This post examines an opinion from the Court of Appeals of
Ohio – Fifth District: State v. Hidey, 2016 WL 5885507 (2016). The
court begins by explaining that “[a]ppellant the State of Ohio appeals a
judgment of the Tuscarawas County Common Pleas Court suppressing a cell phone
seized from appellee Kody S. Hidey.” State v. Hidey, supra.
It goes on to explain that
[o]n October 28, 2014, an armed robbery
took place at Marty’s Coaches Corner in New Philadelphia, Ohio. Detective Shawn
Nelson of the New Philadelphia Police Department commenced an investigation.
Det. Nelson received a tip from Charla Hamilton on October 29, 2014, that a man
by the name of Devonte Sherman might be responsible for the robbery.
Ms. Hamilton informed Det. Nelson that
she received a text message on the day of the robbery from Devonte Sherman asking
if she knew of anywhere to `make some moves.’ She understood `make some moves’
to be a slang term for committing a robbery or stealing. She told Det. Nelson
that Devonte Sherman did not have a phone, but had been staying with appellee
and shared appellee's phone. The text messages from Sherman came to her from a
number she recognized as appellee's cell phone number. She further indicated
that Sherman used appellee's phone after the robbery, saying he was `hot’ in
New Philadelphia and needed to let things cool down before coming back.
State v. Hidey, supra.
The opinion continues with its account of the facts that led
to the charges against Hidey and this appeal:
After police met with Hamilton, they
prepared a photo lineup that was shown to the employees who worked in Marty's
Coaches Corner on the night of the robbery. Both employees identified Devonte
Sherman as the perpetrator of the armed robbery.
Det. Nelson conducted an interview with
appellee at the police department on November 3, 2014. Det. Nelson asked
appellee if he had his phone with him. He asked appellee to see the phone,
saying, `I'm not taking it. I just want to see it while you're sitting here
with me. Make sure it's off.’ Tr. 13. After confirming that Sherman used
appellee's phone, Det. Nelson told appellee that he was taking the phone. On
November 13, 2014, police obtained a search warrant to retrieve the contents of
appellee's phone.
State v. Hidey, supra.
The Court of Appeals goes on to explain that
[a]ppellee was indicted by the Tuscarawas County
Grand Jury with one count of aggravated robbery (Ohio Revised Code 2911.01(A)(1)) with a
firearm specification. Appellee filed a motion to suppress all evidence
obtained from the warrantless seizure of his cell phone.
Following a hearing, the court found
that although there may have been probable cause to seize the phone, there were
no exigent circumstances to justify the seizure because Det. Nelson knew about
the phone's potential link to criminal activity prior to his interview with
appellee, and could have obtained a warrant to seize the phone. The court found
that even if the seizure was proper, the seizure subsequently became
unreasonable because the detective waited ten days after the seizure to obtain
a warrant for the information contained in the phone. The court accordingly
granted appellee's motion to suppress.
State v. Hidey, supra.
In the paragraph above, the court is explaining that even if
one assumes the officers had probable cause – the standard used in determining
if a Fourth Amendment search or seizure is “reasonable” – the seizure violated
the Fourth Amendment because it was not justified under the exigent
circumstances exception’s to the default requirement that officers obtain a
search and seizure warrant to take possession of evidence.
In its appeal, the State of Ohio, e.g., the prosecution,
argued that “that the [trial] court erred in finding that the seizure of
appellee's cellphone violated
the Fourth Amendment.” State
v. Hidey, supra. It went on to argue that
[a] seizure of personal property is
ordinarily per se unreasonable within the meaning of the Fourth
Amendment unless it is accomplished pursuant to a judicial warrant issued upon
probable cause and particularly describing the items to be seized. United
States v. Place, 462 U.S. 696, 701(1983). However, 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 Fourth Amendment permits 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. Id. Different interests are implicated
by a seizure than by a search, as a seizure implicates only the person's
possessory interests, while a search affects the person's privacy
interests. Segura v. United States, 468 U.S. 796, 806 (1984).
Because the nature of a seizure is generally less intrusive than a search, the
United States Supreme Court has frequently approved a warrantless seizure of
property on the basis of probable cause, for the time necessary to secure a
warrant. Id.
State v. Hidey, supra.
The Court of Appeals also noted that
[a]lthough the Ohio Supreme Court has
declined to define a cell phone as a closed container, 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
information found on the phone is neither lost nor erased. State v.
Smith, 124 Ohio St.3d 163, 169, 920 N.E.2d 949, 955, ¶ 23 (Ohio
Supreme Court 2009). But because a person has a high expectation of privacy in
a cell phone's contents, police must obtain a warrant before intruding into the
phone's contents. Id.
State v. Hidey, supra.
The court went on to outline its analysis of the legality of
the seizure of the cell phone:
The evidence presented at the hearing
demonstrated that the detective had probable cause to believe appellee's cell
phone contained evidence of the armed robbery of Marty's Coaches Corner on October
28, 2014. Charla Hamilton told Det. Nelson of a photo of the front page of the
local newspaper talking about the robbery which was sent or received from that
phone. Messages from Devonte Sherman asking her about `moves’ had come from
appellee's phone, as well as Sherman's message that he needed to stay clear of
New Philadelphia until things cooled down. Further, Hamilton had some, but not
all, of the messages on her phone to corroborate her statements to police.
Sherman had been identified by both employees from a photo lineup as the person
who robbed the store. While talking to appellee, Det. Nelson confirmed that
Sherman had used appellee's phone.
However, the trial court erred in
finding that the exigencies which supported the seizure of the phone were
created by Det. Nelson by his failure to secure a warrant to seize the phone,
and could not be relied on to support the warrantless seizure of the phone. The
officer testified that prior to locating appellee, he did not have information
he needed to get a warrant to seize the phone. He testified that needed
information such as the phone number, the pin number, and the description of
the device being sought. All he knew was that appellee had a phone which may or
may not be in his possession, and police would not know where to execute a
warrant for the phone.
Further, the court erred in finding
that the warrantless seizure was not demanded by the exigencies of the
situation. Appellee knew from the interview that police suspected his phone had
been used by Sherman to relay information concerning a crime. Det. Nelson
testified that he therefore had reason to believe that the minute appellee
walked out the door, the phone would be destroyed or thrown in the river, or
all the information on it would be deleted. The seizure of the cell phone from appellee at the police interview did not violate
the Fourth Amendment.
State v. Hidey, supra.
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