The Ohio Supreme Court reversed a drug conviction where the trial court admitted into evidence call logs from a cell phone seized as part of a search incident to arrest. At the same time the United State Supreme Court granted cert on a case of a post office employee who’s text messages on a government supplied pager were searched by the local police department.

The Ohio Supreme Court in State v. Smith rejected the position of the Fifth Circuit Court of Appeals that a cell phone was similar to a container seized during a search incident to arrest which can be searched without a warrant. Instead the Ohio court found that a cell phone is more like a lap top computer in that it carries considerable personal and private data. As a result a search warrant is necessary to search data found therein after it is seized during a search incident to arrest.

The Ohio case involved a police informant who made a telephone call to her supplier to set up his arrest for the police. When he was arrested the police seized his telephone. It has long been the law that one of the exceptions to the Fourth Amendment’s warrant requirement allows police officers to search the area around a person at the time of his/her arrest. The purpose for the exception is to protect the officers from possible harm while making an arrest. The Ohio court found that unless seizing the data on the phone was necessary for officer safety a search warrant is necessary to search the data in the phone.

To me data transferred on a telephone whether if be oral data or electronic data mandates a strong level of protection. We have all sorts of private data on our phones and we do not expect the government to be tapping into the data except in the most urgent of situations. Government surveillance of the data should only happen with the protection of a search warrant signed by a judge. In Katz v, United States and its prodigy the Supreme Court set tight restrictions on tapping into telephone conversations. The same restrictions ought to be invoked prior to the search on data on a cell phone or any other phone.