{"id":2312,"date":"2008-08-03T09:26:44","date_gmt":"2008-07-31T09:14:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-08-03T09:26:44","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2312","title":{"rendered":"OH2: SI of a cellphone was valid"},"content":{"rendered":"

Search incident of a cellphone as a closed container was valid. The phone could be searched later [like clothing] under Edwards<\/em><\/a>, and only the cellphone numbers and text messages between the defendant and informant were admitted. State v. Smith<\/a>, 2008 Ohio 3717, 2008 Ohio App. LEXIS 3139 (2d Dist. July 25, 2008):<\/p>\n

[*P37] The trial court overruled Smith’s motion upon the authority of United States v. Finley<\/em> (C.A.5, 2007), 477 F.3d 250, certiorari denied<\/em> (2007), 127 S. Ct. 2065, 167 L. Ed. 2d 790. In Finley, the Fifth Circuit Court of Appeals upheld the warrantless search of the defendant’s cell phone on facts that closely resemble those in the present matter. The police in Finley<\/em> used a cooperating source to set up a drug buy. The defendant drove the seller, Mark Brown, to the appointed location, and the drug sale was completed with the seller who was seated in the front passenger seat. Finley drove away and was stopped by police who recovered drugs with Finley’s name on a pill bottle and marked money used to purchase the drugs. Finley and Brown were both arrested, and Finley’s cell phone was seized. Finley and Brown were then transported to Brown’s residence where police were conducting a search pursuant to a warrant. At that location, police searched Finley’s cell phone call records and messages, along with several of the text messages, which referred to narcotics trafficking.<\/p>\n

[*P38] The court of appeals found the trial court properly denied Finley’s motion to suppress the cell phone evidence. The court wrote as follows:<\/p>\n

[*P39] “Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that ‘in 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<\/em><\/a>, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id.<\/em> at 233-34, 94 S.Ct. 467. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson<\/em>, 846 F.2d 279, 282 (5th Cir.1988) (per curiam); see, also, New York v. Belton<\/em><\/a>, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson<\/em>, 414 U.S. at 223-24, 94 S.Ct. 467 (upholding search of closed cigarette package on arrestee’s person).<\/p><\/blockquote>\n<\/blockquote>\n

Defendant’s talking to another in a parking lot was not reasonable suspicion that he was engaged in a drug deal, so his stop was invalid. State v. Nieters<\/a>, 2008 Ohio 3727, 2008 Ohio App. LEXIS 3146 (12th Dist. July 28, 2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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