DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

STATE OF FLORIDA,
Appellant,
v.
K.C., a child,
Appellee.
No. 4D15-3290
[December 7, 2016]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Stacy Ross, Judge; L.T. Case No. 144824DL.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellee.
WARNER, J.
The State appeals an order granting K.C.’s motion to suppress. The
State argued it did not need to obtain a warrant before searching an
abandoned cell phone. We disagree and affirm, concluding that accessing
the contents of the password-protected cell phone without a warrant
violated the Fourth Amendment.
A Lauderhill police officer initiated a traffic stop of a vehicle that was
speeding and driving without its headlights on at night. The vehicle pulled
into a shopping plaza and then made an abrupt stop. Two unidentified
individuals got out of the vehicle, briefly looked at the officer, and then
fled.
During his investigation, the officer determined that the vehicle’s tag
did not match the vehicle. The actual tag was in the trunk, and the vehicle
had been reported stolen in Sunrise. Inside the vehicle, the officer saw “a
cell phone or two” plainly visible “[i]n the front passenger and compartment
area.” On the cell phone’s lock screen was a picture of an individual that

 looked “similar to the person who ran from the vehicle.” The cell phone
had a passcode, but the officer did not attempt to unlock it or otherwise
get into the phone. He turned the cell phone over to the Sunrise Police
Department in connection with that department’s stolen vehicle
investigation.
Several months later, a detective with the Sunrise Police Department
asked a forensic detective to determine ownership of the phone. He did
not obtain a search warrant because he believed that the phone was
abandoned. The forensic detective was able to unlock the phone, and he
obtained information indicating that the cell phone belonged to K.C.
K.C. was charged with burglary of a conveyance. He moved to suppress
the contents of the cell phone, from which the police had obtained his
name, on the ground that the phone was searched without a warrant.
After the presentation of the foregoing facts, the prosecutor argued that
the phone was abandoned, and the owner had no expectation of privacy
in the phone once abandoned. Noting that he was not challenging the
seizure of the phone, defense counsel contended that the search was
unlawful. “[I]t was inappropriate . . . not to get a warrant” to search a
“piece of property that’s passcode protected . . . with immense storage
capacity and a lot of information that the police . . . can access [including]
possibly your banking, your social media, your email, your contacts, your
pictures.”
Defense counsel further emphasized that there was no evidence that
K.C. himself left the cell phone in the stolen car. Counsel suggested that
someone else could have had K.C.’s phone “for whatever reason, maybe he
borrowed it.” Even though the cell phone was left behind, defense counsel
asserted that K.C. would have retained an expectation of privacy by virtue
of passcode-protecting the phone. Finally, defense counsel argued that
dropping the cell phone by itself was not voluntary abandonment; K.C.
never disclaimed ownership of the phone. After hearing argument, the
trial court granted the motion to suppress based upon defense counsel’s
arguments. The State appeals pursuant to Florida Rule of Appellate
Procedure 9.140(c)(1)(B).
“A motion to suppress evidence generally involves a mixed question of
fact and law. The trial court’s factual determinations will not be disturbed
if they are supported by competent substantial evidence, while the
constitutional issues are reviewed de novo.” Strawder v. State, 185 So. 3d
543, 545 (Fla. 3d DCA 2016). “A reviewing court is bound by the trial
court’s findings of fact—even if only implicit—made after a suppression
hearing, unless they are clearly erroneous.” State v. Setzler, 667 So. 2d
2

 343, 346 (Fla. 1st DCA 1995). “The initial burden on a motion to suppress
an illegal search is on the defendant to make an initial showing that the
search was invalid.” Miles v. State, 953 So. 2d 778, 779 (Fla. 4th DCA
2007). However, “[a] warrantless search constitutes a prima facie showing
which shifts to the [S]tate the burden of showing the search’s legality.”
Lewis v. State, 979 So. 2d 1197, 1200 (Fla. 4th DCA 2008).
Although in this case, the trial court itself made no explicit findings of
fact, it agreed with the defense arguments, and the facts were undisputed.
Thus, the trial court either found that the cell phone was not abandoned
or made the legal conclusion that police could not search the cell phone
without a warrant because the abandonment exception is inapplicable to
password-protected cell phones. We address the latter contention, as it is
controlling.
Concluding that a warrantless search of a cell phone cannot be justified
as a search incident to arrest, the Supreme Court explained in Riley v.
California, 134 S. Ct. 2473 (2014), how a cell phone is different than other
objects which might be subject to a search:
Cell phones differ in both a quantitative and a qualitative
sense from other objects that might be kept on an arrestee’s
person. The term “cell phone” is itself misleading shorthand;
many of these devices are in fact minicomputers that also
happen to have the capacity to be used as a telephone. . . .
One of the most notable distinguishing features of modern
cell phones is their immense storage capacity. Before cell
phones, a search of a person was limited by physical realities
and tended as a general matter to constitute only a narrow
intrusion on privacy. . . .
But the possible intrusion on privacy is not physically
limited in the same way when it comes to cell phones. . . .
The storage capacity of cell phones has several interrelated
consequences for privacy. First, a cell phone collects in one
place many distinct types of information—an address, a note,
a prescription, a bank statement, a video—that reveal much
more in combination than any isolated record. Second, a cell
phone’s capacity allows even just one type of information to
convey far more than previously possible. The sum of an
individual’s private life can be reconstructed through a
thousand photographs labeled with dates, locations, and
3

 descriptions; the same cannot be said of a photograph or two
of loved ones tucked into a wallet. Third, the data on a phone
can date back to the purchase of the phone, or even
earlier. . . .
Finally, there is an element of pervasiveness that
characterizes cell phones but not physical records. Prior to
the digital age, people did not typically carry a cache of
sensitive personal information with them as they went about
their day. Now it is the person who is not carrying a cell
phone, with all that it contains, who is the exception. . . .
....
In 1926, Learned Hand observed (in an opinion later
quoted in Chimel) that it is “a totally different thing to search
a man’s pockets and use against him what they contain, from
ransacking his house for everything which may incriminate
him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2).
If his pockets contain a cell phone, however, that is no longer
true. Indeed, a cell phone search would typically expose to
the government far more than the most exhaustive search of
a house: A phone not only contains in digital form many
sensitive records previously found in the home; it also
contains a broad array of private information never found in
a home in any form—unless the phone is.
To further complicate the scope of the privacy interests at
stake, the data a user views on many modern cell phones may
not in fact be stored on the device itself. Treating a cell phone
as a container whose contents may be searched incident to an
arrest is a bit strained as an initial matter. See New York v.
Belton, 453 U.S. 454, 460, n. 4, 101 S.Ct. 2860, 69 L.Ed.2d
768 (1981) (describing a “container” as “any object capable of
holding another object”). But the analogy crumbles entirely
when a cell phone is used to access data located elsewhere, at
the tap of a screen. That is what cell phones, with increasing
frequency, are designed to do by taking advantage of “cloud
computing.”
....
Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal,
they hold for many Americans “the privacies of life,” Boyd,
4

 supra, at 630, 6 S.Ct. 524. The fact that technology now
allows an individual to carry such information in his hand
does not make the information any less worthy of the
protection for which the Founders fought. Our answer to the
question of what police must do before searching a cell phone
seized incident to an arrest is accordingly simple—get a
warrant.
Riley, 134 S. Ct. at 2489-95.
Similarly, in Smallwood v. State, 113 So. 3d 724 (Fla. 2013), our
supreme court also noted that cell phones were a trove of personal
information unlike any static object which may be searched incident to a
lawful arrest.
[W]e . . . conclude that the electronic devices that operate as
cell phones of today are materially distinguishable from the
static, limited-capacity cigarette packet in Robinson, not only
in the ability to hold, import, and export private information,
but by the very personal and vast nature of the information
that may be stored on them or accessed through the electronic
devices. Consistent with this conclusion, we hold that the
decision of the United States Supreme Court in Robinson,
which governed the search of a static, non-interactive
container, cannot be deemed analogous to the search of a
modern electronic device cell phone.
Smallwood, 113 So. 3d at 732.
The State, however, claims that it could search the cell phone without
a warrant under the abandonment exception:
Although warrantless searches and seizures are generally
prohibited by the Fourth Amendment to the United States
Constitution and article I, section 12, of the Florida
Constitution, police may conduct a search without a warrant
if consent is given or if the individual has abandoned his or
her interest in the property in question.
Caraballo v. State, 39 So. 3d 1234, 1245 (Fla. 2010) (quoting Peterka v.
State, 890 So. 2d 219, 243 (Fla. 2004)). Our supreme court has recognized
that “[t]he test for abandonment is whether a defendant voluntarily
discarded, left behind, or otherwise relinquished his interest in the
property in question so that he could no longer retain a reasonable
5

 expectation of privacy with regard to it at the time of the search.” Id.
(alteration in original) (quoting Branch v. State, 952 So. 2d 470, 476 n.4
(Fla. 2006)); see also Twilegar v. State, 42 So. 3d 177, 193 (Fla. 2010). In
other words, “‘[n]o search occurs when police retrieve property voluntarily
abandoned by a suspect in an area where the latter has no reasonable
expectation of privacy.’” State v. Lampley, 817 So. 2d 989, 991 (Fla. 4th
DCA 2002) (quoting State v. Milligan, 411 So. 2d 946, 947 (Fla. 4th DCA
1982)).
While we acknowledge that the physical cell phone in this case was left
in the stolen vehicle by the individual, and it was not claimed by anyone
at the police station, its contents were still protected by a password, clearly
indicating an intention to protect the privacy of all of the digital material
on the cell phone or able to be accessed by it. Indeed, the password
protection that most cell phone users place on their devices is designed
specifically to prevent unauthorized access to the vast store of personal
information which a cell phone can hold when the phone is out of the
owner’s possession.
In light of Riley, the United States Supreme Court treats cell phones
differently, for the purposes of privacy protection, than other physical
objects. Although Riley conceded that some “case-specific” exceptions
may apply to justify a warrantless search of a cell phone, the example given
was a search based upon exigent circumstances. Riley, 134 S. Ct. at 2494.
“Such exigencies could include the need to prevent the imminent
destruction of evidence in individual cases, to pursue a fleeing suspect,
and to assist persons who are seriously injured or are threatened with
imminent injury.” Id. The abandonment exception does not compel a
similar conclusion that a warrantless search is authorized. There is no
danger to individuals, property, or the need to immediately capture a
criminal suspect where the cell phone is out of the custody of the suspect
for substantial amounts of time. And there is an abundant amount of time
for the police to obtain a warrant, which could then limit, if necessary, the
scope of the search of the phone.
Riley also acknowledged the argument that requiring a warrant to
search an arrestee’s phone may pose some impediment to law
enforcement, but it rejected that contention in light of the important
privacy interests involved and the relative ease with which a search
warrant may be obtained:
We cannot deny that our decision today will have an impact
on the ability of law enforcement to combat crime. Cell phones
have become important tools in facilitating coordination and
6

 communication among members of criminal enterprises, and
can provide valuable incriminating information about
dangerous criminals. Privacy comes at a cost.
Our holding, of course, is not that the information on a cell
phone is immune from search; it is instead that a warrant is
generally required before such a search, even when a cell
phone is seized incident to arrest. Our cases have historically
recognized that the warrant requirement is “an important
working part of our machinery of government,” not merely “an
inconvenience to be somehow ‘weighed’ against the claims of
police efficiency.”
Id. at 2493 (emphasis added) (citation omitted). Where a cell phone is
“abandoned,” yet its contents are protected by a password, obtaining a
warrant is even less problematic. In this case, how difficult and inefficient
would it have been for the officer to obtain a search warrant, when the cell
phone in question was in police possession for months?
As the Supreme Court held that a categorical rule permitting a
warrantless search incident to arrest of a cell phone contravenes the
Fourth Amendment protection against unreasonable searches and
seizures, we hold that a categorical rule permitting warrantless searches
of abandoned cell phones, the contents of which are password protected,
is likewise unconstitutional.
We thus side with the dissents in both State v. Brown, 776 S.E.2d 917
(S.C. Ct. App. 2015), and State v. Samalia, 375 P.3d 1082 (Wash. 2016),
the only two cases across the country, after Riley, that have dealt with the
necessity to obtain a search warrant to search an abandoned cell phone.
In Brown, the majority opinion analogized the search of the cell phone to
cases in which a warrantless search of a locked container was held to be
permissible. 776 S.E.2d at 924. The court noted, “it is the objective indicia
of the owner’s intent, viewed from the perspective of law enforcement, to
forgo protecting the container or its contents that determines whether the
owner has abandoned them.” Id. Where a cell phone has been in the
police custody for days without anyone claiming it, the court found that it
had been abandoned even where it was locked through a password. Id.
The dissent disagreed that the defendant had relinquished his reasonable
expectation of the contents of the phone because of the password
protection on the phone. Id. at 926. It distinguished cases involving
locked containers, because of the substantial difference between the
technological capacity of the cell phone to store and access private
7

 information and that of a locked container protecting a limited amount of
information. Id. at 926-27.
The Washington Supreme Court in Samalia held that a warrant was
not required before searching an abandoned cell phone, although it does
not appear that the phone in that case was password protected. Samalia,
375 P.3d at 1084. It construed Riley as being limited to searches incident
to lawful arrests and declined to extend it to abandoned cell phones,
finding abandonment of cell phones no different than any other object. Id.
at 1088-89. Washington courts had found voluntary abandonment “when
a defendant leaves an item in a place which the defendant has no privacy
interest as an attempt to evade the police.” Id. at 1089. The dissent, on
the other hand, concluded that Riley prevented a “mechanical application”
of common law doctrines that limit constitutional protections against
warrantless searches when examining new technology. Id. at 1093. It
rejected the application of cases involving other physical containers,
because the level of intrusion is so significantly more intense when
reviewing the data on a cell phone. Id. at 1094-95. The dissent explained:
In answer to the notion that a person who voluntarily
abandons a physical cell phone voluntarily abandons any
privacy interest in any of the voluminous data detailing
potentially every aspect of that person’s life, I quote the
pointed words of amicus in this case: “It would be patently
absurd to suggest that abandonment of a traditional key
means that warrantless access is allowed to the house it locks;
the same must be true of digital keys to electronic
information.” Amicus Curiae Br. of Am. Civil Liberties Union
of Wash. at 11.
Id. at 1095. Thus, the dissent would require a warrant.
We think the dissents in Brown and Samalia hew closer to the analysis
in Riley than do the majority opinions in those cases. In Riley, Chief
Justice Roberts reviewed the development of the exception to the warrant
for searches incident to a lawful arrest, starting with Chimel v. California,
395 U.S. 752 (1969), which held that a search of an arrestee’s entire threebedroom house without a warrant after an arrest was unconstitutional
because it was not needed to protect officer safety or preserve evidence, a
significant reason for the exception as it originally evolved. Riley, 134
S. Ct. at 2483. Next, the Court in Riley determined that in United States
v. Robinson, 414 U.S. 218 (1973), the search of a crumpled cigarette
package retrieved from an arrestee’s pocket did not violate the Fourth
Amendment, because the search of the person of the suspect was a
8

 reasonable intrusion even though there was no concern for loss of evidence
or danger to the officer. Riley, 134 S. Ct. at 2483-84. Finally, the Court
in Riley considered Arizona v. Gant, 556 U.S. 332 (2009), in which the
Court held that a warrantless search of a vehicle was authorized where the
“arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search.” Riley, 134 S. Ct. at 2484 (quoting
Gant, 556 U.S. at 343). Applying these cases to cell phones proved
problematic because of the significant differences between cell phones with
their vast trove of data and other objects:
Absent more precise guidance from the founding era, we
generally determine whether to exempt a given type of search
from the warrant requirement “by assessing, on the one hand,
the degree to which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” Wyoming v.
Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d
408 (1999). Such a balancing of interests supported the
search incident to arrest exception in Robinson, and a
mechanical application of Robinson might well support the
warrantless searches at issue here.
But while Robinson’s categorical rule strikes the
appropriate balance in the context of physical objects, neither
of its rationales has much force with respect to digital content
on cell phones. On the government interest side, Robinson
concluded that the two risks identified in Chimel—harm to
officers and destruction of evidence—are present in all
custodial arrests. There are no comparable risks when the
search is of digital data. In addition, Robinson regarded any
privacy interests retained by an individual after arrest as
significantly diminished by the fact of the arrest itself. Cell
phones, however, place vast quantities of personal
information literally in the hands of individuals. A search of
the information on a cell phone bears little resemblance to the
type of brief physical search considered in Robinson.
We therefore decline to extend Robinson to searches of data
on cell phones, and hold instead that officers must generally
secure a warrant before conducting such a search.
Id. at 2484-85 (emphasis added). Thus, the Court rejected a comparison
to either the house search in Chimel or the person search in Robinson. In
particular, considering the house search in Chimel, the Court noted that,
9

 unlike Robinson, the search could not be characterized as “minor.” Riley,
134 S. Ct. at 2488. Moreover, the Court specifically noted that because of
both the amount and types of information contained in a cell phone,
accessing it could not be compared to a minor intrusion:
Most people cannot lug around every piece of mail they have
received for the past several months, every picture they have
taken, or every book or article they have read—nor would they
have any reason to attempt to do so. And if they did, they
would have to drag behind them a trunk of the sort held to
require a search warrant in Chadwick, rather than a container
the size of the cigarette package in Robinson.
....
Although the data stored on a cell phone is distinguished
from physical records by quantity alone, certain types of data
are also qualitatively different. An Internet search and
browsing history, for example, can be found on an Internetenabled phone and could reveal an individual’s private
interests or concerns—perhaps a search for certain symptoms
of disease, coupled with frequent visits to WebMD. Data on a
cell phone can also reveal where a person has been. Historic
location information is a standard feature on many smart
phones and can reconstruct someone’s specific movements
down to the minute, not only around town but also within a
particular building.
Id. at 2489-90 (internal citation omitted). Thus, the quantitative and
qualitative nature of the information contained on a cell phone sets it apart
from other physical objects, even locked containers.
Because both the United States Supreme Court and the Florida
Supreme Court have recognized the qualitative and quantitative difference
between cell phones (and their capacity to store private information) and
that of other physical objects and the right of privacy in that information,
we conclude that the abandonment exception does not apply to cell phones
whose contents are protected by a password. Paraphrasing Chief Justice
Roberts, “[o]ur answer to the question of what police must do before
searching [an abandoned, password protected] cell phone . . . is
accordingly simple—get a warrant.” Id. at 2495.

10

 Affirmed. 1
DAMOORGIAN and FORST, JJ., concur.
*

*

*

Not final until disposition of timely filed motion for rehearing.

We do not examine whether the good faith exception should apply to the search
because the parties did not argue this, either at trial or in their briefs.
1

11