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Can a Police Officer go through a cell phones Text messages for incriminating evidence without a warrant?

Nashua, NH |

During questioning at school by the principal and School Police officer they confiscated my nephews cell phone and proceeded to check old text messages for proof of contact and conversations about a drug deal that took place off school grounds but within the Drug free School zone. Is this legally obtained evidence?

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Attorney answers 1


Fourth Amendment: Ohio Requires Warrant to Search Cell Phones

Posted by Alan Brinkmeier on Tuesday, December 15, 2009

By: Alan J. Brinkmeier

In another state high court decision on the scope of the Fourth Amendment protections regarding cellular telephone searches, today Ohio holds by the slimmest of 4-3 margins, that a cell phone search requires a warrant absent exigent circumstances. Therefore, the specific case search was not subject to a search incident to the arrest.

"Today's cell phones are analogous to a computer." State v. Smith, 2009 Ohio 6426 (December 15, 2009). The court wrestled with both the concepts that have characterized this debate for a decade.

"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."

In choosing the path Ohio police officers must now take, the Court said

"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."

The debate continues in many states about warrants and the protections of the Fourth Amendment when cell phones are involved. More state high courts will likely weigh in on this interesting debate over the next few years.