Police officers need a warrant if they want to search through photos on a cell phone in possession of a defendant at the time of arrest, the Florida Supreme Court ruled on Thursday.
The ruling is related to an issue before the Legislature, which this session has considered putting the warrant requirement in statute.
While police officers in Jacksonville had the right to take the defendant’s cell phone, they should have gotten a warrant to look at the photos on the device, the Supreme Court ruled in a 5-2 decision. Justices R. Fred Lewis, Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry were in the majority. Justice Charles Canady and Chief Justice Ricky Polston dissented.
The district appeals court had ruled that the cell phone search was legal but asked the state’s high court to take the issue.
The ruling came in the case of Cedric Smallwood, who was arrested in connection with a convenience store robbery in 2008. Officer Ike Brown had taken Smallwood’s phone, and a year later as the case was about to go to trial, he notified prosecutors that he had looked through photos on the phone and there were some that prosecutors might want to see. The prosecutor notified the defense and then sought a warrant.
The photos were of a gun and stacks of money.
Even though prosecutors sought a warrant, the defense argued the initial search of the phone was illegal. The defense argued people have an expectation of privacy in their smart phones, which are essentially small computers that fall within a “constitutional zone of privacy.”
The state contended that if the pictures had been printed photos in Smallwood’s wallet, previous court rulings have held there would be no problem with looking through them. Smallwood was convicted of robbery and sentenced to 50 years.
He lost on appeal to the 1st District Court of Appeal, which relied on a U.S. Supreme Court decision in finding that police have broad ability to search personal items found on arrestees without a warrant. But Justice Lewis, writing for the Florida Supreme Court’s majority, said a cigarette pack containing drugs that was the focus of the U.S. Supreme Court case was very different from a modern smart phone.
“The capabilities of these small electronic devices have expanded to the extent that most types are now interactive, computer-like devices,” Lewis continued. “Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter.”
He cited a federal court opinion that noted that computer searches can’t be treated the same as searches of someone’s pocket because computers contain so much personal information. And, he noted, phones are computers now.
The Legislature this year considered legislation (HB 797, SB 846) that would make photos and other data on cell phones not subject to search after an arrest in exactly the situation involved in the Smallwood case. Both of those bills remained in committee with less than two days left in the legislative session.