Florida court rules cellphone search without a warrant is unconstitutional

The Florida Supreme Court on Thursday ruled that a police search of an arrested person's mobile phone without a warrant is unconstitutional.

The court ruled 7-2 in a case out of Jacksonville, overruling the 1st District Court of Appeals.

But the majority opinion, penned by Justice R. Fred Lewis, noted it applies specifically to searches after the cellphone has been "separated from the person arrested."

"Our decision is narrowly limited to the legal question and facts with which we were presented, and we are confident that law enforcement will understand the limited scope of our holding," it said.

Officers rightly took the cellphone of the defendant, Cedric Smallwood, while he was being detained in the back of a patrol car, the majority said.

But "a warrant was required before the information, data, and content of the cellphone could be accessed and searched," according to its opinion.

The dissenters, Chief Justice Ricky Polston and Justice Charles T. Canady, noted that four federal appeals courts have ruled that searching a cellphone found on someone arrested is "within the proper scope of a search (after an) arrest."

"The contrary view adopted by the majority here holds the potential to work much mischief in Fourth Amendment law," according to the dissent. The Fourth Amendment protects against unreasonable searches and seizures.

The majority's ruling was hailed on both sides of the political spectrum in Florida.

"The intimate details of our lives are on our cellphones, including matters that go far beyond what the police may be investigating and have any interest in," said Howard Simon, executive director of the American Civil Liberties Union of Florida.

"The police should not have the right to rummage through our lives without limits set by a court as specified in a warrant," Simon added.

State Sen. Joe Negron, a Stuart Republican, called it "an affirmation of the right to privacy." This year, Negron shepherded a bill -- later signed into law by Gov. Rick Scott -- that limits Florida law enforcement agencies' use of drone aircraft.

"Our state constitution has a specific provision in it that protects privacy," he said. "I would support a state standard being higher than the minimum requirements."

Two bills (HB 797 and SB 846) submitted this legislative session sought to put into law that cellphones couldn't be searched without a warrant. They both passed through committees, but didn't make it to either floor.

Smallwood was arrested and charged in a January 2008 convenience store robbery.

A police officer took his cellphone and went through the photos on it, finding pictures of Smallwood and his fiancee holding a bundle of cash and one of a "black and silver handgun next to a fanned-out stack of money," the opinion said.

The defense argued that although prosecutors later got a warrant before the trial to use the photos as evidence, Smallwood had a reasonable expectation of privacy in the information stored on his cellphone.

The police "search was not conducted for the purpose of preserving evidence," the court said, nor could Smallwood have used the phone as a weapon.

Smallwood was later convicted on charges of robbery and possession of a firearm by a convicted felon. He was sentenced to a total of 65 years.

"Despite the presence of evidence of guilt, we have no choice but to hold that Smallwood is entitled to a new trial because there is no reasonable possibility that the improperly admitted photos did not contribute to his conviction," the court wrote.

The U.S. Supreme Court has ruled that searches at the time of arrest are OK without a warrant, "even if it is unlikely that the arrestee has a weapon or evidence related to the crime on his person," the court said.

But that was before the advent of mobile phones, many like "interactive, computer-like devices," and not "static, non-interactive container(s)," the Florida Supreme Court opinion said.

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

The case is Smallwood v. Florida, No. SC11-1130.