Opening Up Pandora’s Box: Cell Phone Searches Incident to Arrest

March 10, 2011

In January of 2011, the California Supreme Court in the case of California v. Gregory Diaz, held that a warrantless search incident to arrest of a defendant’s cell phone was valid. Mr. Diaz was the driver of a car in which a sale of Ecstasy occurred between another person and a police informant. He was arrested and his cellular phone was seized from his person and searched incident to a lawful arrest. The search incident to a lawful arrest exception has been traditionally “justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” Law enforcement found incriminating text messages made by Mr. Diaz which were used to convict him.

What impact will this case have here in Florida? Because of the pervasive use of cell phones and smartphones in the United States, California v. Diaz seems headed for a review by the U.S. Supreme Court. The Majority reasoned that the cell phone was immediately associated with the defendant’s person just as if law enforcement was searching a cigarette package. The Dissent argued among things, that the type of personal and business information stored in a smartphone or hand held computer “dwarfs that which can be carried on the person in a spatial container.” Until the U.S. Supreme Court addresses this matter, this case is persuasive authority in the state of Florida. Without a doubt, you will now see law enforcement seizing an arrested suspect’s cell phone as a matter of course. Imagine what type of incriminating information will be found. They will find incriminating text messages, Facebook posts, tweets, photographs, witness names, witness phone numbers, etc. The list will go on-and-on. All types of crimes will be impacted by this decision.

I invite you to share your thoughts on this case.


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