Can police search your cell phone if you are pulled over?

Sure, Georgia doesn’t have a “hands-free” law like many states (a law which says you cannot talk or text on the cell phone unless you have a hands-free device), but there is still the issue of whether the police can search the contents of your cell phone if you are pulled over or arrested.  Let’s see what the courts have to say on this matter…

The Fourth Amendment, which protects against unreasonable searches and seizures, has received a new lease on life in the form of recent rulings from various Federal District Courts and state courts.  The rulings tackle the controversial issue of police officers searching the cell phones of individuals without first obtaining a search warrant.  Many of these cases arise after people have been pulled over during a traffic stop, are seen violating ‘hands-free’ laws, or if a person has been seen using the phone during the commission of a crime, such as drug dealing.  With the increase in “no texting while driving” laws and the proliferation of cell phone hands free devices, this is an issue sure to be argued over for some time to come.

One of the most recent cases to address this situation was the Supreme Court of Ohio’s ruling in State v. Smith. In this particular case, Smith was arrested on drug charges and during this arrest, the police found a cell phone on him, which was thought to have been used in the alleged drug transaction.  Subsequently, the police searched Mr. Smith’s phone without a warrant or his consent.  During this search, they found calls and phone numbers of individuals that Smith conducted drug sales with.  He was charged with various offenses, including drug possession and possession of criminal tools.  Mr. Smith attempted to suppress the evidence gleaned from the cell phone, arguing that his constitutional rights had been violated when the officers searched his phone without a warrant.  The trial court denied this suppression, citing a 2007 federal court decision, United States v. Finley.

The Finley case is one of two conflicting federal court cases regarding the search and seizure of cell phones.  The court in Finely ruled that a cell phone was akin to a closed container, and as such, is subject to a search without a warrant upon arrest.  In the current case, Mr. Smith appealed, claiming that the trial court erred in denying his motion to suppress the evidence obtained through a warrantless cell phone search.  Although the second district court of appeals upheld the decision, the dissent cited the other federal case on this issue, United States v. Park. In this case, the court held that a cell phone is not in fact a “closed container” and that a warrantless search of cell phone data is unconstitutional per the Fourth Amendment.

Upon reviewing Mr. Smith’s case and the constitutionality issue of the cell phone search, the Supreme Court of Ohio noted the unique nature of the circumstances.  Specifically, the court recognized that neither the U.S. Supreme Court nor another state supreme court had ruled on this particular Fourth Amendment problem.  Using the two conflicting Federal cases as precedent, the Ohio Supreme Court sided with the court in Park. The Court addressed the idea of a cell phone as a closed container, noting that the U.S. Supreme Court had defined a container as ‘an object capable of holding another object.’

Here’s the kicker, though: The court, however, found that this definition extended only to objects capable of holding physical objects, not data and information contained in a cell phone.  As such, the Ohio Court found that a cell phone was not a closed container in the same sense as considered in Finley, and therefore not subject to a warrantless search.  Additionally, the Court noted that there was a particular expectation of privacy associated with cell phones, which further encouraged the need for a warrant to inspect its contents.

Therefore, the Supreme Court of Ohio held that the warrantless search of a cell phone obtained during a lawful arrest is prohibited by the Fourth Amendment when said search is unnecessary for the safety of the officers or other extenuating circumstances.

This landmark case is sure to provide great precedent for future cases addressing this same issue.  It is likely that other state courts will validate the search based on the Finley decision.  The conflicting Federal cases are also likely to eventually lead to this Fourth Amendment issue being heard in the U.S. Supreme Court.  Until then, it is always best to obey the hands free laws of your state, as well as know your rights to search and seizure under the Constitution.

For more on this topic of the constitutionality of cell phone searches by law enforcement officers, I recommend you check out Bow Tie Law’s Blog, where you will find a blog post discussing some other rulings involving cell phone search and privacy issues. This particular blog does a great job highlighting some of the legal issues we face in the 21st century with the onset of new technologies like cell phones and hands free devices.