When a person in Florida gets arrested for a crime, the police are generally permitted to search him/her. This is considered a search incident to an arrest, and it allows the police officer to search the suspect to make sure the suspect does not possess anything that could harm the police officer as the suspect is placed in the police car, driven to jail and booked into the jail. The police can also search the person for evidence of the crime if the officer has a reasonable basis to believe the suspect has evidence of the crime or any weapon that could put the officer's safety at risk.
Does this authorization to search a suspect incident to an arrest extend to all of the suspect's possessions? The law used to allow a police officer to search a person's vehicle if the suspect is arrested in or at his/her vehicle. This kind of search really did not comport with the logic behind a search incident to an arrest. Once a person is arrested, handcuffed and placed in the police car, he/she does not have much of an opportunity to grab a weapon in his/her car and harm the officer. The law was changed by a Supreme Court case a few years ago which now only allows the police to search a vehicle incident to an arrest if the suspect has access to the car at the time of the arrest. This usually is not the case since police officers generally handcuff the suspect and put him/her in the police car when the arrest is made.
What are the search and seizure rules when it comes to cell phones at the time of an arrest? Cell phones have obviously evolved over the years to the point that they can contain a lot of information, including incriminating information, such as contacts, phone numbers, notes, photographs, websites, text messages, emails and other data and communications. A police officer could learn a lot about a person and criminal activity fairly quickly by looking through one's cell phone. On the other hand, cell phones are more like computers today, and police are generally not allowed to search a person's computer without a search warrant or consent from the owner.
The United States Supreme Court is expected to decide two cases that involve police searching cell phones at the time of an arrest without a search warrant. In both cases, the criminal defense lawyers filed motions to suppress incriminating evidence found on the cell phones. I anticipate that the Court will decide that a police officer cannot search a person's cell phone without consent or a search warrant upon an arrest. The main reason for a search of a person incident to arrest and his/her immediate possessions is to make sure the person does not have anything that could harm the officer. There is also an issue of making sure evidence does not get destroyed in the time it would take to get a search warrant. These factors seem to weigh in favor of requiring consent or a search warrant. Obviously, a cell phone does not pose a safety risk to the officer. Additionally, there is not necessarily going to be evidence of criminal activity on a cell phone, but if the police develop information to suggest there is evidence on the cell phone, they can take possession of it and apply for a search warrant, the way most searches of private property are supposed to begin.