Featured Article: Cellphones as close container in search and seizure analysis

This month, Discourses of a Free Mind will be featuring a timely article on the constitutional right of individuals against illegal searches and seizure. Usually hailed as highly technical and legal, the issue on searches and seizure has recently tapped a medium we all can relate to and we all should be aware of-cellphones. Albeit what is being discussed in this article is a landmark American case, time and again the Philippine Supreme Court has, in numerous occasions, relied on American Supreme Court decisions when it comes to constitutional issues. Ergo, the need to fully examine the ramifications on the controversial case of State v. Smith.

The author, my brother, Atty. Ernani Diaz Bonoan is a partner of the Rebolos, Sanchez & Bonoan Law Office in Cagayan de Oro City.

The decision of the Supreme Court of Ohio in State v. Smith (Slip Opinion No. 2009-Ohio-6426) brings to the fore the issue whether the search and seizure clause of the American Constitution (Fourth Amendment) prohibits the warrantless search of data found in a cell phone when the phone is lawfully seized incident to an arrest. Considering that our own search and seizure clause (Article III, Section 2 of the 1987 Constitution) is rooted in American constitution law and our penchant for mobile phones, State v. Smith deserves consideration.

The factual antecedent reveals that a certain Wendy Thomas Northern was transported to Miami Valley Hospital after a reported drug overdose. After questioning by the police, Northern then agreed to call her drug dealer, whom she identified as, Antwaun Smith, to arrange for the purchase of crack cocaine at her (Northern) residence. Consequently the Smith was arrested at Northern’s residence. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. While the record does not show when the police first searched Smith’s cell phone, it was however discovered that the call records and phone numbers confirmed that Smith’s cell phone had been used to speak with Northern. There was testimony that at least a portion of the search took place when officers returned to the police station and were booking into evidence the items seized from the crime scene. The police did not have either a warrant or Smith’s consent to search the phone.

Smith moved to suppress, objecting to the warrantless search of his cell phone. Relying on United States v. Finley ([C.A.5, 2007], 477 F. 3d 250.), the trial court denied Smith’s motion on the ground that cell phones were akin to closed containers found on an arrestee’s person and subject to search for the preservation of evidence for use at trial. Eventually Smith was convicted of trafficking cocaine, possession of criminal tools and tampering of evidence. Smith appealed arguing, inter alia, that the trial court had erred in refusing to suppress the evidence found on his cell phone. Unfortunately for Smith, the appellate court overruled the assignment of error, holding that the trial court had not erred in refusing to grant the motion to suppress.

The Supreme Court of Ohio upheld Smith and reversed the rulings of the trial court and court of appeals. In approaching the issue, the Court initially laid down the settled rule that searches conducted without a warrant are per se unreasonable, subject to certain “jealously and carefully drawn” exceptions. And one of those “jealously and carefully dawn” exception is the search incident to arrest, which allows officers to conduct a search an arrestee’s person and the area within the arrestee’s immediate control. Hence search of arrestee’s purse, shoulder bag, any container or any article in his person was considered reasonable. The raison d'être for the said exception derives from interests in officer safety and evidence preservation. Worth noting here is the pronouncement that these searches need not necessarily be conducted at the moment of arrest. The search can be conducted later when the arrestee arrives at the place of detention. The Court was however quick to caution that when the interests in officer safety and evidence preservation are minimized, this exception no longer applies.

In rejecting the view that a cell phone is akin to a close container the Ohio High Court hammered on the fact that objects falling under the banner of “closed container” have traditionally been physical objects capable of holding other physical objects. Since a cell phone does not contain physical objects or capable of holding other physical objects, then it cannot be considered a closed container for purposes of search and seizure analysis. Moreover, modern trend in search and seizure scrutiny recognize that it serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable. The Supreme Court of Ohio proceeded and said:

Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers. Although cell phones cannot be equated with laptop computers, their ability 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. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.

So, in view of the so called “reasonable expectation of privacy” standard, there can be no valid search in a cell phone’s contents unless a judicial warrant is obtained.

While Smith can be considered enlightening in resolving search and seizure issue in this jurisdiction, its relevance is somewhat doubtful in view of the acceptability of the reasonable expectation of privacy standard in Philippine constitutional law.