Including cell phones in Fourth Amendment makes sense

BY ROB CALESARIC • December 26, 2009

The recent Ohio Supreme Court ruling in State v. Smith highlights the realistic need to have the courts continually apply and interpret our basic rights, which most of us take for granted.

Specifically, the Fourth Amendment to the United States Constitution provides protection against unreasonable searches and seizures. When our Constitution was being drafted, the framers had the foresight to make a document that would stand the test of time and that would be flexible in application throughout the years. They could not have foreseen that we would now be keeping confidential word documents or records of our calls and text messages like most of our cell phones do. Most of you likely assumed you had a reasonable expectation of privacy in the contents on your phone from government. Guess again.

This has not been correct for many cases that have crossed my desk in the past years. It has been normal procedure for law enforcement officers to take a client's cell phone if they have been arrested and to view the contents on that phone without probable cause or without a search warrant being issued just because no court ever told them not to and because they felt they had the right to go through the data. Most officers just assumed they had free reign when it came to your phone.

Finally, in State v. Smith, the Ohio Supreme Court applied the same protections it has for our home and office to our cell phones. The court held that the Fourth Amendment prohibits the warrantless search of data within a cell phone when the phone has been seized incident to an arrest. What this means is if law enforcement officers want to search your cell phone, they must now first establish the legal basis to conduct the search. In other words, they must establish that they have probable cause to search the phone to a neutral judge in an application for a search warrant. The judge then can grant or deny the search warrant to review the phone data depending upon the facts of each specific case. This formal approach does two things: It balances the need to protect citizens against unreasonable searches and seizures, but yet it still gives law enforcement the tools they need to conduct proper and legal searches when required. Finally, a decision that makes sense for everyone.

Rob Calesaric is a guest columnist.

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