In Florida, it is a general practice among police officers to search a person after that person has been lawfully arrested. While most searches require consent of the person being searched or a valid search warrant, one exception is the search incident to a lawful arrest. At a minimum, this exception allows the police to search a person once he/she has been arrested. This exception also generally allows the police to search a person’s belongings that he/she has on him/her at the time of the arrest. One of the primary reasons for a search incident to a valid arrest is that the police officer is preparing to place the suspect into his/her custody, drive him/her to the jail and then process him/her into the jail. Therefore, the police have a right to make sure the suspect does not have any weapons or anything else that might harm the officer or create a dangerous situation.
Over the years and as cell phones have become more and more prevalent, police officers expanded this exception to go through a person’s cell phone to look for incriminating evidence. As we all know, a cell phone is capable of storing all sorts of information about a person, his/her contacts and his/her activities including phone numbers, emails, text messages, photographs, and many other items. A cell phone could potentially bring all sorts of information to the police and be the basis for many new charges. Initially, courts were allowing these spontaneous searches by finding that police officers can search just about anything found on a person at the time of his/her arrest.
Fortunately, these warrantless searches were being challenged enough that some rational constitutional arguments started to win out. The Constitution provides that people have a right of privacy in their belongings. It is one thing to allow a police officer to search a person and his belongings after an arrest to make sure there are no safety issues. However, there clearly is not an immediate safety concern with the information stored on a cell phone. Ultimately, the courts seemed to recognize this and required the police to have consent or a search warrant to search a person’s cell phone in his/her possession upon arrest.
The Florida Supreme Court has also held that the police cannot search a person’s cell phone without a search warrant just by virtue of the fact that he/she has been arrested and has the phone with him/her. If the police could somehow show that the cell phone contained relevant evidence that was in danger of being destroyed if the police did not search it upon arrest, they would have an argument for such a search. However, absent that rare circumstance, the police in Florida will need consent or a search warrant to search a person’s cell phone before, during or after an arrest.