legal concepts, the extension of past exceptions into future technological developments, the Ohio Supreme Court has given us a chance that our future is not undermined by a century of bad caselaw, every-increasing exceptions to the constitutional prohibition on warrantless searches. The question now is whether other states will adopt this view as well, and whether the Supreme Court will recognize that the exceptions developed to make sure that the 4th Amendment never stops a cop from searching when the mood strikes shouldn’t be carried over to developing technology.
It’s too soon to say whether there is still life in the 4th Amendment, but at least this decision by the Ohio Supreme Court suggests that the Warrant Clause isn’t dead yet.
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As usual, I’m confused. How difficult would it have been for the authorities to get a warrant to search the cell phone, given those circumstances? To this amateur, it looks a lot like the government was attempting to poke yet another hole in the 4th amendment simply to justify (in this case) and enable (in the future) saving some time and effort, whether it was to get a warrant to search the cell phone, or one for the call records from the service provider.
Which, if I understand it correctly, kinda backfired; now they’ve got to retry the guy, or let him go?
You’re absolutely right, there was no reason why they couldn’t seek a warrant if they had probable cause to do so. But that’s the rub. They don’t want to open the door to denial of a warrant, or a subsequent challenge to probable cause. Life for the cops is so much easier with broad exceptions that let them do what they want. It saves them the trouble of having to make up stories to tell the judge to justify their searches.
I suggest a minor edit for completeness of the picture. It saves them the trouble of having to make up stories to tell the judge to justify their searches…which the judges then pretend to believe.
No warrant, no trouble. Besides, they really figured (and they could easily have been right – it was a 4-3 decision from the Ohio Supremes that’s hanging even now on a fairly tenuous thread) they wouldn’t need one. After all, they usually can do whatever they want.
(Full disclosure: I was amicus counsel in the Ohio Supreme Court, briefing the case for the ACLU of Ohio.)
I didn’t realize you did the ACLU amicus brief. Great job and great win. And thanks for correcting my 5-4 split (my bad).
Congrats on your amicus. I thought it interesting to see Justice O’Connor in the majority.
Well, what if a person catches a fight on their cell phone camera? Could the police seize that phone without a warrant, based on the “exigent circumstance” that the person could destroy the recording and therefore destroy the evidence? Or would a warrant be required?