Smallwood v. State

• Decision Date: 29 April 2011
• Docket Number: No. 1D09–3469.,1D09–3469.
• Citation: 61 So.3d 448
• Parties: Cedric Tyrone SMALLWOOD, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

61 So.3d 448

Cedric Tyrone SMALLWOOD, Appellant,

v.STATE of Florida, Appellee.

No. 1D09–3469.

District Court of Appeal of Florida, First District.

April 29, 2011.

Nancy A. Daniels, Public Defender, and Barbara A. Busharis, Assistant Public Defender, Tallahassee, for Appellant.Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.WOLF, J.

Appellant challenges his convictions for armed robbery while in actual possession of a firearm and possession of a firearm by a convicted felon. He raises one issue on appeal: whether the trial court erred in denying his motion to suppress photographs discovered on his cell phone by the arresting officer incident to his arrest.

In the instant case, there is 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. We are, however, constrained to affirm the denial of the motion to suppress based on article I, section 12 of the Florida Constitution, which mandates we follow United States Supreme Court precedent in the area of search and seizure. Therefore, we are bound by the Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), in which the Court held containers found upon a person incident to arrest may be searched without “additional justification.” We are not unmindful, however, of the unique qualities of a cell phone which, like a computer, may contain a large amount of sensitive personal information. We, therefore, also certify a question of great public importance concerning whether the general rules announced in Robinson, 414 U.S. 218, 94 S.Ct. 467, regarding searches incident to arrest are applicable to information contained on a cell phone held on an arrestee's person.

Here, prior to trial, the State indicated it would attempt to introduce photographs discovered on appellant's cell phone by the arresting officer at the time of his arrest. 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. Appellant argued the search of the phone was invalid. He argued 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.

The trial court found the State was entitled to view the contents of the phone because the cell phone was legally confiscated at the time of appellant's arrest and was still in the possession of the State. The trial court analogized this case to finding a locked box on an arrestee's person or in an arrestee's car at the time of the arrest, which the State would be permitted to open.

Appellant subsequently filed a written motion to suppress, renewing his argument that the warrantless search of his phone and seizure of the photographs constituted a Fourth Amendment violation. The court conducted a hearing at which the parties reiterated their prior arguments. Additionally, appellant represented that he took the arresting officer's deposition, and he stated he looked at appellant's phone “to see if he took any pictures” that would “relate to the crime” because he “knew people sometimes do that.”

The trial court again found the photographs were admissible, relying on United States v. Finley, 477 F.3d 250 (5th Cir.2007), in which a federal court upheld the search of a defendant's cell phone seized incident to his arrest. It also relied on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the United States Supreme Court found police were permitted to open containers found in the passenger compartment of an arrestee's automobile, and analogized the cell phone to a closed container.

During the trial, the arresting officer testified he “looked in the phone for two reasons. One, to see if it was the same one he had been calling me from, and to see if, in fact, did he have any pictures or anything that might be evidence to the crime.” He testified he “found several photos in the phone, photos of [appellant] holding large amounts of cash, there was a gun, jewelry, stuff like that.” 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.

A discussion of the general law on searches incident to arrest and searches of cell phones is necessary for meaningful analysis of this issue.

a. Search and Seizure Incident to Arrest—General Precedent

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court defined an exception to the Fourth Amendment warrant requirement for searches conducted incident to arrest. The Chimel court reasoned pursuant to this exception:

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. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area ‘within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Id. at 763, 89 S.Ct. 2034 (emphasis added). The Chimel court found this exception to the warrant requirement did not, however, extend into the arrestee's entire house, or concealed areas in the room where the arrestee was arrested, because these were not areas into which the arrestee might reach. Id. Therefore, the Supreme Court found, officers' seizure of evidence during a search of the entirety of Chimel's home incident to his arrest, including drawers in his master bedroom, violated the Fourth Amendment. Id.

Subsequently in Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the Supreme Court found the scope of a search incident to arrest included searching for and inspecting the contents of personal effects found on an arrestee's person, even if it was not likely the arrestee would have a weapon or evidence related to the crime. In Robinson, an officer arrested the defendant for operating a motor vehicle with a revoked license and conducted a pat-down search. Id. at 220–23, 94 S.Ct. 467. The officer found a “crumpled up cigarette package” on his person that the officer opened and found contained heroin. Id. at 223, 94 S.Ct. 467. The Supreme Court concluded, “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them.” Id. at 236, 94 S.Ct. 467. The Court reiterated, “[t]he justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” Id. at 234, 94 S.Ct. 467 (emphasis added).

The Court rejected the defendant's argument that the officer should not have been permitted to conduct a full search because it was not likely someone arrested for driving with a license revoked would have a weapon or evidence of that crime on his person. Id. at 234–35, 94 S.Ct. 467. The Robinson court reasoned,

... our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant...