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Was it illegal for police to flip through a defendant's cell phone after he was...

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amstafflady | Student, Undergraduate | eNoter

Posted April 18, 2012 at 1:08 AM via web

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Was it illegal for police to flip through a defendant's cell phone after he was arrested and taken into custody?  See more below.

I am preparing a mock defense for my Constitutional Law class and a case regarding searches.

It would be nice if I could have a case for an example of this being illegal where the government was proved wrong in searching a cell phone after a defendant was taken into custody and using information gained for further charges.  The phone had not been inventoried.

 

Defendant was arrrested for drug chages in his vehicle and takento a police station.  An officer after the arrest started flipping through the cell phone and found more drug crime information.

We have the side that looking the cell phone was illegal and evidence gathered was fruit of the poisonous tree was illegal and the government should not have gone through the cell phone.

3 Answers | Add Yours

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted April 18, 2012 at 4:00 AM (Answer #1)

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I think that you're going to have a really hard time making this case.  There are a number of cases where courts have allowed evidence that was taken from warrantless searches of cell phones incident to arrest.

If you have to argue against this search, however, you would be best off trying to argue that there was no sort of exigent circumstance that required a warrantless search.  You could argue that the defendant was already in custody and had no way to access his cell phone to destroy any evidence that was there.  Because he had no way to access it, there was no hurry to get the evidence before it was destroyed in some way.  Therefore, the police should have taken the time to get a warrant.

This line of argument may well fail, but it is the most promising way to argue your side.

Sources:

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bor | Valedictorian

Posted April 18, 2012 at 4:30 PM (Answer #2)

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In addition to the excellent sources provided above, my state decided this in 2009.

You notice at par. 29, they decide it on 4th AM grounds, not the Ohio Constitution's Search and Seizure Clause. This would open the way, but it was not appealed, to a US SC challenge, as the federal question for appeal is there, the 4th AM. Decisions based SOLEY on state law, the SC has no appellate jurisdciction to hear it.

 

The dissent is also interesting to read.

 

http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-Ohio-6426.pdf

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bor | Valedictorian

Posted April 18, 2012 at 4:37 PM (Answer #3)

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Syllabus:

The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances.

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