Constitutional law - search-incident-to-arrest exception to prohibition against warrantless searches inapplicable to cell phone searches - Smallwood v. State.

• Author: Bagley, Ian

Constitutional Law--Search-Incident-to-Arrest Exception to Prohibition Against Warrantless Searches Inapplicable to Cell Phone Searches-- Smallwood v. State, 113 So. 3d 724 (Fla. 2013)

The Fourth Amendment to the U.S. Constitution prohibits searches and seizures conducted without prior approval by a judge or magistrate, but this general rule is subject to several exceptions. (1) One such exception allows a police officer to search a person in the course of a lawful arrest. (2) In Smallwood v. State, (3) the Florida Supreme Court considered whether the search-incident-to-arrest exception would apply to a police officer's search of photographs stored within a cell phone, where the officer finds the phone on the arrestee's person, but lacks a reasonable belief that the phone contains evidence of any crime. (4) Comparing such a search to the search of an arrestee's home office, the court held that the warrantless search of a cell phone under these circumstances is unconstitutional. (5)

On February 4, 2008, police officer Ike Brown arrested Cedric Tyrone Smallwood pursuant to a warrant arising from an armed robbery of a convenience store eleven days earlier in Jacksonville, Florida. (6) Officer Brown seized Smallwood's cell phone incident to the arrest. (7) Then, once Smallwood was secured in a police vehicle, Brown conducted a search of the phone's data and discovered five photographs relevant to the robbery. (8) Nothing in the record indicated that Brown's search was motivated by concerns about officer safety or destruction of evidence. (9)

At trial, defense counsel asserted that Brown's search of the phone's data violated Smallwood's constitutional right to privacy, arguing that a cell phone is functionally a mini-computer and that people have a reasonable expectation of privacy in such devices. (10) The prosecution countered that a phone is analogous to other items, such as a wallet or a container, that are searchable when found by an officer incident to a legal arrest. (11) Holding that the search of the cell phone was legal, the trial court rejected defense counsel's motion to suppress the photographs. (12) Brown testified at trial that he searched the phone for two reasons: to identify it as the phone Smallwood had used to call Brown earlier, and to determine whether it contained evidence. (13) A jury convicted Smallwood of robbery and possession of a firearm by a convicted felon. (14)

The First District Court of Appeal of Florida affirmed the conviction, rejecting Smallwood's claim that the phone search violated his Fourth Amendment right to privacy. (15) The court also voiced concern, however, that its ruling would extend the search-incident-to-arrest doctrine into territory prior courts could not have anticipated or intended, potentially making every arrest an occasion for police to search through medical information, banking records, work emails, and vast amounts of other data constituting the entirety of the arrestee's personal life. (16) In light of its concerns, the First District Court of Appeal of Florida certified, for review by the Flordia Supreme Court, the question of whether a police officer may "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[.]" (17)

Since the Supreme Court first acknowledged the constitutionality of warrantless searches incident to arrest, the permissible scope of such searches has, at different times, both expanded and contracted. (18) In Chimel, the Supreme Court announced two rationales for upholding the constitutionality of a warrantless search incident to an arrest: preventing the destruction or concealment of evidence, and enabling officers to remove any weapons that may be accessible to an arrestee. (19) The search-incident-to-arrest exception permits an officer to search the interior of any container, whether open or closed, found within a permissible search zone, which includes the arrestee's person and the area from which the arrestee might be able to take possession of a weapon or destructible evidence. (20) The Court defined a "container" as "any object capable of holding another object." (21)

Since the Chimel decision, state and federal courts, asserting the need for bright-line rules police may rely upon when conducting arrests that require quick, ad hoc judgments, have upheld the constitutionality of warrantless searches even in cases where the arresting officer lacked a reasonable belief that a search would advance an interest in either officer safety or evidence preservation. (22) Relying on New York v. Belton--where the Court held that the passenger compartment of a vehicle is searchable incident to a lawful arrest--state and lower federal courts have upheld as constitutional searches of an arrestee's vehicle where interests in officer safety and evidence prevention were irrelevant, evidenced by the arrestee being secured and handcuffed in the backseat of a patrol car. (23) In United States v. Robinson, the United States Supreme Court upheld the constitutionality of searches of personal items, such as a pack of cigarettes, found on an arrestee incident to a lawful arrest, even where the arresting officer has no reasonable belief that the search will uncover weapons or evidence related to the crime of arrest. (24) The Court held that in cases where a custodial arrest is supported by probable cause, no further justification is required to support a search of items on the arrestee's person incident to the arrest. (25)

Recently, in Arizona v. Gant, the Supreme Court explicitly rejected the broad interpretation of Belton that served as a basis for many courts to uphold vehicle searches where evidence preservation and officer safety were not factors. (26) The Gant court held that a search of a vehicle's passenger compartment incident to an arrest is permissible only where the arrestee is within reaching distance of the compartment at the time of the search or where there is reason to believe evidence of the offense of arrest is located within the compartment. (27) The Supreme Court has not addressed the issue of whether the search-incident-to-arrest exception would apply to the search of a cell phone found on an arrestee's person. (28) Among those state courts and lower federal courts that have addressed the issue, holdings have varied. (29) Some courts have analogized the cell phone to other searchable items--such as a container or a pager--and therefore held the phone searchable. (30) Other courts, relying on Gant's stricter adherence to the principles of Chimel, have held these searches unconstitutional in cases where neither evidence preservation nor officer safety is a factor. (31)

In State v. Smallwood, the Florida Supreme Court answered the question of whether the warrantless search of data stored on a cell phone is constitutional even where the officer does not reasonably believe the data includes evidence of the crime of arrest. (32) The court began its analysis by distinguishing the facts of the case at bar from the facts in Robinson, and specifically distinguished the crumpled pack of cigarettes held searchable in Robinson from a modern cell phone. (33) The court reasoned that modern cell phones, unlike static items such as cigarette packs, have the ability to store vast quantities of personal and private information and can provide access to remote data; for example, one iPhone application allows users to remotely access a home computer webcam. (34)

The court stated that permitting a warrantless cell phone search incident to arrest is comparable to permitting a search of the arrestee's home. (35) The court said analogizing a pack of cigarettes to a handheld, interactive, computer-like device is like analogizing a single-cell organism to a person, adding that the differences between these items are blatant and significant. (36) Accordingly, the court held that the ruling in Robinson did not control the outcome of the case at hand. (37)

The court further reasoned that the principles articulated in Chimel and affirmed in Gant--that a warrantless search incident to arrest is justified only by an interest in either officer safety or evidence preservation--did not justify the search in this case, where the cell phone's contents were examined after the phone had been separated from Smallwood. (38) The Constitution permitted police to take possession of a phone in this case because the phone was on Smallwood's person at the time of the arrest. (39) Once police had secured the phone, however, there was no longer any chance that Smallwood could use the phone as a weapon or destroy any evidence stored within it. (40) Therefore, the rationales justifying warrantless searches evaporated and the subsequent warrantless search of the phone's data was held unconstitutional. (41) The court concluded that the mere fact that a device is small enough for a person to carry does not authorize government intrusion into the vast amount of personal information that may be stored on the device. (42)

The interests at stake in this case can be understood by examining the dissent, which argues that the majority's reasoning, if consistently applied, will "transform the traditional understanding of the right of the police to inspect items found on the person of an arrestee." (43) This focus on the rights of police--rather than the arrestee's rights under the Fourth Amendment--turns the proper analysis on its head. (44) The Fourth Amendment's drafters considered the right of privacy too important to entrust it to law enforcement officers. (45) Accordingly, the Fourth Amendment allows warrantless searches only when circumstances make such a search reasonable. (46) The majority, following in the footsteps of Gant, was correct to strictly adhere...