Tuesday, April 19, 2011

Ohio Court Rules That Officer Cannot Answer A Suspect's Cell Phone

An Ohio Court has held that the police may not use a suspect’s cell hone after an arrest.

The case is State v. Todd.

In this case, the defendant was observed by police walking near the report of a possible burglary.  The 911 caller stated that he "just didn't fit the area."

The suspect put his hands into his pockets while talking with the police.  The officers asked if he had any weapons.  The defendant put his hands into his front pocket and pulled out two cell phones, a digital camera, some foreign coins, and jewelry.

When questioned about the phones, the defendant stated that he had purchased one of the cell phones the night before and that he had not had time to delete the stored numbers on the phone.  The officer dialed the last number on one of the phones.  No one answered.  However, a few moments later the phone rang and the officer answered.  The caller indicated that the phone belonged to the defendant. 

The officer placed the defendant under arrest and found a number of stolen credit cards in his pockets.  During an interview, the defendant admitted to committing a burglary and receiving stolen property. 

The defendant’s conviction was reversed.  The court held that a protective patdown for weapons may have been permitted; requiring the defendant to empty his pockets violated the constitution.  However, the search may have been justified because there was probable cause to arrest the defendant for trespassing.  Thus, the officer was permitted to search the defendant incident to an arrest retrieve the cell phone.

But that is not the end of the analysis.  The actions of the officer in searching the phone by dialing the last number and then answering the phone when it rang is not permitted.  This search exceeds what is permissible under a search incident to arrest, according to the Ohio Supreme Court. 

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