Florida Criminal Law Blog

A Florida Senate Bill passed the Florida Senate Criminal Justice Committee on Monday, March 4, 2013, that would require law enforcement to obtain a search warrant before it could search the smart phone or any cell phone of someone who has been arrested. There is also “rumblings” of a bill that would require law enforcement to specify which programs would be searched in a computer that was legally seized by law enforcement when executing a search warrant giving them permission to search a home and seize computers, electronic devices, etc. when police have a warrant based upon probable cause that the computer was used to commit a crime. The new Senate phone bill was objected to by law enforcement and prosecutors. The genesis of such bills of course the abundance of personal information that most people store on cell phones or I Pads and other such electronic tablets or smart devices. Why should law enforcement have access to private information that has nothing to do with the crime being charged against the individual who possesses the smart phone or I Pad, etc.? Law enforcement officers when they are issued a search warrant based on probable cause to search a home for a shotgun, for instance, are not allowed to look in bathroom cabinets or kitchen drawers or any place a shotgun could not be located. (This is not to say this does not happen). In my opinion, in many instances, there really is no logical difference between searching areas of a smart phone device for evidence of a crime if there is no probable cause that evidence of the crime is located there. However, it’s my understanding that this bill is far more sweeping. Currently, if a person is arrested law enforcement currently believes it has “carte blanche” authority to search the seized cell phone and go through every text, photo, email, etc. without a warrant. In the Northern District of Florida, Pensacola and elsewhere, I have had cases where law enforcement has obtained a search warrant for a cell phone because the law is not well settled. However, this seems to be more the exception that the rule.
The “smart phone bill” is by no means law yet---- albeit the Senate Criminal Justice Committee approved the bill (SB 846) on a 5-2 vote it will then be sent to the Judiciary Committee. Then if it passes there is needs approval from the Appropriations Committee before it can go to the floor of the Senate for an overall vote. Then a House of Representatives companion bill (HB 797) by Rep. Carlos Trujillo, R-Miami, is awaiting its first committee hearing.
The Senate bill also would require police to get a court to sign off on informational tracking of an electronic device for investigative purposes. In other words, law enforcement could not track your cell phone without a court order. (This is somewhat analogous to the recent U. S. Supreme Court case, Jones, cited in a blog post below, where police must obtain a warrant to use tracking devices for vehicles placed by law enforcement to track the whereabouts of suspect vehicles).
Search and seizure rules involving smart phones or electronic storage devices are the subject of two cases pending before the Florida Supreme Court. In Smallwood v. State, a cell phone search was upheld by the First District Court of Appeal which is the appellate court that covers the law in Northwest Florida including Pensacola, Destin, Milton, etc. However, in the Fourth District Court of Appeal has ruled on real-time tracking of such devices, such as that mentioned in Jones, above, finding that people have no real expectation of privacy while driving around on the open road but that appellate court knowledge that the changing nature of technology for cell phone tracking begged for a higher court ruling on the issue. This ruling is at odds with Jones, which is a U.S. Supreme Court ruling.

In January 2012, the United States Supreme Court issued a ruling in United States v. Jones, that the police must obtain a warrant before attaching a GPS device to a person's car. The Court's ruling, which applies to Florida, Pensacola and every state and municipality in the USA, holds that a Global Positioning System can only be placed on a suspect's car to later establish probable cause and thus sufficient grounds to obtain a search warrant for a suspect's car or home. Five justices suggested that might be similarly necessary for prolonged surveillance through smart phones or other devices with GPS capabilities. This type of GPS monitoring has, up until now, often been used in drug and narcotic cases to track suspect's whereabouts without the use of a team of agents trailing a person.

Law enforcement had, unbeknownst to Mr. Jones and without a warrant, attached a GPS tracking device to the car that Antoine Jones was driving. Mr. Jones, who owned a nightclub in Washington, D.C., was surveilled through a satellite system and Agents used his "travels' to various areas and homes, etc. to obtain a search warrant that ultimately led to a conviction in federal court on conspiracy to distribute a controlled substance, an offense that carries with it at least a ten year minimum mandatory sentence.

Justice Scalia, one of the most conservative justices on the Court, wrote the majority opinion and found the "the government's physical intrusion on the Jeep (by placing the GPS device on the car he was driving) to obtain information constitutes a search."
The highest court in the land basically found that the Fourth Amendment which protects all of us against unreasonable search and seizures by law enforcement must continue to protect us against government intrusions even in the face of modern technological surveillance tools.

An exellent article written by Duke University Third Year law strudent, Edward Boeme, Warrantless GPS in U.S. v. Jones: Is 2011 the New 1984? in the Duke Journal of Constiutional Law & Public Policy Sidebar, Vol. 7, 2011. Mr. Boeme wrote this piece prior to the U.S. Supreme Court in Jones handed down it's decision finding that when the police placed the GPS tracking device on the car Mr. Jones was driving, doing so effected a "seizure" for Fourth Amednment purposes. Mr. Boeme analyses the Fourth Amendment law surrounding this issue citing cases from both the government's perspective and the citizen's right to be free from unreasonable search and seizure and provides fascinating intricate details about the specific facts of the Jones case.

Keep in mind that the attachment of a GPS device, as discussed above, only applies when law enforcement attaches such a device. Albeit I do not practice family law I have heard of and seen advertisements for sale to the general public that sell GPS tracking devices for private citizens. The Jones case only applies to government behavior, not the behavior of private citizens. See your family law attorney for question surrounding this issue.

For other articles on Search and Search please see either the Article section or previous shorter articles written by Jim Jenkins contained in his blog dealing with substantive matters of criminal law.