Last August, we blogged about a couple of cases headed to the state Supreme Court that all raised an important question for law enforcement, prosecutors, defense lawyers and, most importantly, people charged with a crime in Florida: whether evidence, such as photographs, taken from a person’s cell phone during an arrest can be later used against the person in a criminal trial. The state’s highest court has weighed in on the issue and the answer is “not without a warrant.”

In Smallwood v. State, the Florida Supreme Court ruled that while police officers may take a person’s cell phone during a search incident to arrest, the cops need a warrant to look at photos or other information, data and content contained in the phone.

The plaintiff was arrested in 2008 and charged with robbing a convenience store in Jacksonville. He was identified by a store clerk who was working at the time of the robbery as well as an acquaintance who saw him jump a fence and run through a nearby park. Police seized the plaintiff’s cell phone when he was apprehended 15 days after the robbery, and an officer looked at the phone after placing him in a police vehicle. The policeman found photos of the handgun allegedly used in the robbery next to stacks of money, as well as those of the plaintiff and his fiancé posing with large bundles of cash and what appeared to be new engagement rings.

Rejecting objections from defense counsel, a trial court ruled that the photos were admissible as evidence, finding that the cell phone search was perfectly legal. The plaintiff was convicted of robbery and possession of a firearm. He was sentenced to 65 years in prison with a minimum sentence of 13 years.

The First District Court of Appeal affirmed the decision on appeal. The court relied on the U.S. Supreme Court’s 1973 decision in United States v. Robinson, in which the nation’s highest court ruled that police can inspect items found on a person during a search incident to the person’s arrest. In that case, the court said a police officer properly looked inside a crumpled cigarette packet found on a person arrested for driving on a suspended license.

The state Supreme Court reversed the decision, however, holding that the Robinson decision did not cover the search of a cell phone, a modern device that didn’t exist when the case was decided four decades prior to the plaintiff’s arrest. “Although Robinson discusses the search-incident-to-arrest exception to the warrant requirement, that case clearly did not involve the search of a modern electronic device and the extensive information and data held in a cell phone,” the court explained. “Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices…”

Police are authorized to search a person during an arrest, the court further explained, both to protect officers’ safety and recover any evidence that may otherwise be concealed or destroyed. In this case, however, the cell phone had been removed from the plaintiff’s possession when it was searched and therefore could not have been used as a weapon or destroyed.

Search and seizure issues like this often arise in criminal cases. It is important that a person charged with a crime in Florida seek the counsel of an experienced attorney. The South Florida criminal defense attorneys at Anidjar & Levine have vast experience representing clients in a wide variety of criminal cases. We represent clients throughout the region, including in Boca Raton, Pompano Beach, and Hialeah.

Related blog posts:

Court Sends Question of Cell Phone Search During Criminal Arrest to Supreme Court – State v. Glasco

When Can Police Stop You on the Street? Mackey v. State

Can Police Use Your Silence Against You? Supreme Court Decides not to Decide