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Police in Florida Cannot Access Information in an Abandoned Cell Phone Without a Search Warrant

In Florida and elsewhere, the general rule for searches and seizures is that the police cannot search a person’s property without a search warrant or specific consent from a person with the proper authority to give such consent.  There are exceptions to that rule depending on the circumstances, but the general rule applies in most situations.  This has been the law for a long period of time.  However, there are new situations, and new technologies, that require a unique interpretation of search and seizure law.  Cell phones are not exactly new, but they have created circumstances where the courts cannot necessarily rely on prior cases alone and need to interpret the Constitution to determine if searches and seizures are lawful.  Additionally, the storage capacities and capabilities of cell phones are always improving so new search and seizure scenarios are common.

We have discussed cases where the police have made arrests and then sought to search a person’s cell phone without a warrant.  These days, cell phones can contain all sorts of information that can incriminate a defendant, such as photographs, text messages, call records, internet searches, and a plethora of other data.  These items can be critical in many different types of criminal cases.

The question remains: when can the police access the data contained in a suspect’s cell phone?  In a case near Jacksonville, Florida, the police stopped a vehicle after running the tag and finding that the vehicle had been reported stolen.  The suspect fled the vehicle on foot.  The police officer did not catch the suspect, but he did find a cell phone that was left in the vehicle.  The cell phone was protected with a password, but someone at the police department was later able to access the data in the phone.  No search warrant was obtained to do this.  Once inside the cell phone, the police were able to identify the suspect and his contact information.  He was located and arrested for burglary of a conveyance.

The criminal defense lawyer filed a motion to suppress the evidence that allowed the police officers to identify and find the defendant.  The criminal defense attorney argued that the polie did not have a right to override the password and search a suspect’s phone without consent or a search warrant.  The state argued that the cell phone had been abandoned when the defendant fled the vehicle and left the cell phone inside.  The Constitution only protects property from unreasonable searches and seizures by the state when a person has a reasonable expectation of privacy in that property.   People generally do not have a reasonable expectation of privacy in property that they have abandoned.

The question, ultimately, was whether this abandonment argument applies to cell phones that are protected with a password.  The court noted that cell phones are obviously much different from other property that might be abandoned because they have such a tremendous capacity to store critical and personal information.  While the physical cell phone may have been abandoned by the owner, what is really at issue is the information that is stored in the cell phone.  When a person protects that information with a password, that person is expressing an intention to protect that information and keep it confidential even if that cell phone is left somewhere that can be accessed by others.

Another issue that courts often contemplate when analyzing search and seizure matters is how difficult it would have been for the police to obtain a search warrant and whether there was a risk that the evidence sought could be lost or destroyed while they wait for the authority to search the cell phone.  In this case, the court noted that the police had possession of the cell phone and were not at risk of losing it or the data inside.  Therefore, it would have been easy and without much, if any risk, for the police to have simply applied for a search warrant for the phone.

As a result, the police illegally searched the contents of the password protected cell phone in this case.  The evidence tying the defendant to the stolen car was suppressed, which effectively ended this burglary case.  Had the police taken the simple steps to obtain the search warrant or if the phone was not protected by a password, the outcome likely would have been different for this defendant.