Fort Lauderdale Cyber Crime Defense Lawyer on Handheld Devices and Unreasonable Searches

January 13, 2009 by David S. Seltzer

If you were pulled over while driving, would the police officer be legally permitted to look through your iPod, Blackberry or other handheld device? That’s the question posed by CNET’s Police Blotter report Jan. 12. And according to the article, it's not just an idle question posed by South Florida cyber crime attorneys like me. Two different federal courts -- one here in Florida -- have already examined the question and come to different answers.

In the first case, a Georgia police officer was sent to investigate complaints about a parked truck. He spotted crack cocaine inside the truck and arrested its driver, then immediately looked through the driver's mobile phone. He found "lewd images" of an apparently teenaged girl and charged the man with possession of child pornography. At trial, the man's attorney argued that the phone search violated the man's Fourth Amendment right to freedom from unreasonable searches and seizures. The judge ruled that it did not -- and thus, the evidence could be used at trial.

A man here in South Florida had better luck. He had been arrested for trying to buy drugs from an undercover DEA agent. The arresting agent waited until the booking process to look through the man's phones (he had two), where he found text messages he photographed as evidence. The agent testified in court that this was standard practice intended to find evidence of crimes, but the federal judge in that case found that claim not credible and did not allow the messages to be used as evidence at trial. It is worth noting that the judge may have allowed the search during the arrest, since it is established that warrantless searches are legal when they are "incident to a lawful arrest."

In fact, as the article notes, officers may legally search a person's physical papers, photographs and diaries during an arrest. The question is whether handheld devices fall into that category or should be treated as a new category of information altogether, one that requires a search warrant. After all, the amount of information stored on a 40-gigabyte iPod would produce more than 11,000 pounds of paper if printed out. When the "incident to a lawful arrest" exception to the Fourth Amendment was created, nobody anticipated that people might be arrested with these huge amounts of information on their persons. Once again, technology has outpaced the law.

The Fifth U.S. Circuit Court of Appeals has already addressed this issue, ruling that police may search phones. However, that opinion applies only to states within the Fifth Circuit, and we Floridians are in the Eleventh Circuit. And the Florida Department of Law Enforcement has told officers to get a warrant to search cell phones. Nevertheless, as a Miami cyber crimes defense lawyer, I suggest to my clients that they make sure their phones and other handheld devices don't contain anything that might interest a police officer, regardless of whether they think they might be arrested. A DUI or a drug possession charge is already bad news; the last thing anyone needs is a Florida cyber crime charge on top of it.