The Court ruled law enforcement can get warrants to wiretap a cell phone from both where the phone is being used and where officers are listening.

The Court ruled law enforcement can get warrants to wiretap a cell phone from both where the phone is being used and where officers are listening.

When law enforcement is authorized to wiretap a cell phone, the call is intercepted both at the place where the phone is being used and the location where officers are listening, the Ohio Supreme Court ruled today.

The Supreme Court unanimously ruled an Ohio statute allows law enforcement officers to obtain a warrant to intercept calls from a judge in the county in which the interception of the call occurs.  A Sandusky man argued that a Sandusky County judge had improperly issued a warrant to intercept his calls, and that officers should have obtained the warrant from a judge in Lucas County, where the officers listened to the calls. The Court rejected the challenge, concluding that an interception occurred at the place where the phone was used, as well as the place where the officers were listening. 

Writing for the Court, Justice R. Patrick DeWine explained that cell-phone companies use a process known as “capture and redirect” to give government officials access to a cell-phone call, and the moment a speaker speaks into a phone connected to the telecommunications network, the call is captured and transmitted for the government’s use.

The Court’s opinion explained the days of wiretapping a landline are long gone and the advent of cell phones have made the application of the Ohio wiretapping statutes a bit more difficult, but federal circuit courts and other state courts applying similar laws have come to the same conclusion.

The Court heard oral argument in the case at a special offsite session last October in Williams County.

Phone of Suspected Drug Trafficker Tapped
The federal Drug Enforcement Agency (DEA) suspected Keith Nettles, who lives in Sandusky County, of drug trafficking. A Toledo-based DEA agent obtained an interception warrant under R.C. 2933.53(A) from the Sandusky County Common Pleas Court to tap Nettles’ cell phone. Verizon, Nettles’ cell-phone service provider, was able to capture Nettles’ calls from the moment he spoke into his phone and redirected the calls to the DEA office in Toledo.

Based in part on the information obtained from the warrant, Nettles was charged with multiple counts of drug trafficking. Before his trial, he moved to suppress the evidence derived from the warrant, arguing that the Sandusky County court lacked jurisdiction to issue the warrant and that the DEA agent should have gone to Lucas County, where the agent was listening, for a warrant.

The trial court denied his motion, and he was convicted by a jury and sentenced to 34 years in prison. Nettles appealed his conviction to the Sixth District Court of Appeals, which affirmed the trial court’s decision, and he appealed to the Supreme Court, which agreed to consider the case.

Court Examines How Calls Are Acquired
Nettles argued the terms of R.C. 2933.53(A) gave the DEA agent only the option of going to Lucas County. The statute states that an official “may authorize an application for an interception warrant to a judge of the court of common pleas of the county in which the interception is to take place.”  Nettles argued that because DEA agent listened to his calls in Toledo, the “interception” took place in Toledo.

Justice DeWine wrote the law does not define where an interception occurs. However, R.C. 2933.51(C) defines “intercept” to mean “the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of an interception device.”  The common meaning of “aural” is “of or relating to the ear” or “to the sense of hearing.”  So, an aural acquisition of the contents of a cell-phone call occurs at the place where the contents are heard, and in this case, it would be in Toledo, the opinion noted.

The Ohio Attorney General’s Office argued that the law also allows for “other acquisition,” and that Verizon’s “capture and redirection” technology is a “nonaural form of acquisition.”

The Court found the state’s understanding consistent with the definition of “intercept” and the manner in which the interception technology works. Even before the government acquires the contents of a phone call by hearing it, the government has possessed its contents — by way of capture and redirection — at the moment the call occurs, the Court reasoned.

“The upshot is that an interception of a cell-phone call first occurs when the government captures and redirects the contents of the call at the place where a speaker uses the phone (other acquisition); an interception also occurs when the government overhears the call at the listening post (aural acquisition),” the Court opinion stated.

Because Nettles used his cell phone in Sandusky County to facilitate drug trafficking, the Sandusky County court had jurisdiction to authorize the interception warrant, the Court concluded. The Court affirmed the Sixth District’s ruling and Nettles’ conviction.

2019-0078. State v. Nettles, Slip Opinion No. 2020-Ohio-768.

View oral argument video of this case.

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