OH2: Seizure of cell phone with PC to get SW was valid

The seizure of defendant’s cell phone was with probable cause because he was a suspect in a murder. The police did not search it until they obtained a warrant consistent with Smith. The seizure of the telephone was not inconsistent with Smith. Under Segura, a seizure and search protect different interests, but they both have to be justified. This was. State v. Cunningham, 2012 Ohio 2794, 2012 Ohio App. LEXIS 2443 (2d Dist. June 22, 2012):

[*P28] The police did not search the contents of Defendant’s cell phone at issue until after a search warrant was obtained to search those contents. Defendant does not challenge the validity of the search warrant but instead argues that the seizure of the cell phone itself without a warrant required the trial court to exclude all evidence derived from the cell phone after the search warrant was issued pursuant to the Supreme Court’s decision in Smith. We do not agree.

[*P29] The police had identified Defendant as a key suspect in a double homicide that occurred only hours before Defendant was sitting in the interview room. (Motion to Suppress Tr., p. 7-10.) Defendant was at police headquarters for purposes of an interview concerning those crimes and used the phone while waiting to be interviewed. Defendant’s phone was confiscated by police out of a concern that relevant information memorialized on the phone would be deleted or lost. At no point between the time that Detective Baader seized Defendant’s cellular phone and the time when the search warrant was issued did the police search the records stored inside Defendant’s phone. (Id. at 15, 25, 39, 42, 46, 50.)

[*P30] The police had probable cause to seize Defendant’s cellular phone until a search warrant could be obtained. As the Supreme Court recognized in Smith, the police had an “immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased.” Smith, ¶ 23. The confiscation of Defendant’s phone did just that.