Smallwood v. State (1st District Court of Appeals, April 29th, 2011).

Facts: The Defendant was arrested for armed robbery while in actual possession of a firearm and possession of a firearm by a convicted felon.  When he was arrested the officers seized his cellphone.  On the phone were several photos of the Defendant holding large amounts of cash, there was a gun, and jewelry.  The photographs were admitted into evidence at trial. The robbery victim identified appellant in the cell phone photographs and testified the money in the photographs was folded and secured in the same way as the money taken during the robbery. He further testified the pictures depicted a gun that was silver and black, as was the gun used during the robbery.

The Defendant sought to exclude the use of those photographs.  The State argued the photographs were legally obtained at the time of appellant's arrest, asserting searches incident to lawful arrest were constitutionally permissible and reasonable in order to disarm an arrestee and to preserve evidence on the arrestee's person. The Defendant argued the search of the phone was invalid and he had a reasonable expectation of privacy in the information stored on his phone, and the only case law supporting the search of a cell phone as a valid search incident to arrest involved drug-related offenses because phones are often used as an instrumentality in such crimes.

Holding: There was nothing in particular about the crime for which appellant was arrested nor any information about this case which would have led the officer reasonably to believe the cell phone contained evidence related to the crime for which appellant was being arrested.  However, the Court said is must follow the the United States Supreme Court precedent in the area of search and seizure. The Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), said that containers found upon a person incident to arrest may be searched without “additional justification.” The Court acknowledged the unique qualities of a cell phone which, like a computer, may contain a large amount of sensitive personal information. Based upon this they certify this as a question of great public importance and have requested the Florida Supreme Court to answer this question:  

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), ALLOW A POLICE OFFICER TO 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? 

We shall see what the Florida Supreme Court says in answer to this important question.