Cell Phone Searches Not Allowed Without a Warrant

In today’s highly-mobile computing climate, our cell phones are just as likely to contain sensitive information – legally relevant and otherwise – as our home computers and file cabinets containing secured paper documents.  That our cell phones have now become a repository of critical personal information is a simple and unavoidable reality, and courts in every state have wrestled with the issue of how to regulate law enforcement access to such information.  Perhaps the most controversial issue is whether law enforcement should be able to access a cell phone without a warrant.

Criminal defendants are often not apprised of the full extent of their rights under the law.  Just because you were arrested by a law enforcement officer, it does not necessarily follow that a warrant was obtained.  If law enforcement accessed your cell phone after your arrest but before they obtained a search warrant, then you may be able to prevent the introduction of cell phone evidence in your case.

Fortunately for criminal defendants, with regard to the issue of warrantless access to cell phones, the Florida Supreme Court has come out in favor of privacy and against government intrusion.  Their accumulated decisions have limited the scope of law enforcement access to cell phones without a warrant.

So, what does Florida law say about warrantless cell phone searches, exactly?

Smallwood V. State – The End of Warrantless Cell Phone Searches

The decision of the Florida Supreme Court in Smallwood v. State (2013) established current state policy relating to warrantless cell phone searches.

In Smallwood v. State, the criminal defendant was arrested by law enforcement officers following a robbery.  After the arrest but before a search warrant had been issued, the officers accessed the defendant’s cell phone and found several photos that would almost certainly have incriminated the defendant were they to be introduced at trial.

The Florida Supreme Court in Smallwood deemed the warrantless search of a cell phone analogous to the warrantless search of the defendant’s home in that the cell phone was just as likely to contain sensitive personal data (i.e., financial and medical records, photographs, personal documentation, etc.).

The Court found that the only difference was that the personal information stored on the phone was in a portable format and therefore capable of being carried on the defendant’s person, but in effect, the data should be no less protected than if it had been stored in the defendant’s home.

Ultimately, the Court decided that in the state of Florida, law enforcement officers must obtain a search warrant to legally access the contents of the defendant’s cell phone.

Edge Cases

Florida case law has developed to the point where there is adequate guidance on edge cases that test the prohibition on warrantless cell phone searches.

Risk of Evidence Destruction

If there is a significant risk that law enforcement authorities will lose the data stored on the phone by waiting for a search warrant, Florida courts may allow access.  This is a very narrow exception, however, and there would have to be extenuating circumstances (i.e., the presence third-party with remote access to the phone contents and with full intention to wipe the data on the phone).

In most cases, possession of the cell phone by law enforcement is enough to demonstrate that there is no risk of losing the cell phone data contents.


Even if a defendant loses his or her cell phone, law enforcement may not access the phone contents absent some other exception.  Law enforcement must still obtain a search warrant.

Physical Possession Allowed

Law enforcement officers are empowered to take physical possession of the cell phone to prevent evidence destruction and to prevent the commission of a crime.  Though law enforcement officers may take physical possession of the defendant’s cell phone, they are not allowed to then search the phone contents without a properly-obtained warrant.

If you have been charged with a crime and law enforcement officers accessed the contents of your cell phone without a search warrant, you may be able to suppress the evidence obtained from your cell phone.  Call 941-404-8919 as soon as possible to speak with experienced Bradenton criminal defense attorneys today.

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