Florida Court Forces Police to Obtain Warrant For Cell-Phone Searches

The Florida Supreme Court, in a 5-2 decision, has ruled that police must obtain a search warrant to view the contents of a person's cellphone when they are taken into custody.

By Julie K. Brown

At a time when smartphones have become the storehouse of everyone's personal information, can an arresting officer seize yours and rummage through its contents, then maybe call your business associates and poke your Facebook friends?

They could -- but not anymore, the Florida Supreme Court ruled Thursday.

At least not without a search warrant.

That ruling was applauded as a landmark by civil libertarians and defense attorneys, who argued that the state's archaic search warrant laws have become outdated in a digital age where people collect endless amounts of personal information on their cellphones.

"What the court is doing is standing up for what little privacy is left in America by saying police don't have the right to invade our whole life without the authorization of the courts first," said Howard Simon, spokesman for the American Civil Liberties Union of Florida.

The controversy, which is raging across the nation, was also on the Florida Legislature's agenda this past session. However, a House bill co-sponsored by Rep. Carlos Trujillo, R-Miami, that would have made fishing expeditions of cellphone information illegal seems destined for the cutting room floor.

Pinellas County Sheriff Bob Gualtieri, as well as and other sheriffs and prosecutors, denounced the proposed bill, testifying before lawmakers last month that the law would tie the hands of police and ultimately protect drug peddlers, pedophiles and murderers.

"There is going to be evidence that is not going to be obtained because of this decision," Gualtieri said Thursday after the Supreme Court decision. "It takes about four hours to get a search warrant -- that's just the way it is. Cases are going to become more difficult to prosecute."

In the past, police and sheriffs deputies were able to view the contents of a suspect's cellphone the same as a wallet or a briefcase -- without the necessity of getting a warrant. The idea was to prevent the subject from pulling out a weapon or destroying or hiding evidence.

But a cellphone and other portable electronic devices aren't the same as a car's glove compartment or a suspect's wallet and briefcase, Simon said.

"The police do not have the right to rummage through a person's entire life," he said. "It has nothing to do with protecting criminals. People still have a right to privacy even if police may have a legitimate reason for looking through your phone."

The ruling still allows arresting officers to take custody of the phone, thereby preventing a suspect from deleting evidence, said former Broward County Sheriff Al Lamberti.

"I think it's something we can live with," said the ex-lawman, who is now a security consultant.

BSO has been operating under court-ordered cellphone searches for about a year, he said.

"It's not that difficult to go that extra step and we've found out that in court you leave yourselves open to a challenge if you don't do it."

The state court ruling came in the case of Cedric Smallwood, who was arrested in connection with a convenience store robbery in Jacksonville in 2008. Police seized Smallwood's phone and later identified images on the phone that were relevant to the prosecution. The justices ruled 5-2 that while police had a right to seize his phone, they did not have the right to look at its contents without a warrant.

Cellphones, like home computers, should have a higher expectation of privacy, wrote Justice Fred Lewis.

"Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter," he said.

Chuck Drago, a police procedures consultant and former instructor in the execution of search warrants, said most law enforcement officers have known that it was only a matter of time before this decision.

"It's going to mean more work and it's going to slow down the investigation. But you overcome it," said Drago, a former assistant police chief in Fort Lauderdale. "Would police like to look at everything they want to look at? Of course. But does the ruling make sense? It does to me."

(c)2013 The Miami Herald

Brian Peteritas is a GOVERNING contributor.