In most cases, the Fourth Amendment prohibits law enforcement from seizing someone’s cell phone without a judicial warrant granted after probable cause about why the phone is a necessary piece of evidence is established. The Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
However, if law enforcement authorities have not yet secured a warrant but have probable cause to believe that a cell phone contains evidence relating to a crime, then they may be legally permitted to seize the cell phone for the time necessary to secure a warrant. United States v. Place (1983) states that:
“Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”
The seizure of a cell phone comes with different implications than the search of a cell phone; seizure only affects the owner of the cell phone’s interest in maintaining possession and access to the item in question, while search affects the owner of the cell phone’s interests in maintaining their privacy. Even though the Ohio Supreme Court has not chosen to specifically define a cell phone as a closed container, the United States Supreme Court frequently approves of warrantless seizures of cell phones because of the less intrusive nature of seizures compared to searches. However, law enforcement may not begin their search of the cell phone until they are issued a warrant. According to The State of Ohio v. Smith (2009):
“Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But 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.”
Any time a cell phone is seized without a warrant, defense attorneys need to strongly consider filing a motion to suppress information gained through a search of a cell phone based on the unconstitutional seizure of property and also challenge the affidavit in support of the search warrants. Once these motions are filed, the court will hold a hearing to determine whether or not the law enforcement authority who seized the cell phone had enough evidence to support both the initial seizure and subsequent search.