Key Takeaways
· If Florida Police arrest you, they will inevitably confiscate your cell phone and perhaps other digital devices.
· This raises the question of what rights police have to search your phone or other digital devices if they suspect you of a crime.
· Tallahassee criminal defense attorney Zach Ward notes that police generally need a Florida search warrant to access most digital data, though there are exceptions.
· While your text messages and other private information on digital devices are generally protected from warrantless searches, police can review your “public” social media feed.
If Tallahassee police arrest you for a criminal offense, they will undoubtedly confiscate your cellphone while you’re detained. Given the importance our cellphones and other digital devices represent in our day-to-day lives, this may cause you separation anxiety. You might also wonder whether the police have the right to search your phone, or if they would need a Florida search warrant to do so.
Having temporarily misplaced his cellphone—which is crucial to his day-to-day work and social life—Tallahassee criminal defense attorney Zach Ward understands separation anxiety in relation to cellphones. He also knows how federal and state laws restrict the police from searching people’s cellphones and other digital devices without a valid search warrant. He takes an aggressive approach whenever police conduct an unauthorized search of his criminal law practice client’s cellphones, helping strengthen their defenses by moving to get related evidence suppressed.
“Police are sometimes overzealous in their efforts to find evidence during criminal investigations,” Zach says. “Because they often believe that cell phones and other digital devices may hold a trove of evidence, they’re eager to review their contents. However, their rights to do so are limited.”
Zach goes on to explain that police generally need the owner’s consent or a Florida search warrant to review the contents of any digital device. “There’s an exception, though, in that if a cellphone happens to be unlocked during an arrest, police can view what’s currently displayed on the screen, be it texts or whatever. Their rights to do this, under what’s known as the ‘plain view doctrine,’ even allow them to scroll through and review the entire open thread. Of course, in their zeal to gather evidence, the police sometimes overstep the doctrine’s boundaries by opening other text messages or data.”
Let’s further explore what the law has to say about Florida search warrants in the digital age, with a focus on cellphones, texts, and social media.
Fourth Amendment Provides Overriding Principles for Legal Searches
The Fourth Amendment to the Constitution requires police to obtain a search warrant supported by probable cause, issued by a judge, to search private property. U.S. Supreme Court precedents have established that most digital data can be considered private property under the law. For example, the 2014 decision in Riley v. California, 573 U.S. 373, established that police generally require a warrant to search a cell phone due to the significant privacy interests inherent in digital data. The ruling allowed for warrantless searches in cases involving exigent circumstances, where there is an imminent threat of harm to someone that such a search could avert. Other court precedents established the previously mentioned plain view doctrine and allow for warrantless searches of “abandoned” phones in some cases.
Other Federal Laws Governing Digital Searches
The federal Stored Communications Act and Electronic Communications Privacy Act govern access to digital data, including social media data and text messages, stored by service providers. The Acts require police to obtain a warrant to access private digital content held by the providers, but allow them to access metadata with a subpoena or court order. A 2018 Supreme Court decision in Carpenter v. United States, 585 U.S., established that police need to obtain a search warrant to access cell phone location data.
Florida State Laws Guiding Digital Searches
Florida state laws guiding digital searches conform to federal regulations. Florida section 933 Statutes allow police to search and seize property, including electronic devices, with a warrant, provided they have probable cause that it’s connected to a crime. To demonstrate probable cause, police must provide a judge with specific facts showing a reasonable belief that evidence of a crime will be found on the device or within digital data. A 2015 Florida appeals court ruling in State v. K.C., 207 So. 3d 951, affirmed that warrants related to digital searches must specifically identify what data police need to access. This is designed to prevent police from engaging in “fishing expeditions” through all available data in search of a crime.
While Digital, Some Social Media Activity is Public
While your activity on social media is digital, your social media pages and posts are in the public domain, and thus open to police review without a Florida search warrant. However, the police cannot access social media accounts that have been set to private or private messaging on the platforms without a warrant, your consent, or if provided access by a third party—such as a “friend” or “follower”—consent.
Turn to Cowhey + Ward for Your Expert Criminal Defense in Tallahassee.
If you believe that Florida police have conducted an unauthorized warrantless search of your cellphone or other digital device, make sure you raise the issue with your criminal defense attorney. In Tallahassee, consult with Zach Ward of Cowhey + Ward Attorneys at Law if you’re facing criminal charges and haven’t yet contacted a criminal defense lawyer. For all of your criminal defense and family law needs in the Tallahassee area, contact Cowhey + Ward at (850) 222-1000.
FAQs: Florida Search Warrants for Digital Devices and Data
Q: Can police order criminal suspects or anyone they’ve arrested to unlock their digital devices?
A: In Florida, police generally cannot order someone to unlock their digital devices due to constitutional protections under the Fourth and Fifth Amendments.
Q: Can Florida police review my social media posts without a warrant?
A: Police do not need a warrant to review publicly posted social media posts, but generally require one to review social media accounts set to private, as well as privately sent messages and metadata.
Q: Can police search my entire phone with a Florida search warrant?
A: No, search warrants must be narrowly tailored to search for data linked to a distinct criminal act specifically.
Q: What details must be included in a Florida search warrant for digital devices or data?
A: Such warrants must specify three things:
· The device or digital account to be searched.
· The type of data sought (text messages, photos, Internet search history, etc.).
· The relevant criminal act(s) under police investigation.