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Criminal Investigation Search of Cell Phone

After over a decade of criminal law experience, one thing I have learned is that the police will try anything unless and until a court tells them different. Along these lines, most law enforcement (in my non-scientific opinion) would have told you a couple years ago that they get to search your cellular upon arrest for no reason other than you are arrested. The Constitution mentions papers and effects and not cellular telephones is a reasoning I actually heard.

Thankfully, earlier this year the United States Supreme Court held that a warrant is generally required before officers can search a cell phone even when a cell phone is seized incident to an arrest. The Florida Supreme Court held in 2011 that a warrantless search of a cell phone incident to a lawful arrest is not a proper search of a person incident to a lawful arrest in the absence of a reasonable belief that the cell phone contains evidence of a crime. This seems to allow a search if the officer can search if they reasonably think there is evidence on the phone.

This week the Third District Court of Appeal in applying the United States Supreme Court decision and a Florida Supreme Court decision from 2011 stated that because, there was no evidence that the cell phone was going to be used to endanger the officer or resist arrest, or that evidence contained in the cell phone was going to be destroyed the officers were required to obtain a warrant before they searched the contents of the cell phone. Apparently then if an officer can enunciate a reason like I thought he was going to remotely destroy the evidence of child pornography or the grow house operational manual, that could be upheld.

If this sounds confusing to you, it should. If you or a loved one has any criminal case resulting from any stop, seizure and search then call or fill out the form at the top of the page for a consultation.

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