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Louisiana State Univ.

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Friday, May 3, 2013

Florida High Court Rules That Police May Not Search Photos On Arrestee's Cell Phone Incident To Valid Arrest Without Reasonable Belief That Phone Contains Evidence of Crime

The Florida Supreme Court has ruled that a police officer may not search the photographs on an arrestee's cell phone at the time of a valid arrest without a reasonable belief that the cell phone contains evidence of a crime. The Court adopts the Ohio Supreme Court's analysis in State v. Smith (124 Ohio St. 3d 163 (2009)).

[T]he Ohio Supreme Court held that the search of a cell phone incident to arrest is unconstitutional when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances. In reaching its decision, the state court first concluded that a cell phone is not the same as a "closed container" in this context for Fourth Amendment purposes:

Objects falling under the banner of "closed container" have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, "container" means "any object capable of holding another object." New York v. Belton. . . . One such example is a cigarette package containing drugs found in a person's pocket, as in . . . Robinson. . . .

We acknowledge that some federal courts have likened electronic devices to closed containers. . . . Each of these cases, however, fails to consider the Supreme Court's definition of "container" in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.
...The court then concluded that, given the ability of modern cell phones to be the database for and provide access to tremendous amounts of private data, they are entitled to a heightened expectation of privacy.... Based on these conclusions, the Ohio Supreme Court ultimately held:
Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone's contents, police must then obtain a warrant before intruding into the phone's contents.

 

Id. (emphasis supplied). We agree with and adopt the rationale of the Ohio Supreme Court.

 

 

 

 

In addition, the Court held that once the officers removed the cell phone from the arrestee's possession, they needed to obtain a warrant before "access[ing] and search[ing}" the phone." The case is Florida v. Smallwood, No. SC11-1130 (decided May 2, 2013).

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