Search of Cell Phone Prohibited by Ohio Supreme Court Not Followed by Kansas Court

On the Stockycat Blog, I note a Kansas Court of Appeals decision that declined to follow the Ohio Supreme Court on whether police may search the contents of a cell phone incident to an arrest without a warrant.

The case is STATE OF KANSAS v. TOMMY RAY JAMES, No. 106,083 (November 9, 2012).

The Defendant was convicted of possession of marijuana with the intent to sell and other related offenses.  He was sentenced to 30 months in prison.

The defendant was stopped while driving his car because he had a headlight out.  The deputy smelled the odor of alcohol coming from the vehicle and the defendant later admitted he had been drinking.  He was arrested.  A search of the vehicle revealed a plastic bag containing approximately a half pound of marijuana. The defendant told the Deputy that the marijuana might belong to his brother. The Defendant suggested that he could call his brother and said that he was “pretty sure” the number was in his cell phone. The defendant, who was in handcuffs, then allowed the Deputy to retrieve the cell phone from his pants pocket. The deputy asked “are there going to be any text messages on here relating to drug sales?”  The Defendant said no.

The Deputy proceeded to look at the cell phone and found incriminating text messages:  “U got green I will meet U somewhere;” “Hey T-Ray this is Cotie. U got a 20?”

The defendant argued that the police violated his constitutional rights under the Fourth Amendment to the United States Constitution by searching the text messages on his cell phone without a warrant. In response, the State contends that the search of the text messages was part of a valid search incident to arrest.

My views on this issue can be found in this law review article.

The court noted that the scope of a search incident to a lawful arrest extends to containers found on an arrestee’s person. The court relied on United States v. Robinson, 414 U.S. 218 (1973), a case where the Supreme Court found that a law enforcement officer had the right to inspect a cigarette package found on an arrestee’s person incident to a lawful arrest.  The court found that “the weight of authority applies Robinson to cases involving the search of a cell phone— including the viewing of text messages—seized from an arrestee incident to arrest.”

The court did note that “there are jurisdictions that have found searches of cell phones incident to arrest to be illegal.”  In reviewing the Ohio case on this issue, State v. Smith, 124 Ohio St. 3d 163 (2009), the court acknowledged that the Ohio Supreme Court has held that a warrant was necessary to search a defendant’s cell phone because a cell phone is not a container “capable of holding other physical objects.” The court said in regards to this decision:  “We do not necessarily agree with the premise that the information kept on a cell phone should be treated differently than information written on a piece of paper found on an arrestee’s person.”

The court addressed concerns about the privacy implications of the decision:

The issue in dispute is not whether an individual has a reasonable expectation of privacy in the text messages found on his or her cell phone. Likewise, the issue in this case does not involve the recovery of sophisticated data from a cell phone. Rather, the issue presented is whether the scope of a search incident to a lawful arrest includes text messages contained in cell phones found on an arrestee’s person.

We recognize that many cell phones, tablets, and similar electronic devices are capable of storing a wealth of personal information. But we find that the Fourth Amendment and the exceptions to the warrant requirement adequately protect such information from unreasonable search and seizure. Accordingly, we conclude that as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee’s person for evidence probative of criminal conduct. (Citations omitted.)

The court rejected the defendant’s other arguments challenging his conviction and affirmed his sentence.

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