Mahoning County Prosecutor Paul J. Gains said Wednesday’s unanimous U.S. Supreme Court decision that police generally must have a search warrant to search an arrestee’s cellphone won’t be much of an impediment to law enforcement or criminal prosecutions.
That’s because if police have probable cause that the phone is related to a crime, they can seize and hold it to ensure that it isn’t destroyed or tampered with until they can get a search warrant a few hours or a day later to search the phone’s contents.
The greatest inconvenience of the search-warrant requirement is likely the delay in return of the phone to its owner while police await a search warrant for the phone, Gains said.
“The people who suffer are the owners of the phone, unless they tell the officer, ‘OK. I don’t want you to take my phone. Go ahead and look, because I wasn’t doing anything,’” Gains explained.
“They’re treating cellphones now like they’re treating the computers. You’ve got to get a search warrant to get into them because of the expectation of privacy,” Gains said of the top court justices.
Gains said he believes that where there’s evidence that a motorist involved in a crash was texting while driving, police should still be permitted to conduct a limited, warrantless search of the driver’s phone to determine if a text was sent from it around the time of the crash.
“Most people do not get arrested at an auto accident. They get a summons,” Gains noted.
“I would think that common sense would apply. ... There are exigent circumstances immediately justifying a limited search of the phone,” said Gains, a former Youngstown police officer.
“Cellphones today — the modern technology — makes it easier for criminals to do their trade, whatever crime it is — narcotics, organized crime or whatever it would be,” said Maj. William Cappabianca of the Mahoning County Sheriff’s Office.
“But, as law-enforcement officers, we have to respect the decision of the court,” he added. “We will still, ultimately, end up with the information that’s on the mobile device, but our means of getting it will be more labor-intensive” because a search warrant will have to be obtained from the court of jurisdiction, he explained.
“As a result of the court’s decision, our detectives and deputy sheriffs on patrol will be advised and trained accordingly,” Cappabianca said.
Boardman Police Chief Jack Nichols said the court decision is not likely to impact his department.
“We typically did get search warrants anyway for cellphones,” Nichols said. “It’s really not going to change much in how we operate.”
The Supreme Court’s decision examined two cases that arose after arrests in San Diego and Boston. In San Diego, police found indications of gang membership when they looked through a defendant’s smartphone, and prosecutors used video and photographs from the phone to persuade a jury to convict him of attempted murder and other charges. In Boston, police used the call log on an arrested man’s flip phone to lead them to his home, where they found drugs, a gun and ammunition.
The Constitution’s Fourth Amendment requires police generally to have a judge sign a warrant that’s based on “probable cause,” or evidence that a crime has been committed. But cellphones have been treated like any other item in an arrestee’s possession, meaning they could be examined to ensure the officer’s safety and prevent the destruction of evidence.
Warren Police Chief Eric Merkel said he doesn’t believe the ruling should be a problem for his department.
“If we think there is something on [the phone] of a criminal nature, we’ll get a search warrant. But on a normal arrest, I don’t see the need to go through people’s cellphones.”
Hubbard Police Chief Jim Taafe said the ruling won’t affect his department.
“We’d get a search warrant anyway,” he said. “When in doubt, get the search warrant. Then the evidence is protected.”
Taafe said the department would submit a smartphone and a warrant to the state Bureau of Criminal Investigation and let experts search it so that evidence wouldn’t accidentally get erased.
Lt. Douglas Bobovnyik of the Youngstown Police Department’s Detective Bureau said he did not think the ruling would affect its investigations much. Bobovnyik said standard practice now is to get a search warrant whenever police search a phone unless they have the consent of the owner.