Many of us store our most intimate information on our mobile phones. Photos, videos, contact information and private messages can all be saved in a cell phone’s memory for easy access. In the hands of law enforcement, this data can provide compelling evidence to secure a conviction. If you have been arrested and charged with a crime it is common practice for the police to confiscate your phone, but whether they are entitled to access the data on it is now a matter of intense debate.
Like searching someone’s home or place of work, carrying out a search of someone’s personal phone when they have been arrested for a crime is forbidden without first getting a search warrant.
The matter has been highlighted by the recent ruling in the case of Cedric Smallwood v. State of Florida, who was arrested in January 2008 after he robbed a convenience store. Following Mr. Smallwood's arrest, his phone was seized by law enforcement officers. Incriminating pictures were found on the phone and these pictures were produced in court as evidence before the jury. Smallwood was sentenced to 65 years in jail for his offense and the pictures found on his phone were deemed to be highly influential in persuading the jury to find him guilty. The Florida Supreme Court ruled that the inappropriate seizing and searching of Smallwood’s phone has precluded him from having a fair trial. Despite the compelling evidence against him, Cedric Smallwood was entitled to a retrial with a new jury and only evidence properly gathered and submitted would be admissible.
In order to search a cell phone, a law enforcement officer must produce an affidavit to a judge and obtain a warrant. The judge can issue a search warrant if:
- There are grounds to believe that the phone may have been stolen; or
- It may have been used to commit a crime; or
- It contains evidence that a crime has been committed
If the court issues the warrant then the enforcement officers who applied for it are entitled to search the cellphone.
In practice this means that the police need to have strong grounds to suspect that the phone contains incriminating evidence and be able to demonstrate this belief to the judge.
If you have been arrested and your phone was seized and searched without an appropriate warrant, the impact on your case may be far-reaching. The Byrd Law Firm has successfully advised thousands of citizens accused of crimes and in many cases effectively challenging the admissibility of incriminating evidence was a vital factor in achieving a successful result.