Is it legal for the police to search your cell phone?


cell phone searches in florida

Imagine that you have been arrested and the police search the contents of your cell phone, and find incriminating photographs linking you to the crime. Does law enforcement have the legal right to view and seize data from your cell phone, such as text messages, email or photographs, simply because you have been arrested? Examining the Florida Supreme Court case of Smallwood vs. the State of Florida will help clarify this issue.

In 2008, C. Smallwood was arrested for the armed robbery of a convenience store in Jacksonville. The investigation revealed that during the robbery, Smallwood brandished a .38 caliber handgun and made off with over $13,000 in cash.

Officers were able to obtain an arrest warrant for Smallwood based upon his positive identification by the store clerk and an additional witness. During his lawful arrest, officers located a cell phone on Smallwood’s person. After securing Smallwood into a police vehicle, the lead investigating officer searched the contents of Smallwood’s cell phone without first obtaining a search warrant for the phone. Smallwood’s phone contained photographs cash and firearms, which tended to connect Smallwood to the robbery.

It wasn’t until the pre-trial proceeding in March, 2009 that the investigating officer informed the prosecutor of the photos retrieved from Smallwood’s cell phone. The officer told the prosecutor that he searched the phone after securing Smallwood into a police vehicle. The search of the phone was not based upon officer safety, exigency or the possible loss of evidence. The prosecutor immediately obtained a search warrant for the phone to enable the use of the photos at trial.

Smallwood argued that the officer illegally searched his phone without a warrant and that the incriminating photos should not be allowed. The trial judge disagreed and denied the motion. At trial, the investigating officer testified that it is common for suspects to have incriminating photos on their cell phones, and that he searched Smallwood’s phone to determine if any such images existed. In the end, Smallwood was convicted of armed robbery, and the First District Court of Appeals affirmed his conviction.

In its decision, the Appeals Court relied upon the notion that a cell phone is a “container”, much like a wallet, which often contains personal information . The Court referenced a United States Supreme Court case called U.S. vs. Robinson. In this case the defendant, Robinson, was arrested for driving with a revoked license. During the search of Robinson, after his arrest, officers located a cigarette package, which contained an amount of heroin. The Court found that a complete search of Robinson was reasonable, including any containers or packages he possessed on his person.

However, the Florida Supreme Court overturned Smallwood’s conviction, ruling that Smallwood’s phone was illegally searched without a warrant. In its ruling, the Florida Supreme Court indicated that during a lawful arrest, an officer can seize a cellphone from the person being arrested; however, the officer cannot examine the contents of the phone without a search warrant, unless the officer obtains the suspect’s consent or a genuine exigency exists. In general, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable search and seizure. However, there are a few exceptions.

During a lawful arrest, officers can search an arrestee for contraband, weapons or evidence that may be concealed. This rule increases officer safety, and it prevents the suspect from destroying evidence. In this case, Smallwood was lawfully arrested pursuant to an arrest warrant. Therefore, the officer could legally seize Smallwood’s phone to prevent him from erasing the data. However, a lawful arrest does not, by itself, entitle the officer to search or examine the contents of the phone. In most cases, a search warrant is needed before the phone can be searched, unless a clear exigency exists or the officer obtains consent from the suspect.

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Howard Iken is a Florida attorney that practices in family law, bankruptcy, and criminal law. He can be reached at