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After a jury trial, Defendant was convicted of robbery and possession of a firearm by a convicted felon. The trial court sentenced Defendant to fifty years' incarceration on the robbery conviction and fifteen years' incarceration on the possession conviction. Defendant appealed the denial of his motion to suppress the search of information stored within his cell phone incident to his arrest. The court of appeal affirmed the trial court's decision in the admissibility of images found on Defendant's cell phone but certified a question to the Supreme Court as a matter of great public importance. The Supreme Court quashed the decision of the court of appeal and remanded, holding (1) the holding in United States v. Robinson does not allow a police officer to search through photographs contained within a cell phone that is on an arrestee's person at the time of a valid arrest; and (2) while law enforcement officers properly separated and assumed possession of a cell phone from Defendant's person during the search incident to arrest, a warrant was required before the information, data, and content of the cell phone could be accessed and searched by law enforcement.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
CEDRIC TYRONE SMALLWOOD,
STATE OF FLORIDA,
[May 2, 2013]
This case is before the Court to review the decision of the First District
Court of Appeal in Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011). In its
decision, the district court ruled upon the following question and then certified the
question to be of great public importance:
DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414
U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), ALLOW A POLICE
OFFICER TO SEARCH THROUGH PHOTOGRAPHS
CONTAINED WITHIN A CELL PHONE WHICH IS ON AN
ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST,
NOTWITHSTANDING THAT THERE IS NO REASONABLE
BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF
Id. at 462. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
FACTS AND PROCEDURAL HISTORY
On January 24, 2008, a person armed with a gun robbed a convenience store
in Jacksonville, Florida. According to the store clerk, the robber wore gloves and a
mask that covered his mouth and nose. After entering the store, the robber jumped
over the counter and demanded money from the clerk. The robber removed
approximately $1000 to $1500 from a cabinet along with a cigar box that contained
$13,000 to $15,000, which was folded and secured with rubber bands. Finally, the
robber absconded with a thirty-eight caliber, black and silver handgun from the
After the robber left the store, the clerk called 911 and informed the
dispatcher that he knew who had just robbed the store because the robber was a
regular customer. The clerk testified that, during the robbery, the robber demanded
money at least fourteen times, and the clerk recognized his voice. The clerk
testified that he only knew the robber/customer by his nickname, which was
“Dooley.” The clerk stated that Dooley had visited the store daily for the past year
and a half, and that he had routinely talked with Dooley while Dooley purchased
goods. During a photo lineup and at trial, the clerk identified the defendant, Cedric
Tyrone Smallwood, as the man who had robbed his store, and the customer known
to him as Dooley.
On the day of the robbery, William Cook observed a man running from the
convenience store into a field and climbing over a six-foot fence which bordered a
park. Keith Seay, who was walking through the park, saw Dooley jump over the
fence. Seay and Dooley bumped fists when they passed each other as a means of
greeting, and Seay noticed that Dooley was wearing gloves. As Seay continued
walking, he turned around and saw that Dooley passed a trash can and was no
longer wearing the gloves. Seay identified Dooley as Cedric Tyrone Smallwood
from a photo lineup and at trial. The police later removed gloves from the trash
can observed by Seay. Testing of the gloves revealed the DNA of more than one
individual; however, Cedric Tyrone Smallwood could not be excluded as a
contributor to the DNA mixture found in either glove.
Officer Ike Brown responded to the robbery scene. Brown recognized the
name Dooley, but did not know the actual name of the suspect. Brown went to the
residence of Dooley and learned from Dooley’s mother that his real name is Cedric
Smallwood. One day after the robbery, an arrest warrant was issued for
Smallwood in connection with the convenience store robbery. On February 4,
2008, Officer Brown arrested Smallwood pursuant to the warrant. Although
Officer Brown also seized Smallwood’s cell phone during the search incident to
the arrest, the arrest report signed by Officer Brown did not mention the phone or
the data that Officer Brown observed on the phone.
On March 10, 2009, more than a year after Smallwood’s arrest, and just
before the commencement of trial, 1 Officer Brown revealed to the prosecutor that
after he had seized Smallwood’s phone and separated Smallwood from the phone
by securing him in a police vehicle, Brown accessed and searched for data on the
phone. There is nothing in the record to suggest that Brown conducted this search
based upon a concern for officer safety or destruction of evidence. During the
search, Brown found and observed five digital images that appeared to be relevant
to the robbery. Before the prosecutor viewed the images on the phone, the
prosecutor informed defense counsel of these developments, and the prosecutor
then sought to obtain a search warrant to view the images. The relevant images,
and the dates they were taken, are:
(1) A black and silver handgun with a crucifix draped over it, dated January 28,
2008 (four days after the robbery);
(2) An image of hands with engagement rings, dated January 29, 2008 (five
days after the robbery);
(3) A black and silver handgun next to a fanned-out stack of money, dated
January 28, 2008 (four days after the robbery);
(4) A photo of Smallwood’s fiancée holding a bundle of money that is folded
and secured with a rubber band, dated January 25, 2008 (the day after the
(5) A photo of Smallwood holding a bundle of money that is folded and
secured with a rubber band, dated January 25, 2008 (the day after the robbery).
1. The record reflects that voir dire had concluded and a jury had been
selected. Due to Officer Brown’s delayed disclosure, defense counsel sought a
continuance, and dismissal of the original jury was necessary.
Defense counsel objected to admission of the photos found in the phone,
contending that although the State had obtained a search warrant before the
prosecutor utilized the photos, the State’s actions did not cure the illegality of the
initial search of Smallwood’s phone by Brown. The defense argued that
Smallwood had a reasonable expectation of privacy in the data and information
stored within his mini-computer cell phone, and the search-incident-to-arrest
exception to the warrant requirement did not apply because the search was not
conducted for the purpose of preserving evidence.
The trial court held that the search of the phone was legal, and defense
counsel subsequently filed a written motion to suppress the information and data in
the form of photo images obtained from the cell phone. During a hearing on the
motion, defense counsel reiterated that people have an expectation of privacy in
their technologically advanced phones, which are small electronic data sources,
and Officer Brown’s search of the cell phone, data, and images constituted an
invasion of that constitutional zone of privacy. The defense also contended that
cell phone data in the form of photo images are different from a call log on a cell
phone, and a lesser expectation of privacy may apply to information that is simply
call-log data. The State, while recognizing that a reasonable expectation of privacy
exists in a cell phone, countered by asserting that such data must be considered
more similar to a wallet or a closed container found on an arrestee’s person, which
police have been properly allowed to search incident to an arrest. The State
asserted that if Smallwood had actually printed the data in the form of photos and
was carrying them in his pocket at the time of the arrest, the legality of the search
that provided access to the photo images would not have been in dispute. The
State asserted that the presence of data and the photo images in a cell phone device
did not render the search any less legal.
The trial court denied the motion to suppress, specifically relying upon the
decision in New York v. Belton, 453 U.S. 454, 460-61 (1981), in which the United
States Supreme Court held, in the context of an automobile search incident to
arrest, that any containers, whether open or closed, within an arrestee’s reach may
be searched under the search-incident-to-arrest warrant exception. The court also
relied upon United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007), in which the
United States Circuit Court of Appeals for the Fifth Circuit upheld the validity of a
cell phone search incident to an arrest.
During trial, the defense renewed its objection to the admission of the data
from the device in the form of photo images, and relied upon the recent decision of
the United States Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009).
However, the trial court refused to even consider the recent case and the prior
ruling on the admissibility of the photos. During his trial testimony, Officer Brown
explained why he searched the cell phone and viewed the digital images on the cell
BROWN: I looked in the phone for two reasons. One, to see if
it was the same one he had been calling me from, and to see if, in fact,
did he have any pictures or anything that might be evidence to the
PROSECUTOR: In your training and experience with . . . the
Sheriff’s Office, is it unusual for a suspect, any suspect to take photos
or have videos of them that are of evidentiary value?
BROWN: No, it’s not unusual.
On April 23, 2009, a jury convicted Cedric Tyrone Smallwood of one count
of robbery and specifically found that Smallwood possessed a firearm during the
commission of the crime. The jury also convicted Smallwood of the crime of
possession of a firearm by a convicted felon. 2 The trial court sentenced
Smallwood to fifty years’ incarceration with a ten-year mandatory minimum on the
robbery conviction, and fifteen years’ incarceration with a three-year mandatory
minimum on the possession conviction, with the sentences to run consecutively.
On appeal, the First District Court of Appeal affirmed. See Smallwood, 61
So. 3d at 462. In its decision, the First District presented a comprehensive history
of the search-incident-to-arrest warrant exception in general, as well as decisional
law that would apply to searches of cell phones under this exception. See id. at
2. The parties stipulated that Smallwood was previously convicted of a
felony in 2004.
449-59. The First District recognized that there is no uniform view and noted that
such searches have been held both valid and invalid by various state and federal
courts. See id. at 453-59. In rejecting Smallwood’s Fourth Amendment challenge,
the district court relied upon United States v. Robinson, 414 U.S. 218 (1973), in
which the United States Supreme Court held that the search-incident-to-arrest
warrant exception permits a search and inspection of the contents of personal items
found on the arrestee, even if it is unlikely that the arrestee has a weapon or
evidence related to the crime on his person. See id. at 450, 459. The district court
[N]either Robinson nor Belton requires an item be a “container” in
order to be searchable upon arrest.
. . . Thus, whether or not a cell phone is properly characterized
as a traditional “container” is irrelevant to whether or not it is
searchable upon arrest. The Supreme Court has clearly and repeatedly
found that anything found on an arrestee or within an arrestee’s
immediate control may be searched and inspected upon arrest. There
is nothing in the language of . . . these cases that would permit this
court to find an exception for cell phones.
Id. at 459, 460.
In affirming the decision of the trial court, the First District rejected
Smallwood’s contention that cell phones warrant heightened constitutional
protection because of the nature and ability to store enormous amounts of
information and data, and instead concluded that there is “nothing in the language
of Robinson or its progeny that would permit this court to limit a search incident to
arrest in this manner.” Id. at 461. Despite affirming the trial court decision on the
admissibility of the cell phone images, the First District expressed great concern
about its ruling:
The bright-line rule established by Robinson may have been prudent
at the time, given the finite amount of personal information an arrestee
could carry on his or her person or within his or her reach. However,
the Robinson court could not have contemplated the nearly infinite
wealth of personal information cell phones and other similar
electronic devices can hold. Modern cell phones can contain as much
memory as a personal computer and could conceivably contain the
entirety of one’s personal photograph collection, home videos, music
library, and reading library, as well as calendars, medical information,
banking records, instant messaging, text messages, voicemail, call
logs, and GPS history. Cell phones are also capable of accessing the
internet and are, therefore, capable of accessing information beyond
what is stored on the phone’s physical memory. For example, cell
phones may also contain web browsing history, emails from work and
personal accounts, and applications for accessing Facebook and other
social networking sites. Essentially, cell phones can make the entirety
of one’s personal life available for perusing by an officer every time
someone is arrested for any offense. It seems this result could not
have been contemplated or intended by the Robinson court.
Id. In light of these concerns, the First District certified a question to this Court as
one addressing a matter of great public importance. See id. at 462.
We commence our review by noting a longstanding tenet of United States
Supreme Court precedent with regard to the Fourth Amendment:
[T]he most basic constitutional rule in this area is that “searches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-9-
delineated exceptions.” The exceptions are “jealously and carefully
drawn,” and there must be “a showing by those who seek exemption .
. . that the exigencies of the situation made that course imperative.”
“[T]he burden is on those seeking the exemption to show the need for
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (emphasis supplied)
(footnotes omitted). 3
The Fourth Amendment to the United States Constitution and section 12 of
Florida’s Declaration of Rights both guarantee citizens the right to be free from
unreasonable searches and seizures. The search and seizure provision of the
Florida Constitution contains a conformity clause articulating the extent to which
Florida courts are bound by federal interpretations of the Fourth Amendment.
Article I, section 12, of the Florida Constitution provides, in full:
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, and against the
unreasonable interception of private communications by any means,
3. Neither party contests that the search of Smallwood qualified as a
“search” under the Fourth Amendment. The United States Supreme Court has
articulated two standards for determining when a Fourth Amendment search has
occurred: (1) whether there has been a physical trespass or intrusion upon private
property, and (2) whether the person searched had a reasonable expectation of
privacy in the area searched by government officials. See United States v. Jones,
132 S. Ct. 945, 949-50 (2012). We conclude that both rationales apply to the
search that occurred here. First, Officer Brown physically touched Smallwood’s
body and the electronic equipment that was in contact with his body
(unquestionably private property) during the search. Second, Smallwood
possessed a “legitimate expectation of privacy” in his person and his personal
electronic equipment, which was invaded when Officer Brown conducted the
search incident to arrest.
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shall not be violated. No warrant shall be issued except upon
probable cause, supported by affidavit, particularly describing the
place or places to be searched, the person or persons, thing or things
to be seized, the communication to be intercepted, and the nature of
evidence to be obtained. This right shall be construed in conformity
with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court. Articles or
information obtained in violation of this right shall not be admissible
in evidence if such articles or information would be inadmissible
under decisions of the United States Supreme Court construing the 4th
Amendment to the United States Constitution.
Article I, section 12, only references decisions of the United States Supreme
Court; therefore, the conformity clause does not apply with regard to decisions of
other federal courts. See State v. Daniel, 665 So. 2d 1040, 1047 n.10 (Fla. 1995),
receded from on other grounds, Holland v. State, 696 So. 2d 757, 760 (Fla. 1997).
In Daniel, this Court explained that “[a]ny Supreme Court pronouncement
factually and legally on point with the present case [will] automatically modify the
law of Florida to the extent of any inconsistency.” 665 So. 2d at 1047 n.10
At issue in this case is whether the decision in Robinson is both factually
and legally on point with the circumstances of the instant case and whether it is
controlling. For the reasons discussed below, we conclude that Robinson is neither
factually nor legally on point. Accordingly, we hold that the conformity clause
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does not require Florida courts to apply the holding of Robinson to the search of
the electronic device cell phone incident to an arrest.
United States v. Robinson and the Conformity Clause
In Robinson, a police officer stopped the vehicle that the respondent,
Robinson, was driving based on a belief that Robinson’s license had been revoked.
See 414 U.S. at 220. After Robinson exited the vehicle, the officer arrested him
for operating a vehicle after license revocation. See id. During the search of
Robinson, the officer felt an object in the breast pocket of Robinson’s coat. See id.
at 221-23. The officer removed the item, which was revealed to be a crumpled
cigarette package. See id. at 223. The officer looked inside the package and
discovered gelatin capsules of heroin. See id. Robinson was subsequently
convicted of drug charges. See id. at 219, 223. The United States Supreme Court
held that the officer’s warrantless search of Robinson did not violate the Fourth
Amendment. See id. at 224. In reaching this conclusion, the Supreme Court
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his escape. . . .
In addition, it is entirely reasonable for the arresting officer to search
for and seize any evidence on the arrestee’s person in order to prevent
its concealment or destruction.
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Id. at 226 (quoting Chimel v. California, 395 U.S. 752, 762-63 (1969)). The Court
further noted that there was no need to evaluate in each individual case whether
one of the two purposes for the warrantless search incident to arrest was present:
A police officer’s determination as to how and where to search the
person of a suspect whom he has arrested is necessarily a quick ad hoc
judgment which the Fourth Amendment does not require to be broken
down in each instance into an analysis of each step in the search. The
authority to search the person incident to a lawful custodial arrest,
while based upon the need to disarm and to discover evidence, does
not depend on what a court may later decide was the probability in a
particular arrest situation that weapons or evidence would in fact be
found upon the person of the suspect. A custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to the arrest
requires no additional justification. It is the fact of the lawful arrest
which establishes the authority to search, and we hold that in the case
of a lawful custodial arrest a full search of the person is not only an
exception to the warrant requirement of the Fourth Amendment, but is
also a “reasonable” search under that Amendment.
. . . Since it is the fact of custodial arrest which gives rise to the
authority to search, it is of no moment that [the officer] did not
indicate any subjective fear of [Robinson] or that he did not himself
suspect that [Robinson] was armed. Having in the course of a lawful
search come upon the crumpled package of cigarettes, he was entitled
to inspect it; and when his inspection revealed the heroin capsules, he
was entitled to seize them as “fruits, instrumentalities, or contraband”
probative of criminal conduct.
Id. at 235-36 (emphasis supplied) (footnotes omitted).
Although Robinson discusses the search-incident-to-arrest exception to the
warrant requirement, that case clearly did not involve the search of a modern
electronic device and the extensive information and data held in a cell phone.
When Robinson was decided, hand-held portable electronic devices in the form of
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cell phones containing information and data were not in common and broad use.
Further, in recent years, the capabilities of these small electronic devices have
expanded to the extent that most types are now interactive, computer-like devices.
Vast amounts of private, personal information can be stored and accessed in or
through these small electronic devices, including not just phone numbers and call
history, but also photos, videos, bank records, medical information, daily planners,
and even correspondence between individuals through applications such as
Facebook and Twitter. The most private and secret personal information and data
is contained in or accessed through small portable electronic devices and, indeed,
many people now store documents on their equipment that also operates as a phone
that, twenty years ago, were stored and located only in home offices, in safes, or on
Moreover, as noted by the United States Court of Appeals for the Seventh
Circuit, a search of an electronic device that operates as a cell phone incident to an
arrest could evolve into a search of the interior of an arrestee’s home depending on
the technological capabilities of the particular piece of equipment:
Judges are becoming aware that a computer (and remember that a
modern cell phone is a computer) is not just another purse or address
book. “[A]nalogizing computers to other physical objects when
applying Fourth Amendment law is not an exact fit because computers
hold so much personal and sensitive information touching on many
private aspects of life . . . . [T]here is a far greater potential for the
‘inter-mingling’ of documents and a consequent invasion of privacy
when police execute a search for evidence on a computer.” United
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States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United
States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v.
Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v.
Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir.
2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009).
An iPhone application called iCam allows you to access your home
computer’s webcam so that you can survey the inside of your home
while you’re a thousand miles away. “iCam—Webcam Video
Streaming,” http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012). At the touch
of a button a cell phone search becomes a house search, and that is not
a search of a “container” in any normal sense of that word, though a
house contains data.
United States v. Flores-Lopez, 670 F.3d 803, 805-06 (7th Cir. 2012) (emphasis
Thus, we agree and conclude that the electronic devices that operate as cell
phones of today are materially distinguishable from the static, limited-capacity
cigarette packet in Robinson, not only in the ability to hold, import, and export
private information, but by the very personal and vast nature of the information
that may be stored on them or accessed through the electronic devices. Consistent
with this conclusion, we hold that the decision of the United States Supreme Court
in Robinson, which governed the search of a static, non-interactive container,
cannot be deemed analogous to the search of a modern electronic device cell
The dissent disagrees with this determination and instead contends that the
search of Smallwood’s cell phone was authorized under Robinson. To reach this
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conclusion, the dissent essentially analogizes a static, inert package of cigarettes to
an interactive, computer-like, handheld device that may not only store, but also
remotely access, vast quantities of highly personalized and private information. In
our view, attempting to correlate a crumpled package of cigarettes to the cell
phones of today is like comparing a one-cell organism to a human being. The two
objects are patently incomparable because of the obvious and expansive
differences between them.
The bases upon which the dissent relies to disagree with our conclusion that
Robinson is distinguishable from the issue we address today are highly dubious.
The dissent posits “[t]here is no suggestion here that the police used Mr.
Smallwood’s phone to access any remotely stored data.” Dissent at 36. However,
there is no evidence in the record to suggest that the invasion was limited within
Smallwood’s phone. It is undisputed that the police did access stored data. Officer
Brown did not discuss other information, but this does not mean that the five
incriminating photographs were the only items that he viewed on the phone. 4 The
dissent suggests that the motion to suppress was limited in scope as though that
was the standard applicable. Although this case may involve limited material, the
4. During a pretrial hearing, the assistant state attorney revealed that at least
thirty-eight digital photographs existed on Smallwood’s cellular phone. There is
no indication as to the nature of the thirty-three additional images that Smallwood
stored on his personal cellular phone, nor is it clear that Officer Brown limited his
search which finally produced incriminating photographs.
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scope of the search was not limited. Other personal, private data not related to the
specific charges here, regardless of how the material was stored, may not be
relevant to these pending criminal charges against Smallwood, but were searched
without limitation. There would be no reason for Smallwood to move for
suppression of any private data or information not relevant to the charges in this
The dissent further asserts that although “the quantity of information on a
cell phone may be greater than the quantity of information contained in other items
on the person of an arrestee, there is no reason to believe that the character of the
cell phone information is necessarily of a more sensitive nature than is the
information contained in other types of items that may be found on an arrestee's
person.” Dissent at 37. This statement defies logic and common sense in this
digital and technological age. At this time, we cannot ignore that a significant
portion of our population relies upon cell phones for email communications, textmessage information, scheduling, and banking. Indeed, even justices on this Court
routinely use cellular phones to access Court email accounts, and highly
confidential communications are received daily on these electronic devices. For
the dissent to contend that a cellular phone does not carry information of a
different “character” than other types of personal items an individual may carry on
his or her person is to ignore the plainly (and painfully) obvious. The cell phones
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of today have a greater capacity not just in the quantity of information stored, but
also in the quality of information stored.
Accordingly, we conclude that the conformity clause does not require
Florida courts to apply Robinson to determine whether a search warrant must be
obtained before law enforcement may inspect the contents of a cell phone. 5
The Search-Incident-to-Arrest Warrant Exception and
the Search of Smallwood’s Cell Phone
Although the specific facts of Robinson do not control the outcome of the
issue presented by this case, United States Supreme Court precedent with regard to
the search-incident-to-arrest warrant exception in general nonetheless must guide
our analysis. See art. I, § 12, Fla. Const. In Chimel v. California, 395 U.S. 752
(1969), the United States Supreme Court approved the warrantless search of an
5. Consistent with our conclusion today, a number of state and federal
courts have recognized that the Supreme Court has never addressed the specific
issue of whether law enforcement officers may conduct a warrantless search of the
data on a cell phone as part of a search incident to a valid arrest. See, e.g., United
States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009); United States v. Deans,
549 F. Supp. 2d 1085, 1094 (D. Minn. 2008); United States v. Park, 2007 WL
1521573 at *7 (N.D. Cal. 2007); State v. Smith, 920 N.E.2d 949, 952 (Ohio 2009);
see also United States v. Allen, 416 Fed. Appx. 21, 27 (11th Cir. 2011)
(unpublished). Despite this gap in precedent, the Supreme Court has nonetheless
denied certiorari review in cases that have reached diametrically opposite
conclusions. Compare Ohio v. Smith, 131 S. Ct. 102 (2010) (denying certiorari
review of case where the Ohio Supreme Court held that the warrantless search of a
cell phone seized from the defendant’s person incident to arrest violated the Fourth
Amendment) with Finley v. United States, 549 U.S. 1353 (2007) (denying
certiorari review of case where a federal appellate court held that the police
properly searched the contents of a cell phone seized from the defendant’s pocket
incident to his arrest).
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arrestee’s person incident to arrest, and any area into which the arrestee may reach,
and articulated two specific bases for this exception to the warrant requirement:
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer’s safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee’s
person in order to prevent its concealment or destruction.
Id. at 762-63. Since the decision in Chimel, the Supreme Court has referenced
officer safety and preservation of evidence as the specific justifications for the
search-incident-to-arrest warrant exception. See, e.g., Thornton v. United States,
541 U.S. 615, 620 (2004) (noting that the search-incident-to-arrest warrant
exception “was justified by the need to remove any weapon the arrestee might seek
to use to resist arrest or to escape, and the need to prevent the concealment or
destruction of evidence”). These same two specific rationales were applied to
allow searches of automobiles incident to arrest. See Belton, 453 U.S. at 460-61
(relying on the dual rationales announced in Chimel for the proposition that “when
a policeman has made a lawful custodial arrest of the occupants of an automobile,
he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile” (footnotes omitted)).
However, in 2009, the Supreme Court specifically limited the scope of
warrantless searches incident to arrest. In Arizona v. Gant, 556 U.S. 332 (2009),
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law enforcement officers arrested Gant for driving with a suspended license. See
id. at 335. After the police had placed Gant in handcuffs and separated him from
the automobile by securing him in a police car, two officers proceeded to search
Gant’s vehicle. See id. During the search, they discovered a bag of cocaine in the
pocket of a jacket located on the back seat of the vehicle. See id. at 336.
The United States Supreme Court held that the search of Gant’s vehicle
violated the Fourth Amendment. See id. at 344. The Court first noted that a search
incident to arrest only includes the arrestee’s person and the area within his
immediate control, i.e., the area into which he may reach to acquire a weapon or
destroy evidence. See id. at 339 (citing Chimel, 395 U.S. at 763). The Court then
concluded that “[i]f there is no possibility that an arrestee could reach into the area
that law enforcement officers seek to search, both justifications for the searchincident-to-arrest exception are absent and the rule does not apply.” Id. (emphasis
supplied). 6 The High Court held that because Gant had been separated from his
vehicle and was secured in a patrol car at the time of the search, the dual rationales
for the search-incident-to-arrest warrant exception were not present, and the
6. The Supreme Court made an additional finding with regard to the search
of an automobile incident to a suspect’s arrest: “[C]ircumstances unique to the
vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to
believe evidence relevant to the crime of arrest might be found in the vehicle.’ ”
Gant, 556 U.S. at 343 (quoting Thornton, 541 U.S. at 632). Since Smallwood was
not in a vehicle at the time he was arrested, this justification is not at issue here.
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officers were required to obtain a warrant before they could search the vehicle.
See id. at 335. The Supreme Court concluded that because the officers failed to
obtain a warrant, the search of Gant’s vehicle was unreasonable under the Fourth
Amendment. See id. at 351.
Gant demonstrates that while the search-incident-to-arrest warrant exception
is still clearly valid, once an arrestee is physically separated from an item or thing,
and thereby separated from any possible weapon or destructible evidence, the dual
rationales for this search exception no longer apply. Applying Supreme Court
precedent from Chimel and Gant to the instant case, we conclude that Officer
Brown unquestionably was authorized to take physical possession of Smallwood’s
electronic device used as a phone as part of the search incident to the arrest
because the device was present on Smallwood’s body. See Chimel, 395 U.S. at
762-63. However, once the electronic, computer-like device was removed from
Smallwood’s person, there was no possibility that Smallwood could use the device
as a weapon, nor could he have destroyed any evidence that may have existed on
the phone. Accordingly, neither the officer protection nor the evidence
preservation justification for the warrant exception applied. See Gant, 556 U.S. at
335. Thus, pursuant to Gant, Officer Brown was constitutionally required to obtain
a warrant before searching the contents of, and the data in, Smallwood’s electronic
device cell phone. See also Coolidge, 403 U.S. at 454-55 (noting that searches
- 21 -
without a warrant are per se unreasonable, and that exceptions to the warrant
requirement are “jealously and carefully drawn”) (quoting Jones v. United States,
357 U.S. 493, 499 (1958)). Because the State has not established that “the
exigencies of the situation made [the search of the electronic device] imperative,”
id. at 455 (quoting McDonald v. United States, 335 U.S. 451, 456 (1948)), we
conclude that this exception to the warrant requirement was not applicable, and the
search of Smallwood’s computer-like device violated the Fourth Amendment.
There is no evidence or hint of evidence that this particular phone could be used as
a weapon or that evidence could be destroyed remotely.
The dissent basically disregards Gant and its refinement of Fourth
Amendment Supreme Court decisional law when it asserts that a cell phone may be
searched without a warrant under the search-incident-to-arrest exception after the
phone has been removed from the person of the arrestee. While Robinson
authorized a “search [of] the person of the accused when legally arrested,” 414
U.S. at 225, Gant clarifies that once the arrestee is separated from any possible
weapons or evidence, the search-incident-to-arrest warrant exception no longer
applies. 556 U.S. at 335. Under such circumstances, a search of the phone is not a
search of the person incident to an arrest, but is an unauthorized search of highly
advanced technology which may contain extensive personal information. The
search-incident-to-arrest warrant exception is inapplicable here and once a cell
- 22 -
phone has been removed from the person of the arrestee, a warrant must be secured
pursuant to Gant before officers may conduct a search that complies with United
States Supreme Court precedent.
Other state and federal courts have reached similar conclusions. In State v.
Smith, 920 N.E.2d 949, 956 (Ohio 2009), cert. denied, 131 S. Ct. 102 (2010), the
Ohio Supreme Court held that the search of a cell phone incident to arrest is
unconstitutional when the search is unnecessary for the safety of law enforcement
officers and there are no exigent circumstances. In reaching its decision, the state
court first concluded that a cell phone is not the same as a “closed container” in
this context for Fourth Amendment purposes:
Objects falling under the banner of “closed container” have
traditionally been physical objects capable of holding other physical
objects. Indeed, the United States Supreme Court has stated that in
this situation, “container” means “any object capable of holding
another object.” New York v. Belton. . . . One such example is a
cigarette package containing drugs found in a person’s pocket, as in .
. . Robinson. . . .
We acknowledge that some federal courts have likened
electronic devices to closed containers. . . . Each of these cases,
however, fails to consider the Supreme Court’s definition of
“container” in Belton, which implies that the container must actually
have a physical object within it. Additionally, the pagers and
computer memo books of the early and mid 1990s bear little
resemblance to the cell phones of today. Even the more basic models
of modern cell phones are capable of storing a wealth of digitized
information wholly unlike any physical object found within a closed
container. We thus hold that a cell phone is not a closed container for
purposes of a Fourth Amendment analysis.
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Id. at 954 (citations omitted). The court then concluded that, given the ability of
modern cell phones to be the database for and provide access to tremendous
amounts of private data, they are entitled to a heightened expectation of privacy.
See id. at 955. Based on these conclusions, the Ohio Supreme Court ultimately
Once the cell phone is in police custody, the state has satisfied its
immediate interest in collecting and preserving evidence and can take
preventive steps to ensure that the data found on the phone are neither
lost nor erased. But because a person has a high expectation of
privacy in a cell phone’s contents, police must then obtain a warrant
before intruding into the phone’s contents.
Id. (emphasis supplied). We agree with and adopt the rationale of the Ohio
Similarly, in United States v. McGhee, 2009 WL 2424104 at *4 (D. Neb.
2009), a federal district court granted a motion to suppress evidence discovered on
a cell phone that was seized from the defendant’s person during a search incident
to the defendant’s arrest. In reaching its decision, the district court relied upon
Gant for the proposition that “ ‘[i]f there is no possibility that an arrestee could
reach into the area that law enforcement officers seek to search, both justifications
for the search-incident-to-arrest exception are absent and the rule does not apply.’ ”
Id. at *3 (quoting Gant, 556 U.S. at 339). The district court then explained:
[A]lthough McGhee had the cell phone within his immediate control,
the cell phone did not present a risk of harm to the officers.
Additionally, no evidence suggests the cell phone appeared to be or to
- 24 -
conceal contraband or other destructible evidence. Therefore, the
officers were not justified in conducting a warrantless search of
McGhee’s cell phone as incident to his arrest.
Finally, in United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007), the
United States District Court for the Northern District of California disagreed with
the holding of the United States Court of Appeals for the Fifth Circuit in United
States v. Finley, 477 F.3d 250 (5th Cir. 2007), that the information on a cell phone
may be permissibly searched under the search-incident-to-arrest warrant exception.
In Park, at some point after the arrest of the defendants, officers searched the data,
contents, and information on the defendants’ cell phones. See id. at *2-4. When
the defendants sought to suppress the evidence discovered as a result of those
searches, the government asserted, in pertinent part, that the warrantless searches
were proper as incident to the defendants’ arrests. See id. at *5. The district court
In support of its holding, the district court relied upon the decision of the
United States Supreme Court in Chadwick v. State, 433 U.S. 1 (1977), overruled
on other grounds, California v. Acevedo, 500 U.S. 565, (1991), which involved the
seizure of a footlocker incident to the defendants’ arrests. See Park, 2007 WL
1521573 at *8. In Chadwick, the Supreme Court concluded:
Once law enforcement officers have reduced luggage or other
personal property not immediately associated with the person of the
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arrestee to their exclusive control, and there is no longer any danger
that the arrestee might gain access to the property to seize a weapon or
destroy evidence, a search of that property is no longer an incident of
433 U.S. at 15 (emphasis supplied) (footnote omitted).
While the Fifth Circuit in Finley considered a cell phone to be a container on
the arrestee’s person, and therefore fully searchable incident to arrest pursuant to
the Supreme Court decisions in Robinson and Belton, the district court in Park held
that a cell phone should be considered only a possession within an arrestee’s
immediate control, akin to the footlocker in Chadwick. See Park, 2007 WL
1521573 at *7-8. The reason for the district court’s conclusion was that “modern
cellular phones have the capacity for storing immense amounts of private
information.” Id. at *8 (“Individuals can store highly personal information on their
cell phones, and can record their most private thoughts and conversations on their
cell phones through email and text, voice and instant messages.”). The district
court then concluded:
The searches at issue here go far beyond the original rationales
for searches incident to arrest, which were to remove weapons to
ensure the safety of officers and bystanders, and the need to prevent
concealment or destruction of evidence. . . . Officers did not search
the phones out of a concern for officer safety, or to prevent the
concealment or destruction of evidence. Instead, the purpose was
purely investigatory. Once the officers lawfully seized defendants’
cellular phones, officers could have sought a warrant to search the
contents of the cellular phones.
Id. at *8 (footnote omitted).
- 26 -
Without specific guidance from the United States Supreme Court or the
United States Court of Appeals for the Ninth Circuit, the district court in Park was
“unwilling to further extend this doctrine to authorize the warrantless search of the
contents of a cellular phone—and to effectively permit the warrantless search of a
wide range of electronic storage devices—as a ‘search incident to arrest.’ ” Id. at
*9. In 2012, the same federal court again rejected the validity of cell phone
searches that the government contended were permissible under the searchincident-to-arrest warrant exception. See United States v. Gibson, 2012 WL
1123146 at *9-10 (N.D. Cal. 2012) (“The subsequent search and data retrieval of
information contained on the cell phones found on defendant's person appear to go
far beyond the purpose underlying the rationales in support of warrantless searches
incident to arrest.”).
We recognize that some other state and federal courts have elected to follow
Finley and its progeny. However, as previously noted, the United States Supreme
Court has not addressed the constitutionality of cell phone searches under the
search-incident-to-arrest warrant exception. Where the Supreme Court has not
resolved a legal issue under the Fourth Amendment, differing positions by state
and federal courts are not only common, but are to be expected. A court presented
with the disputed matter may adopt the rationale of the court or courts it finds to be
most legally and logically persuasive. While the dissent commences by
- 27 -
referencing four federal decisions that permit the search of a cell phone without a
warrant under the search-incident-to-arrest exception, the fact remains that both
state and federal courts have held in a manner that is consistent with our decision
today. We have carefully reviewed and considered the decisional law that
addresses this unresolved Fourth Amendment issue, and we conclude that the line
of cases requiring law enforcement to obtain a search warrant before accessing the
data, information, and content of an electronic device cell phone that is removed
from a defendant at the time of arrest is, quite simply, more persuasive.
In our view, allowing law enforcement to search an arrestee’s cell phone
without a warrant is akin to providing law enforcement with a key to access the
home of the arrestee. Physically entering the arrestee’s home office without a
search warrant to look in his file cabinets or desk, or remotely accessing his bank
accounts and medical records without a search warrant through an electronic cell
phone, is essentially the same for many people in today’s technologically advanced
society. We refuse to authorize government intrusion into the most private and
personal details of an arrestee’s life without a search warrant simply because the
cellular phone device which stores that information is small enough to be carried
on one’s person. Accordingly, we decline to adopt the contrary positions of the
decisions relied upon by the dissent.
- 28 -
Although the State contends that a good faith exception should apply to
Officer Brown’s improper search, and relies upon the decision of the United States
Supreme Court in Davis v. United States, 131 S. Ct. 2419 (2011), in support of this
assertion, we disagree. In Davis, the United States Supreme Court held that the
exclusionary rule did not apply to evidence discovered as a result of an automobile
search incident to arrest conducted before the Supreme Court issued its decision in
Gant. See id. at 2429. In reaching this holding, the Supreme Court noted that
since 1981, lower courts had relied on the Supreme Court’s decision in Belton to
“establish a bright-line rule authorizing the search of a vehicle’s passenger
compartment incident to a recent occupant’s arrest.” Id. at 2428. Since the 2009
Gant decision significantly circumscribed the holding of Belton with regard to
searches of an automobile incident to an arrest, the Supreme Court concluded that
an officer who had reasonably relied upon, and executed a search that conformed
to, the holding in Belton should not be penalized for a change in the law that
occurred after the search in question. See id. at 2428-29.
Unlike the automobile search incident to arrest, for which the Belton Court
articulated what was considered to be a “simple, bright-line rule,” id. at 2424, there
is currently no United States Supreme Court precedent that addresses or expressly
permits a search of the data, information, and content of a cellular phone under the
search-incident-to-arrest warrant exception. As previously discussed, no bright-
- 29 -
line rule exists for law enforcement officers to rely upon with regard to searches
under these facts, unlike the automobile search in Davis. See also United States v.
Gomez, 807 F. Supp. 2d 1134, 1146 (S.D. Fla. 2011) (“The Eleventh Circuit has
not addressed the limitations (or lack thereof) accompanying the search incident to
arrest of a cell phone.”). Accordingly, we hold that the good faith exception to the
exclusionary rule announced by the Supreme Court in Davis is not applicable here.
The State next contends that even if the photos from Smallwood’s cell phone
should not have been admitted during trial, any error by the trial court is harmless.
The erroneous admission of evidence obtained from an improper search is subject
to a harmless error analysis. See, e.g., Evans v. State, 989 So. 2d 1219, 1223 (Fla.
5th DCA 2008); Felix v. State, 566 So. 2d 342, 343 (Fla. 2d DCA 1990). “The
harmless error test . . . places the burden on the state, as the beneficiary of the
error, to prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict or, alternatively stated, that there is no reasonable
possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.
2d 1129, 1135 (Fla. 1986). Here, while there may be evidence to demonstrate that
Smallwood robbed the Jacksonville convenience store on January 24, 2008,
including witness identifications, this is not the standard for review as to whether
harmless error occurred. As we explained in DiGuilio in 1986:
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[H]armless error analysis must not become a device whereby the
appellate court substitutes itself for the jury, examines the permissible
evidence, excludes the impermissible evidence, and determines that
the evidence of guilt is sufficient or even overwhelming based on the
permissible evidence. . . .
Overwhelming evidence of guilt does not negate the fact that an
error that constituted a substantial part of the prosecution’s case
may have played a substantial part in the jury’s deliberation and
thus contributed to the actual verdict reached, for the jury may
have reached its verdict because of the error without
considering other reasons untainted by error that would have
supported the same result.
. . . The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more probable
than not, a clear and convincing, or even an overwhelming evidence
test. Harmless error is not a device for the appellate court to substitute
itself for the trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact. The question is
whether there is a reasonable possibility that the error affected the
verdict. The burden to show the error was harmless must remain on
the state. If the appellate court cannot say beyond a reasonable doubt
that the error did not affect the verdict, then the error is by definition
Id. at 1136, 1139 (emphasis supplied) (quoting People v. Ross, 429 P.2d 606, 621
(1967) (Traynor, C.J., dissenting), rev’d, 391 U.S. 470 (1968)).
Under the standard articulated in DiGuilio, we conclude that the admission
of the images from Smallwood’s cell phone cannot be deemed harmless error.
These photos depicted a weapon that resembled the gun stolen from the
convenience store, as well as Smallwood and his fiancée posing with money
packaged in the manner described by the convenience store clerk, i.e., folded and
- 31 -
secured with rubber bands. It is indisputable that such pictures played a role in
Smallwood’s conviction. In fact, the trial court stated during sentencing: “The one
surprising thing to me, quite frankly, in the case is what took the jury so long to
come back with a conviction when it was pretty clear to me from the photos.”
(Emphasis supplied.) Thus, even the trial court was of the view that the photos
were powerful evidence of Smallwood’s guilt. Despite the presence of evidence of
guilt, we have no choice but to hold that Smallwood is entitled to a new trial
because there is no reasonable possibility that the improperly admitted photos did
not contribute to his conviction. See DiGuilio, 491 So. 2d at 1135.
For the above-stated reasons, we answer the certified question in the
negative. We further hold that, while law enforcement officers properly separated
and assumed possession of a cell phone from Smallwood’s person during the
search incident to arrest, a warrant was required before the information, data, and
content of the cell phone could be accessed and searched by law enforcement.
Although the dissent asserts that our decision today has “the potential to
work much mischief in Fourth Amendment law,” this ominous prediction is
without support. Dissent at 35. Our decision actually protects the Fourth
Amendment and United States Supreme Court precedent by ensuring that the
exceptions to the warrant requirement remain “jealously and carefully drawn,” and
- 32 -
by mandating that there be “a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.” Coolidge, 403 U.S. at
455 (footnotes omitted). The position of the dissent, which would permit the
search here even though no issue existed with regard to officer safety or evidence
preservation, is both contrary to, and the antithesis of, the fundamental protections
against government intrusion guaranteed by the Fourth Amendment.
Moreover, although the dissent claims that our decision today is too broad
and “transform[s] the traditional understanding of the right of the police to inspect
items found on the person of an arrestee,” dissent at 37, this contention is simply
untrue. The First District Court of Appeal certified a question with regard to
searches of cell phones incident to an arrest after the phone has been separated
from the person arrested, and we have provided an answer with regard to such
searches under these facts. Our decision is narrowly limited to the legal question
and facts with which we were presented, and we are confident that law
enforcement will understand the limited scope of our holding.
In light of the foregoing, we quash the decision of the First District and
remand for further proceedings consistent with this opinion.
It is so ordered.
PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.
- 33 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
I would answer the certified question in the affirmative and approve the
decision of the First District Court.
Four of the federal circuit courts of appeals have addressed the issue we
consider in this case. And they all have concluded that a search of the contents of
a cell phone found on the person of an arrestee is within the proper scope of a
search incident to arrest under United States v. Robinson, 414 U.S. 218 (1973).
See United States v. Pineda-Areola, 372 Fed. Appx. 661, 663 (7th Cir. 2010)
(unpublished) (holding that “officers were entitled to search [defendant] and [his
mobile] phone incident to his lawful arrest”); United States v. Murphy, 552 F.3d
405, 411 (4th Cir. 2009) (recognizing prior holdings “that officers may retrieve
text messages and other information from cell phones and pagers seized incident to
an arrest” and rejecting defendant’s “argument that the government must ascertain
a cell phone’s storage capacity in order to justify a warrantless search of that phone
incident to arrest”); Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. 2009)
(unpublished) (holding that “the permissible scope of a search incident to arrest
includes the contents of a cell phone found on the arrestee’s person”); United
States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (holding that “the call
- 34 -
records and text messages retrieved from [defendant arrestee’s] cell phone” were
not subject to suppression).
The contrary view adopted by the majority here holds the potential to work
much mischief in Fourth Amendment law. The majority’s line of reasoning entails
the conclusion that “once an arrestee is physically separated from an item or thing”
found on the arrestee’s person at the time of arrest, the arrest provides no
justification for an inspection or search of that item or thing. Majority op. at 19.
This rationale is inconsistent with the very holding of Robinson, where the
Supreme Court approved the action of the officer who “opened the cigarette pack”
that had been removed from the defendant’s person because the officer “was
entitled to inspect it.” Robinson, 414 U.S. at 223, 236. The majority’s rationale
here collides with Robinson’s reliance on “the right on the part of the Government,
always recognized under English and American law, to search the person of the
accused when legally arrested to discover and seize the fruits or evidences of
crime.” Id. at 224-25 (quoting Weeks v. United States, 232 U.S. 383, 392
(1914)(emphasis added)). The Robinson Court recognized that although “the
permissible area beyond the person of the arrestee which such a search [incident to
arrest] may cover” had been a much disputed question, “no doubt has been
expressed as to the unqualified authority of the arresting authority to search the
person of the arrestee.” Id. at 225. The decision in Arizona v. Gant, 556 U.S. 332
- 35 -
(2009)—on which the majority here relies—is simply the most recent of the cases
defining “the permissible area beyond the person of the arrestee” encompassed by
a search incident to arrest. Robinson, 414 U.S. at 225. It does not alter the
controlling law that authorizes the police to conduct a search of the person of an
arrestee “to discover and seize the fruits or evidences of crime.” Id.
The majority reasons that Robinson is inapplicable here because there is no
analogy between the item at issue in Robinson and “an interactive computer-like
handheld device that may not only store, but also remotely access, vast quantities
of highly personalized and private information.” Majority op. at 16. Two
problems with this line of reasoning are immediately apparent. First, it
mischaracterizes what is at issue in this case. Second, it fails to adequately
recognize the invasive character of the traditional search incident to arrest of an
As to the first point, it is no doubt true that the status of devices through
which data can be remotely accessed presents a novel question. But that novel
question is not a question presented by this case. There is no suggestion here that
the police used Mr. Smallwood’s phone to access any remotely stored data.
Smallwood’s motion to suppress challenged the “accessing of the pictures
contained on the cell phone” and asserted an “expectation of privacy for the images
- 36 -
contained on his personal cell phone.” (Emphasis added.) No mention was made
of remotely stored images or other data.
Concerning the second point, it is unquestionable that individuals frequently
possess on their persons items with “highly personalized and private information”
other than cell phones or similar electronic devices. Items containing such
sensitive information found on the person of an arrestee are subject to inspection as
a consequence of the arrest. Although it is certainly true that the quantity of
information on a cell phone may be greater than the quantity of information
contained in other items on the person of an arrestee, there is no reason to believe
that the character of the cell phone information is necessarily of a more sensitive
nature than is the information contained in other types of items that may be found
on an arrestee’s person.
Of course, the majority here has not articulated a rule that deals specifically
with cell phones. The rationale it has stated sweeps much more broadly. The
majority refers to “the limited scope” of its holding but employs reasoning—based
on an expansive application of Gant—that is by no means limited in its scope.
Indeed, the consistent application of the majority’s reasoning would transform the
traditional understanding of the right of the police to inspect items found on the
person of an arrestee.
- 37 -
POLSTON, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
First District - Case No. 1D09-3469
Nancy Ann Daniels, Public Defender and Barbara J. Busharis, Assistant Public
Defender, Tallahassee, Florida,
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal
Appeals, and Christine Ann Guard, Assistant Attorney General, Tallahassee,
Sonya Rudenstine, Gainesville, Florida and Michael Robert Ufferman,
for Amicus Curiae Florida Association of Criminal Defense Lawyers
- 38 -