       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 6, 2014.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                No. 3D12-1730
                          Lower Tribunal No. 10-26312
                              ________________

                           Viervens Saint-Hilaire,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh,
Judge.

      Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.


Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.

      FERNANDEZ, J.

      Viervens Saint-Hilaire appeals the denial of his motion to suppress, which

was based on a search of the contents of his cell phone during a warrantless search
incident to a lawful arrest. We reverse and conclude that the search of the cell

phone was improper, and the inevitable discovery doctrine is inapplicable.

      During a routine traffic stop of Saint-Hilaire’s vehicle, an officer discovered

that Saint-Hilaire’s wallet contained about eight debit cards of the same color and

bank name. The officer arrested Saint-Hilaire because the coding on one card did

not match the name on the front of the card. A pat-down incident to arrest

followed, during which an officer searched the contents of Saint-Hilaire’s cell

phone and     discovered twenty-four or twenty-five names and social security

numbers.

      The State subsequently charged Saint-Hilaire with nine counts of possession

of personal identification information with intent to defraud. Saint-Hilaire moved

to suppress the information found on his cell phone on the ground that it was

discovered during a warrantless, illegal search. The trial court held that the search

of Saint-Hilaire’s cell phone was valid as a search incident to a lawful arrest. The

trial court denied the motion to suppress, following the First District Court of

Appeal’s decision in Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011),

quashed, 113 So. 3d 724 (Fla. 2013).

      Motions to suppress are to be reviewed by an appellate court using a mixed

standard of review.    See Nelson v. State, 850 So. 2d 514, 521 (Fla. 2003).

Appellate courts accord a presumption of correctness to the trial court’s


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determination of historical facts, while independently reviewing mixed questions

of law and fact that determine constitutional issues present in the motion to

suppress. Id.

      We conclude that the search of Saint-Hilaire’s cell phone was unauthorized.

In Smallwood, upon which the trial court correctly relied, the Florida Supreme

Court held that a warrantless search of a cell phone incident to a lawful arrest

exceeds the boundaries of a proper search of a person incident to a lawful arrest in

the absence of a reasonable belief that the cell phone contains evidence of a crime.

Smallwood, 113 So. 3d at 732. The Court declined to extend the doctrine set out

in United States v. Robinson, 414 U.S. 218 (1973), which held that the search

incident to arrest warrant exception permits a search and inspection of the contents

of personal items found on the arrestee. Id. at 234; Smallwood, 113 So. 3d at 730.

The Florida Supreme Court stated that when the search incident to arrest warrant

exception is inapplicable because “[t]here is no evidence or hint of evidence that

[a] particular phone could be used as a weapon or that evidence could be destroyed

remotely, … once a cell phone has been removed from the person of the arrestee, a

warrant must be secured … before officers may conduct a search ….” Smallwood,

113 So. 3d at 735-36.

      Here, there was no evidence that the cell phone was going to be used to

endanger the officer or resist arrest, or that evidence contained in the cell phone


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was going to be destroyed. Thus, the circumstances surrounding Saint-Hilaire’s

arrest required the officers to obtain a warrant before they searched the contents of

the cell phone.

      Additionally, our decision is in accord with the recent United States

Supreme Court decision in Riley v. California, No. 13-132, slip op. at 25 (U.S.

June 25, 2014). In Riley, the Supreme Court held that a warrant is generally

required before officers can search a cell phone “even when a cell phone is seized

incident to an arrest.” Id.

      Furthermore, we decline to apply the inevitable discovery doctrine as an

exception to the exclusionary rule. In order for the evidence obtained from Saint-

Hilaire’s phone to be admissible under the inevitable discovery doctrine, the State

would have had to show, by a preponderance of the evidence, that the police had

probable cause to search the phone. See Rowell v. State, 83 So. 3d 990, 996 (Fla.

4th DCA 2012) (finding that the inevitable discovery rule did not allow for

admission of the evidence because the State failed to make the requisite showing

that the police could have obtained a warrant supported by probable cause). The

State made no such showing here. Thus, the inevitable discovery doctrine is

inapplicable.

      We note, however, that our reversal on the motion to suppress issue is not

dispositive of the case. On remand, the State may amend the charges to include


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information obtained from the consented-to search of Saint-Hilaire’s wallet.

Accordingly, we reverse the order denying Saint-Hilaire’s motion to suppress and

remand to the trial court for further proceedings consistent with this opinion.

      Reversed and remanded.




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