JEFFREY SCOTT FAWDRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2011-05-13
No. 1D10-0896
LEWIS, and ROBERTS, JJ., concur.
70 So. 3d 626 Florida District Court of Appeal, First District (2011) Caution
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jeffrey Fawdry appeals his conviction for possession of child sexual abuse material found on his cell phone, arguing the warrantless search of the phone violated the Fourth Amendment. The Florida First District Court of Appeal affirmed, holding that the search of a cell phone seized from a person during a lawful custodial arrest falls within the search incident to arrest exception and is permissible under Robinson v. United States.


Holding

The search of Fawdry's cell phone incident to his lawful arrest did not violate the Fourth Amendment. A cell phone may be analogized to a closed container under Robinson and Belton, and officers may search personal effects, including cell phones, found on a person during a lawful custodial arrest without additional justification.


Headnotes

[1] A warrantless search of a cell phone incident to a lawful arrest is permissible under the Fourth Amendment's search incident to arrest exception.

[2] A cell phone can be analogized to a closed container for Fourth Amendment purposes, allowing for its search incident to arrest.

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Key Quotes

“a search of a cell phone is more intrusive than the search of the contents of physical containers and that an individual has a heightened expectation of privacy as a result”

Summarizes arguments by courts like Ohio that distinguish cell phones from traditional containers

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Facts & Procedural History

Officer Fontenot went to Fawdry's home to serve an arrest warrant for sexual battery on a child. Upon arresting Fawdry, the officer searched his perso…

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Opinion of the Court
VAN NORTWICK, J.

VAN NORTWICK, J.

Jeffrey Fawdry appeals a judgment of conviction for five counts of possession of photographs which depicted sexual performance by a child in violation of section 827.071(5), Florida Statutes (2009), asserts ing that the trial court erred in denying his motion to suppress evidence seized from his cellular telephone. The photographs in question were stored in Fawdry’s cellular telephone and were discovered by police when his telephone was searched upon his arrest for other charges. Fawdry moved to suppress the photographs. After an evidentiary hearing, the trial court denied the motion to suppress. Fawdry thereafter entered a no contest plea, reserving the right to appeal the denial of his motion to suppress. Because we find that the search of Fawdry’s phone falls within the scope of the search incident to arrest exception to the Fourth Amendment’s warrant requirement, we affirm.

Evidence introduced at the suppression hearing revealed that on June 19, 2009, Jacksonville Sherriffs Officer Fontenot went to Fawdry’s home to serve an extra-jurisdictional arrest warrant for several counts of sexual battery on a child. At the home, Fontenot encountered Fawdry and several members of Fawdry’s family. After placing Fawdry under arrest, Fontenot proceeded to search Fawdry’s person. During the search, Fontenot discovered a wallet and a cell phone. When Fontenot came across the cell phone, he noticed that Fawdry became unusually nervous, according to the officer’s testimony. After Fon-tenot removed the cell phone from Faw-dry’s pocket, Fawdry repeatedly insisted that the phone be given to his sister. Based on prior instruction from his supervisors regarding the existence of firearms disguised as cell phones, Fontenot flipped open the cell phone to confirm that it was not a weapon. Upon opening the phone, Fontenot discovered that the so-called wallpaper behind the phone’s main menu was comprised of a photograph of an erotically-posed, prepubescent female. Recalling that Fawdry was being arrested on charges of sexual battery of a child, Fonte-not believed that further inquiry was warranted and proceeded to search the media files on the phone. This search revealed images of child pornography. Based upon these images, Fawdry was later charged by information with several counts of possession of a photograph which depicted sexual performance by a child. Fawdry then moved to suppress the fruits of the search of his cell phone.

*628In denying the motion to suppress, the trial court held that, given Fawdry’s reaction to the seizure of his cell phone, it was reasonable for Fontenot to open the phone. The trial court further held that, because of the nature of the image in the cell phone wallpaper and in light of the sexual offenses for which Fawdry was being arrested, it was reasonable for the officer to search through the data files on the phone.

A trial court’s ruling on a motion to suppress is reviewed with “great deference.” The trial court’s ruling is presumed to be correct, and the reviewing court interprets “the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997); Connor v. State, 803 So.2d 598, 605 (Fla.2001)). A trial court’s ruling on a motion to suppress presents “a mixed question of law and fact.” Cooks v. State, 28 So.3d 147, 149 (Fla. 1st DCA 2010) (citing Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009)). As such, it is reviewed on appeal “applying a two-step approach.” Brye, 927 So.2d at 80-81. “Deference is to be shown to the trial court on questions of historical fact, but de novo review of the application of a constitutional standard to the facts in a particular case is proper.” Id. at 81 (citing United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 696-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 605 (Fla.2001)).

In this case, Fawdry challenges the war-rantless search of his cell phone incident to his arrest pursuant to a lawful arrest warrant. The issue presented is whether the warrantless search of a cell phone exceeds the permissible scope of searches allowed under the search incident to arrest exception of the Fourth Amendment’s warrant requirement.

The permissible scope of a search incident to a lawful custodial arrest is limited to: 1) a search of the suspect’s person; and 2) a search of the area within the suspect’s immediate control. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Although the authority to conduct this search is justified by the need to protect officer safety and prevent the destruction of evidence of the suspect’s crime, the lawfulness of a warrantless search incident to a lawful arrest “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.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). Accordingly, a search of a suspect incident to a lawful arrest is a “ ‘reasonable’ search” under the Fourth Amendment, requiring “no additional justification.” Id. Further a lawful arrest allows an arresting officer to search personal effects, including open and closed containers,1 carried by the suspect.2 Savoie v. *629 State, 422 So.2d 308, 313-14 (Fla.1982) (citing United States v. Brown, 671 F.2d 585 (D.C.Cir.1982)). Such a search is permitted, not because a suspect has no privacy interests in his personal effects, but because a lawful custodial arrest justifies the infringement of any privacy interest a suspect may have in such effects. See New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).

The unique properties of modern cellular telephones, including their multi-func-tional capabilities and immense storage capacities, have led some courts to conclude that a search of a cell phone is more intrusive than the search of the contents of physical containers and that an individual has a heightened expectation of privacy as a result. See, e.g., State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 954-55 (2009). Other courts have come to a different conclusion, analogizing a cell phone to a closed container and permitting its search pursuant to the rule set forth in Belton. See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007).

The State urges us to adopt the reasoning of Finley. In Finley, the defendant was arrested on drug charges stemming from his involvement in a controlled purchase of narcotics. Incident to this arrest, Finley was searched and his cell phone was seized from his pocket. After he was taken into custody, the arresting officer transported Finley to the home of an accomplice where other officers were conducting a search pursuant to a warrant. Outside the home, Finley was questioned, and his cell phone was searched. Id. at 253-54.

On appeal before the Fifth Circuit, Finley argued that the evidence recovered during the search of his cell phone should have been suppressed. Id. at 258. In affirming the denial of Finley’s motion to suppress, the Fifth Circuit characterized a cell phone as a closed container. Id. at 260. Accordingly, like a pager or other container, the court concluded, on the authority of Robinson, 414 U.S. at 235, 94 S.Ct. 467, that a cell phone could be searched incident to arrest.3 Finley, 477 F.3d at 260.

Fawdry urges us to reject the conclusion of the Finley court and instead adopt the Ohio Supreme Court’s reasoning in Smith, which rejected the container analogy. See 920 N.E.2d at 953-54. While the Ohio court acknowledged federal court precedent “likenfing] electronic devices to closed containers!,]” it read the Belton container rule as implicitly requiring that a container have the capacity to store another physical object within it. Smith, 920 N.E.2d at 954. Further, the court distinguished modern cell phones from pagers and computer memo books, objects previously deemed indistinguishable from closed containers by federal courts, based upon the type of information capable of being stored therein. Id. The court concluded that, because of a modern cell phone’s capacity to store “a wealth of digitized information wholly unlike any physical object found within a closed container!,]” it could not be consid*630ered “a closed container for the purpose of a Fourth Amendment analysis.” Id.

We are unpersuaded by Smith. Although it may be true that a digital file itself is “wholly unlike any physical object found within a closed container,” the information found within it is likely no different than information found within a printed physical copy of a digital file. Indeed, before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers. Digital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form. Viewed in this light, the cell phone merely acts as a case (i.e. closed container) containing these personal effects. When in tangible form, the aforementioned personal effects could clearly be searched incident to arrest if found in a case carried on the suspect’s person or in a vehicle which the suspect occupied. See Savoie, 422 So.2d at 313-14; see also Robinson, 414 U.S. at 235-36. Accordingly, a search of a digital version of these personal effects would be similarly permissible. After all, it is the information itself in which a person’s privacy interests lie. See Finley, 477 F.3d at 259 (explaining that although the defendant’s employer owned the telephone, the defendant still “had a reasonable expectation of privacy in the call records and text messages on the cell phone”). Accordingly, a distinction based upon the manner in which that information is stored is unwarranted.

Fawdry further argues that, even if we analogize the cell phone to a container, the search in this case was still unlawful because, under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), searches of containers under Belton are limited to searches for evidence of the crime of arrest. We believe that this argument is misplaced. The Gant court did not recede from Belton, but rather corrected what it deemed to be an overly broad reading of that opinion by other courts. See Gant, 129 S.Ct. at 1718-19. Thus, the Gant court held that Belton does not justify the search of a vehicle where a suspect is secured and not able to reach the area of the car being searched. Id. at 1719. This limitation is not relevant in the case before us because a vehicle search did not occur. Here, Fawdry was arrested at his home, his cell phone was found on his person, and he was searched immediately following his lawful arrest.

We find that the instant ease is analogous to our recent decision in Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011). We agree with the analysis in Smallwood and find that Robinson is dis-positive here. As the Smallwood panel notes, Robinson permits an officer to inspect any item found on the person of a suspect. See Robinson, 414 U.S. at 236, 94 S.Ct. 467. A court is not permitted to second guess the decision to inspect such items by weighing the “probability in a particular arrest situation that weapons or evidence would in fact be found[.]” Id. at 235, 94 S.Ct. 467. A search incident to a lawful arrest is “reasonable” per se under the Fourth Amendment. Id. The Gant court did nothing to alter this rule in the context of the instant case. Accordingly, the search of Fawdry’s cell phone incident to his arrest was not a violation of the Fourth Amendment.

Because Fawdry’s motion to suppress evidence seized from his cell phone was without merit, we AFFIRM. We certify a question of great public importance similar to the question certified in Smallwood:

DOES THE HOLDING IN U.S. v. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, *63138 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?

LEWIS, and ROBERTS, JJ., concur.


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Cited By

  • State v. Glasco, 90 So. 3d 905 (Fla. 5th DCA 2012)
    …OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME? Id, at 462. After Smallwood was released, the First District Court again faced a cell phone search issue in Fawdry v. State, 70 So. 3d 626 (Fla. 1st DCA 2011). There, photographs showing the sexual performance of a child were discovered stored in the appellant’s cell phone by officers when they searched the cell phone upon his arrest on other charges. The court again upheld the denial…
    1 / 2
  • Burton v. State, 191 So. 3d 543 (Fla. 5th DCA 2016)
    …ditionally, the First District Court of Appeal, in Smallwood I, expressed serious doubts about the validity of its holding givpn the large amount of information stored on a smart phone. See Smallwood I, 61 So. 3d at 461-62; see also Fawdry v. State, 70 So. 3d 626, 629-30 (Fla. 1st DCA 2011) (discussing competing views on the issue). In Smallwood II, the Florida Supreme Court rejected the State’s good-faith-exception argument because at the time of the seiarch, there had been no established precedent on the…
  • Fawdry v. State, 139 So. 3d 868 (Fla. 2014)
    …LEWIS, J. We have for review Fawdry v. State, 70 So. 3d 626, 627 (Fla. 1st DCA 2011), in which the First District Court of Appeal affirmed a trial court order that denied a motion to suppress evidence found on a cellular phone without a search warrant. The First District certified the following question as o…

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