Here in Orlando, we’re seeing more and more cell phones seized as part of police investigations. And these phones aren’t just thrown in an evidence locker somewhere. They’re played with. They’re searched for provocative photos, or interesting texts. Recently, a client of mine was arrested, and when he bonded out, he noticed that his iPhone was receiving tons of adult sex texts. These sex apps were prompted by either (a) the arresting officers, or (b) jail personnel. Add to the confusion the fact that my client is a senior citizen, somewhat new to the smartphone era. His wife discovered these texts, and she did not believe my client that he did not have anything to do with these fake communications. She thought he was having an affair. Now, to a savvy smartphone owner, it would be obvious that these texts are solicitations–basic junk mail stuff. But his wife didn’t understand, and they’re getting a divorce. True story. (yea, getting arrested on a DUI probably didn’t help the marriage).
This real life example is but one of many incidents involving smartphones and police. The two don’t mix. As such, I highly recommend installing a password on your phone. If you don’t, the police are entitled to search your phone for no good reason. Yep, you heard me. I know what you’re thinking–is John writing an article on Chinese laws? Have I gone “international law” on you? Nope. I wish. But, this is the state of the law in Florida.
Why should a cop be able to search a cell phone simply because you’re driving on a suspended license? Why should a cop be able to search your iPhone simply because you’ve been arrested for petit theft? It’s hard to believe. So hard to believe, that I’m going to have to whip out some case law, and that case law may only serve to depress you further. So grab your anti depressants and read further if you dare.
The case is State v. Ricardo Glasco, 90 S.3d 905 (Fla. 5th DCA 2012). Glasco was arrested for possession of cocaine with intent to sell or deliver, possession of cannabis, and possession of drug paraphernalia. While Glasco was handcuffed, a cell phone was found in his pocket. And of course, the police couldn’t wait to search his phone. Please note: They could do this because Glasco did NOT have his phone password protected (see, I told you so!).
As you might have expected from a guy arrested for a crime involving an “intent to sell or deliver“, the police found several text messages which detailed Glasco’s intent to sell cocaine. Thankfully, Glasco’s criminal defense attorney sought to suppress these text messages, and his motion was granted. The State appealed, and the Fifth District overturned the suppression, finding that the text messages were–in fact–admissible. Unfortunately, the court based its decision on Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011), a case in which the police were permitted to search a cell phone pursuant to an arrest (“any arrest”, for that matter).
All of this bad law has its foundation on an incorrect interpretation of the United States Supreme Court’s decision in U.S. v. Robinson, 414 U.S. 218 (1973). Robinson permitted police to search any containers found on a person incident to arrest, even though these containers have nothing to do with the arrest or the current charges.
Yes, several courts disagree with this line of reasoning, as it should be obvious that a cell phone is NOT the same thing as the “closed container” at issue in the 1973 Robinson case. Remember, much of our Fourth Amendment rights to be free from unreasonable searches flows from our reasonable expectations of privacy. The Supreme Court of Ohio found that “because a cell phone is not a closed container, and because an individual has a privacy interest in the contents of a cell phone that goes beyond the privacy interest in an address book or pager, an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” Ohio v. Smith, 124 Ohio St.3d 163 (Supreme Court of Ohio 2009).
In Glasco’s case, the appeals court was kind enough to “certify” the following question to the Florida Supreme Court, in the hopes that they will answer this question once and for all: “Does the holding in U.S. v. Robinson (1973), allow a police officer to search through information contained within a cell phone that is on an arrestee’s person at the time of a valid arrest?”. So far, no ruling. In the meantime, keep your phone password protected.