Can Florida police officers use evidence from a cell phone taken from a person during an arrest against the person at trial? That is the question in State v. Glasco. For the time being, at least, the answer is “yes.”
Richard Glasco was arrested for possession of cocaine with intent to sell or deliver and other related drug chrages. When police handcuffed and searched him, they discovered a cell phone. Glasco was taken to the local police station, where the arresting officers looked through his cell phone as Glasco was being processed into jail. Among other evidence, they found text messages indicating that Glasco had cocaine and that he intended to sell it.
At trial, Glasco attempted to suppress the evidence taken from the cell phone, which also included photographs and a call history. Glasco’s attorney argued that because the officers did not have a warrant to search the phone, the evidence was gained from an unlawful search. The trial agreed, granting the motion.
On appeal, however, the Fifth District Court of Appeal reversed the trial court’s decision. The Court noted that the trial court made its decision before the First District’s ruling in Smallwood v. State, in which the court ruled that evidence taken from a cell phone incident to an arrest could be used in criminal prosecution. While there was no reason for the arresting officer in Smallwood to believe that the cell phone contained evidence relevant to the crime at issue, the court based its decision on a 1979 U.S. Supreme Court decision – U.S. v. Robinson – holding that containers found upon a person incident to arrest may be searched without “additional justification.”
The Smallwood court, however, noted the potentially vast differences between a cell phone and a simple container, particularly the large amounts of sensitive personal information that may be contained in a cell phone. As a result, the court asked the Florida Supreme Court to resolve the question as to whether a police officer can search photographs in a cell phone incident to an arrest without reasonable belief that the phone contains evidence of a crime.
The First District was again faced with the same issue in Fawdry v. State, in which police officers found child pornography photos on a person’s phone after he was arrested on unrelated charges. The court ruled that the evidence was admissible and again certified the question for the state supreme court.
With this backdrop in mind, the Fifth District followed suit, ruling that the evidence from Glasco’s phone was admissible and expanding the question certified to the supreme court to include all evidence gained from a cell phone incident to arrest.
The case raises an important legal issue, which in some cases, may determine whether or not a person charged with a crime in Florida goes to jail. If you are facing criminal charges, it’s important to obtain the services of an experienced criminal defense attorney who is familiar with this and other legal intricacies. Contact the South Florida criminal defense attorneys at Anidjar & Levine. The attorneys at Anidjar & Levine are dedicated to providing our clients with aggressive, competent and high-quality representation.
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