The inventory and safety exceptions have allowed police to gather evidence for unrelated criminal activity without needing to get a warrant. But the arguments of safety and security that allow these searches can not logically extend to a search of a cellphone. Is the argument that the cell phone must be inventoried for security? Just shutting the phone off protects the contents on it better than taking a full inventory of it. And the personal safety of the officers isn't impacted by knowing who the person had text or taken pictures with. If there is a belief that there is important evidence on the phone it is the perfect opportunity to get a search warrant. You know, like the constitution says!
The Florida Supreme Court has yet to rule on Smallwood, but the Florida Legislature isn't taken any chances. Bills requiring search warrants before personal cell phones can be searched are in Florida's Senate and House. It makes sense to require a warrant. Especially since the modern cell phones are equal to small computers, and it has been established that laptops and other computers can't be looked at without a warrant (or, of course, consent of the owner...that will always allow a search without a warrant).
But Pinellas' Sheriff has come out against the bill (along with other law enforcement officials) saying that "This is a bill that really protects people engaged in child pornography, drug dealing and murders". Then again, the 4th Amendment itself really protects those same people, since those of us who don't commit crimes don't need to be worried about being arrested! But the founding father's put them there, and I sort of like not having to explain my phone's google search history anytime I'm stopped for speeding.
The best part is the long, and true!, story he uses to show why this bill is a bad thing (from the Miami Herald)
The sheriff cites the case of a man arrested in Gulfport for driving with a suspended license who had a 14-year-old runaway girl in his car. Police took the girl into custody, and a check of the man’s cellphone revealed pictures of them having sex — a felony because the girl was under age.
“Now you’ve got a pedophile,” Gualtieri said.Well, it is a good thing that they were able to search that guys phone without a warrant because there would be no way to possibly have uncovered the crime other than THE 14 YEAR OLD VICTIM IN THE CAR. I'm pretty sure driving around with a runaway young girl is the type of thing that might give you probable cause to search the guys phone.
But wait! He has another reason to be against the bill. Because "in the time it takes to get a warrant, a suspect could delete the evidence."
Um, look, you are currently only searching cell phones from people you arrest. I assume that you don't let the criminals play Angry Birds while in the cells and that the phones are in some type of custody where the images can't be deleted before you get the warrant.
You know who supports the bill? The ACLU. You know who else? The Cato institute. The conservatives and the liberals agree on something! This is a sensible piece of legislation, a rare thing in Florida. Any sane member of law enforcement should be in favor of it so that the proper procedure is followed now, before the Smallwood case (or some future higher Supreme Court case on the topic) finds the searches to have been invalid. It is much easier to follow the proper, if heightened, procedure now than to do the bare minimum and get all those convictions overturned in a few years.
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