Can the Police Search Your Phone or Car Just Because You Were Arrested?

By: John Guidry

It seems like the government can search just about anything these days, as long as they can find a judge to sign a search warrant. But the police may also search a citizen’s belongings without a warrant under certain conditions.

Today, we are going to briefly discuss one of the biggest exceptions to the Fourth Amendment: Search Incident to Arrest.

It makes sense that the police should be able to search a person before placing them into the county jail. After all, they don’t want folks bringing guns or drugs into the booking area. But how far does that power go? Once you are handcuffed and on your way to jail, can they tear your car apart? Can they scroll through your cell phone?

Let’s find out.

Did the police search your car or phone without a warrant?

Your rights may have been violated. Call John today at (407) 423-1117 to analyze your case.

The Car Search: Belton vs. Gant

Historically, the most common search incident to an arrest was the search of a defendant’s car.

• The Old Rule (Belton): For 28 years, a case called Belton v. United States (1981) stood as a hallmark of legal fiction. It basically said that if you were arrested for something as simple as Driving on a Suspended License, the police could search your entire vehicle. The reasoning? The passenger compartment was theoretically “within your grasp,” even if you were handcuffed and locked in the back of a patrol car. It was a farce designed to make police work easier.
• The New Rule (Gant): Recently, the Supreme Court abandoned that nonsense in Arizona v. Gant, 556 U.S. 332 (2009). The Court finally admitted reality: a handcuffed person in a squad car cannot reach under their seat to grab a gun.
  • The Change: Police can no longer search a vehicle incident to the driver’s arrest unless there is a basis to believe the car contains evidence of the specific crime of arrest.
  • Example: It is hard to justify searching a car for evidence of a suspended license. However, if the car is stopped leaving the scene of a robbery, a search might be justified to find stolen goods.

So, some progress is being made. The police don’t have the luxury of automatic searches anymore.

The Cell Phone Battle: Smallwood v. State

This brings us to the modern treasure trove of personal information: your cell phone.

In Smallwood v. State, 113 So. 3d 724 (Fla. 2013), the Florida Supreme Court drew a line in the sand.

• The Facts: Smallwood was arrested for robbery. The police took his cell phone from his person and, without a warrant, started scrolling through his photos. They found pictures of his girlfriend holding a wad of cash.
• The Ruling: The Court suppressed the images. They determined that a defendant’s privacy interest in the vast amount of data on a phone outweighs the government’s interest in searching it without a warrant.
• The Logic: While the police have an interest in checking your pockets for weapons or drugs before jail, they have zero safety interest in looking through your photo album.

John’s Takeaways

This is “inside baseball” for criminal defense, but it has real-world consequences for anyone arrested in Orange or Seminole County.

• Don’t Help Them Fish: Police often use the “Search Incident to Arrest” as a fishing expedition. Gant and Smallwood have made that harder for them, but they will still try.
• The Passcode Threat: I have had several clients threatened with enhanced charges unless they revealed their cell phone passcode. In one case, an officer threatened to upgrade a “simple possession” charge to “intent to sell” if my client didn’t unlock his phone.
  • My Advice: He didn’t give it up. We got the “intent” charge dismissed anyway. Never give up your code or consent to a search. Make them get a warrant.
• Privacy is Winning (Slowly): It is comforting to see the courts becoming more realistic about technology and police power. Smallwood was a huge win for privacy, treating digital data differently than a pack of cigarettes found in a pocket.

Protect Your Digital Privacy

Has there been a shift in the government’s thinking? Maybe. But police on the street often lag behind the Supreme Court rulings.

If you were arrested and the police searched your car or accessed your phone without a warrant, we need to look at the legality of that evidence immediately.

Call me at (407) 423-1117. Let’s protect your privacy.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.