Constitutional Law

Cops can't search cellphone seized at arrest, Florida Supreme Court says; will case go to SCOTUS?


A cellphone is different from a cigarette pack, the Florida Supreme Court says in a ruling requiring police to get a warrant before searching cellphones seized during an arrest.

The ruling deepens the split on the constitutionality of cellphone searches incident to arrest, according to the Volokh Conspiracy. “The Florida Supreme Court has become a regular source of Fourth Amendment cases for the U.S. Supreme Court, as we saw this past Term in Harris and Jardinesinvolving drug dog searches, writes blogger Orin Kerr, a George Washington University law professor. “I wouldn’t be surprised if this case follows the same path to 1 First Street.”

The court ruled in the case of accused convenience-store robber Cedric Smallwood, the Tampa Tribune reports. The clerk of the robbed store told police he recognized the robber by his voice, leading to the arrest of Smallwood. Police seized Smallwood’s cellphone incident to the arrest and found incriminating photos taken after the robbery, including photos of Smallwood and his fiancée holding bundles of money.

“While law enforcement officers properly separated and assumed possession of a cellphone from Smallwood’s person during the search incident to arrest, a warrant was required before the information, data, and content of the cell phone could be accessed and searched by law enforcement,” the Florida Supreme Court said.

A Florida appeals court had rejected Smallwood’s Fourth Amendment challenge, citing the 1973 Supreme Court case United States v. Robinson. The decision had allowed heroin evidence found in a cigarette pack during a search of an arrestee. However, the appeals court expressed concerns about its ruling and certified the Fourth Amendment question to the Florida Supreme Court.

The Florida high court said Robinson did not apply to cellphone searches. “In our view, attempting to correlate a crumpled package of cigarettes to the cell phones of today is like comparing a one-cell organism to a human being,” the court said in its opinion (PDF).

“The most private and secret personal information and data is contained in or accessed through small portable electronic devices,” the court said. “Indeed, many people now store documents on their equipment that also operates as a phone that, 20 years ago, were stored and located only in home offices, in safes, or on home computers.”

Hat tip to How Appealing.

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