Police access to cell phones up for debate

A national debate is stirring over whether law enforcement has the right to search through an arrested person's cell phone without a warrant.

The California Supreme Court said earlier this month that an arrested person loses his right of privacy for anything on his person when taken into custody.

That's at odds, though, with a ruling by the Ohio Supreme Court and the opinion of some legal experts, who say a phone should be confiscated, then searched with a judge's permission.

The debate hit close to home on Jan. 18, when North Augusta Public Safety officers arrested a shoplifting suspect at the Publix in the 300 block of East Martintown Road.

Officers say Neisha Willingham, 39, placed alcoholic drinks in her purse and tried to walk out with them. Willingham was arrested and charged with shoplifting and giving officers a false ID, a report says.

A search of Willingham after her arrest found two containers holding the prescription drugs Xanax and hydrocodone, a report says. Officers searched her phone and said they found text messages indicating that Willingham was selling pills illegally.

These included, "Wat color the perk U got?" and "Got both perk 10 for 7 an 512 for 5 an Xan for 4," according to a report.

North Augusta Lt. Tim Pearson didn't comment specifically on this case but said officers usually err on the side of caution and get a search warrant "when in doubt in those kind of situations."

A listed phone number for Willingham was disconnected.

The California Supreme Court based its opinion on a U.S. Supreme Court decision from the 1970s that gave officers the right to warrantless searches of a person's property. That extended to "containers," such as cigarette boxes.

Opponents of warrantless searches argues that there's no comparison between a cigarette box and the vast amount of data stored on today's smart phones.

"It's like searching through a portable file cabinet or a laptop," said Jack King, spokesman for the National Association of Criminal Defense Lawyers.

King said most states allow officers to search clothes and items if there's good knowledge or suspicion that a crime has been committed.

"But it can't be speculative," King said.

Read the California Supreme Court decision here:

http://www.courtinfo.ca.gov/courts/supreme/documents/S166600-bgsummary.pdf

http://articles.sfgate.com/2011-01-04/bay-area/26357969_1_cell-phones-searches-police-department

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