State News
6:29 pm
Tue March 5, 2013

Bill Blocking Law Enforcement From Seizing Cell Phones Without Warrant Clears First Stop

A bill has cleared its first stop in the Florida Legislature that would block law enforcement officers from seizing personal electronic devices, like cell phones, without a search warrant. But, opponents say moving the bill forward is a bit premature, while the very same matter is being looked at in the courts.

Under Florida law, law enforcement officers are allowed to search the property of a person who has been arrested without a search warrant.

That includes personal electronic devices, like cell phones, and Republican Senator Jeff Brandes says he feels that’s a violation of the Fourth Amendment right to protect against unreasonable searches and seizures.

“We are here to protect the Fourth Amendment of this Constitution. What I’m trying to say here is that we need to comply with the Fourth Amendment of the Constitution. And, the Fourth Amendment clearly lays out what is needed for a warrant for the items that need to be searched,” said Brandes.

Brandes is the sponsor of a bill that prohibits the search and seizure of portable electronic devices, or PEDs without a search warrant. It would also require a search warrant before something, like a cell phone, can be tracked by the government.

There are some exceptions, like issues of national security and searching for a missing child. And, Brandes is expected to work with fellow Republican, Senator David Simmons to include some more exceptions.

“Like a person who is involved in a traffic accident, in which maybe someone is killed, the evidence may indicate that maybe they have a DUI, they may have been texting, and it would be important for law enforcement at that time to be able to review the PED and ensure there was not a destruction of evidence and a deletion of texts,” said Simmons.

But, even with more exceptions, law enforcement groups, like the Florida Sheriff’s Association, were very opposed to changing the law—So were the state’s prosecutors. And, Buddy Jacobs representing the State Attorneys of Florida says it doesn’t make sense, at least right now, while there are two cases pending before the courts.

“Smallwood vs. State, which is now before the Supreme Court out of the 1st DCA, and the second one is Tracy vs. State out of the 4th DCA. We believe clarity of the law in this particular area as fast growing in this area as fast growing as it is and we think it would be better until the Supreme Court rules," remarked Jacobs.

And, Michael Ramage also agreed, calling the decision by lawmakers to proceed further premature without the court’s decision. He’s the General Counsel with the Florida Department of Law Enforcement.

“You could pass a bill that would turn out to be inconsistent with what the Florida Supreme Court rules, and from a standpoint from what I have to do, with our agents and law enforcement around the state, is we have to train them as to what the law is," said Ramage.

"So, you can imagine sometime around July or October, we’ve got the statute coming into effect that says this is the way you do it. And, then the Supreme Court issues its two opinions, and says no this is the way you do it. We’d be in a mess trying to figure out, number one: what is the law? And, number two, trying to explain the confusion with law enforcement.”

But, despite their objections, Senator Brandes, the bill’s sponsor, refused to back down.

“It’s really the role of the Legislature, not the courts to decide how we handle these types of these kinds of issues. I mean to sit around and say we’ll just wait for the courts to decide our laws, well why are we coming in here tomorrow for," asked Brandes. "I mean we are elected by the people to determine the laws of our state and the courts are there to discern those laws, but we’re elected to make them.”

The bill passed 5 to 2 in its first committee stop, the Senate Criminal Justice Committee Monday. It has two more stops to go before it heads to the Senate Floor. Its House companion has not yet been taken up in a committee.

For more news updates, follow Sascha Cordner on twitter @SaschaCordner.