In Smallwood v. State, 113 So. 3rd 724 (Fla. 2013), the Florida Supreme Court confronted the issue of whether a cell phone could be searched without law enforcement first obtaining a search warrant when the cell phone was seized during an arrest of an individual.
Smallwood had allegedly committed a robbery and the police when arresting Smallwood seized his cell phone. They went through his phone and found incriminating photographs of:
(1) A black and silver handgun with a crucifix draped over it, dated January 28, 2008 (four days after the robbery);
(2) An image of hands with engagement rings, dated January 29, 2008 (five days after the robbery);
(3) A black and silver handgun next to a fanned-out stack of money, dated January 28, 2008 (four days after the robbery);
(4) A photo of Smallwood’s fiancée holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery); and (5) A photo of Smallwood holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery).
The Florida Supreme Court, in a 5 to 2 decision, held that, in light of how electronic cell phones allow access to a huge amount of personal information of the cell phone’s owner, if law enforcement were allowed to search an arrestee’s cell phone without a warrant it is akin to providing law enforcement with a key to access the home of the arrestee. The Florida Supreme Court stated that in essence giving law enforcement access to an arrestee’s cell phone would be like physically entering the arrestee’s home office without a search warrant to look through his file cabinets or desk, remotely accessing his bank accounts and/or medical records without a search warrant. The Court held “[W]e refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.
The Florida Supreme Court further held that such searches are not justified by either a concern for officer safety or concern for evidence preservation and are therefore unconstitutional. In 2009, the Supreme Court specifically limited the scope of warrantless searches incident to arrest. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), law enforcement officers arrested Gant for driving with a suspended license. After the police had placed Gant in handcuffs and taken him away from his automobile by securing him in a police car, two officers proceeded to search Gant’s vehicle. During the search, they discovered a bag of cocaine in the pocket of a jacket located on the back seat of the vehicle. The U.S. Supreme Court held that the search of Gant’s vehicle violated the Fourth Amendment. The Court first noted that a search incident to arrest only includes the arrestee’s person and the area within his immediate control, i.e., the area into which he may reach to acquire a weapon or destroy evidence. (citing a 1969 US Supreme Court case: Chimel). The Gant Court then concluded that “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” The US Supreme Court held that because Gant had been separated from his vehicle and was secured in a patrol car at the time of the search, the dual rationales (officer safety/destruction of evidence) for the search-incident-to-arrest warrant exception were not present, and the officers were required to obtain a warrant before they could search the vehicle. The U.S. Supreme Court concluded that because the officers failed to obtain a warrant, the search of Gant’s vehicle was unreasonable under the Fourth Amendment.
Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the Smallwood case, the Florida Supreme Court concluded that law enforcement was authorized to take physical possession of Smallwood’s electronic device used as a phone as part of the search incident to the arrest because the device was present on Smallwood’s body. However, once the electronic, computer-like device was removed from Smallwood’s person, there was no possibility that Smallwood could use the device as a weapon, nor could he have destroyed any evidence that may have existed on the phone. Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied. See Gant, 556 U.S. at 335, 129 S.Ct. 1710. Thus, pursuant to Gant, Florida law enforcement is constitutionally required to obtain a warrant before searching the contents of, and the data in, Smallwood’s electronic device cell phone.
Unfortunately the Smallwood decision of the Florida Supreme Court draws a somewhat arbitrary distinction between cell phones and other items capable of storing sensitive personal information. Any clarity provided by this ruling is likely to be short-lived, as advances in technology will likely create new occasions to revisit the scope of the search-incident-to-arrest doctrine regarding cell phones.
One should also be aware that other jurisdictions have held that a search warrant is not necessary to search a cell phone and the Smallwood decision only applies in Florida. For example, in the 5th Federal Circuit, which encompasses Texas and Louisiana, the federal appellate court has held that a search warrant is not required. Traveler beware.