Lindsey & Ferry, P.A.
Photos viewed by officer on defendant’s cell phone were not admissible
Under the Fourth Amendment of the United States Constitution, citizens are not subject to “unreasonable” searches and seizures, subject only to a few well-defined exceptions. One of those exceptions relates to searches conducted as part of an arrest-that is, searches following an arrest. Such searches may be conducted for reasons such as officer safety or to prevent the possible destruction of evidence. However, even such a search is subject to limitations.
If a defendant is convicted of criminal offenses based on illegally seized evidence, even during an arrest-related search, the conviction may be questionable, as seen in the Florida Supreme Court case of Smallwood v. State.
A robbery . . . and some cell phone pictures
After a masked man robbed a convenience store at gunpoint, the clerk called police and alleged he knew the robber, as the robber was allegedly a regular customer. The robber had taken more than $15,000 in cash, folded and secured with rubber bands. Based on this and other evidence, a police officer arrested the defendant one day after the robbery. During a search incident to that arrest, the officer seized the defendant’s cell phone.
Later, the officer accessed and searched for data on the cell phone. The officer found five digital images that were allegedly relevant to the robbery, including pictures of the defendant’s girlfriend displaying cash bundled with rubber bands.
More than a year after the arrest, the officer revealed to the prosecutor that he had seen the images. The prosecutor sought a search warrant to view the images. The defendant objected to the admission of the images, but the trial court allowed their admission. The defendant was convicted of robbery and related charges and received a sentence of 50 years. The defendant appealed the conviction, based on the admission of the digital photos.
Was the cell phone search valid?
The Florida Supreme Court noted that the officer had not conducted the initial search of the phone based upon a concern for officer safety or destruction of evidence. In addition, while a search incident to an arrest may allow an officer to inspect an item in the defendant’s possession, such as a cigarette pack, that is not equivalent to a modern electronic device and the extensive data it contains.
Vast amounts of private, personal information can be stored and accessed in these small electronic devices, including photos, videos, bank records, and medical information. Many people now store documents on their portable electronic devices that, 20 years ago, were stored only in home offices.
Therefore, the court held that cell phones were materially distinguishable from a static, limited-capacity item such as a cigarette pack. Providing law enforcement with access to an arrestee’s cell phone without a warrant would be akin to providing a key to access the home of the arrestee.
The officer properly separated the defendant from his cell phone during the search incident to the arrest, but a warrant was required to access the data. Thus, the evidence of the images should have been excluded from the criminal law proceedings.
Developing the best possible defense strategy
If you are charged with a crime, it is essential that you seek the advice of an attorney to review the evidence against you and how such evidence was gathered. Select an experienced attorney who understands how to use the facts of a case to develop the best possible defense strategy to protect your rights and freedom.