The Search of Smart Phones, I Pads and other Electronic Devices

A Florida Senate Bill passed the Florida Senate Criminal Justice Committee on Monday, March 4, 2013, that would require law enforcement to obtain a search warrant before it could search the smart phone or any cell phone of someone who has been arrested. There is also “rumblings” of a bill that would require law enforcement to specify which programs would be searched in a computer that was legally seized by law enforcement when executing a search warrant giving them permission to search a home and seize computers, electronic devices, etc. when police have a warrant based upon probable cause that the computer was used to commit a crime. The new Senate phone bill was objected to by law enforcement and prosecutors. The genesis of such bills of course the abundance of personal information that most people store on cell phones or I Pads and other such electronic tablets or smart devices. Why should law enforcement have access to private information that has nothing to do with the crime being charged against the individual who possesses the smart phone or I Pad, etc.? Law enforcement officers when they are issued a search warrant based on probable cause to search a home for a shotgun, for instance, are not allowed to look in bathroom cabinets or kitchen drawers or any place a shotgun could not be located. (This is not to say this does not happen). In my opinion, in many instances, there really is no logical difference between searching areas of a smart phone device for evidence of a crime if there is no probable cause that evidence of the crime is located there. However, it’s my understanding that this bill is far more sweeping. Currently, if a person is arrested law enforcement currently believes it has “carte blanche” authority to search the seized cell phone and go through every text, photo, email, etc. without a warrant. In the Northern District of Florida, Pensacola and elsewhere, I have had cases where law enforcement has obtained a search warrant for a cell phone because the law is not well settled. However, this seems to be more the exception that the rule.
The “smart phone bill” is by no means law yet—- albeit the Senate Criminal Justice Committee approved the bill (SB 846) on a 5-2 vote it will then be sent to the Judiciary Committee. Then if it passes there is needs approval from the Appropriations Committee before it can go to the floor of the Senate for an overall vote. Then a House of Representatives companion bill (HB 797) by Rep. Carlos Trujillo, R-Miami, is awaiting its first committee hearing.
The Senate bill also would require police to get a court to sign off on informational tracking of an electronic device for investigative purposes. In other words, law enforcement could not track your cell phone without a court order. (This is somewhat analogous to the recent U. S. Supreme Court case, Jones, cited in a blog post below, where police must obtain a warrant to use tracking devices for vehicles placed by law enforcement to track the whereabouts of suspect vehicles).
Search and seizure rules involving smart phones or electronic storage devices are the subject of two cases pending before the Florida Supreme Court. In Smallwood v. State, a cell phone search was upheld by the First District Court of Appeal which is the appellate court that covers the law in Northwest Florida including Pensacola, Destin, Milton, etc. However, in the Fourth District Court of Appeal has ruled on real-time tracking of such devices, such as that mentioned in Jones, above, finding that people have no real expectation of privacy while driving around on the open road but that appellate court knowledge that the changing nature of technology for cell phone tracking begged for a higher court ruling on the issue. This ruling is at odds with Jones, which is a U.S. Supreme Court ruling.