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    The Fourth Amendment applies to cell phones

    Date: 02.03.10 | by Judge Tom.

    In what may be a case of first impression, the Ohio Supreme Court ruled in December, 2009, on the issue of cell phone searches.* No other state supreme court or the United States Supreme Court has addressed the issue of privacy regarding warrantless searches of cell phones.

    Antwaun Smith

    Antwaun Smith, age 32, was arrested on drug charges. The police took his cell phone and, without a warrant or Antwaun’s consent, searched it. They found a history of calls and stored numbers that showed he had been in contact with another crack cocaine user. Antwaun was convicted and sentenced to 12 years in prison.

    The Ohio Supreme Court sent the case back for a new trial but without the use of the cell phone evidence. The court found that people reasonably have a high expectation of privacy in their cell phones. Since they hold a wealth of personal information, there is a privacy interest in their content. Unless a police officer’s safety is in danger, the police must first obtain a search warrant before searching a cell phone. The court refused to distinguish among various kinds of cell phones based on their functions. All cell phones, the court said, fall under the search warrant requirement.

    Find out more about cell phone searches and how they relate to cell phones at school.

    *State v. Smith, December 15, 2009, Ohio Supreme Court.

    Update:  In 2010, the U.S. Supreme Court addressed the issue of cell phone privacy in the workplace.* In Quon v. City of Ontario, the Court ruled that an employer has limited authority to conduct a warrantless search of an employee’s cell phone and that a public sector employer can monitor their employee’s messages to ensure that the employee is following the rules.

    Then on June 25, 2014, the Supreme Court ruled 9 to 0 that a search warrant is needed before conducting a search of someone’s cellphone when arrested. The Court left room in the rare case when special circumstances exist for a warrantless search but the general rule now calls for a search warrant before looking at the content of a cellphone. See Riley v. California.

    In 1986, Congress passed the Electronic Communications Privacy Act which allows the police to search cell phones without a warrant regarding messages less than 180 days old. In November, 2012, the U.S. Senate considered expanding the warrant requirement to all cell phone content regardless of age.

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    3 Comments subscribe to these comments.

    • Donna Sparrow
      Tue, 28 Jun 2011 at 10:23

      I am reading here that a police officer does not have the right to search through private text messages without consent or warrant, and I also read the rules applying to cell phone searches by high school staff. My son lost his cell phone AT school and the sheriff (each high school here has a full time officer on site) looked through his messages without consent or warrant. My son has no history of trouble, nothing linking him to any kind of criminal or drug activity, no criminal record, etc. They pulled him out of class, questioned him about one of the messages that read: “I got your stuff in my car”, and threatened him that they could get a warrant for the last 18 months of text messages. He invited them to get that warrant. The “stuff” being referred to in the text message was my son’s backpack and its average contents. My son is sixteen and we were never called or alerted to the situation by the school or officer involved. Does that officer have the right to search the messages of a phone found at school BEFORE he knows who it belongs to?
      Dear Donna: This whole area of the law is developing as we answer this. Each state is addressing the limits of searches regarding digital devices, particularly regarding students on campus. Since many schools have resource officers on the scene, check the school’s Student Handbook for the rules about cellphones. The officer may have been within his authority in order to identify the owner of the phone. The standards for search and seizure are different for law enforcement as opposed to school officials. The latter need reasonable suspicion that a school rule or law has been violated, while the police need what is called “probable cause.” You can always speak with a local lawyer about this incident and obtain advice as to how and if to pursue this any further. Good luck.
      (This is information only – not legal advice).

    • Tigg
      Fri, 30 Sep 2011 at 08:53

      this is good i need some more advise though
      Dear Tigg: We don’t provide specific legal advice to individuals but if we can direct you to certain information, let us know.
      (This is information only – not legal advice).

    • Dee
      Sun, 05 Apr 2015 at 11:44

      Hello , I writing in regards to the cell phone and our rights . I don’t understand some of this but here goes, my son and girlfriend got pulled over one night not sure why but after being pulled over the police searched the car because they can And his girlfriend had a illegal drug and paraphialia not much but enough as far as I’m concerned and my son was scared and put some of the paraphernalia in his pocket none the less they were taken to jail and held for 24 hours and not allowed to call family so we would know what is going on and where they were and then released, but they kept my sons phone that is in my name and refused to give it back they also took hers but returned it how can the police take my property and violate my privacy as well as my sons
      Dear Dee: Under the laws in most states, anytime a crime has been committed or is under investigation, the police have the authority to confiscate evidence in support of the crime. If no formal charges are filed, then the property is usually returned to its lawful owner. This may take a while since the nature of the offense may require longer investigation. For further information about this, you can talk with the police or a local criminal defense attorney. Take a look at our Resource Directory for help where you live:
      Good luck.
      (This is information only – not legal advice).

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