Jacksonville Criminal Lawyer Blog
In this day and age, cell phones can contain an abundance of evidence that could be used by the state to incriminate a defendant, including texts, emails, pictures, contacts, phone numbers, website searches and map locations. We have discussed several cases dealing with when the police can search a person’s cell phone before or after an arrest. Getting a valid search warrant is typically one path to a legal search of a suspect’s cell phone, but police often search a suspect’s cell phone without a search warrant. The question, then, is whether the police can search a person’s cell phone upon his/her arrest without a search warrant.
Search and seizure law provides for a search incident to an arrest which typically allows a police officer to search a person, anything on that person and the immediate area around the person upon his/her arrest. The primary reason for this kind of search is to make sure the person going into police custody does not have any weapons that could harm the police officer. A secondary reason for such a search is to allow the office to see if the person has any evidence relevant to the crime for which he/she was arrested. Therefore, most courts have allowed the police to search anything on a suspect who has just been arrested regardless of whether it could be used as a weapon or appears to contain evidence.
Cell phones present a new issue within this analysis because, unlike most everything else a person may carry on his/her person, a cell phone can have an abundance of private information that would normally require a search warrant to be searched. Considering the breadth of private information that can uniquely be contained on a cell phone, the Florida Supreme Court has acknowledged that the older cases are not analogous to a search incident to an arrest of a cell phone. In other words, it’s one thing to go through a person’s wallet or purse when he/she is arrested, but it is entirely different to go through voluminous personal data on a cell phone without a search warrant. The Florida Supreme Court properly compared a search of one’s cell phone without a search warrant to going into his/her home and searching the file cabinets and computers.
Based on their recognition that the search of a person’s cell phone is a much more significant search than the search of practically anything else a person would have in his/her possession and implicates serious privacy issues, it appears that a police officer will generally need a search warrant before searching the cell phone of a person who has been arrested.