# Opposition Brief — Ohio v. Smith

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1976%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 947

## Text

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)

QUESTION PRESENTED .................-....... Sipscaiieueniaurmcsterceee: seeaehenudehadunns 1
TABLE OF CONTENTS .........0..000000000 SORT Nhe) Sc ON OER i
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1976%3A2. Public record. Not legal advice.