Smallwood v. State

• Decision Date: 02 May 2013
• Docket Number: No. SC11–1130.,SC11–1130.
• Citation: 113 So.3d 724
• Parties: Cedric Tyrone SMALLWOOD, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

113 So.3d 724

Cedric Tyrone SMALLWOOD, Petitioner,

v.STATE of Florida, Respondent.

No. SC11–1130.

Supreme Court of Florida.

May 2, 2013.

Nancy Ann Daniels, Public Defender and Barbara J. Busharis, Assistant Public Defender, Tallahassee, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, and Christine Ann Guard, Assistant Attorney General, Tallahassee, FL, for Respondent.

Sonya Rudenstine, Gainesville, FL and Michael Robert Ufferman, Tallahassee, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

LEWIS, J.

This case is before the Court to review the decision of the First District Court of Appeal in Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011). In its decision, the district court ruled upon the following question and then certified the question to be of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE'S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

Id. at 462. We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

The Robbery

On January 24, 2008, a person armed with a gun robbed a convenience store in Jacksonville, Florida. According to the store clerk, the robber wore gloves and a mask that covered his mouth and nose. After entering the store, the robber jumped over the counter and demanded money from the clerk. The robber removed approximately $1000 to $1500 from a cabinet along with a cigar box that contained $13,000 to $15,000, which was folded and secured with rubber bands. Finally, the robber absconded with a thirty-eight caliber, black and silver handgun from the store.

After the robber left the store, the clerk called 911 and informed the dispatcher that he knew who had just robbed the store because the robber was a regular customer. The clerk testified that, during the robbery, the robber demanded money at least fourteen times, and the clerk recognized his voice. The clerk testified that he only knew the robber/customer by his nickname, which was “Dooley.” The clerk stated that Dooley had visited the store daily for the past year and a half, and that he had routinely talked with Dooley while Dooley purchased goods. During a photo lineup and at trial, the clerk identified the defendant, Cedric Tyrone Smallwood, as the man who had robbed his store, and the customer known to him as Dooley.

On the day of the robbery, William Cook observed a man running from the convenience store into a field and climbing over a six-foot fence which bordered a park. Keith Seay, who was walking through the park, saw Dooley jump over the fence. Seay and Dooley bumped fists when they passed each other as a means of greeting, and Seay noticed that Dooley was wearing gloves. As Seay continued walking, he turned around and saw that Dooley passed a trash can and was no longer wearing the gloves. Seay identified Dooley as Cedric Tyrone Smallwood from a photo lineup and at trial. The police later removed gloves from the trash can observed by Seay. Testing of the gloves revealed the DNA of more than one individual; however, Cedric Tyrone Smallwood could not be excluded as a contributor to the DNA mixture found in either glove.

Officer Ike Brown responded to the robbery scene. Brown recognized the name Dooley, but did not know the actual name of the suspect. Brown went to the residence of Dooley and learned from Dooley's mother that his real name is Cedric Smallwood. One day after the robbery, an arrest warrant was issued for Smallwood in connection with the convenience store robbery. On February 4, 2008, Officer Brown arrested Smallwood pursuant to the warrant. Although Officer Brown also seized Smallwood's cell phone during the search incident to the arrest, the arrest report signed by Officer Brown did not mention the phone or the data that Officer Brown observed on the phone.

Pretrial Proceedings

On March 10, 2009, more than a year after Smallwood's arrest, and just before the commencement of trial,¹ Officer Brown revealed to the prosecutor that after he had seized Smallwood's phone and separated Smallwood from the phone by securing him in a police vehicle, Brown accessed and searched for data on the phone. There is nothing in the record to suggest that Brown conducted this search based upon a concern for officer safety or destruction of evidence. During the search, Brown found and observed five digital images that appeared to be relevant to the robbery. Before the prosecutor viewed the images on the phone, the prosecutor informed defense counsel of these developments, and the prosecutor then sought to obtain a search warrant to view the images. The relevant images, and the dates they were taken, are:

(1) A black and silver handgun with a crucifix draped over it, dated January 28, 2008 (four days after the robbery);

(2) An image of hands with engagement rings, dated January 29, 2008 (five days after the robbery);

(3) A black and silver handgun next to a fanned-out stack of money, dated January 28, 2008 (four days after the robbery);

(4) A photo of Smallwood's fiancée holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery); and

(5) A photo of Smallwood holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery).

Defense counsel objected to admission of the photos found in the phone, contending that although the State had obtained a search warrant before the prosecutor utilized the photos, the State's actions did not cure the illegality of the initial search of Smallwood's phone by Brown. The defense argued that Smallwood had a reasonable expectation of privacy in the data and information stored within his mini-computer cell phone, and the search-incident-to-arrest exception to the warrant requirement did not apply because the search was not conducted for the purpose of preserving evidence.

The trial court held that the search of the phone was legal, and defense counsel subsequently filed a written motion to suppress the information and data in the form of photo images obtained from the cell phone. During a hearing on the motion, defense counsel reiterated that people have an expectation of privacy in their technologically advanced phones, which are small electronic data sources, and Officer Brown's search of the cell phone, data, and images constituted an invasion of that constitutional zone of privacy. The defense also contended that cell phone data in the form of photo images are different from a call log on a cell phone, and a lesser expectation of privacy may apply to information that is simply call-log data. The State, while recognizing that a reasonable expectation of privacy exists in a cell phone, countered by asserting that such data must be considered more similar to a wallet or a closed container found on an arrestee's person, which police have been properly allowed to search incident to an arrest. The State asserted that if Smallwoodhad actually printed the data in the form of photos and was carrying them in his pocket at the time of the arrest, the legality of the search that provided access to the photo images would not have been in dispute. The State asserted that the presence of data and the photo images in a cell phone device did not render the search any less legal.

The trial court denied the motion to suppress, specifically relying upon the decision in New York v. Belton, 453 U.S. 454, 460–61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the United States Supreme Court held, in the context of an automobile search incident to arrest, that any containers, whether open or closed, within an arrestee's reach may be searched under the search-incident-to-arrest warrant exception. The court also relied upon United States v. Finley, 477 F.3d 250, 260 (5th Cir.2007), in which the United States Circuit Court of Appeals for the Fifth Circuit upheld the validity of a cell phone search incident to an arrest.

Trial Proceedings

During trial, the defense renewed its objection to the admission of the data from the device in the form of photo images, and relied upon the recent decision of the United States Supreme Court in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). However, the trial court refused to even consider the recent case and the prior ruling on the admissibility of the photos. During his trial testimony, Officer Brown explained why he searched the cell phone and viewed the digital images on the cell phone:

BROWN: I 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.

PROSECUTOR: In your training and experience with ... the Sheriff's Office, is it unusual for a suspect, any suspect to take photos or have videos of them that are of evidentiary value?

BROWN: No, it's not unusual.

On April 23, 2009, a jury convicted Cedric Tyrone Smallwood of one count of robbery and specifically found that Smallwood possessed a firearm during the commission of the crime. The jury also convicted Smallwood of the crime of possession of a firearm by a convicted felon.² The trial court sentenced Smallwood to fifty years' incarceration with a ten-year mandatory minimum on the robbery conviction, and fifteen years' incarceration with a three-year mandatory minimum on the possession conviction, with the sentences to run consecutively.

The Appeal

On appeal, the First District Court of Appeal affirmed. See Smallwood, 61 So.3d at 462. In its decision, the First District presented a comprehensive history of the search-incident-to-arrest warrant exception...