Florida Supreme Court Requires Fourth Amendment Protections for Emerging Technology
State Court Docket Watch Article
July 31, 2013Caroline Johnson Levine
In Smallwood v. State of Florida, the Florida Supreme Court 2013 FL 1130 (Fla. 2013), the Florida Supreme Court held by a 4-2 margin that law enforcement officers are required to obtain a search warrant to view information contained within a cell phone found in the possession of an arrested suspect.1 The May 2, 2013 decision restricted an arresting officer’s ability to search property found on an arrestee.
I. The Trial Court
Cedric Tyrone Smallwood was a convicted felon who was suspected of committing a robbery while using a firearm.2 On the day of the robbery, a masked man entered a convenience store, displayed a silver handgun and demanded money from the clerk.3 The clerk testified that he knew the identity of the robber, who was a frequent customer.4 Additionally, two witnesses observed Smallwood fleeing the store.5
Upon arresting Smallwood, an officer collected a cellular telephone from Smallwood’s pocket and viewed the photographs contained therein.6 The officer discovered that the photographs were taken subsequent to the robbery and depicted a similar handgun and a stack of money.7 Upon hearing about this evidence, the prosecutor obtained a search warrant in order to view the photographs. However, the defendant’s attorney argued that the police officer had previously violated the defendant’s Fourth Amendment right to be free from an unreasonable search and seizure by viewing the photographs without a warrant.8
The trial court allowed the photographs to be used in the trial and denied the defendant’s suppression arguments by relying on New York v. Belton9 (authorizing a search incident to arrest of a motor vehicle’s containers within an arrestee’s reach) and United States v. Finley10 (authorizing a search of the contents of an arrestee’s cellular telephone).11
II. The Appellate Court
Florida’s First District Court of Appeal affirmed the trial court’s ruling, while recognizing that “such searches have been held both valid and invalid by various state and federal courts.”12
The appellate court noted that some federal courts have authorized the search of data devices discovered on arrested suspects in order to ensure the preservation of evidence. In United States v. Young,13 the Fourth Circuit authorized a warrantless search when “officers arrested the defendant for drug-related crimes and discovered a cell phone on his person, and then searched the phone and copied down text messages found therein.”14 Additionally, in United States v. Ortiz,15 the “Seventh Circuit found it was ‘imperative’ that officers be permitted to retrieve numbers from electronic pagers incident to [a drug related] arrest to ‘prevent its destruction as evidence,’ because incoming pages may destroy stored numbers on pagers that have limited memory, and the contents of some pagers can be destroyed by turning off the pager or pushing a button.”16
Nevertheless, the appellate court expressed concern that the United States Supreme Court ruling in Robinson,17 which authorized a complete and thorough search of an arrested suspect and his possessions, relied upon by the trial court, could not have anticipated the subsequent development of a portable telephone capable of containing a large amount of personal information about an arrested suspect.18 In Robinson, an officer arrested a suspect for driving with a revoked driver’s license and during a search incident to arrest of the suspect, the officer located a cigarette pack containing heroin.19 However, the appellate court felt constrained by the conformity clause of “article I, section 12 of the Florida Constitution, which mandates we follow United States Supreme Court precedent in the area of search and seizure.”20
Therefore, the appellate court felt compelled to rely upon the holding in Robinson, “in which the United States Supreme Court held that the search-incident-to-arrest warrant exception permits a search and inspection of the contents of personal items found on the arrestee, even if it is unlikely that the arrestee has a weapon or evidence related to the crime on his person.”21 Accordingly, the appellate court certified this issue to the Florida Supreme Court as a matter of “great public importance.”22
III. The Supreme Court
Overruling the trial and appellate court decisions, the Florida Supreme Court found that “Robinson is neither factually nor legally on point”23 in this case and held “that the conformity clause does not require Florida courts to apply the holding of Robinson to the search of the electronic device cell phone incident to an arrest.”24 Additionally, the court found that the conformity clause “does not apply with regard to [contrary] decisions of other federal courts.”25
The court relied on the United States Supreme Court ruling in Arizona v. Gant26 to hold that an arrested suspect’s cellular telephone cannot be searched, without a warrant, by law enforcement to discover evidence of a crime. Interestingly, Gant did not involve a law enforcement search or seizure of an electronic device. Gant committed the crime of driving with a suspended driver’s license and after he exited his vehicle and walked towards officers, Gant was arrested and his vehicle was searched, resulting in the discovery of cocaine in Gant’s vehicle.27 Gant held that officers could not search the vehicle of an arrested suspect, if the suspect had been safely removed from the vehicle and there existed no demonstrable concern regarding officer safety or preservation of evidence, without first obtaining a search warrant.28
The seminal finding of this decision is the court’s view that a cellular telephone is essentially a miniature computer and that “allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee. . . .We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.”29
The Florida Supreme Court decision in Smallwood revealed strong opposition between the four justices in the majority opinion and the two dissenting justices.
Chief Justice Polston concurred in the dissenting opinion authored by Justice Canady, which noted that four “of the federal circuit courts of appeals have addressed the issue we consider in this case. And they all have concluded that a search of the contents of a cell phone found on the person of an arrestee is within the proper scope of a search incident to arrest under United States v. Robinson.”30
The dissent noted that United States v. Murphy31 recognized “prior holdings ‘that officers may retrieve text messages and other information from cell phones and pagers seized incident to an arrest’ and rejecting defendant’s ‘argument that the government must ascertain a cell phone’s storage capacity in order to justify a warrantless search of that phone incident to arrest.’”32 Additionally, United States v. Finley33 held that “‘the call records and text messages retrieved from [defendant arrestee’s] cell phone’ were not subject to suppression.”34 Further, both United States v. Pineda-Areola35 and Silvan W. v. Briggs36 held that the officers could search the contents of cellular telephones found on an arrestee’s person.3
The dissent argued that the majority’s view in this case held “the potential to work much mischief in Fourth Amendment law.”38 Further, the dissent notes that there existed no issue in this case, as argued by the majority, regarding law enforcement’s access to “remotely stored data” through the portal of Smallwood’s telephone.39 Finally, the dissent reasons that “it is unquestionable that individuals frequently possess on their persons items with ‘highly personalized and private information,’” however, items “found on the person of an arrestee are subject to inspection as a consequence of the arrest.”40
The majority responded to the dissent by arguing that the dissent’s statements defy “logic and common sense in this digital and technological age.”41 Further, the majority finds that for “the dissent to contend that a cellular phone does not carry information of a different ‘character’ than other types of personal items an individual may carry on his person is to ignore the plainly (and painfully) obvious.”42 Therefore, the majority “decline[d] to adopt the contrary positions of the decisions relied upon by the dissent.”43
Caroline Johnson Levine is a former prosecutor and currently practices civil litigation defense in Tampa, Florida.
1 Smallwood v. State of Florida, No. SC11-1130 (Fla. 2013), available at http://www.floridasupremecourt.org/decisions/2013/sc11-1130.pdf.
2 Smallwood, slip op. at 2.
5 Id. at 3.
6 Id. at 4.
8 Id. at 5.
9 New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860 (1981).
10 United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007).
11 Smallwood, slip op. at 6.
12 Id. at 8.
13 United States v. Young, 278 Fed. Appx. 242, 245 (4th Cir. 2008).
14 Smallwood v. State of Florida, 61 So.3d 448, 454 (Fla. 1st DCA 2011).
15 United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).
16 Smallwood, 61 So.3d at 454.
17 414 U.S 218, 94 S.Ct. 467 (1973).
18 Id. at 448.
19 United States v. Robinson, 414 U.S 218, 220-223, 94 S.Ct. 467 (1973).
20 Smallwood v. State of Florida, 61 So.3d 448 (Fla. 1st DCA 2011).
21 Smallwood, slip op. at 8.
22 Id. at 9.
23 Id. at 11.
24 Id. at 12.
25 Id. at 11.
26 Arizona v. Gant, 556 U.S 332, 129 S.Ct. 1710 (2009).
27 Id. at 336.
28 Id. at 351.
29 Smallwood, slip op. at 28.
30 Id. at 34.
31 United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009).
32 Smallwood, slip op at 34.
33 United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007).
34 Smallwood, slip op. at 28.
35 United States v. Pineda-Areola, 372 Fed. Appx. 661, 663 (7th Cir. 2010)(unpublished).
36 Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. 2009)(unpublished).
37 Smallwood, slip op. at 28.
38 Id. at 35
39 Id. at 36.
40 Id. at 37.
41 Id. at 17.
43 Id. at 28.