Hamilton County, Ohio

«header» HAMILTON COUNTY, OHIO

State of Ohio : CASE NO.: «casenumber» PLAINTIFF : JUDGE: «judge» -vs- : «defendant» : MOTION TO SUPPRESS DEFENDANT EVIDENCE :

Defendant, «defendant» asks this Court, pursuant to Crim.R. 12(B)(3), for an order

suppressing any evidence which the state may seek to introduce at trial in the above captioned

matter on the grounds that said evidence was obtained in violation of «defendant» rights

guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and

Article 1, Section 14 of the Ohio Constitution. A memorandum in support is attached.

On ______, «defendant» was arrested and charged with a violation of «defendant». At

the time of his arrest, the police officers seized his cell phone. {ADD APPLICABLE FACTS}

During the course of discovery the State produced several documents to defense counsel,

including text messages and Facebook messages that defense counsel believes were obtained

from «defendant»’s phone. The State has not produced a search warrant in this case or indicated

a search warrant was obtained by police officers before accessing the information on

«defendant»’s cell phone. MEMORANDUM

The evidence to be put forward in the hearing on this Motion will establish that the

Facebook and text messages obtained by the State were the result of an unlawful search of

«defendant»’s cell phone and should therefore be suppressed. The Fourth Amendment to the

United States Constitution made applicable to the States by the Fourteenth 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 person or thing to be seized.

Article I, Section 14 of the Ohio Constitution likewise grants citizens protection against unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers and possessions against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause...

It is well established that the Fourth Amendment protects people whenever an individual has a reasonable expectation of privacy he is entitled to be free from unreasonable governmental intrusion. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967).

Police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. Id.. In most instances failure to comply with the warrant requirement can only be excused by a showing that exigent circumstances existed. Warden v.

Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782, (1967). Once a warrantless search is established, the burden of persuasion is on the state to show the validity of the search." Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988), citing State v. Kessler, 53 Ohio St.2d

204, 207, 373 N.E.2d 1252 (1978).

While a cell phone may be seized incident to arrest, the warrantless search of data within a cell phone is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances. State v. Smith, 124

Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949. The Court in Smith discussed the privacy interests involved in cell phone data, “[a]lthough cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Id. at ¶ 23.

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. Id. 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. Id., State v. Todd, 2nd Dist. Montgomery Case No. 23921, 2011-Ohio-1740.

The Court in Smith recognized that personal accounts that can be accessed via smart phones deserve a higher protection, “[g]iven the continuing rapid advancements in cell phone technology, we acknowledge that there are legitimate concerns regarding the effect of allowing warrantless searches of cell phones, especially so-called smart phones, which allow for high-speed Internet access and are capable of storing tremendous amounts of private data. Smith at ¶ 23.

The justifications behind allowing a search incident to arrest are officer safety and the preservation of evidence. There is no evidence that either justification was present in this case because ______. Pursuant to Smith, the State was required to obtain a search warrant before accessing the information in «defendant»’s cell phone. Facebook information cannot be accessed without a password for the very reason that the accounts contain highly personal information. Some smart phones, including «defendant»’s, have the capability of accessing Facebook via a stored password. Despite this capability, «defendant» was entitled to an even higher degree of protection from a search of «defendant» password-protected account.

The police seized and searched «defendant»’s cell phone without a search warrant and without his consent. Consequently, the State violated «defendant»’s protected rights under the

Fourth and Fourteenth Amendments of the United States Constitution, and Article I, Section 14 of the Ohio Constitution. Any evidence seized pursuant to the unconstitutional search of

«defendant»’s cell phone should be suppressed at trial. Mapp v. Ohio, 367 U.S. 643; 81 S. Ct.

1684; 6 L. Ed. 2d 1081 (1961).

Defendant respectfully asks this Court for an order suppressing all evidence seized by the search of «defendant» cell phone because it was obtained as a result of a warrantless and unconstitutional search.

Respectfully Submitted,

______«attorney», # «osc_number» Attorney for Defendant «address1» «city», «state» «zip» «phone»

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on ______by:

 Ordinary Mail  Fax  Hand Delivery  Dedicated Drop Box

______Attorney for Defendant