State v. Smith

[Cite as State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426.]

THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426.]
Search and seizure — Search incident to arrest — Data stored in cell phone
carried by arrestee.
(No. 2008-1781 — Submitted September 15, 2009 — Decided
December 15, 2009.)
APPEAL from the Court of Appeals for Greene County,
No. 07-CA-47, 2008-Ohio-3717.
__________________
SYLLABUS OF THE COURT
The warrantless search of data within a cell phone seized incident to a lawful
arrest is prohibited by the Fourth Amendment when the search is
unnecessary for the safety of law-enforcement officers and there are no
exigent circumstances.
__________________
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
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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

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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, ¶ 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, 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

1. While Smith has not raised a challenge based upon the Ohio Constitution, we note that the
language of Section 14, Article I of the Ohio Constitution is virtually identical to the language of

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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.
{¶ 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

the Fourth Amendment and that this court has accordingly interpreted Section 14, Article I of the
Ohio Constitution as affording the same protection as the Fourth Amendment in felony cases.
State v. Robinette (1997), 80 Ohio St.3d 234, 238–239, 685 N.E.2d 762. In State v. Brown, 99
Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, however, we held that Section 14, Article I
affords greater protection than the Fourth Amendment against warrantless arrests for minor
misdemeanors.

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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

2. A case concerning the validity of a warrantless search of a cell phone is currently before the
Supreme Court of California, but no opinion has been issued in that case at the time of this
decision. See People v. Diaz (2008), 85 Cal.Rptr.3d 693, 196 P.3d 220.

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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
applicable.
2. The Approach of United States v. Park
{¶ 17} The United States District Court for the Northern District of
California, disagreeing with the Fifth Circuit’s decision in Finley, granted a
defendant’s motion to suppress the warrantless search of his cell phone. United
States v. Park (May 23, 2007), N.D.Cal. No. CR 05-375 SI, 2007 WL 1521573.
Police officers observed Park entering and leaving a building that they had under
surveillance and for which they had obtained a search warrant. When they
executed the warrant and searched the building, they found evidence of an indoor
marijuana-cultivation operation. They arrested Park and took him to booking,
where they searched him and found a cell phone. Before turning over the cell

3. The decision in Finley has been followed by the Fourth Circuit Court of Appeals in United
States v. Young (C.A. 4, 2008), 278 Fed.Appx. 242, 2008 WL 2076380.

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phone to the booking officer, the arresting officer recorded names and phone
numbers found in Park’s cell phone.
{¶ 18} This district court reasoned that modern cell phones “have the
capacity for storing immense amounts of private information” and thus likened
the devices to laptop computers, in which arrestees have significant privacy
interests, rather than to address books or pagers found on their persons, in which
they have lesser privacy interests. Park, 2007 WL 1521573, *8.4 Because the
search of the cell phone’s contents was not conducted out of concern for the
officer’s safety or to preserve evidence, the court found that it did not fall under
the search-incident-to-arrest exception and that the officers should have obtained
a warrant to conduct the search. Id.
3. Closed Containers
{¶ 19} The state argues that we should follow Finley and affirm the court
of appeals because the trial court was correct in its conclusion that a cell phone is
akin to a closed container and is thus subject to search upon a lawful arrest. We
do not agree with this comparison. Objects falling under the banner of “closed
container” have traditionally been physical objects capable of holding other
physical objects. Indeed, the United States Supreme Court has stated that in this
situation, “container” means “any object capable of holding another object.” New
York v. Belton (1981), 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768, fn. 4.
One such example is a cigarette package containing drugs found in a person’s
pocket, as in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38
L.Ed.2d 427.

4. The United States District Court for the District of Maine has attempted to reconcile the
holdings in Finley and Park by noting that in Finley, the search of the cell phone was
“substantially contemporaneous” with the defendant’s arrest, while the search and arrest in Park
were not “substantially contemporaneous.” United States v. Curry (Jan. 23, 2008), D.Maine No.
07-100-P-H, 2008 WL 219966, *8-9.

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{¶ 20} We acknowledge that some federal courts have likened electronic
devices to closed containers. See, 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.
4. Legitimate Expectation of Privacy
{¶ 21} Since cell phones are not closed containers, the question becomes
how they should be classified. Given the continuing rapid advancements in cell
phone technology, we acknowledge that there are legitimate concerns regarding
the effect of allowing warrantless searches of cell phones, especially so-called
smart phones, which allow for high-speed Internet access and are capable of
storing tremendous amounts of private data.5 While it is apparent from the record
that Smith’s cell phone could not be called a smart phone with advanced
technological capability, it is clear from the record that Smith’s cell phone had
phone, text messaging, and camera capabilities. While the dissent argues that
Smith’s phone is merely a “conventional one,” we note that in today’s advanced

5. For detailed discussion of the capabilities of modern cell phones and potential Fourth
Amendment concerns, see generally Gershowitz, The iPhone Meets the Fourth Amendment
(2008), 56 UCLA L.Rev. 27, and Stillwagon, Note, Bringing an End to Warrantless Cell Phone
Searches (2008), 42 Ga.L.Rev. 1165.

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technological age many “standard” cell phones include a variety of features above
and beyond the ability to place phone calls. Indeed, like Smith’s phone, many
cell phones give users the ability to send text messages and take pictures. Other
modern “standard” cell phones can also store and transfer data and allow users to
connect to the Internet. Because basic cell phones in today’s world have a wide
variety of possible functions, it would not be helpful to create a rule that requires
officers to discern the capabilities of a cell phone before acting accordingly.
{¶ 22} “Modern understandings of the Fourth Amendment recognize that
it serves to protect an individual's subjective expectation of privacy if that
expectation is reasonable and justifiable.” State v. Buzzard, 112 Ohio St.3d 451,
2007-Ohio-373, 860 N.E.2d 1006, ¶ 14, citing Rakas v. Illinois (1978), 439 U.S.
128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387, and Katz v. United States (1967), 389
U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J., concurring). Given their
unique nature as multifunctional tools, cell phones defy easy categorization. On
one hand, they contain digital address books very much akin to traditional address
books carried on the person, which are entitled to a lower expectation of privacy
in a search incident to an arrest. On the other hand, they have the ability to
transmit large amounts of data in various forms, likening them to laptop
computers, which are entitled to a higher expectation of privacy.
{¶ 23} But cell phones are neither address books nor laptop computers.
They are more intricate and multifunctional than traditional address books, yet
they are still, in essence, phones, and thus they are distinguishable from laptop
computers. Although cell phones cannot be equated with laptop computers, their
ability to store large amounts of private data gives their users a reasonable and
justifiable expectation of a higher level of privacy in the information they contain.
Once the cell phone is in police custody, the state has satisfied its immediate
interest in collecting and preserving evidence and can take preventive steps to
ensure that the data found on the phone are neither lost nor erased. But because a

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person has a high expectation of privacy in a cell phone’s contents, police must
then obtain a warrant before intruding into the phone’s contents.
{¶ 24} Although the dissent maintains that this case can be decided on the
basis of traditional Fourth Amendment principles governing searches incident to
arrest, the dissent fails to recognize that the justifications behind allowing a search
incident to arrest are officer safety and the preservation of evidence. There is no
evidence that either justification was present in this case. A search of the cell
phone’s contents was not necessary to ensure officer safety, and the state failed to
present any evidence that the call records and phone numbers were subject to
imminent destruction. We therefore hold that because a cell phone is not a closed
container, and because an individual has a privacy interest in the contents of a cell
phone that goes beyond the privacy interest in an address book or pager, an
officer may not conduct a search of a cell phone’s contents incident to a lawful
arrest without first obtaining a warrant.
C. Remaining state arguments
{¶ 25} The state raises two additional arguments supporting its belief that
the trial court properly admitted the evidence obtained during the warrantless
search of Smith’s phone. First, it argues that the search of the cell phone was
proper because exigent circumstances justified the search. “Once a warrantless
search is established, the burden of persuasion is on the state to show the validity
of the search.” Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889,
citing State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 373 N.E.2d
1252. In its brief, the state argues that cell phones store a finite number of calls in
their memory and that once these records have been deleted, they cannot be
recovered. We conclude that because the state failed to raise this argument
below, the issue is not properly before us. At the suppression hearing, the state
offered no evidence or argument to support its claim that the search was justified
by the need to preserve evidence. The state having failed to make any showing at

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the trial court that exigent circumstances existed, we are now unable to conclude
that they were present. Additionally, even if one accepts the premise that the call
records on Smith’s phone were subject to imminent permanent deletion, the state
failed to show that it would be unable to obtain call records from the cell phone
service provider, which might possibly maintain such records as part of its normal
operating procedures.
{¶ 26} Finally, the state also asserts that the evidence of call records and
phone numbers is helpful to police to ensure the correct identification of the
suspect. The facts in the record belie this argument. The police did not testify
that the call records and phone numbers were helpful in identifying Smith. To the
contrary, Beavercreek police officers testified that they had checked records on
Smith and retrieved his photograph from the Bureau of Motor Vehicles, which
they showed to Northern, who confirmed Smith’s identity as her drug dealer. The
photograph and a description of the vehicle in which Smith was riding were also
provided to officers before they arrived at Northern’s residence. The officers
were also familiar with Smith because they had recently arrested him near
Northern’s residence. When they arrested him again, the officers relied upon the
vehicle description and BMV photograph to identify Smith. The record thus
indicates that the officers did not rely upon the warrantless search of the cell
phone to identity Smith.
{¶ 27} While there may be some instances in which a warrantless search
of a cell phone is necessary to identify a suspect, we do not address this argument
here, because the officers in this case did not, in fact, rely upon the call records
and phone numbers to identify the suspect.
III. Conclusion
{¶ 28} Recognizing that Fourth Amendment search-and-seizure questions
are particularly dependent upon the facts present in each particular case, we

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conclude that in this case, the trial court improperly admitted the call record and
phone numbers from appellant’s cell phone.
{¶ 29} We hold that the warrantless search of data within a cell phone
seized incident to a lawful arrest is prohibited by the Fourth Amendment when the
search is unnecessary for the safety of law-enforcement officers and there are no
exigent circumstances. Because the state failed to show that either of these
exceptions to the warrant requirement applied, the search of Smith’s cell phone
was improper, and the trial court was required to exclude from evidence the call
records and phone numbers taken from the cell phone. We accordingly reverse
the judgment of the court of appeals and remand to the trial court for proceedings
consistent with this opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., and PFEIFER and O’CONNOR, JJ., concur.
LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., dissent.
__________________
CUPP, J., dissenting.
{¶ 30} I dissent from the majority’s decision. The majority needlessly
embarks upon a review of cell phone capabilities in the abstract in order to
announce a sweeping new Fourth Amendment rule that is at odds with decisions
of other courts that have addressed similar questions.
{¶ 31} In my view, this case deals with a straightforward, well-established
principle: “[I]n the case of a lawful custodial arrest a full search of the person is
not only an exception to the warrant requirement of the Fourth Amendment, but is
also a ‘reasonable’ search under that Amendment.” United States v. Robinson
(1973), 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427. In Robinson, the United
States Supreme Court upheld admission into evidence of a cigarette package
containing drugs, which was found as part of a search incident to Robinson’s

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arrest. See also Gustafson v. Florida (1973), 414 U.S. 260, 265-266, 94 S.Ct. 488,
38 L.Ed.2d 456 (upholding police’s inspection of a box of cigarettes found during
search of defendant incident to his arrest). And as in United States v. Edwards
(1974), 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771, “searches and seizures
that could be made on the spot at the time of arrest may legally be conducted later
when the accused arrives at the place of detention.”
{¶ 32} In this case, there is no dispute that the arrest of Smith was lawful.
During the search of Smith incident to his arrest for drug trafficking and other
offenses, the officers located his cell phone on his person. There is no evidence
that this phone was anything other than a conventional one, rather than a “smart
phone” with advanced technological capability.
{¶ 33} The police later (at the police station) searched Smith’s cell
phone’s address book and call list. As the majority opinion recognizes, a cell
phone’s digital address book is akin to traditional address books carried on the
person. Courts have upheld police officers’ search of an address book found on an
arrestee’s person during a search incident to a lawful arrest. See, e.g., United
States v. Rodriguez (C.A.7, 1993), 995 F.2d 776, 778. The phone’s call list is
similar, showing a list of telephone numbers that called to or were called from the
phone.
{¶ 34} Thus, I would hold that the search here—which resembles police
officers’ search of a traditional address book found on the person of an arrestee
during a search incident to arrest—is permissible under the Fourth Amendment.
This conclusion is consistent with the approach taken by several federal courts of
appeals. See United States v. Finley (C.A.5, 2007), 477 F.3d 250, 260 (cell phone
search); United States v. Murphy (C.A.4, 2009), 552 F.3d 405, 411 (cell phone
search); United States v. Ortiz (C.A.7, 1996), 84 F.3d 977, 984 (pager search).
{¶ 35} It would be unworkable to devise a rule that required police to
determine the particular cell phone’s storage capacity, and the concomitant risk

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that telephone numbers stored on the phone could be lost over time, before
searching the phone’s address book or call list. I would hold that a search of an
arrestee’s cell phone’s address book and call list is permissible as part of a search
incident to arrest without first requiring police to determine the cell phone’s
storage capabilities.
{¶ 36} Because this case can be decided on the basis of traditional Fourth
Amendment principles governing searches of the person incident to arrest, I see
no need here to delve into a wide-ranging examination of the capabilities of
different types of cell phones and other electronic devices, as the majority does.
The majority bases its broad holdings on its estimation of the possible capabilities
of other cell phones and computers. But here, only the address book and call
records were admitted into evidence. The issue of a more in-depth warrantless
search of “data within a cell phone” is not before us. I would leave for another
day, to a case that factually raises the issue directly, the question of whether
police may perform more in-depth searches of information on cell phones that
have capabilities akin to a computer.
{¶ 37} For these reasons, I dissent.
LUNDBERG STRATTON and O’DONNELL, JJ., concur in the foregoing
opinion.
__________________
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.

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

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