SEARCH AND SEIZURE

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.     Fourth Amendment to the Constitution.

Which leads us to the following age-old question:

Can a police officer take my cell phone and look at naked pictures of my girlfriend?

Not anymore.  Well, not without a warrant.  So said the Florida Supreme Court yesterday with their decision in Smallwood.  Smallwood v. State of Florida. (SC11-1130, May 2, 2013).

Here is the link to the text of the decision: http://www.floridasupremecourt.org/decisions/2013/sc11-1130.pdf

Smallwood was a small time robber who apparently hit it big with an alleged armed robbery of a convenience store in Jacksonville, Florida.  The day after the robbery, the police issued an Arrest Warrant for Smallwood.  Eleven days after the robbery, the police arrested Smallwood and confiscated his property, including his cell phone.  (The cell phone was NOT listed on the property receipt).  Thirteen months later, and on the eve of trial, the arresting officer told the trial prosecutor about the cell phone for the first time.  The officer had accessed the contents on the phone and discovered five photos that he thought could be related directly to the crime charged.  The prosecutor sought to use these photos in the trial and the defense objected to the admission of the photos found on the phone. (The prosecutor had actually obtained a search warrant before seeking to use the photos at trial).

Defense counsel filed a Motion To Suppress which was heard by the trial court judge. The defense argued that Smallwood had a reasonable expectation of privacy in the data and information stored within his mini-computer cell phone.  "During a hearing on the motion, defense counsel reiterated that people have an expectation of privacy in their technologically advanced phones, which are small electronic data sources, and that the Officer's search of the cell phone, data, and images constituted an invasion of that constitutional zone of privacy. "

The trial court denied the motion to suppress, specifically relying upon the decision in New York v. Belton, 453 U.S. 454, 460-61 (1981).  Smallwood was convicted.

On appeal, the First District Court of Appeal Affirmed.  "In rejecting Smallwood’s Fourth Amendment challenge, the district court relied upon United States v. Robinson, 414 U.S. 218 (1973), 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."

Despite affirming the trial court's decision on the admissibility of the cell phone images, the First District expressed great concern about its ruling and in light of those concerns, they certified a question to the Florida Supreme Court as one addressing a matter of great public importance.

Justice Lewis, writing for a 5-2 majority, quashed the decision of the First District.  Canady wrote a dissent with Polston joining.

In reversing the lower court, Lewis wrote: 

" ... 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. "

The court went on to state that, "the United States Supreme Court has not addressed the constitutionality of cell phone searches under the search-incident-to-arrest warrant exception."

"We have carefully reviewed and considered the decisional law that addresses this unresolved Fourth Amendment issue, and we conclude that the line of cases requiring law enforcement to obtain a search warrant before accessing the data, information, and content of an electronic device cell phone that is removed from a defendant at the time of arrest is, quite simply, more persuasive. "

Finally, in responding to the Canady dissent, which asserted that the majority decision had "the potential to work much mischief in Fourth Amendment law," Lewis wrote:  "Our decision actually protects the Fourth Amendment and United States Supreme Court precedent by ensuring that the exceptions to the warrant requirement remain "jealously and carefully drawn," and by mandating that there be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).

On that final note, Fox News contributor, former Judge Andrew Napolitano, wrote a must read piece yesterday he called: "Poking holes in the Fourth Amendment to let government snoop on you".  You can read that at: http://www.foxnews.com/opinion/2013/05/02/more-holes-in-fourth-amendment/#ixzz2SGreZ1tI

In the words of our Executive Editor and Blog Chief, Horace Rumpole: Here's seeing you in Court.  I'll be the one with the double encrypted password protected Samsung Galaxy S4.

Enjoy your sunny South Florida weekend.

CAPTAIN OUT ......
captain4justice@gmail.com