Tampa criminal defense attorneys and defense attorneys across this country have been debating this issue frankly since the first cell phone came out – can one search your phone without a warrant. Fortunately, the United States Supreme Court and the Florida Supreme Court very recently have provided somewhat strict guidance on this issue. For your convenience, we have attached a copy of the Florida Supreme Court opinion. In short, no, law enforcement is required to get a warrant to search your phone after an arrest, they cannot search your phone without a warrant. This issue though raises three important things to consider.
First, since this issue has just been recently decided, it wouldn’t be too much to consider that the Courts may quickly reverse themselves on specific issues or begin carving out exceptions, like they have done with the Fourth Amendment regarding search and seizure. I personally believe one issue that will likely arise will be providing law enforcement a means to store or mirror the cellular phone without searching it as they often do with laptops because of recent technology that permits individuals to attempt to destroy all the data on their cell phone from a third party laptop and/or tablet. For example, I anticipate shortly the Courts will permit law enforcement to disable transmissions to and from the cell phone to prevent individuals from knowing such things. While this is not the law yet, I anticipate it surely will be. The recent Supreme Court decision mentions this issue, but we believe they will eventually further address this issue. We do not anticipate the Supreme Court though to recede back to the lack of clarity provided to law enforcement before it’s most recent decision, where many law enforcement officers believed they could search your phone without a warrant.
This brings me to our second issue – individuals attempting to destroy data on their cell phone, once the cell phone has been seized. In short, we strongly recommend individuals obviously do not do so as this could potentially lead to new felony charges relating to the destruction of evidence, especially once the cell phone is in the hands of law enforcement and seized as part of a lawful arrest. This has long lasting implications because individuals obviously know what is on their cell phone and generally are incredibly frustrated that law enforcement has seized it and is now going through it. Further, they know it will likely be used to implicate them in future crimes and/or strengthen the case against them on the current matter.
It’s worth discussing specifically why the Court found that a warrant was required to search cell phones. First and foremost, the Court considered that cell phones are unlike really anything else we have in our lives at this time. A cellular phone often takes the place of a cell phone, journal, a personal planner, day planner, a telephone book, etc. Regardless of what kind of cell phone you have, it contains a tremendous amount of personal information that you expect no one else to have access to. Relating back to the Fourth Amendment of the United States Constitution, in a case called Katz, the ultimate decision as to whether a search was occurring relates to whether the person has a reasonable expectation of privacy. The Court essentially determined that a cell phone in someone’s pocket, regardless of whether it is protected by a password or thumb print security, has an expectation of privacy that society has deemed. The easiest way to think about this is that you wouldn’t walk up to someone’s cell phone on a table that you didn’t know and take it and start looking at it – this is comparable to someone trying to search your phone without a warrant. This goes to the reasonable expectation of privacy that the Court seemingly recognized in both United States and the Florida Supreme Court cases that recently came out drawing out that bright-line distinction. While this again is the current state of the law, we personally believe it will begin being slowly degraded as the Court attempts to find exceptions.
In light of the above holding and reasoning, law enforcement cannot search your phone without a warrant. If you or someone you know has questions concerning search and seizure issues, contact the Tampa defense attorneys of Hackworth Law for a free case consultation. As this search and seizure law relating to cell phones develops and evolves, we anticipate a significant amount of litigation specifically relating to this issue. If you’d like to contact one of our Tampa defense attorneys immediately, please use the “contact us now” tab in the upper right hand corner of our website. We appreciate you taking out the time to check out our Tampa criminal defense attorney blog, and we look forward to working with you in the future.