Florida High Court Requires a Warrant Before Police May Search Arrestees’ Phones – Smallwood v. State

May 7, 2013 by David S. Seltzer

I’ve written here several times before about the ongoing question of whether and how police may search the cell phones of people they arrest. This is an important question in criminal defense law because important evidence may lie on cell phones—but police may also use them to go on “fishing expeditions” for evidence of unrelated crimes. And while there are already limits to police search powers under the Fourth Amendment to the U.S. Constitution, courts are still deciding how to apply those limitations in the digital age, when you can carry a library’s worth of data around on your mobile phone. I’m happy to say that the Florida Supreme Court recently ruled that police need a warrant to search the phones of people who were arrested, in Smallwood v. State. Cedric Tyrone Smallwood moved to suppress information taken from his phone after his arrest, and the Florida high court ultimately agreed to suppress it.

Smallwood was arrested for the armed robbery of a convenience store, and prosecuted for that as well as a firearms crime. During the arrest, an officer seized Smallwood’s phone, locked Smallwood into a police car, and looked for relevant data on the phone. He found several pictures of money, a gun and jewelry. The state got a search warrant well after the photos were found, but at trial, Smallwood’s attorney objected that the search was still illegal. Though a search may be lawful if it’s incident to arrest, the defense lawyer argued that this exception did not apply because the search was not conducted to preserve evidence or protect officer safety. The trial court disagreed, denying the various objections the defense raised during and after trial. Smallwood was convicted.

On appeal, the First District Court of Appeal affirmed the use of the cell phone evidence, but noted a wide range of opinions on this topic. In light of its Fourth Amendment concerns, it asked the Florida Supreme Court to review this question: Does 1973’s United States v. Robinson allow a police officer to search through a suspect’s phone incident to arrest, when there is no reasonable belief that the phone contains evidence of a crime?

The Florida Supreme Court ultimately decided it does not. Searches without judicial approval are presumed unreasonable unless they fall within certain exceptions. The court first concluded that Robinson is not on point here because it was decided 40 years ago, before the rise of handheld computers. (A dissent disagreed.) Applying a 2009 U.S. Supreme Court case, Arizona v. Gant, the Florida court concluded that it was legal for the officer to separate Smallwood from his phone, but not to search it. Once the phone was removed from Smallwood’s person, there was no risk that he would destroy evidence and no way for him to use it as a weapon. Thus, neither exception to the requirement to get a warrant existed, and the officer violated the Fourth Amendment. “We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant,” it concluded, before adding that the error was not harmless or made in good faith.

The Florida high court compared authorizing cell phone searches to providing a key to the arrestee’s home. I must agree. The sheer amount of data on a late-model mobile phone was hard to imagine that the time that Robinson and other important Fourth Amendment cases were decided. The papers an arrestee can have on his or her person would have to be carried in a wheelbarrow to begin to match the size of the data. And, as the court pointed out, there are numerous kinds of highly sensitive data on typical mobile phones, such as banking information and personal email. It would certainly be easier for police to find evidence of a crime if they were given permission to go through this data whenever they wanted, but that’s not what the Fourth Amendment allows. This issue will likely be revisited in the U.S. Supreme Court, but I believe the Florida court made the right decision.

If you or someone you love has been arrested for a crime in Florida, don’t wait to call Seltzer Law, P.A., for a free consultation. We answer the phone 24 hours a day and seven days a week because we know police don’t stop making arrests after business hours. To learn more or tell us your story, call today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Search of Cell Phone May Be Incident to Arrest Even When Not During Arrest – Commonwealth v. Berry

Seventh Circuit Finds Six-Day Delay Between Seizing Phone and Obtaining Search Warrant Reasonable – U.S. v. Burgard

Seventh Circuit Rules Police May Use Cell Phones Without Warrant to Determine Numbers – U.S. v. Flores-Lopez