California and Florida have recently reviewed the exact same issue over cell phone privacy and warrants and have interpreted the federal Supreme Court cases differently.
In Florida, a person was arrest for a drug offense and the police when through his cell phone, finding incriminating evidence with respece to his criminal activity. The trial ruled in favor of the government and the defendant appealed to the Florida Supreme Court. Retired Superior Court Judge Eugene Hyman, of Santa Clara, California, says they ultimately determined that he had a reasonable expectation of privacy as there was no emergency and the police could've obtained a warrant.
In California, involving a case of robbery, where the defendant had an incriminating text message, the defendant put in a motion to suppress and that motion was denied. The California Supreme Court determined there was no reasonble expectation of privacy and in California, that evidence was admissible.
At a federal level, border crossing agents are entitled to search computer without probably cause, and one would assume this pertains to cell phones as well, says Hyman.
Hyman doesn't know how the Supreme Court will rule regarding the California and Florida cases but thinks the Supreme Court will view cell phones as no different than any other items you possess and if you're lawfully arrested, then they can be searched.
Hyman does believe, however, that the Florida ruling is better reasoned, given that smart phones have become a part of us as far as a privacy issue. This case could take at least 5 years before it gets to the Supreme Court, Hyman adds.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.