In two recent cases, the Supreme Court of Ohio and the Third Circuit Court of Appeals took different approaches to whether police may search the contents of electronic devices belonging to criminal suspects, such as cell phones and external hard drives.

A woman in the hospital due to a drug overdose was questioned by police, and identified her drug dealer as the defendant. The police arrested the defendant at her residence. During the arrest, the police searched the defendant and found a cell phone on him. They searched the phone and discovered that the call records and phone numbers confirmed that the defendant’s cell phone had been used to speak with the woman. This evidence was introduced during the defendant’s trial.

The Supreme Court of Ohio held that the evidence should have been suppressed. The court held that a police officer could not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant because a cell phone was not a closed container and because an individual has a privacy interest in the contents of a cell phone that go beyond the privacy interest in an address book or pager. The court noted that the search of the phone’s contents was not necessary to ensure officer safety, and also that there was no evidence that the information that the police were searching for was subject to imminent destruction.

By contrast, in United States v. Vosburgh, the Third Circuit Court of Appeals took a different view of police’s authority to search the contents of electronic devices capable of storing ESI. The court found that the district court did not err in failing to suppress evidence found in the defendant’s apartment on his external hard drive because the warrant to search his apartment for evidence of child pornography crimes was supported by probable cause.

The court found that the IP address connected to an attempt to access child pornography was traceable to the defendant’s apartment. The court noted that the district court’s admission of hearsay testimony about the age of a naked female in an exhibit was harmless, as even if there was a basis for doubting that she was a minor, there was no dispute about whether the females in another exhibit were minors. Because the defendant was charged under a statute that criminalized the possession of an external hard drive containing any visual depiction of child pornography, the jury could have convicted him solely of possession of a hard drive containing the image that became one exhibit, regardless of whether the other exhibit depicted a “minor” in a pornographic pose.

Although these holdings differ on whether police can lawfully search the contents of electronic devices, it would be wise for criminal suspects not to keep evidence of their crimes on their electronic devices, such as cell phones, computers, or external hard drives, as this evidence is likely subject to search by police officers and will likely be admissible at trial.

Author Bio: Kathy Trawinski is a Seton Hall University School of Law student (Class of 2012) who focuses her studies in the area of commercial litigation. She is an Associate Editor of the Law Review and a member of the Moot Court Board. She will begin as a first year associate at Day Pitney LLP in the fall of 2012. Prior to law school, she was a 2009 graduate of the University of Virginia, where she earned a BA in English.