The Florida Supreme Court has held, in Smallwood v. Florida, that the search-incident-to arrest exception to the warrant requirement does not apply to a search of a cell phone found on an arrestee. The court cited the massive amounts of private data that can be found on a mobile device, and users’ heightened expectation of privacy in that data. Federal and state court decisions fall into two camps on this issue. Some courts (including four federal circuit courts) have upheld warrantless searches of an arrestee’s cell phone. Other courts (including one circuit court) have found them to be unconstitutional, reasoning that cell phones’ ability to store large amounts of private data entitles their users to a higher expectation of privacy. The Supreme Court has denied petitions of certiorari from decisions that fall into both camps. At some point, it will have to step in to resolve the split.
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Florida high court requires warrant for cell phone search
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