Search Warrant for Cell Phone Handset Required

Florida Supreme Court Says a police officer is not authorized to search through photographs and information within a cell phone that was on defendant at time of arrest. Cell phone had been separated from defendant at time of search. Factually, images from defendant’s cell phone depicted a weapon that resembled the gun stolen from convenience store, as well as defendant and his fiancee posing with stolen money packaged in manner described by the victim, a convenience store clerk.

Cops in the case properly separated and assumed possession of cell phone from defendant in search incident to arrest. The Florida Supreme Court held a  warrant was required before information, data, and content of cell phone could be accessed and searched by law enforcement.  Notwithstanding decisions of other courts, Conformity clause does not mean Florida courts must apply U.S. Supreme Court’s holding in United States v. Robinson in this case.

The Florida Court reasoned that Robinson not factually or legally on point. Then in a stunner, the court found that the Good faith exception to exclusionary rule does not apply, since no bright-line rule exists for law enforcement officers to rely upon with regard to searches of electronic devices under facts of this case. 

Cell Phone Searches

Tampa Criminal Defense Attorney / Lawyer continues to follow recent developments in the search of cellular telephones / cell phones. One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were inadmissible at trial since they had been seized during a warrantless search.

The court ruled:

“We are equally concerned that giving officers unbridled discretion to rummage through at will the entire contents of one’s cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and recurring threat to the privacy of countless individuals. Were we free to do so, we would find, given the advancement of technology with regards to cell phones and other similar portable electronic devices, officers may only search cell phones incident to arrest if it is reasonable to believe evidence relevant to the crime of arrest might be found on the phone. Here, there was no evidence the officer had such a reasonable belief.”

“Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one’s personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone’s physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one’s personal life available for perusing by an officer every time someone is arrested for any offense.”

“However, we express great concern in permitting the officer to search appellant’s cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence.”

The complete Cell Phone Search opinion is posted here for Free.