Opposition Brief — Ohio v. Smith

No. 09.1877

IN ‘TH

Supreme Court of the Anited States

OHIO

Petitione:

‘

ANTWAUN SMIT!

Respondent

ON PETITION FOR A WRIT OF CERTIORARI 710 THI

S PREAGE ( qi Rl ()} CAI

RESPONDENTS BRIEF IN OPPOSITION

EPHANOS BIBRAS CRAIG M. JAQ

Counsel of Record Office of the Ohio Pub!

NANCY BREGSTEIN GORDON Defender

University of Pennsylvania Law 2o0 Kast Broad Street

School Supreme Court Clink Suite 1400

3400 Chestnut Street Columbus, OH 43%

Philade Iphia PA 19104 (014) 400-5394

(215) 746-229,

sbibas@law upenn.edu

LL OT BE “Serer ae

QUESTION PRESENTED

Does the Fourth Amendment allow warrantless searches

incident to arrest of a second-generation cell phone, where the record is

unclear about how many hours later the search occurred, where it

occurred, and the limitations and capabilities of the phone?

TABLE OF CONTENTS

Page(s)

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REASONS FOR DENYING THE PETITION....... aA ca te tances 1

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1. THERE IS NO CLEAR, MATURE DIVISION OF AUTHORITY ON

WHETHER POLICE MAY SEARCH A CELL PHONE LIKE MR. SMITH’S

INCIDENT TO ARREST WITHOUT A WARRANT ................2.00.0-00c000000 000s 9

A. The Few Appellate Decisions Cited in the Petition Are

Inapposite, Unclear, or Lacking in Analysis ......................... 9

Bb. The Asserted Division is New and Immature...................... 14

il. REVIEW IN THIS CASE RISKS NOT ONLY PASSING UPON A DYING

TECHNOLOGY OF LIMITED FUTURE IMPORTANCE, BUT ALSO

FREEZING IN PLACE RULES THAT MAY POORLY SUIT THE SMART

PHONES AND PRIVACY EXPECTATIONS OF THE FUTURE ................. 15

111. THE RECORD IN THIS CASE IS TOO INCOMPLETE AND MURKY FOR

THIS COURT TO ADDRESS THE QUESTION PRESENTED.................-. 18

A. The Search-Incident-to-Arrest Exception Is. Inapplicable

Because the Record Is Unclear About the Time and Place of

the Search and Who Conducted It ...........000... 0. eeceeeece ecto ee 18

8B. .Any Ruling by This Court May Not Affect the Ultimate

Outcome of This Case ................ Ssmaahatinteds cadaadod maeatie tamniee 20

IV. THE DECISION BELOW IS CORRECT ...................2.-.cccseeccccssssrccneeses 21

Nt ae ra Tso Seadeteabadbucaasnsswamieeigeaaneiaen 24

TABLE OF AUTHORITIES

Page(s)

Cases

California v. Acevedo, 500 U.S. 565 (1991) ......... cee cece cece ec ewee 19

Chambers v. Maroney, 399 U.S. 42 (1970) ................cc0ceccecceeeseeeeeeceeeeees 11

Chimel v. California, 395 U.S. 752 (1969) ...............ccccccccccecceccceocees 11, 23

City of East Liverpool v. Columbiana Cty. Budget Comm’n, 876 N.E.2d

eee NN MII Wah Dv atc'vsusi bee voneabasastackieesonnaakte rabcndensas naruencasestlactaseean 8n.3

City of Ontario v. Quon, 130 S. Ct. 2619 (2010)..................0.20ee 8, 17, 18

Katz v. United States, 389 US. 347 (1967) ...............ccccsccsccessscecnscccsees 22

Eemmapmes ¥. Care, Be UG GEE CI ivsvccvccncsissnsecnsncanceccssssecssssoans 22 n.9

New York v. Belton, 463. UB. 454 (1G8)) -........60.0.cicccecscsssassscccessee 5, 6, 23

Ohio ¥. Bobimetén, G19 UB. BS GAGGED 6 cscesscsccessecsessssossessavecsossceceeess 13, 19

State v. Boyd, 992 A.2d 1071 (Conn. 2010) .........<.0ccessenssesrseesnsecssees 10, 11

State v. Nix, No. 07122775, A138483, 2010 WL 2508919 (Or. App. June

Bes ries ac ithensiuts nastucashueiadiad aches dae btonaseaaasank Gaia cho eeeanianen: 19 n.8

State v. Smith, 920 N.E.2d 949 (Ohio 2009) ..........-..+++ 5, 6, 6n.2, 7, 23

State v. Smith, No. 07-CA47, 2008 WL 2861693 (Ohio Ct. App. July

ee ere re 5, 22

Stoner v. California, 376 U.S. 483 (1964) .................cc.cccccsseccssseccees 19, 22

TOIT . CH, Te We EC ieee cnscscseviscsconnonndevedatiacsnsntesssnnvscvcsns 23

United States v. $639,558, 955 F.2d 712 (D.C. Cir. 1992) .0..0.... ee. 20

United States v. Chadwick, 433 U.S. 1 (1977) ............22.0..020.000- 19, 20, 22

United States v. Finley, 477 F.3d 250 (5th Cir.), cert. denied, 549 U.S.

Me NER asc vedas cuchsccoteduccieevacantinrdeescuuabicasetoaianiicankaieciaslioausenaseninal passim

United States v. Murphy, 552 F.3d 405 (4th Cir.), cert. denied, 129 S.

a ciate cnc cvuaudst duc dnuaancitcencateartewvedamessaasdonesuaed 12, 138, 14, 15

United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996) .......0000 0c eee. 11

* United States v. Vasey, 834 F.2d 782 (9th Cir. 1987) .........0...000c cece 20

-ii-

Other Authorities

U.S. Const. amend. IV : j - passim

Brief of Appellee, United States v. Murphy, 552 F.3d 405 (4th Cir.),

cert. denied, 129 S. Ct. 2016 (2009) ...........cc-cececceceeee- how se

GSM Arena, Compare Motorola V3X Motorola Razr V3XX,

http://www.gsmarena.com/compare.php3?idPhone 1=1120

&idPhone2=1648 ........ a DEB ' 13

REASONS FOR DENYING THE PETITION

This Court need not wade into the murky record here to resolve

whether police may search cell phones incident to arrest, an issue on

which there is no clear division of authority. Any tension involving at

most one or two terse appellate precedents is new and immature. This

Court should await further percolation and technological developments

in smart phones instead of prematurely creating new rules

Furthermore, this case is a poor vehicle. The record is unclear

about key facts on which the search-incident-to-arrest doctrine turns,

such as who searched the cell phone where and when, as well as the

phone’s capabilities and limitations. Because the state failed to prove

that the search was contemporaneous with the arrest, the search-

incident-to-arrest doctrine is not squarely implicated here. And Ohio

seeks review of this Fourth Amendment issue while maintaining that

this Court’s ruling either way will not change the outcome of this case.

In any event, the decision below is correct. As noted above, Ohio

has not satisfied its burden of proving that the search-incident-to-

arrest exception even applies In addition, cell phones are not

analogous to closed containers. They pose neither a danger to officers

nor a significant risk of destruction of evidence once police have seized

them, yet owners have much greater privacy interests in them than in

cigarette packs, pill bottles, and the like. Further review is unwarranted.

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

On January 21, 2007, police officers in Beavercreek, Ohio found

Wendy Northern passed out in a bathroom in her home, apparently

from a drug overdose. They had paramedics rush her to the hospital.

Trial Tr. 37. After officers found crack cocaine in Ms. Northern's

purse, Id. at 38, two detectives -- Molnar and Polston -- went to the

hospital, arrested her, and brought her to the police department. Ms

Northern identified the respondent, Antwaun Smith, as her supplier

Trial Tr. 101; Supp. Hr’g Tr. 10

Hoping for leniency, Ms. Northern agreed to set up a drug deal

with Mr. Smith. See Trial Tr. 75-76. In recorded telephone calls to Mr.

Smith, she arranged for him to deliver an ounce of crack cocaine to her

at her home. Trial Tr. 107, 109. The detectives were not sure Mr.

Smith would show up (because he repeatedly postponed his arrival), so

officers drove Ms. Northern to the county jail. Jd. at 114-15; Supp

Hr’g Tr. 15-16

Kin route, she received a call from Mr. Smith, saying that he

had arrived at her house. Trial Tr. 116. When the police arrived, they

saw Mr. Smith and two passengers in an SUV in the driveway. Id. at

179. The officers ordered all three to get out of the SUV, and they

arrested Mr: Smith at about 6:30 p.m. Id. at 124, 229-30. A pat-down

of Mr. Smith’s outer garments found $2500 in cash, a small baggie of

maryuana, and a Motorola Razr cell phone, but no cocaine. See id. at

305. Officers then took Mr. Smith to the police station.

Sometime between about 7:30 and 8:00 p.m., Detective Molnar

found two baggies of crack cocaine in the snow near the driver’s-side

door of the SUV. /d. at 310, 330-31. But cf. id. at 228, 232 Gndicating

that the baggies had not been found until at least 7:56 p.m.). After

that, Detectives Molnar and Polston remained on the scene until about

8:30 or 9:00 p.m. Jd. at 330-31. Neither detective could state with

certainty whether either of them searched Mr. Smith’s cell phone

during this time. Supp. Hr’g Tr. 33, 63-64.

Ohio . acknowledges that the record is unclear as to who

eventually searched Mr. Smith’s cell phone, or when. Pet. 15. The

murky record merely indicates that one of those two detectives

searched it at some point before about 10:35 p.m., when it was booked

into evidence. Ex. 15. Detective Polston testified that he recalled a

search at some point at the police station, Supp. Hrg Tr. 33,

suggesting that it most likely occurred towards the tail end of the four-

plus hours following the arrest.

At some point during this four-hour period, either Detective

Molnar or Detective Polston rammaged through photographs stored in

Mr. Smith’s cell phone, as well as its call log. Supp. Hrg Tr. 33, 64.

The log showed a call to Ms. Northern’s phone and a call from her

phone to his. /d; Trial Tr. 130-32. The police took photographs of the

call log. Trial Tr. 126

Mr. Smith did not consent to the search, and the police neither

sought nor obtained a warrant. At the suppression hearing, neither

detective testified that he believed exigent circumstances were present,

. ’ . . e

nor did either one offer any explanation for not seeking a warrant

Il. PROCEDURAL HISTORY

1. A Greene County grand jury indicted Mr. Smith, charging

him with trafficking in and possession of cocaine, evidence tampering,

and possessing criminal tools. He pleaded not guilty to all charges

Before trial, Mr. Smith moved to suppress the fruits of the

warrantless search conducted on the night of his arrest, including the

contents of his cell phone. The tral court agreed that he had a

reasonable expectation of privacy in his cell phone’s contents. It

nevertheless denied the motion, relying on United States v. Finley, 477

F.3d 250 (5th Cir. 2007), cert. denied, 549 U.S. 1353 (2007), the only

case it found relevant. Pet. App. 50a, 55a-57a. The court excluded the

photographs, however, as irrelevant to the crimes charged

The jury convicted Mr. Smith on all counts, and the trial court

sentenced him to twelve years’ imprisonment and a $10,000 fine. Id

at 44a, 46a-47/a

2. Mr. Smith timely appealed the trial court’s denial of his

suppression motion, arguing that there had been no _ exigent

circumstances to justify the warrantless search. The Ohio Court of

Appeals affirmed. Jd. at 2la, No. 07-CA47, 2008 WL 2861693 (Ohio

Ct. App. duly 25, 2008). Though the majority agreed that a cell phone

search incident to arrest implicates serious privacy concerns, it

likewise relied on Finley. Pet. App. at 31-36a. The dissenting judge

viewed the search as a violation of Mr. Smith’s reasonable expectations

of privacy. She also considered the search not contemporaneous with,

and thus not incident to, the arrest, so that it should not have been

allowed under that exception to the warrant requirement. Jd. at 4la-42a

3 Mr. Smith again timely appealed, arguing that the

warrantless cell phone search violated the Fourth Amendment. The

Supreme Court of Ohio agreed and reversed. Id. at la, 920 N.E.2d 949.

a. First, the Ohio Supreme Court rejected the trial court’s

characterization of the cell phone as a closed container. It noted that

under New York v. Belton, 453 U.S. 454 (1981), a searchable

“container” is “any object capable of holding another object,” Pet. App.

: J

10a, 920 N.E.2d at 954 (quoting 453 U.S. at 460). Items traditionally

! Ohio argued in the alternative that the admission of the evidence did not prejudice

Mr. Smith in light of the overwhelming evidence against him. Merit Br. of Appellee

State of Ohio 7-8. The Ohio Supreme Court did not discuss or rule upon this

contention

falling under Belton thus have been “physical objects capable of

holding other physical objects.” /d. ‘The court also observed that cell

phones like Mr. Smith's do not even resemble the pagers and computer

memo books that some federal courts have likened to closed containers

Id. at 10a, 920 N.E.2d at 954. Rather, such “modern cell phones are

capable of storing a wealth of digitized information wholly unlike any

physical object found within a closed container.” Pet. App. 10a-lla

920 N.E.2d at 954

b. The Ohio Supreme Court held that these phones’ capacity 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.” Pet. App. 12a, 920 N.E.2d at 955.2 The traditional

justifications for warrantless searches incident to arrest, “officer safety

and the preservation of evidence,” are not present in ua cell phone

search such as the one at issue here. /d. at 13a, 920 N_E.2d at 95

Police satisfy their interest in preserving evidence simply by taking

custody of the phone. Once they do so, “police must then obtain a

warrant before intruding into the phone’s contents.” Z/d. at 12a-13a,

920 N.E.2d at 954. The court also rejected Ohio’s argument that

exigent circumstances justified this warrantless search, because Ohio

2 The court noted some of the functions Mr. Smith’s phone could perform, such as

sending text messages and taking and storing photographs. See Pet. App. lla, 920

N_E.2d at 954

6

had neither raised the argument below nor introduced any evidence to

support it. /d. at 13a-14a, 920 N.E.2d at 955

In sum, the court held 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.” Id. at 13a, 920 N.E.2d at 955. Accordingly, the cell phone

evidence admitted by the trial court should have been excluded. The

court reversed and remanded the case to the trial court for further

proceedings consistent with its opinion. /d. at 15a, 920 N.E.2d at 956

c. The dissenting justices would have upheld the search, by

analogy to searches of address books, because the evidence introduced

at trial came from the phone’s address book and call log. Jd. at 18a

920 N.E.2d at 957. The dissent did not mention the intrusion that

occurred when the officers rummaged through Mr. Smith's

photographs, or that Ohio sought to introduce them into evidence

d The Supreme Court of Ohio denied Ohio’s motion for

reconsideration, without opinion. Pet. App. 59a.8 Ohio’s petition for

certiorari followed

8 In seeking reconsideration, Ohio argued for the first time, in the

alternative, that the good-faith exception to the exclusionary rule should save the

fruits of the search even if the search was unconstitutional. Cf. Pet. 22-24 (renewing

SUMMARY OF ARGUMENT

There is no clear, mature division of authority calling for this

Court’s review. Most of the decisions cited by Ohio are trial-court

decisions, involved a pager rather than a cell phone, or involved the

automobile-search doctrine rather than a search incident to arrest.

One or two appellate precedents are terse and factually unclear; at

most they create a new, immature tension that may resolve itself. This

Court should hesitate to rule on the evanescent technology of

conventional cell phones, and instead await smart phone case law. As

this Court recognized just a few months ago in City of Ontario v. Quon,

130 S. Ct. 2619 (2010), courts should be slow to intervene in applying

the Fourth Amendment to new communication technologies. More

percolation is needed, to allow more time for technologies and

expectations of privacy to evolve. It would be premature for the Court

to wade into the merits until lower courts have considered all aspects

of the issues and furnished appropriate guidance.

Moreover, this case suffers from grave vehicle problems. The

record is foggy about how close in time and place the search was to the

arrest, key facts in analyzing searches incident to arrest. Thus, Ohio

this argument). The Ohio Supreme Court did not rule on this argument, presumably

because Ohio had not raised or briefed the issue in a timely manner. See City of East

Liverpool v. Columbiana Cty. Budget Comm'n, 876 N_E.2d 675, 56765 (Ohio 2006)

(argument not made in a party's briefs until a motion for reconsideration in the

Supreme Court is “deemed to be abandoned” (internal quotation marks omitted))

has failed to carry its burden of proving that the search was

contemporaneous with the arrest, so the question presented 1s not

squarely implicated. The record does not even reflect the model and

capabilities of the cell phone at issue. Ohio also claims that admitting

the fruits of the search made no difference, so it contends that any

ruling would not influence the ultimate outcome

Finally, the decision below is correct Warrants are

presumptively required for searches. The justifications for searches

incident to arrest, to protect ofhcer safety and prevent destruction of

evidence, do not apply to cell phones. Cell phones are not analogous to

closed containers and involve much stronger reasonable expectations of

privacy. There is no need for this Court to intervene

ARGUMENT

Rs THERE IS NO CLEAR, MATURE DIVISION OF AUTHORITY ON

WHETHER POLICE MAY SEARCH A CELL PHONE LIKE MR.

SMITH’S INCIDENT TO ARREST WITHOUT A WARRANT

A. The Fow Appellate Decisions Cited in the Petition Are

Inapposite, Unclear, or Lacking in Analysis

Whether police may search a cell phone without a warrant,

incident to a lawful arrest, is a novel issue. Few appellate courts,

federal or state, have even addressed the question. Most ‘of the cases

cited by Ohio are federal district court decisions that have not yet

reached the courts of appeals (Pet. 9-11, 16-18), but presumably soon

will. The few appellate precedents are either factually distinguishabk

or lack factual detail and legal analysis. Once considerably more case:

reach the appellate courts, those courts may reach consistent

conclusions on their own, without the need tor this Court's

intervention

1. ‘wo of the four appellate decisions cited by Ohio are completely

inapposite. One did not involve the search-incident-to-arrest doctrine:

the other did not concern a cell phone

State v. Boyd, 992 A.2d 1071 (Conn. 2010) (cited at Pet. 9, 11), did

not involve the search-incident-to-arrest exception to the Fourth

Amendment's warrant requirement. That exception is based on the

need to protect officers from dangerous weapons and to prevent

arrestees from concealing or destroying evidence Chimel v

Caltfornia, 395 U.S 752, 763 (1969) In Boyd, the. Connecticut

Supreme Court based its approval of a cell phone search on the

entirely distinct automobile exception to the warrant requirement. 992

A.2d at 1088-90. That exception 1s based on an automobile’s mobility

and other factors unique to automobiles, and it does not require that

searches be conducted contemporaneously with arrests See, é.Z.,

Chambers v. Maroney, 399 U.S. 42, 47-52 (1970) (upholding automobile

search even though it occurred too long after arrest to qualify as a

search incident to arrest).. Boyd is therefore inapposite

The Seventh Circuit’s decision in United States v. Ortiz, 84 F.3d

977 (7th Cir. 1996) (cited at Pet. 9, 11, 16, 20), upheld the warrantless

search of a pager, not a cell phone. The court’s reasoning depended on

several peculiarities of 1990’s-era pagers, including the likelihood that

new pages would displace old ones because of limited storage capacity,

and that turning off power or touching a button would wipe out a

pagers memory. Id. at 984. Those concerns are far weaker for Mr

Smith’s cell phone or for most cell phones, which have much more

memory than pagers and retain information even when powered off

In addition, Mr. Smith's cell phone, like other newer cell phones and

unlike pagers, stores more than just phone numbers. Stored data, such

as text messages and photographs, implicate greater concerns about

invasion of privacy. Thus, Ortiz is also inapposite

2. Only two federal appellate precedents (and no decisions from

other state supreme courts) have applied the search-incident-to-arrest

exception to cell phone searches. It appears, however, that the phones

at issue there were more primitive, earlier-generation phones than the

one in this case

In a short, two-paragraph discussion, the Fifth Circuit in Finley

treated an unspecified type of cell phone as a closed “container” that

the police could search to preserve evidence. 477 F.3d at 259-60; Pet

15-16. Last year, the Fourth Circuit agreed with the Fifth, relying on

Finley without any independent analysis. United States v. Murphy,

552 F.3d 405, 411-12 (4th Cir.), cert. denied, 129 S. Ct. 2016 (2009);

Pet. 16

Neither Finley nor Murphy provides enough factual detail to

indicate a clear conflict with the decision below. Neither decision

described the type or mode! of cell phone involved, or its memory,

battery life, or technological capabilities. Neither provided specifics of

what functions the cell phones could perform, or details about the

searches.4 Since the facts of Fourth Amendment cases are so critical in

determining the reasonableness of a search or. seizure, Ohw v

Robinette, 519 U.S. 33, 39 (1996), the skeletal outlines of these cases’

facts make it impossible to conclude that they are inconsistent with the

decision below

3. To the extent that one can ascertain the facts of Finley and

Murphy, the cell phones and searches in those cases appear to have

differed in critical respects from those in this case. The phones in

Finley and Murphy appear to have been basic, first-generation phones

that just made, received, and logged calls and text messages. The

4“Because [Murphy's] argument [that he enjoyed a heightened privacy interest in his

cell phone] was not raised below in the Motion to Suppress, at the hearing, or in any

objection to the Magistrate’s Report and Recommendation, specific details concerning

the type or nature of the phone are, as he points out, not included in the record.” Br

of Appellee at 25 n.8, Murphy, 552 F.3d 405. The record in Murphy was also unclear

about whether police had seized the phone from Murphy’s person or from his car. Id

at 24-26

opinions merely state that the agent in Finley “searched through the

phone’s call records and text messages,” 477 F.3d at 254, and that in

Murphy an agent “identified several text messages.” 552 F.3d at 409.

Mr. Smith’s phone, by contrast, has dozens of megabytes of

memory and several) hundred hours of standby battery life. It allows

users not only to talk, text, and store phone numbers, but also to take

and store photograplis. GSM Arena, Compare Motorola V3X Motorola

Razr V3XX, http://www.gsmarena.com/compare.php3? idPhone1=1120

&idPhone2=1648.5 The police in this case in fact rammaged through

the photographs

The degree of privacy attached to the information on these

different types of phones necessarily would differ. The privacy

interests in Finley and Murphy most likely would be less than Mr.

Smith’s privacy interest in the more extensive data on his phone.

Thus, the Ohio Supreme Court’s differing conclusion, on the facts of

this case and this particular phone, does not establish a conflict.

5 While the model of Mr. Smith’s phone and this technical information are not in the

record, at oral argument before the Ohio Supreme Court the prosecutor represented

that the cell phone was a Motorola Razr. Though we cannot know the exact version,

the photograph of Exhibit 7 appears to match photographs of the Motorola Razr V3x

or V3xx, which were the most recent versions of the Razr being sold in 2006. The

technical aspects of a particular cell phone, such as what functions it can perform

and what searching it might reveal, are highly relevant to its owner's privacy

interests and the reasonableness of a search. Counsel is providing this extra-record

information on these points because Ohio did not develop a record containing any of

this information, making this case an especially poor vehicle for the Court’s review

13

4 Nor does either Finley or Murphy contain enough reasoned

analysis to indicate a clear conflict with the decision below. Neither

opinion grapples with the fundamental issues raised by warrantless

searches of modern cell phones.

Although considered the leading case so far, Finley was not

decided on a truly adversarial presentation of the issues. Mr. Finley

did not dispute the characterization of his cell phone as a closed

container. On the contrary, he argued that it should be treated as

such. The Fifth Circuit therefore assumed that point; it did not need to

analyze or decide it. 477 F.3d at 260.

For his part, Mr. Murphy argued that the police had to ascertain

the storage capacity of each individual arrestee’s cell phone to

determine how private it was and whether they could search it without

a warrant. The Fourth Circuit understandably rejected such a rule as

impractical. Murphy, 552 F.3d at 411.

B. The Asserted Division is New and Immature

Even if there were any tension between the decision below and

Finley and Murphy, it would be brand new and immature. The

decision below was the first state high court decision to hold the search

of a cell phone incident to arrest unconstitutional. It was also the first

appellate decision to reject the simplistic characterization of a cell

phone as a closed container

Other courts have not yet reacted to the Ohio Supreme Court’s

reasoning, either by following it or criticizing it. Neither the Fourth

nor the Fifth Circuit reheard the issue en banc or was asked to do so

Panels of those courts or the entire court might reach different

conclusions in future ‘cases, based on different or better-developed

facts, a more particularized understanding of the capabilities of

current cell phones, or in light of the decision below.

Perhaps because of the issue’s immaturity and the earlier cases’

lack of factual detail or analytical depth, this Court denied certiorari in

Finley and, less than a year ago, in Murphy. This Court should

continue to await further percolation before considering this issue

Il. REVIEW IN THIS CASE RISKS NOT ONLY PASSING UPON A DYING

TECHNOLOGY OF LIMITED FUTURE IMPORTANCE, BUT ALSO

FREEZING IN PLACE RULES THAT MAY POORLY SUIT THE SMART

PHONES AND PRIVACY EXPECTATIONS OF THE FUTURE

] This Court should hesitate to rule on a constitutiona!

question concerning an evanescent technology such as the cell phone

here. The cell phone at issue in this case, a Motorola Razr, is a typical

second-generation cell phone. Introduced in 2004, it performs more

advanced functions and has a larger storage capacity than typical first-

generation cell phones

While it was cutting edge when introduced in 2004, the Razr has

since been discontinued. Like other phones of its vintage, it is now a

dinosaur compared to the latest generation of cell phones currently in

use and on the market Ohio acknowledges that the current

generation of phones, so-called smart phones, are the wave of the

future. See Pet. 3. As a practical matter, therefore, any ruling in the

instant case may not be important far beyond the present case

Today's smart phones, such as the Blackberry, iPhone, Droid,

and many other models, are really hand-held wireless computers that

also happen to be phones. Many of the newer cell phones have as

much memory as desktop computers had a few years ago, and more

than 500 times that of a Kazr. They can perform thousands of

functions (“applications”, or “apps”) that could hardly have been

imagined just a few years ago.®

Many smart phone owners, especially those under 30, use the

plethora of applications more than the phone-calling function. Many

cell phone users keep most of their personal data on their cell phones,

® Users can not only make and receive calls, send and receive text messages, take

pictures, and store phone numbers, but also can hold conference calls; play, identify,

and transmit music; take and store thousands of high-quality pictures and full-length

videos: access the internet (both e-mail and web sites); download lengthy document

attachments; access GPS (global positioning systems); make credit-card purchases

and charitable and political contributions; pay parking meter fees; and retrieve,

store, and transmit banking information.

16

thus carrying all of their “papers and effects” with them in a way that

they could not carry tangible documents

While the privacy interests implicated in this case are greater

than in cases involving first-generation phones, those implicated in

future smart phone cases may be even greater, and the issues more

complex.? These substantial differences could shape how courts apply

Fourth Amendment precedents to searches of smart phones. As cell

phones grow to hold more and more private types of searchable data,

the analogy to wallet and address-book searches grows far weaker

No appellate court has yet ruled on admitting evidence from a

smart phone searched incident to arrest. Until courts articulate their

reasoning and the relevant considerations for conventional phones as

well as smart phones, this Court’s review would be premature

2. Review in this case risks not only passing upon a dying

technology of limited future importance, but freezing in place rules

that may poorly suit the smart phones and privacy expectations of the

future. This Court recognized as much just last Term, in Quon. “The

judiciary risks error by elaborating too fully on the Fourth Afnendment

implications of emerging technology before its role in society has

become clear.” 130 S. Ct. at 2629. The Court specifically mentioned

7 There may also be differences based on the respective phones’ ability to preserve or

destroy stored data. Compare Pet. 3 (expressing concerns that smart phones might

self-destroy or allow for remote destruction of evidence) with id. at 13-14 (noting that

Mr. Smith’s phone is not a smart phone) :

individuals’ privacy interests in “|[cJell phone and text message

communications,” td. at 2630, and, of course, people also enjoy privacy

interests in the myriad other forms of data stored on cell phones

“Prudence counsels caution before the facts in the instant case are

used to establish far-reaching premises that define the existence, and

extent, of privacy expectations . . [in electronic] communication

devices.” Id. at 2629

lil. ‘THE RECORD IN TuIs CASE IS TOO INCOMPLETE AND MURKY

FOR THIS COURT TO ADDRESS THE QUESTION PRESENTED

A. The Search-Incident-to-Arrest Exception Is

Inapplicable Because the Record Is Unclear About the

Time and Place of the Search and Who Conducted It

The critical questions in Fourth Amendment cases are who

searched what, when, why, how, and how extensively. Fourth

Amendment decisions are intensely fact-specific and turn on these

details. See Robinette, 519 U.S. at 39. Yet here, highly relevant facts

are missing or unclear about when and where the phone was searched,

precisely how, and even by whom. Nor is there evidence in the record

about the memory, battery life, or technological capabilities of the

phone at issue or the kinds of data stored on it. See supra p.13 n.5. If

certiorari is granted, these deficiencies in the record would probably

prevent the Court from reaching the question presented and lead it to

dismiss the petition as improvidently granted.®

These holes in the record also militate against applying the

search-incident-to-arrest doctrine at all in this case. “|A] search can be

incident to an arrest only if it is substantially contemporaneous with

the arrest” and not “remote in time or place from the arrest.” Stoner v

California, 376 U.S. 483, 486 (1964); United States v. Chadwick, 433

U.S. 1, 15 (1977) (internal quotation marks omitted), abrogated on

other grounds by California v. Acevedo, 500 U.S. 565, 578-79 (1991)

Ohio bears the burden of proving all elements of the search-incident-to

arrest exception, including that the search was contemporaneous with

the arrest

Ohio concedes that the record “is not entirely clear ... whether

the cell phone was first searched on scene or when the detectives

returned to the police station.” Pet. 15. All we know 1s that the search

took place sometime between the 6:30 p.m. arrest and the 10:35

booking of the phone into evidence. Searches incident to arrest must

occur as soon as practicable, and Ohio offers no explanation or

justification for a delay of four hours

6 Cf. State v. Nix, No. 07122775, A138483, 2010 WL 2508919, at *9-*10 (Or. App

June 23, 2010) (Ultimately, on a fully developed record, there could be some merit to

th[e}] claim” “that cellular telephones are so special, indeed unique, .. . that they

must be treated differently . . . [from] calendars, address books,” and the like, but

“[wje decline to decide such substantial and complex issues on an underdeveloped

record.”)

19

Courts regularly refuse to treat searches as incident to arrest

when they involve even shorter delays. See, e.g., Chadwick, 433 U.S

at 15 (rejecting search “conducted more than an hour after federai

agents had gained exclusive control of the footlocker’); United States v

$639,558, 955 F.2d 712, 716-17 & n.7 (D.C. Cir. 1992) (rejecting search

conducted between 30 and 63 minutes after arrest); United States v

Vasey, 834 F.2d 782, 787-88 (9th Cir. 1987) (rejecting search 30-45

minutes after arrest)

The absence of a contemporaneous search 1s an independent

ground supporting the decision below, which makes it unnecessary to

reach the Fourth Amendment question presented

B. Any Ruling by This Court May Not Affect the Ultimate

Outcome of This Case

Resolving the question presented may well make no difference to

the ultimate outcome of this case. Ohio argues that “Ielven if this

Court finds that the search of the cell phone is improper, the

Defendant cannot show based upon the overwhelming evidence of

guilt, that he is prejudiced” by the admission of this evidence. Pet 5

Ohio views “the introduction of the evidence obtained from Smith's

cellular phone [as] purely corroborative, and [as] hardly prejudicial.”

Id at 5. This harmless-error question, however, 1s a question of state

law which either was answered implicitly (in the negative) by the Ohio

Supreme Court or will possibly be answered by the trial court on

remand. It 1s not a question for this Court

Kut by taking the position that the cell phone evidence wa

merely corroborative, Ohio has given another reason to decline review

Whether this Court affirms or reverses the Ohio Supreme Court on thi

merits, thereby allowing or disallowing the cell phone evidence, Ohio

claims that it would still have sufficient evidence to convict Mr. Smith

‘This Court's ruling therefore would not change the outcome

IV. ‘THE DECISION BELOW IS CORREC1

With little or no guidance from other appellate precedents, the

Ohio Supreme Court thoughtfully apphed traditional Fourth

Amendment principles to the novel question presented by a particular

version of a new and evolving technology. It carefully assessed the

Otate’s legitimate interests in officer safety and evidence preservation,

as well as the arrestee’s substantial privacy interest in the data stored

on his cell phone. The court correctly concluded that the search was

unlawful. Especially on this poor record, concerning a technology that

has already been surpassed, there 1s no need for this Court’s review

]

The Fourth Amendment presumptively requires warrants fo!

searches. Warrantless searches are “per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357

(1967) (footnote omitted)

Ohio rests its argument entirely on the exception for searches

incident to arrest. Pet. 1, 3, 8, 11-18, 20-21, 23-25. Such searches must

occur at the time of the arrest. Stoner, 376 U.S. at 486; Chadwick, 433

U.S. at 15. The search here may have occurred as much as four hours

after Mr. Smith’s arrest. Ohio therefore failed to satisfy its burden of

proving that the search was contemporaneous with the arrest. As the

dissenting judge in the Ohio Court of Appeals stated, this alone should

have rendered the search-incident-to-arrest exception inapplicable

Pet. App. 4la-42a. The Ohio Supreme Court's decision 1s sustainable

on this ground alone, regardless of any considerations unique to cell

phone searches 9

2 The search-incident-to-arrest exception to the warrant

requirement was adopted to protect officer safety by removing any

weapons from arrestees, and to prevent arrestees from concealing or

destroying evidence. Chimel, 395 U.S. at 762-63; see also New York v

Belton, 453 U.S. 454, 457 (1981). Absent highly unusual circumstances

hard to imagine, a cell phone could not pose either of these dangers

certainly not once the police have seized the phone. Ohio does not

® Respondent, of course, may argue any ground in support of the judginent veiow

Langnes v. Green, 282 U.S. 631, 539 (1931)

))u)

4ahe

contend that Mr. Smith's cell phone posed any danger to officer safety

or that the warrantless search was needed to preserve evidence."

These two rationales simply do not apply to cell phone searches. And

Ohio did not even argue in the lower courts that there were exigent

circumstances, thereby forfeiting that argument. Pet. App. ]l4a, 920

N.i.2d at 955

Absent the concerns that originally engendered the search

incident-to-arrest exception, the exception should not apply. C/. Terry

v. Ohwo, 392 U.S. 1, 19 (1968) (The scope of the [warrantless] search

must be stmctly tied to and justified by the circumstances which

rendered its initiation permissible”) (quotations and citations omitted)

3. As the Ohio Supreme Court held, the closed-container line of

cases 18 not relevant or helpful in analyzing cell phone searches. Those

cases do not reflect the realities of newer cell phones. Police interests

in officer safety and evidence preservation are almost nonexistent,

while individuals’ reasonable expectations of privacy in the wealth of

information on their phones are enormous. ‘The decision below rightly

1° Ohio acknowledges that the phone was not a smart phone that might hav

contained data-erasing software. See Pet. 3, 13-14. Especially after the officers

secured the phone, neither Mr. Smith nor anyone other than the officers could access

or erase its contents. The officers never expressed any concerns about the potential

destruction of evidence; in fact, they took their time in getting around to searching

the phone. And even if any data could have been erased, the officers could have

gotten the call log data by subpoenaing the phone service provider without searching

the cell phone at all

respects the Fourth Amendment's concern for protecting a person:

“papers and effects” from governmental! intrusion

4. ‘The merits of this case, however, simply are not presented for

this Court’s review. As explained above, review of the merits would be

fatally hampered by (a) the absence of a clear, complete record; (b) the

lack of considered precedents from state and federal appellate courte

on similar facts; (c) the inability to address particular issues becauss

they were forfeited; and (d) the presence of alternative, independent

grounds for affirming the judgment below. ‘This Court should await an

appropniate case 1n which to consider these novel issues

CONCLUSION

lor the foregoing reasons, this Court should deny the petition

for a writ of certiorar}

Respectfujly submitted,

A r"

T ag » CRAIG M. JAQUITH

C ounsel of Record Office of the Ohio Puble

NANCY BREGSTEIN GORDON Defender

University of Pennsylvania Law 250 East Broad Street

School Supreme Court Clini Suite 1400

3400 Chestnut Street Columbus, OH 4321

Philadelphia, PA 19104 (614) 466-5394

(215) 746-2297

sbibas@law.upenn.edu

August 30, 2010