“It’s Just a Container”: Why the Police Want to Search Your Phone (And Why They Can’t anymore)

By: John Guidry

I had a client several years ago arrested on a DUI here in Orlando. When his wife bonded him out of jail, she searched his phone and noticed several pornographic texts and websites that indicated he was having an affair.

• The Truth: He wasn’t. He had no clue how to access those sites.
• The Cause: When he was arrested, corrections officers had a good time playing with his unlocked phone and “setting him up” for problems later.
• The Result: His wife didn’t believe him. They divorced immediately.

I bring up this sad story to highlight the potential for abuse when the government taps into your digital life. The Question: Can the Police search your phone just because you were arrested?

Did the police scroll through your photos while you were in handcuffs?

This is likely an illegal search. Call John today at (407) 423-1117.

The “Old” Law: The Gun Disguised as a Phone

Let’s start with what we know. Police can search you for weapons and drugs when you are arrested to keep contraband out of the jail. But what possible public interest is served by searching your emails?

This issue first came up in Fawdry v. State (2011).

• The Excuse: The officer claimed he had to flip open the phone to ensure it wasn’t a “firearm disguised as a cell phone.” (Yes, really).
• The Discovery: Upon opening it, he found child pornography as the wallpaper.
• The Ruling (At the time): The Court allowed it! They reasoned that a cell phone was just a “closed container”—no different than a wallet or a physical address book. If they can search your wallet, they argued, they can search your digital wallet.

The “New” Law: Get a Warrant (Smallwood v. State)

Fortunately, the law has evolved. The First District Court of Appeal in Fawdry was uncomfortable with its own ruling, essentially begging the Florida Supreme Court for help. The Help Arrived: In Smallwood v. State, 113 So. 3d 724 (Fla. 2013), the Florida Supreme Court overturned the “container” logic.

• The Ruling: A cell phone is not a wallet. It contains the “privacies of life”—medical records, banking, GPS history, and communications.
• The Result: Police cannot search your cell phone incident to arrest without a warrant.

If an officer takes your phone today, he can bag it and tag it, but he cannot turn it on and scroll through it unless a Judge signs a search warrant.

John’s 2026 Update: The FaceID Loophole & The “S.O.S.” Trick

Note: In 2014, we secured the right to remain silent (passcodes). In 2026, the police are coming for your face.

1. The Biometric Loophole (FaceID) While the courts agree that you cannot be forced to give up your Passcode (because that is “testimony” from your mind), many courts still allow police to force your Biometrics (body parts).

• The Tactic: While you are handcuffed, the officer simply holds the phone up to your face or presses your thumb to the sensor.
• The Law: Because your face is a “physical object” (like a fingerprint or blood sample), they argue this is not a violation of the 5th Amendment.

2. The “S.O.S.” Trick (Save Your Privacy) If you are being pulled over, you have about 5 seconds to lock down your digital life.

• The Trick: On most smartphones, hold the Power Button + Volume Button for 3 seconds.
• The Result: This engages “S.O.S. Mode.” It instantly disables FaceID and TouchID. The phone will now require the numeric passcode to unlock. By doing this, you force the police to get a warrant rather than just holding the phone to your face.

3. The Border Exception

• The Danger: The Smallwood warrant requirement does not apply at the airport (Customs/Border Patrol).
• The Reality: Federal agents at the border can demand you unlock your device. If you refuse, they can seize the device for months and copy the data.

Lock It Down

The police know they need a warrant, but they will try to trick you into “consenting” to a search to “clear things up.” Never hand over your phone unlocked. Make them do the paperwork.

Call me at (407) 423-1117. Let’s suppress the data.

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.