US Cellular v. Albion,ME: FCC Shot Clock Case

In what I suspect is one of the first FCC shot clock cases to be filed, now comes US Cellular v. Town of Albion, Maine.

In its amended complaint (which I have attached to this posting, below) US Cellular asserts that:

34. The Town’s failure to act on the Application “within a reasonable period of time” under Section 332(c)(7)(B)(i)(II) constitutes “a failure to act” under Section 332 (c)(7)(B)9v) permitting US Cellular to seek judicial relief pursuant to a Declaratory Ruling of the Federal Communications Commission, dated November 18, 2009, WT Docket No. 08-165.

35. US Cellular is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility.

(Emphasis added; Complaint @ 34-35.)

Oddly, US Cellular’s attorneys apparently failed to read the FCC’s order carefully, which I have also attached, below.

The FCC order, in relevant parts, says:

[T]he [CTIA] Petition asks the Commission to find that, if a zoning authority fails to act within the above timeframes, the application shall be “deemed granted.”

(Order @ 10.)

[W]e find that a “reasonable period of time” is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or local governments do not act upon applications within those timeframes, then a “failure to act” has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v). The State or local government, however, will have the opportunity to rebut the presumption of reasonableness.

(Order @ 32 [internal footnotes omitted].)

We reject the Petition’s proposals that we go farther and either deem an application granted when a State or local government has failed to act within a defined timeframe or adopt a presumption that the court should issue an injunction granting the application. Section 332(c)(7)(B)(v) states that when a failure to act has occurred, aggrieved parties should file with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.” This provision indicates Congressional intent that courts should have the responsibility to fashion appropriate case-specific remedies. As the Petitioner notes, many courts have issued injunctions granting applications upon finding a violation of Section 332(c)(7)(B). However, the case law does not establish that an injunction granting the application is always or presumptively appropriate when a “failure to act” occurs.125 To the contrary, in those cases where courts have issued such injunctions upon finding a failure to act within a reasonable time, they have done so only after examining all the facts in the case. While we agree that injunctions granting applications may be appropriate in many cases, the proposals in personal wireless service facility siting applications and the surrounding circumstances can vary greatly. It is therefore important for courts to consider the specific facts of individual applications and adopt remedies based on those facts.

(Emphasis added; Order @ 39 [internal footnotes omitted].)

FCC Chairman Julius Genachowski, in his separate statement regarding the Commissions adoption of the shot clock rule, said

The decision we reach today does not grant the full relief that the industry’s petition seeks—for example, the petition argued for a shorter set of deadlines, and a requirement that zoning applications be “deemed granted” as soon as the deadlines expired. I believe that the timeframes we adopt today, and the requirement that parties seek injunctive relief from a court, are more consistent with preserving State and local sovereignty and with the intent of Congress.

(Statement of Chair Genachowski @ pg. 2.)

So, while the Shot Clock order may have opened the doors to the federal courts for U.S. Cellular, its assertion it “is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility” is inconsistent with the ruling set down by the Commission.

It now turns to the Town of Albion to rebut U.S. Cellular’s assertion that its review, exceeding 150 days, was unreasonable.  If it is successful in doing so, then the court should deny U.S. Cellular the relief it seeks.

U.S. Cellular v Town of Albion, ME0911929287

FCC 09-99 Shotclock Order

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Walnut Creek, CA Ponders Siting Moratorium

City of Walnut Creek LogoOn November 16th at 7:00 p.m. the City Council of the City of Walnut Creek will consider adopting a wireless moratorium while it considers creating a new wireless ordinance.

The City Council conducted a study session last Thursday to hear from the public.  Carriers were present at the study session, but according to published reports they did not speak at the meeting.

Here is the agenda item (No. 4a):

WIRELESS COMMUNICATIONS MORATORIUM

Wireless communications facilities, including cellular telephone antenna, proposed to be located in the City require a conditional use permit and/or design review approval pursuant to the City’s Wireless Communications Facilities Ordinance (Walnut Creek Municipal Code section 10-2.3.120). While these facilities are commercial in nature, at times cellular telephone companies propose to locate these facilities in residential or open space areas.  As indicated by the City Council at its special meeting on November 10, 2010, the City Council will consider adopting a moratorium on construction of new wireless communications facilities in residential or open space areas pending consideration of a work program to amend the Wireless Facilities Communications Ordinance. Staff Contact: Paul Valle-Riestra, City Attorney, (925) 943-5813.

Proposed ordinance is forthcoming

Paul Valle-Riestra, Walnut Creek’s City Attorney, is also an outstanding telecom lawyer. This should be interesting!

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No Clear Path for Clearwire

Clearwire is undergoing a capital squeeze that may leave it unable to continue as an ongoing business.  The issues that face the company are clearly set out in its most current SEC 10Q report (dated 11/4/10), which contains this passage:

Liquidity Issues

We are at an early stage of implementing our business strategy. Since formation, we have invested significantly in our business and experienced substantial losses from operations and negative cash flows. During the first nine months of fiscal 2010, we incurred $1.55 billion of net losses. We utilized $840.8 million of cash in operating activities and spent $1.96 billion for capital expenditures in the development of our network. We do not expect our operations to generate positive cash flows during the next twelve months.

As of September 30, 2010, we had available cash and short−term investments of approximately $1.38 billion. Based on our current projections, we do not expect our available cash and short−term investments to be sufficient to cover our estimated liquidity needs for the next twelve months. Without additional financing sources, we forecast that our cash and short−term investments would be depleted as early as the middle of 2011. Thus, we will be required to raise additional capital in the near−term in order to continue operations. Further, we also need to raise substantial additional capital over the long−term to fully implement our business plans.

We are actively pursuing various initiatives aimed at resolving our need for additional capital. We are in discussions with a number of our major shareholders and other third parties about a number of options, including  potential strategic transactions, additional debt or equity financings and/or asset sales. A special committee of our Board of Directors has  been formed to explore strategic alternatives, including transactions that may involve a sale or other realignment of the ownership and governance of our company.  Additionally, at the same time, we are holding discussions with various parties with respect to securing additional  financing. Any financing transaction would likely include selling additional equity or debt securities issued by us or our domestic or international subsidiaries. Any additional debt financing would increase our future financial commitments, while any additional equity financing would be dilutive to our stockholders. Our ability to raise sufficient additional capital in the near and long−term on acceptable terms, or at all, remains uncertain. Lastly, we believe that the fair market value of our spectrum portfolio exceeds our outstanding liabilities and that a portion of our spectrum is not essential to our business. Thus, we have initiated a process whereby we are seeking bids to potentially sell the excess  spectrum assets to raise additional funds to continue to operate.  However, the process is at an early stage, and there can be no assurance that we will be able to sell a sufficient
amount of spectrum on terms acceptable to us.

We are also actively pursuing a number of initiatives intended to reduce costs and conserve cash, including: suspending development activities for sites not required for our current build plan; delaying the launch of new end user devices such as Clear branded smartphones; substantially reducing sales and marketing spending; making reductions to discretionary capital projects; substantially reducing the number of contingent workers and reducing our employee numbers by approximately 15%. We currently have thousands of sites in various stages of planning and construction beyond our current build
plan, and we intend to suspend zoning and planning in a portion of those sites. These contemplated initiatives are intended to result in potential cost savings of between $100 million to $200 million in 2010 and again in the first half of 2011. However, we may not realize the full amount of savings we expect as a result of these initiatives. Even if these initiatives do result in the anticipated cost savings, we will still be required to obtain sufficient additional capital.

Our ability to continue to operate our business is substantially dependent on our ability to raise additional capital in the near term. As discussed above, we are actively pursuing a number of possible funding options, but there can be no assurance that these efforts will be successful. Our expected continued losses from operations and the uncertainty about our ability to obtain sufficient additional capital raise substantial doubt about our ability to continue as a going concern.

Clearwire’s next steps are outlined, but it is far from clear that this technology firm will continue in business, or continue as it currently exists.

The impact on Clearwire site landlords cannot be overstated.  If Clearwire goes into bankruptcy, site landlords without specific lease protections may find themselves out of rent, and out of luck for months or years, any may only collect a percentage of rent due, if any.

These are trying times for Clearwire; hopefully the firm will survive and provided needed competition in the wireless arena.

If you would like to read the entire 10Q report, you can do so by clicking here:  Clearwire Corporation’s SEC 10Q Report dated 11-04-2010 (PDF format).

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Cell Phones and Lip Gloss?

The California Highway Patrol is stepping up enforcement of the keep-your-eyes-on-the-road rules.  It’s not (just) a cell phone thing, anymore.

Don’t text this to a friend while driving, okay?

For those of you who would like to see a great movie incorporating this, ah, problem, go out and rent the wonderful 1991 movie,  “Defending Your Life” by Albert Brooks.  Highly recommended!  (Best scene stealer:  Shirley MacLaine.)

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CTIA’s Worst Fear: Point-of-Sale Access to Consumer Information

The Cellular Telephone Industry Association (the CTIA) sued the City and County of San Francisco on July 23, 2010 in an attempt to overturn the City’s new ordinance requiring disclosure of the “Specific Absorption Rate” (SAR) data.  The Ordinance is titled the “Cell Phone Right-to-Know Ordinance” (Ordinance No. 155-10).

So what is a SAR, anyway?

As the FCC says,

Working closely with federal health and safety agencies, such as the Food and Drug Administration (FDA), the FCC has adopted limits for safe exposure to radiofrequency (RF) energy. These limits are given in terms of a unit referred to as the Specific Absorption Rate (SAR), which is a measure of the amount of radio frequency energy absorbed by the body when using a mobile phone. The FCC requires cell phone manufacturers to ensure that their phones comply with these objective limits for safe exposure. Any cell phone at or below these SAR levels (that is, any phone legally sold in the U.S.) is a “safe” phone, as measured by these standards. The FCC limit for public exposure from cellular telephones is an SAR level of 1.6 watts per kilogram (1.6 W/kg).

(from http://www.fcc.gov/cgb/sar/)

Every cell phone sold in the U.S. must comply with the FCC regulations requiring compliance with the SAR rule, and public disclosure of the SAR value via the FCC’s web site, and sometimes at other web sites.

It’s the ‘public disclosure’ part is just what the CTIA (and the wireless industry that funds it) is so afraid of.

So what, exactly, has San Francisco done to tick-off the CTIA?

San Francisco adopted an ordinance requiring easily accessible point-of-sale disclosure of the SAR value for each phone sold or leased in San Francisco by retailers.

For the purposes of the ordinance, a retailer is someone who sells or leases cell phones to the public within the City,  or anyone who offers cell phones for sale or lease within the City. Retailers, as defined in the ordinance, specifically excludes anyone selling or leasing cell phones over the phone, by mail, or over the internet, and also excludes anyone selling or leasing cell phones directly to the public at a convention, trade show, or conference, or otherwise selling or leasing cell phones directly to the public within the City for fewer than 10 days in a year (i.e, a person who sells his or her old cell phone to someone else, for example).

So, what does the ordinance require?

First, it requires that any cell phone service provider (think: Verizon, AT&T, MetroPCS, etc.) provide the City with a list of their retailers located in the City.  That list must be updated annually.  (Ord. Sect. 1102.)

Tough to do?  I think not.

Second, if “a cell phone retailer posts display materials in connection with sample phones or phones on display, the display materials must include … three elements: (1) The SAR value of that phone and the maximum allowable SAR value for cell phones set by the FCC; (2) A statement explaining what the SAR value is; and (3) A statment that additional educational materials regarding SAR values and cell phone use are available from the cell phone retailer. ”

To promote uniformity, the City will adopt regulations specifying the content and format of the three elements just listed.

Third, the ordinance sets the minimum physical size, and the type face and minimum point equivalencies for the notice.  (Ord. Sect. 11043.)

Fourth, the ordinance phases in over the period between now an May, 2011, and does not begin enforcement actions against non-compliant persons until August 2012.  Even then, before any fines are imposed, the retailer will have 30 days to come into compliance.  And even if fines are imposed, the ordinance specifically says that fines are the only penalty…no jail time for violations.

That’s what the wireless industry finds to be simply egregious, but they frame their argument in terms of, well, PR spin.  Just read the  first line of that portion of the CTIA’s press release about it’s law suit. The quote, attributed to John Walls, their VP of Public Affairs is:

CTIA has filed this lawsuit to prevent consumer confusion. The problem with the San Francisco ordinance is not the disclosure of wireless phone SAR values – that information is already publicly available. Consumers can learn a device’s SAR value from a number of public sources, and the value is often included in user manuals and listed on the websites of manufacturers and the FCC. CTIA’s objection to the ordinance is that displaying a phone’s SAR value at the point-of-sale suggests to the consumer that there is a meaningful safety distinction between FCC-compliant devices with different SAR levels.

“The FCC has determined that all wireless phones legally sold in the United States are ‘safe.’ The FCC monitors scientific research on a regular basis, and its standard for RF exposure is based on recommended guidelines adopted by U.S. and international standard-setting bodies. Furthermore, according to the experts at the U.S. Food and Drug Administration (FDA), the available scientific evidence shows no known health risk due to the RF energy emitted by cell phones. As the FDA states on its website, ‘[t]he weight of scientific evidence has not linked cell phones with any health problems.’

“In contrast, the message conveyed by the San Francisco ordinance to consumers is that the FCC’s standards are insufficient and that the safety of an FCC-authorized wireless device depends on its SAR level. Therefore, the ordinance contradicts the thorough review of the science by the FCC, FDA and other U.S. and international expert agencies, and will send consumers the false message that there is a safety difference between wireless devices that comply with the FCC’s stringent standards.

“The wireless industry is committed to consumer choice. That means providing consumers with the best information to assist them in making the right choice for them when purchasing a device and services.  The San Francisco ordinance, by conveying a misleading impression about the relative safety of wireless phones, will hinder – rather than assist – consumers in making their choices.”

(Emphasis added)

I love the in-your-face PR spin that the “CTIA has filed this lawsuit to prevent consumer confusion.” It’s classic misdirection. Consumer’s are confused because, ah, the same metric is presented in the same way across different handsets? And that metric is available at the very moment the consumer is considering what, exactly, to purchase? Yup, that would confuse me, too.

Not.

Cell_Phone_Label_StandardI’d like to offer my own idea for a label, and one that is instantly recognizable to anyone who happens to ingest food on a fairly regular basis.  A label, like I show below, could provide basic information to consumers at the time and point of sale, just when and where the CTIA would rather you not have that information. There could be room for other optional data about phone-specific features as I’ve suggested.

We learned to first live with, and then to realize the immense value of consumer information at the point-of-sale for all sorts of consumer food goods, and later at fast-food restaurants.   Consumer’s have not stopped buying groceries, nor have they stopped dining at Micky-D’s, but if they want the consumer information about what they’re going to eat, its right there for them when they are making their buying decisions.

Does any rational person believe that consumers will stop buying cell phones in San Francisco if the ordinance goes into force?

Nope, me neither.

Finally, I believe that consumer rights’ groups should be banding together to oppose to the CTIA’s lawsuit as it is an attempt to bar a government from requiring consumer-oriented disclosure of public record information. The chilling effects that would result could deal a real knock-out blow to smart, informed consumerism.

To read the law suit and the City’s ordinance at the heart of the suit, click on this link.

For more information on SAR from the FCC, start at these sites:

http://www.fcc.gov/oet/rfsafety/sar.html
and
http://www.fcc.gov/cgb/sar/

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The FCC’s Shot Clock…Now a Game of Chicken

FCC Shot Clock

The FCC’s Shot Clock for siting decisions in wireless cases is turning out to be the bad idea that most governments expected it would be.   Right now we’re seeing the first round of “Chicken” …  The carriers are starting to demand siting decisions on cases because the Shot Clock rule entitles them to sue if they don’t get it.

“Okay… you want a decision?  DENIED for the following reasons based on evidence in the administrative record….”  is what some governments are starting to offer applicants who demand their ‘final’ decision on day 90 or 150.  At the last minute will one side or the other ‘blink’ in this high-stakes game of Chicken? 

In some cases, especially in California with its state law CEQA requirements and when looking at compliance with local siting ordinance requirements, the decisions simply can’t pop out on time like the output of an assembly line.

I suspect we’ll see a fair number of application denials in the next few months while all sides figure out how to live under the Shot Clock…at least until the rule is overturned or seriously limited by the courts.

It was a dumb idea for the wireless industry to push for this rule.  The only ones who will really benefit from strict and severe application of the rule will be the attorneys and experts.  As both, I still think this was a dumb idea becuase it will make siting a more rigid process.

Those are my opinions.  What are yours?

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Ohio: Warrantless Search of Cell Phone Data Barred in Some Instances

200px-Flag_of_Ohio.svgThe following is a press release from the Supreme Court of Ohio regarding its decision on December 15, 2009 suppressing data contained from within a cell phone that was seized without a warrant and that data was used against the defendant  at trial.

Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer’s Safety or to Preserve Evidence

2008-1781.  State v. Smith, Slip Opinion No. 2009-Ohio-6426.
Greene App. No. 07-CA-47, 2008-Ohio-3717.  Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O’Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O’Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6426.pdf Adobe PDF Link opens new window.

Video clip View oral argument video of this case.
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(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.

The Court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.

During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.

He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2nd District Court of Appeals affirmed the action of the trial court.  The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the constitutionality of the phone search.

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  … The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. … This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). … But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”

Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District’s majority and dissenting opinions.

She wrote: “In United States v. Finley …the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. … Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant.  During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search.  While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. … In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. … Notably, Finley had conceded that a cell phone was analogous to a closed container. … Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”

“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation.  They arrested Park and took him to booking, where they searched him and found a cell phone.  Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. … Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”

While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.  Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.  We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”

“Although 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,” wrote Justice Lanzinger.  “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 is 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.”

“ … We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about  cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee.  He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. … The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.

Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

Contacts
Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click “Submit.”

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Major New RF Safety Practice Guide

The Public Law Journal of the State Bar of California has published Jonathan’s Kramer paper, “A Practical Guide to Radio Frequency Emissions Safety.” The article appears in the Summer 2009 edition (Vol. 32, No. 3).

This guide discusses how local government agencies can properly and effectively deal with RF safety issues that come up in connection with wireless siting cases (primarily cell sites, but also broadcast, ham radio, and commercial two-way users, as well).

While written primarily for California public law attorneys, attorneys around the country will find many important and useful gems in the article.

The editor of the Public Law Journal has kindly granted permission for me to reproduce the article in PDF format.

Please follow this link to download the article download page.

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