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Florida Development Relating to Modern Technology and the Fourth Amendment: Police Cannot Browse Through Your Smartphone in Sunshine State Without a Search Warrant

Kish Law LLC

We occasionally handle cases in Florida, and since I am also licensed in the Sunshine State we pay attention to legal issues happening there. As readers of this Blog realize, I have a fascination with how the law is developing in the intersection between modern technology and the Eighteenth Century rules enshrined in our Fourth Amendment, and have written on such issues, such as in this post. Two weeks ago me and my law partner Carl had a big oral argument in front of a federal judge concerning such issues, so this area of the law is on my mind currently.

The Florida Supreme Court issued what could be a very important decision last week, Smallwood v. Florida. In that case, a police officer arrested Mr. Smallwood for an armed robbery that happened the previous day. The robber had taken currency from a local store. After the arrest, the police officer opened up Smallwood’s smartphone, looking through his pictures. Like too many foolish criminals, Mr. Smallwood had apparently taken pictures so he could brag about his crime, photos that showed the gun, the money, and his girlfriend all in proximity to the loot. The defense attorney argued that Mr. Smallwood, like all of us, had an expectation of privacy in the contents of his cell phone, and that a search without a warrant was therefore unreasonable and illegal. The trial court and intermediate appellate judges sided with the prosecution, ruling that the older Supreme Court cases on searches incident to an arrest justified the officer’s actions. One of these older cases was issued in 1973, United States v. Robinson. In that case, the U.S. Supreme Court said it was OK for the arresting officer to look through a package of cigarettes in the Defendant’s pocket after the arrest, a peek which led to the discovery of heroin.

Last week the Florida Supreme Court reversed the lower courts, holding that the police cannot plow through an arrested person’s cell phone without a warrant. “Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.”

Modern technology is wonderful. I can have a videophone call with my son when we are on opposite sides of the world. However, this same wonderful technology allows the government to learn the most intimate details of our lives once our cell phones, computers and online accounts are accessed. I salute the Florida Supreme Court for protecting individual rights, while still acknowledging that the police can get such private information, they simply need to do what the authors of our Constitution told them to do: GET A WARRANT!

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