Tampa Bay Criminal Attorney and Former State Prosecutor Melinda Morris of the Morris Law Firm discusses the recent Florida Supreme Court ruling that holds a warrant is required before the content of a cell phone or smartphone may be searched.
The Fourth Amendment establishes that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” That said, police regularly search suspects during an arrest without a warrant. The U.S. Supreme Court has held that police may not require a warrant under the “search incident to arrest doctrine” that provides two exceptions for a valid warrantless search: (1) officer safety, and (2) preservation of evidence.
A recent case in Florida (Smallwood v. State) brought this issue to the State Supreme Court. Mr. Smallwood was arrested in 2008 and charged with robbery of a Jacksonville convenience store. Smallwood was arrested 15 days after robbing the store at which time police seized his cell phone and searched its contents while he was held in a police car. Police identified pictures of the gun used during the robbery, cash, and other evidence that tied him to the robbery.
In a 5-2 ruling, the Florida Supreme Court ruled in the Smallwood case that police must have a warrant before searching the contents of a person’s cell phone or smartphone.
The search incident to arrest exception may only be used when there is either: (1) a reasonable concern for officer safety, or (2) a reasonable danger that the evidence may be destroyed. The U.S. Supreme Court has held that the reasonableness of a search depends on the “facts and circumstances,” and the “total atmosphere of case.”
With regards to officer safety, the U.S. Supreme Court has held that the law enforcement officer must have reasonable grounds to fear for his safety for a warrantless search incident to arrest to be considered valid. The arrestees property no longer poses a danger to the officer when seized and secured, thus the search no longer falls within the search incident to arrest exception.
With regards to preservation of evidence, the U.S. Supreme Court has held that the law enforcement officer must have reasonable grounds to believe that there is a possibility for evidence to be concealed or destroyed for a warrantless search incident to arrest to be considered valid. Once law enforcement has control of the personal property of the arrestee (the cell or smartphone), there is no longer a reasonable danger that the evidence may be destroyed. Investigatory searches of cell phones not intended to preserve evidence are invalid under the search incident to arrest exception.
Why This Matters To You:
The Florida Supreme Court has created case law under the Smallwood case that now requires a warrant to search a person’s cell phone or smartphone. The Court stated that, ““Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices…” The Florida Supreme Court’s ruling does not affect U.S. Supreme Court precedent regarding the exceptions for a valid warrantless search discussed above. The ruling does however put law enforcement on notice that a valid warrant must be procured before searching a person’s cell phone or smartphone where officer safety or preservation of the evidence is not in question.
Many arrests made in the Tampa Bay area by local law enforcement include a search of the personal property of the alleged offender including in some cases the contents of a cell phone or smartphone. Alleged criminal offenders that have been arrested by local law enforcement where a search of personal property has taken place may have been arrested using inadmissible evidence that produced potentially inaccurate affidavits of arrest, which may be grounds for the dismissal of the criminal charges.
What To Do Next:
If you have been arrested in the Tampa Bay area and your cellphone or smartphone was searched incident to arrest, contact the Morris Law Firm, a St. Petersburg based Criminal Defense Law Firm to discuss possible defenses and specific strategies that may exist in your case. Call the Morris Law Firm at 727-388-4736 to discuss your case directly with an attorney, or fill out our Online Form (found on our main web site) to be contacted for a free initial consultation. The Morris Law Firm can help. Attorney Melinda Morris has specific knowledge and experience in representing alleged criminal offenders throughout the Tampa Bay Florida area including Pinellas and Hillsborough Counties.