I had a client several years ago arrested on a DUI here in Orlando. When his wife bonded him out of jail, she searched his phone and noticed several texts and websites that were pornographic in nature, sites that tended to indicate he was having some type of affair. But, he wasn’t. Actually, he had no clue how to access those sites. But, you see, when he was arrested, law enforcement and corrections officers had a good time playing with his advanced phone and “setting him up” for problems later. Their shenanigans worked. His wife did not believe him, and they divorced immediately.
There are several lessons here, some not appropriate to this blog, but I bring up this sad story not to have everyone slit their wrists at once, but rather to bring up the potential for abuse when the government is allowed to tap into a citizen’s personal property. And this leads us to the legal question of the day: Can the Police Search Through a Person’s Phone Pursuant to a Lawful Arrest? Let’s start with what we know. We know the cops can search you for weapons, drugs, etc. After all, once you’re arrested for anything, you’re about to enter a correctional facility, and they don’t want certain contraband entering the facility for obvious reasons. But, what possible public interest is served by an officer searching someone’s phone???
This issue came up in Fawdry v. State, 2011 WL 1815328, where he was charged with possession of child pornography. Police arrested Fawdry on an unrelated sexual battery upon a child, when he was being arrested the officer found a cell phone in his front pocket. Supposedly, the officer claimed that there existed firearms disguised as cell phones (yea, right), so the officer flipped open the cell phone to confirm that it was not a weapon. “Upon opening the phone, [the officer] discovered that the so-called wallpaper behind the phone’s main menu was comprised of a photograph of an erotically-posed, prepubescent female.”
Ok, so the defendant gets the dumb-ass of the year award. Guilty as charged. But, let’s get back on track here–stay focused on our precious constitution, and it’s rights against unreasonable searches.
Is it unreasonable for an officer to dig through a person’s cell phone upon arrest? The law does allow an officer to search the personal effects, including open and closed containers, carried by a suspect, but a cell phone has been provided greater protection by some courts, noting that “a search of a cell phone is more intrusive than the search of the contents of physical containers and that an individual has a heightened expectation of privacy as a result” Id, quoting State v. Smith, 124 Ohio St.3d 163 (2009).
The court in Fawdry refused to follow the Ohio Supreme Court, and instead found the cell phone search reasonable, holding that “digital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form. Viewed in this light, the cell phone merely acts as a case (i.e. closed container) containing these personal effects. When in tangible form, the aforementioned personal effects could clearly be searched incident to arrest if found in a case carried on the suspect’s person”. Id. at 3.
So, that’s the bad news. But, if there is a glimmer of hope here (for those of you concerned with our Constitution), the hope is that the First District Court of Appeals in Fawdry begged the Florida Supreme Court for guidance on this issue by “certifying” to the supreme court this question: “Does the holding in Robinson allow a police officer to search through photographs contained within a cell phone which is on an arrestee’s person at the time of a valid arrest?” For now, the answer is yes. Let’s hope that changes. In the meantime, watch what you put on your cell phones–it may be used against you by your wife, police, girlfriend, your boss, who knows!?!?
[2014 UPDATE: I don’t normally update articles, but the good news is that the First DCA’s opinion in Fawdry was overturned by Florida’s Supreme Court on May 22nd, 2014, based upon their decision in Smallwood v. State, 113 So. 3d 724 (Fla. 2013). So, now police cannot search our cell phones incident to arrest without first obtaining a warrant]