Florida Supreme Court rules against warrantless cellphone searches

Published May 3, 2013

The Florida Supreme Court delivered a blow to law enforcement officials Thursday, ruling 5-2 that police needed a search warrant to access the data stored on an arrested person's cellphone.

The decision came in the closely watched case of Cedric Smallwood and involved the 2008 robbery of a convenience store in Jacksonville.

Writing for the majority, Chief Justice Fred Lewis said that in Smallwood's case, "a warrant was required before the information, data and content of the cellphone could be accessed and searched by law enforcement."

The ruling comes as the 2013 Legislature is wrapping up its agenda without addressing bills filed by Sen. Jeff Brandes, R-St. Petersburg, and Rep. Carlos Trujillo, R-Miami, that would have prevented warrantless cellphone searches.

Many law enforcement officials lobbied against the Brandes and Trujillo bills, saying they would make it more difficult to apprehend criminals.

Among them was Pinellas County Sheriff Bob Gualtieri, who accused lawmakers seeking restrictions on such searches of protecting drug dealers and child pornographers.

On Thursday, Gualtieri said that while he respects the court's decision, the possible consequences concern him.

"That's the court's decision and we'll live with it. That's the tough question for us as a society: Where is that line? Is the result going to be that some evidence may not be collected tomorrow that was collected yesterday? Probably so," Gualtieri said.

Justices Charles Canady and Ricky Polston shared a dissenting opinion in the Smallwood case and warned that the majority decision "has the potential to work much mischief in Fourth Amendment law." The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures.

Opinions about the potential impact of the court's decision on policing varied at Tampa Bay law enforcement agencies.

The ruling will have a "really minimum" impact on the agency's current practices, said Hills­borough County Sheriff's Office Col. Donna Lusczynski.

"We have been currently drafting search warrants to look at phones," Lusczynski said, adding that the Hillsborough County State Attorney's Office began requesting warrants in recent years. "We just need to make sure it becomes a matter of policy and that we confirm the law."

In some instances, such as an officer safety issue, a warrant was not written to examine a cellphone, said Lusczynski, who oversees the Hillsborough Sheriff's Office's department of investigative services.

That a criminal may have some time to delete evidence from cellphones is "absolutely a concern," she said, especially if the phone can't be confiscated from the suspect during a search.

"Sometimes, we don't have a justification to take someone's phone and potential evidence could be destroyed," she said.

The Tampa Police Department will inform officers about the court's decision, said spokeswoman Andrea Davis.

"For now, we will obtain a search warrant before searching a suspect's cellphone," she said. "It probably will not affect previous cases because it is a change to existing law."

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Gualtieri said he was pleased the issue was decided by the courts, not lawmakers. He also applauded the justices for leaving an exemption for "exigent circumstances" in which police could search phones and other devices. Still, he said, the ruling might allow some criminals to evade arrest.

A man found with five child pornography photos in his pocket would be arrested, Gualtieri said, but if he instead had those same images on his phone, "he's going to get away with it."

Charlie Frago can be reached at (727) 445-4159 or Times staff writers Steve Bousquet and Laura Morel contributed to this report.