Thursday, May 5, 2011
Florida Courts Expresses Skeptcism of Searching Cell Phones Incident to Arrest. But Allows The Search Anyway!
A Florida District Court of Appeals has questioned the existing Supreme Court doctrine which allows searches of cell phones incident to arrest. This issue has been getting a of of attention recently (especially from me).
The case is Wood v. Florida.
In this case, the police found incriminating evidnce on the defendant’s cell phone after he was arrested But for the arrest, the police would have had no justification to search the cell phone.
The court believed that it was bound by the Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), in which the Court held containers – in this case, a coigarette package, found upon a person incident to arrest may be searched:
We recognize that . . . many of the federal and state courts that have addressed this issue have found whether or not a cell phone may be searched incident to arrest is contingent upon whether or not a cell phone is a "container" as contemplated by Robinson . . .[ W]hether or not a cell phone is properly characterized as a traditional "container" is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee's immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones.
The court clearly was not comfortable with this conclusion:
While we feel we are bound by the Supreme Court precedent, we recognize appellant's concern that cell phones contain a vast amount of personal information. However, courts have found the broad language in Robinson permits searches incident to arrest of wallets, purses, date books, and other similar items that contain the same types of personal information stored on a cell phone. . . . However, we express great concern in permitting the officer to search appellant's cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence. The bright-line rule established by Robinson may have been prudent at the time, given the finite amount of personal information an arrestee could carry on his or her person or within his or her reach. However, the Robinson court could not have contemplated the nearly infinite wealth of personal information cell phones and other similar electronic devices can hold. Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one's personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone's physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one's personal life available for perusing by an officer every time someone is arrested for any offense. It seems this result could not have been contemplated or intended by the Robinson court. We would also note that the rationale related to text messages and phone call logs concerning automatic deletion is not applicable here because there was no argument or evidence presented that photographs are subject to automatic deletion.
In light of theses concerns, the court certified the following question to be one of great public importance:
DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), 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, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?
I am not familiar with Florida appellate practice – can someone with experience explain the practical significance of this question.