As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens’ privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee’s cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant’s possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person’s bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

For example, in Katz v. United States (1967), the government wiretapped a telephone booth. The Supreme Court ruled that this action was an unlawful search because:

1. The defendant did not expect the phone booth conversation to be broadcast and 2. Society believes that expectation is reasonable.

The “Katz Standard” is still used today and has been expanded upon. In United States v. Jones (2012), the Supreme Court ruled, in addition to the Katz Standard, a search occurs when law enforcement trespasses on the searched person’s property. For example, in Jones, police attached a GPS device on a car without the defendant’s consent.

However, with evolving technology these issues become more complicated. For example, in 2010, the United States Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that the government violated the 4th amendment when they asked the defendant’s internet service provider to turn over his emails before obtaining a warrant issued with probable cause. The court said that a person has a reasonable expectation of privacy in their emails.

Yet, in the case of The People v. Gregory Diaz, the Supreme Court of California ruled that allowing a warrantless search by law enforcement of suspects’ cell phones at the time of arrest was allowed on the grounds of preventing the destruction of evidence, such as text messages. Specifically, the court stated: “the loss of privacy upon arrest extends to the arrestee’s personal property, immediately associated with the person, at the time of arrest, and this loss of privacy entitles police not only to “seize” anything of importance they find on the arrestee’s body, but also to open and examine it.”

The Florida Supreme Court disagrees. In Smallwood, the court ruled for the defendant, agreeing that police were required to obtain a warrant before searching the contents of his cell phone. The Florida Supreme court stated, “In our view, allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee. We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because a cell phone device that stores such information is small enough to be carried on one’s person.”

Issues involving changing technology, easy access to personal information, and 4th amendment rights are sure to continue find their way into US courts. Only time will tell which precedent will succeed. Will it be California’s ruling that confiscating cell phones doesn’t violate the 4th amendment or Florida’s ruling that it does? Perhaps this is an issue for the United States Supreme Court.

If you, or anyone you know needs help in issues surrounding search/seizures that potentially violate the 4th amendment, do not hesitate to contact Attorney Michael Delsignore. Attorney Michael Delsignore has experience in criminal defense and can counsel you on your specific case. Also, for more information on search/seizure and the 4th amendment, check out the following blogs:

Searches in high crime areas: Are they Constitutional in Massachusetts?

Warrantless search of vehicle raises 4th amendment issues regarding the automobile exception to the search and seizure clause