In a case of great significance, this week the Florida Supreme Court rejected the use of evidence obtained through the warrantless search of a cell phone. In Smallwood v. Florida, ___ So.3d ___, 38 Fla.L.Weekly 5271a (Fla. May 2, 2013), a case originating in Duval County, the accused was charged with armed robbery of a convenience store. After identifying a potential suspect in the robbery, an officer with the Jacksonville Sheriff’s Office obtained an arrest warrant for Mr. Smallwood and, during the course of his arrest, seized a cell phone from him. Without first obtaining a search warrant, the officer proceeded to access and search data on the phone, which led to the discovery of five photographs allegedly linking Mr. Smallwood to the robbery. These photographs were admitted at Mr. Smallwood’s trial and he was convicted.
Mr. Smallwood took an appeal of his conviction, arguing that the warrantless search of his cell phone was unlawful and contending that a subsequent search warrant obtained by the State to view the contents of the phone could not correct the unlawfulness of the initial search. The Court agreed with Mr. Smallwood and reversed his conviction.
As an initial matter, the Court held that the accused had a reasonable expectation of privacy in “…the data and information stored within his mini-computer cell phone,” and agreed with the argument that these phones are “…small electronic data sources” such that the warrantless search of images contained on them constitute “…an invasion of that constitutional zone of privacy.”
The Court held that a cell phone is “not just another purse or address book,” and instead concluded, “computers hold so much personal and sensitive information touching on many private aspects of life” that a warrantless search of the phone could not be upheld. As noted by the Court, “a significant portion of our population relies on cell phones for email communications, text-message information, scheduling and banking.” Thus, by their very nature, very personal and extensive information is stored on and assessed by these devices, and to permit the warrantless viewing of their contents violates the Fourth Amendment to the United States Constitution.
The Court also rejected the State’s contention that the search was lawful as incident to an arrest, holding that such searches can only be justified to remove weapons from an individual or prevent evidence destruction. It concluded that, while the officer was authorized to take the “electronic computer-like device,” he was not authorized to conduct a warrantless search of it.
The Smallwood decision should be welcomed by all who recognize the highly personal and sensitive nature of information contained on cell phones. In today’s world, these devices are ubiquitous and most people assume their contents are not subject to warrantless inspection. If the right to be free from unreasonable searches is to have any meaning, law enforcement officers should not be permitted to rummage through what has developed to be the most private of our depositories. Since the Smallwood decision conflicts with decisions from other jurisdictions, I would expect these matters eventually to reach the United States Supreme Court. I am hopeful that should the Court examine this issue, it will do so with the same thoughtful analysis as did our state supreme court.