The Fourth Amendment of the U.S. Constitution protects citizens from illegal searches and seizures. In most situations, an officer needs a warrant to conduct a legal search. However, there are exceptions to this rule; for example, if an individual gives the officer permission to search his or her vehicle, then the officer does not need a warrant. Another exception is a search that is “incident to the arrest.”
An incident-to-the-arrest search only applies to the arrestee’s person and the area in his or her immediate control. But what happens when an arrestee is carrying a cell phone? Can officers search the phone without a warrant?
In the case Smallwood v. State, the Florida Supreme Court held that a warrantless search of an arrestee’s phone is comparable to a warrantless search of his or her home or office. The Florida Supreme Court referenced Arizona v. Gant, in which the Supreme Court limited the scope of warrantless incident-to-the-arrest searches to the arrestee’s person and the area in his or her immediate control.
So if your cell phone is on your person and you were arrested legally, the officer may be able to take physical possession of your phone incident to the arrest. However, once you are separated from the phone, law enforcement needs a warrant to search its contents and data. As a general rule, it may not be advisable to give them the password until you speak with a lawyer and is probably wise to make sure your device locks itself within a matter of minutes of last use.
If Florida police gather evidence in an illegal search, then it is not be admissible in court. This may be true if:
- The officer did not have a warrant to conduct the search, and you did not give permission;
- The evidence was not on your person or in your immediate control when you were arrested;
- Or the officer did not have reasonable suspicion to stop or detain you or probable cause to arrest you.
If you are facing charges for a drug crime or another criminal offense, contact Leader & Leader P.A. As your Fort Lauderdale criminal defense lawyer, Michael D. Leader will make himself available 24 hours a day, seven days a week. Call 954-523-2020 to schedule a free initial consultation.
Can an Officer Search My Car If He or She Smells Marijuana?
Yes. If an officer smells marijuana in your vehicle, he or she can search its interior and your person. This right was established in State v. Betz, 815 So. 2d 627 (Fla. 2002). Even if the officer does not uncover marijuana, he or she may uncover other evidence that leads to serious criminal charges.
If this happened to you, it is critical that you contact a criminal attorney immediately. Your lawyer will likely ask about:
- The number of officers who were present when the marijuana was allegedly smelled;
- The number of officers who claimed they smelled marijuana;
- And any people in the car who would testify that marijuana was not present.
- Whether any marijuana was actually found
- Whether they claim it was a burnt marijuana odor or fresh (and whether any other evidence supports the allegation)
Your criminal defense lawyer can investigate the history of the officer who smelled the marijuana. Does he or she have issues in his or her human resource file? Does he or she have issues with personnel? Sometimes these cases hinge on the credibility of the officer who smelled the marijuana, the arrestees, and witnesses.
If you were arrested for a drug-related offense in Florida, contact Leader & Leader P.A. Call 954-523-2020 today to schedule a free initial consultation with a Fort Lauderdale criminal defense lawyer.
