Florida holds that a cell phone cannot be searched incident to an arrest, rejecting Robinson on its facts because that involved searching a cigarette pack, not a computer. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). This is the minority rule, but it is clearly correct, if Gant has any meaning at all. Opinion below: Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011).
We commence our review by noting a longstanding tenet of United States Supreme Court precedent with regard to the Fourth Amendment:
[T]he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption … that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.”
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (emphasis supplied) (footnotes omitted).3
3 Neither party contests that the search of Smallwood qualified as a “search” under the Fourth Amendment. The United States Supreme Court has articulated two standards for determining when a Fourth Amendment search has occurred: (1) whether there has been a physical trespass or intrusion upon private property, and (2) whether the person searched had a reasonable expectation of privacy in the area searched by government officials. See United States v. Jones, 132 S. Ct. 945, 949-50 (2012). We conclude that both rationales apply to the search that occurred here. First, Officer Brown physically touched Smallwood’s body and the electronic equipment that was in contact with his body (unquestionably private property) during the search. Second, Smallwood possessed a “legitimate expectation of privacy” in his person and his personal electronic equipment, which was invaded when Officer Brown conducted the search incident to arrest.
. . .
Although Robinson discusses the search-incident-to-arrest exception to the warrant requirement, that case clearly did not involve the search of a modern electronic device and the extensive information and data held in a cell phone. When Robinson was decided, hand-held portable electronic devices in the form of cell phones containing information and data were not in common and broad use. Further, in recent years, the capabilities of these small electronic devices have expanded to the extent that most types are now interactive, computer-like devices. Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter. The most private and secret personal information and data is contained in or accessed through small portable electronic devices and, indeed, many people now store documents on their equipment that also operates as a phone that, twenty years ago, were stored and located only in home offices, in safes, or on home computers.
Moreover, as noted by the United States Court of Appeals for the Seventh Circuit, a search of an electronic device that operates as a cell phone incident to an arrest could evolve into a search of the interior of an arrestee’s home depending on the technological capabilities of the particular piece of equipment:
Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life …. [T]here is a far greater potential for the ‘inter-mingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. “iCam—Webcam Video Streaming,” http://itunes.apple.com/us/app/icam-webcam-video-streaming/id296273730?mt=8 (visited Feb. 6, 2012[]). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.
United States v. Flores-Lopez, 670 F.3d 803, 805-06 (7th Cir. 2012) (emphasis supplied).
Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.
The Search-Incident-to-Arrest Warrant Exception and the Search of Smallwood’s Cell Phone
Although the specific facts of Robinson do not control the outcome of the issue presented by this case, United States Supreme Court precedent with regard to the search-incident-to-arrest warrant exception in general nonetheless must guide our analysis. See art. I, § 12, Fla. Const. In Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court approved the warrantless search of an arrestee’s person incident to arrest, and any area into which the arrestee may reach, and articulated two specific bases for this exception to the warrant requirement:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.
Id. at 762-63. Since the decision in Chimel, the Supreme Court has referenced officer safety and preservation of evidence as the specific justifications for the search-incident-to-arrest warrant exception. See, e.g., Thornton v. United States, 541 U.S. 615, 620 (2004) (noting that the search-incident-to-arrest warrant exception “was justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence”). These same two specific rationales were applied to allow searches of automobiles incident to arrest. See Belton, 453 U.S. at 460-61 (relying on the dual rationales announced in Chimel for the proposition that “when a policeman has made a lawful custodial arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” (footnotes omitted)).
However, in 2009, the Supreme Court specifically limited the scope of warrantless searches incident to arrest. In Arizona v. Gant, 556 U.S. 332 (2009), law enforcement officers arrested Gant for driving with a suspended license. See id. at 335. After the police had placed Gant in handcuffs and separated him from the automobile by securing him in a police car, two officers proceeded to search Gant’s vehicle. See id. During the search, they discovered a bag of cocaine in the pocket of a jacket located on the back seat of the vehicle. See id. at 336.
