Lakeland, FL (Law Firm Newswire) July 31, 2012 – Current case law in Florida allows law enforcement officers to search a person’s cell phone incident to arrest, a situation that some say violates the Fourth Amendment.
This June, a Florida appeals court ruled in State v. Glasco (Glasco) that a law enforcement officer can search the contents of a suspect’s cell phone after an arrest, with no search warrant necessary. The case follows a similar decision in Smallwood v. Florida (Smallwood), a 2011 case.
The case law, while limited, makes a wide range of personal information available to law enforcement, if a person is arrested. Today’s cell phones provide access to a person’s text messages, emails, photos, and Facebook messages, all of which can be accessed by police incident to an arrest.
“This is an issue of people’s constitutional rights,” said Thomas Grajek, a Polk county criminal defense attorney. “Law enforcement officers should be required to show probable cause to a judge, and get a warrant before searching people’s private correspondence.”
In a recent Collier County case, a person suspected of theft was arrested by a detective who then searched the man’s phone, finding photos of other people’s driver’s licenses. The evidence led to a further charge of identity fraud.
Cmdr. Mike Williams of the Collier County Sheriff’s Office told the Naples Daily News that, absent any court ruling to the contrary, his officers will continue to perform cell phone searches after an arrest, whenever the information may be useful to an investigation. Prior to the Glasco and Smallwood cases, officers sought warrants before searching cell phones.
The decision in Smallwood was based in part on the necessity of preserving evidence that could be erased quickly. Cell phone service providers often permit customers to wipe their phones clean quickly, in the event the phone is stolen. Suspects could potentially clear their phones during the time required to obtain a warrant.
However, even the court in Smallwood expressed concern that unbridled discretion on the part of law enforcement could lead to violations of privacy. The case may be reviewed by the Florida Supreme Court.
Thomas Grajek is an aggressive criminal trial attorney with experience in the courtroom who will speak up in court for his clients.
Thomas C. Grajek
206 Easton Drive, Suite 102
Lakeland, FL 33803