              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

MATTHEW WILLIS,                             )
                                            )
             Appellant,                     )
                                            )
v.                                          )       Case No. 2D13-3981
                                            )
STATE OF FLORIDA,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed September 19, 2014.

Appeal from the Circuit Court for Polk
County; John E. Kirkland, Acting Circuit
Judge, and Glenn T. Shelby, Judge.

Howard L. Dimmig, II, Public Defender,
and Bruce P. Taylor, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa, for
Appellee.


ALTENBERND, Judge.

             Matthew Willis appeals his judgments and sentences for twenty counts of

possession of child pornography. The images were found on his cell phone during what

began as a traffic stop in February 2012. Although at the time of the stop the

warrantless search for these photographs was permissible under the First District's
decision in Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011) (Smallwood I), that

decision was reversed by the supreme court in Smallwood v. State, 113 So. 3d 724

(Fla. 2013) (Smallwood II). Moreover, the United States Supreme Court reached a

decision similar to our supreme court's decision in Riley v. California, 134 S. Ct. 2473

(2014). In light of the supreme court's discussion of the good-faith exception in

Smallwood II, we conclude that we must reverse the trial court's decision and require

that all of the photographs be suppressed from evidence. Thus, we reverse the

judgments and sentences. On remand these twenty counts must be dismissed.

              A Haines City police officer stopped a Ford pickup truck on the evening of

February 7, 2012, because the truck's tag light was broken. Mr. Willis, the owner of the

vehicle, was driving. He had two passengers with him. During the stop, the officer

discovered that Mr. Willis's license was suspended. He arrested Mr. Willis for driving

while license suspended and placed him in his patrol car. Additional officers arrived at

the scene and decided to tow the vehicle. After removing the two passengers from the

vehicle, the officers conducted an inventory search. They unlocked the glove box and

found two pill boxes with small amounts of bagged marijuana and methamphetamine

inside. They also found an electronic scale inside the vehicle. The name of one of the

passengers was written on one of the pill bottles. The officers then arrested this

passenger and Mr. Willis for possession of cannabis and methamphetamine and

possession with intent to sell.

              Before Mr. Willis and the passenger were transported for booking, Mr.

Willis asked the officers to retrieve his cell phone from his truck. The officer who

retrieved the cell phone looked through the contents of the phone expecting to find




                                            -2-
evidence related to drug dealing. In the process, he came upon numerous pictures of

child pornography.

              The officers then applied for a search warrant to examine the contents of

Mr. Willis's phone. They requested the right to search the telephone call logs and

archived telephone numbers, email, text messages, and photographs for evidence of

drug crimes and children involved in sexual conduct. The affidavit in support of the

application stated that an inventory was conducted, during which time officers found

marijuana and methamphetamine. The affidavit explained that the officer who retrieved

Mr. Willis's phone initially looked through it "to determine ownership" and that a second

officer then accessed "a folder with approximately 3,193 photos" of children that the

officers had already viewed. The magistrate issued the warrant to obtain this evidence.

              The affidavit did not mention that Mr. Willis had two passengers in the

vehicle with him; that the name of one of the passengers was written on a pill bottle

containing the marijuana and methamphetamine; that the officers arrested this

passenger, along with Mr. Willis, for possession and possession with intent to sell; or

that the officers found a scale inside the truck.

              The State filed an information charging forty counts of possession of child

pornography and one count of driving while license suspended. The State did not file

drug charges against Mr. Willis. Mr. Willis filed a motion to suppress the evidence

obtained from the cell phone. When that motion was denied, he agreed to plead nolo

contendere to twenty counts of possession of child pornography in exchange for

concurrent sentences of six years' imprisonment followed by six years' probation as a




                                            -3-
sexual offender. He also reserved the right to appeal the denial of his dispositive

motion to suppress.

              In the trial court, the suppression hearing focused significantly on whether

the warrantless search exceeded the scope of the search incident to arrest permitted

under Arizona v. Gant, 566 U.S. 332 (2009). Because the police obtained possession

of this cell phone at Mr. Willis's request to retrieve it for him, we agree with the trial court

that it was not seized under the Fourth Amendment. However, Mr. Willis also argued

that the police could not constitutionally search its content without a warrant.

              On appeal, Mr. Willis argues that the evidence acquired from the cell

phone during the warrantless search and the additional evidence acquired after the

police obtained a warrant must be suppressed. The State primarily argues that the

evidence acquired by warrant is admissible.

              In light of the holdings in Smallwood II and Riley, we conclude that the

evidence obtained prior to the search warrant must be suppressed. In Smallwood II, the

Florida Supreme Court held that law enforcement is required to obtain a search warrant

before searching the data and content of a cell phone that has been seized incident to a

lawful arrest. 113 So. 3d at 727, 735. The court further held that the good-faith

exception to the exclusionary rule does not apply to cell phone searches incident to

arrest performed prior to Smallwood I because no "bright-line rule" existed from the

United States Supreme Court on which law enforcement could then reasonably rely. Id.

at 738-39. After Smallwood II was decided, the United States Supreme Court similarly

held in Riley that a warrant is required to search a cell phone seized incident to a lawful

arrest. 134 S. Ct. at 2493.




                                             -4-
              We recognize that at the time it occurred, the warrantless search of the

cell phone here was permitted by the First District's recent decision in Smallwood I,

which was a decision then binding on all Florida trial courts. See Pardo v. State, 596

So. 2d 665, 666 (Fla. 1992). As discussed in Smallwood II, the Supreme Court held in

Davis v. United States, 131 S. Ct. 2419, 2434 (2011), that "when the police conduct a

search in objectively reasonable reliance on binding appellate precedent, the

exclusionary rule does not apply." The case law is still developing on the type of

precedent that qualifies as "binding appellate precedent" that is sufficient to permit

"objectively reasonable reliance." Compare United States v. Robinson, 903 F. Supp. 2d

766 (E.D. Mo. 2012) (limiting the applicable precedent to Supreme Court and federal

circuit court decisions), with United States v. Lopez, 951 F. Supp. 2d 657 (D. Del. 2013)

(declining to follow Robinson).1

              The rule in Pardo was created to establish consistency within Florida law

in light of our unique system in which the intermediate appellate courts are intended to

be the normal final courts of review. See, e.g., John M. Scheb, Florida's Courts of

Appeal: Intermediate Courts Become Final, 13 Stetson L. Rev. 479, 480 (1984). But an

opinion from a single district court is not binding on another district court in Florida. We




              1
                A Texas court applying Davis has declined to use the exclusionary rule as
a remedy for an improper search of a cell phone in which law enforcement found
photographs that were relevant to prove a drug charge. United States v. Spears, No.
4:14-cr-82-O, 2014 WL 3407930, at *3-4 (N.D. Tex. July 14, 2014). In that case, the
search had been authorized under existing precedent from the Fifth Circuit allowing the
warrantless search of an arrestee's cell phone incident to a lawful arrest. Id. at *3 (citing
United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)). The State has not asked
this court to rely on this out-of-state precedent. As explained in the opinion, we
conclude that a Florida district court case from another district is not the same kind of
binding precedent as a Fifth Circuit case in Texas.


                                            -5-
are not inclined to believe that the rule announced in Pardo should be used in the

Fourth Amendment context to determine whether evidence from a warrantless search is

admissible.

              There was no decision on this issue from either the Florida Supreme Court

or the United States Supreme Court at the time of the search, and the issue of cell

phone searches was clearly an open and unresolved legal issue in 2012. In light of the

discussion in Smallwood II, despite Judge Morris's reasoned dissent, we are not

convinced that our supreme court intends for one recent decision from another Florida

district court of appeal on such a controversial issue to create "binding precedent," at

least in other districts, for purposes of the good-faith exception as announced in Davis.

See Smallwood II, 113 So. 3d at 739. Thus, without faulting the officers involved, we

conclude that the State cannot rely upon the good-faith exception to prevent the

exclusion of this evidence.2

              Distinct from the Davis argument, the State briefly suggests that

Smallwood II and Riley should have prospective application only. It relies on the First

District's decision in State v. O'Steen, 238 So. 2d 434, 437 (Fla. 1st DCA 1970).

O'Steen involved a search incident to arrest that occurred prior to the decision in



              2
                 It should be noted that Smallwood I was pending on review in the Florida
Supreme Court when this cell phone was searched. See Smallwood v. State, 68 So. 3d
235 (Fla. 2011) (table decision). There is nothing in the record to establish that the
officers in this case actually knew about the holding in the First District and that they
were relying on that holding. The exclusionary rule does serve, at least in substantial
part, as a deterrent. However, when a Fourth Amendment issue is rapidly evolving, it is
hard to justify an approach to the good-faith exception that allows the first defendant to
reach the United States Supreme Court to receive the benefit of the exclusionary rule
while other defendants in the legal pipeline do not. The equal application of the rule of
law would seem to be a principle of our legal system calling for a cautious use of the
good-faith exception in situations like the one we face today.


                                           -6-
Chimel v. California, 395 U.S. 752 (1969). Chimel was a case in which the United

States Supreme Court confronted at least two of its own prior decisions and attempted

to create a more predictable rule. We conclude that the circumstances that warranted a

prospective approach to the holding in Chimel simply do not exist in this case.3

              Concerning the evidence obtained under the warrant, there is an obvious

problem with the fruit of the poisonous tree. See Grant v. State, 978 So. 2d 862, 863

(Fla. 2d DCA 2008) (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)). The

statements in the affidavit for this search warrant relating to the initial search of the cell

phone cannot be considered in the determination of whether probable cause existed to

obtain the search warrant. State v. Gibson, 670 So. 2d 1006, 1009 (Fla. 2d DCA 1996)

(citing State v. Ward, 407 So. 2d 353 (Fla. 2d DCA 1981)). If the information in the

affidavit used to obtain the warrant is edited to eliminate all reference to the knowledge

obtained by the unauthorized search of the cell phone, the magistrate would have been

informed only that the cell phone belonged to Mr. Willis, whose vehicle contained a

limited quantity of drugs, and that the police had not done any prior or subsequent

investigation to establish his involvement with the drugs. In that revised situation, we

assume that the officers would also have included within the affidavit that the drugs

were found inside a locked glove compartment in pill bottles bearing the name of one of

Mr. Willis's passengers. We seriously doubt that such information would be sufficient

even to obtain a preliminary warrant to search the record of recent telephone calls or

text messages to seek out buyers or sellers of drugs. Such an affidavit clearly would



              3
             O'Steen was decided before United States v. Leon, 468 U.S. 897 (1984),
Hudson v. Michigan, 547 U.S. 586 (2006), and Riley. The analysis it used has probably
been replaced by the analysis in these more recent cases.


                                             -7-
not have provided probable cause to search the personal photographs on Mr. Willis's

cell phone. Accordingly, to the extent that the evidence includes photographs

discovered after the issuance of the warrant, those photos must also be suppressed.

              In light of the arguments well presented in the dissent, and in recognition

that the rule in Davis needs a consistent statewide application under Florida's unique

court structure, we certify the following question as a question of great public

importance:

              IN LIGHT OF PARDO V. STATE, 596 SO. 2D 665, 666
              (FLA. 1992), IS A SINGLE RECENT CASE FROM A
              DISTRICT COURT OF APPEAL, WHICH IS PENDING ON
              REVIEW IN THE SUPREME COURT, "BINDING
              APPELLATE PRECEDENT" UPON WHICH OFFICERS
              MAY OBJECTIVELY RELY FOR PURPOSES OF THE
              GOOD FAITH EXCEPTION DISCUSSED IN DAVIS V.
              UNITED STATES, 131 S. CT. 2419, 2434 (2011)?

              Reversed and remanded.



CASANUEVA, J., Concurs.
MORRIS, J., Dissents with opinion.


MORRIS, Judge, Dissenting.

           I respectfully dissent from the majority opinion in this case.

           There is no question that the law enforcement officers were in lawful

possession of Mr. Willis's cell phone as he had given consent for them to retrieve it.

The question here is whether the subsequent search of the contents of the cell phone

falls under the good-faith exception to the exclusionary rule. At the time of the search,

the only Florida case addressing cell phone searches which was then binding on all

Florida trial courts was the First District's opinion in Smallwood I, 61 So. 3d 448. See



                                            -8-
Pardo, 596 So. 2d at 666 ("[I]n the absence of interdistrict conflict, district court

decisions bind all Florida trial courts."). Smallwood I held that a search of a cell phone

incident to a lawful arrest was not a violation of the Fourth Amendment. 61 So. 3d at

459.

              Subsequent to the search involved in this case, the Florida Supreme Court

quashed the First District's opinion, holding that law enforcement officers are required to

obtain a search warrant before searching the contents of a cell phone that has been

seized incident to a lawful arrest. Smallwood II, 113 So. 3d 724. And following

Smallwood II, the United States Supreme Court issued its opinion in Riley, 134 S. Ct.

2473, wherein it reached the same holding. The majority holds that pursuant to

Smallwood II and Riley, the search here resulted in a Fourth Amendment violation and

that under Smallwood II, the evidence obtained as a result of that search should be

excluded because it is not subject to the good-faith exception to the exclusionary rule.4

              I conclude, however, that the majority's reliance on Smallwood II is

misplaced. First, the Smallwood cases can be distinguished from this case because at

the time Smallwood I was decided, there were no cases from a Florida district court

dealing with the issue of cell phone content searches. Thus the Pardo principle did not

apply. But here, at the time of the search, Smallwood I existed as the only district court

decision on the issue in Florida and, therefore, Pardo is applicable.




              4
                The majority's reliance on Riley is based on the substantive Fourth
Amendment issue. The issue of whether officers are entitled to rely on case law, which
is later overruled, as a basis for the good-faith exception to apply was not raised in
Riley.


                                             -9-
              Second, I believe that the court in Smallwood II interpreted too narrowly

the good-faith exception as analyzed in Davis. The State argued in Smallwood II that

the good-faith exception to the warrant requirement should apply pursuant to Davis, but

the court rejected that argument because "there [was] currently no United States

Supreme Court precedent that addresses or expressly permits a search of the data,

information, and content of a cellular phone under the search-incident-to-arrest warrant

exception." Smallwood II, 113 So. 3d at 739. The court distinguished Davis on the

basis that it involved a "bright-line rule" involving the search of a vehicle's passenger

compartment, whereas in Smallwood, "no bright-line rule exist[ed] for law enforcement

officers to rely upon with regard to searches under these facts." Id.

              Although the court in Smallwood II focused on the lack of a "bright-line

rule" or, more specifically, United States Supreme Court precedent, in deciding that the

good-faith exception did not apply, Davis established no such requirement for

application of the good-faith exception. In fact, in Davis, the relevant precedent being

relied upon was an Eleventh Circuit case that had relied on United States Supreme

Court precedent. Davis, 131 S. Ct. at 2426. Thus the issue in Davis was not whether

there existed United States Supreme Court precedent, or even a "bright-line rule."

Rather, the issue was whether the good-faith exception should apply where law

enforcement had reasonably relied on binding precedent.5




              5
                 Of course, Smallwood II did not involve the factual scenario presented
here, i.e., the search was conducted at a time when there was a single Florida district
court case addressing the issue. Thus the Florida Supreme Court was not presented
with the question of whether, under such circumstances, that single opinion would be
the equivalent of a "bright-line rule."


                                           - 10 -
               As noted by the majority, the holding of Davis was that "when the police

conduct a search in objectively reasonable reliance on binding appellate precedent, the

exclusionary rule does not apply." Id. at 2434 (emphasis added). And while the

majority is correct that there is a split in the case law as to what constitutes "binding

appellate precedent," I do not believe that the Supreme Court's utilization of that term

prevents the application of the good-faith exception to cases such as this one where, at

the time of the search, there was only one Florida district court opinion addressing the

issue. Indeed, by adopting the holding that the good-faith exception cannot apply

because there was no decision from the Florida or United States Supreme Courts at the

time of the search, the majority nullifies the holding of Pardo in cases involving facts like

the present case and ignores the extensive analysis in Davis as to both the purpose and

reach of the good-faith exception. It is also important to note that when referring to the

type of case law on which law enforcement officers could reasonably rely, the Supreme

Court used the terms "binding precedent" and "binding appellate precedent"

interchangeably. Davis, 131 S. Ct. at 2423-24, 2428-29, 2432, 2434. That fact, in

conjunction with the Supreme Court's analysis of the good-faith exception, leads me to

conclude that the good-faith exception should apply in this case.

               In Davis, the Supreme Court emphasized that the exclusionary rule is

" 'not a personal constitutional right' " but instead is a " 'judicially created' sanction"

designed to "deter future Fourth Amendment violations." 131 S. Ct. at 2433-34 (quoting

Stone v. Powell, 428 U.S. 465, 486 (1976)); see also Illinois v. Krull, 480 U.S. 340, 347

(1987) ("Application of the exclusionary rule 'is neither intended nor able to cure "the

invasion of the defendant's rights which he has already suffered." ' " (quoting United




                                             - 11 -
States v. Leon, 468 U.S. 897, 906 (1984))). In explaining why exclusion does not

automatically follow a Fourth Amendment violation, the Supreme Court noted the

societal costs that result from applying the exclusionary rule:

              Exclusion exacts a heavy toll on both the judicial system and
              society at large. It almost always requires courts to ignore
              reliable, trustworthy evidence bearing on guilt or innocence.
              And its bottom-line effect, in many cases, is to suppress the
              truth and set the criminal loose in the community without
              punishment. Our cases hold that society must swallow this
              bitter pill when necessary, but only as a last resort. For
              exclusion to be appropriate, the deterrence benefits of
              suppression must outweigh its heavy costs.

Davis, 131 S. Ct. at 2427. Conversely, the Court explained that exclusion is

unwarranted where it "fails to yield 'appreciable deterrence.' " Id. at 2426-27 (quoting

United States v. Janus, 428 U.S. 433, 454 (1976)).

              The Supreme Court then analyzed the types of situations in which

deterrence would be most effective. Citing its earlier opinion in Leon, the Supreme

Court differentiated between police conduct that was "deliberate," "reckless," or "grossly

negligent," for which "the deterrent value of exclusion is strong," and police conduct

based on an "objectively reasonable good-faith belief that their conduct is lawful" or

conduct involving "only simple, isolated negligence," for which "the deterrence rationale

loses much of its force." Davis, 131 S. Ct. at 2427-28 (internal quotation marks

omitted). Because the law enforcement officers in Davis had "acted in strict compliance

with binding precedent" (i.e., an Eleventh Circuit case), the Supreme Court concluded

that their behavior "was not culpable in any way." Id. at 2428 (citation omitted). The

Court went on to elaborate that where a particular practice is authorized by binding

appellate precedent, "[a]n officer who conducts a search in reliance on [that] precedent




                                           - 12 -
does no more than ac[t] as a reasonable officer would and should act under the

circumstances" and thus exclusion in such a case would only work to "discourage the

officer from do[ing] his duty [which] is not the kind of deterrence the exclusionary rule

seeks to foster." Id. at 2429 (third and fourth alterations in original) (citations omitted).

That deterrence rationale has been repeated time and time again in United States

Supreme Court decisions. See, e.g., Herring v. United States, 555 U.S. 135, 141-46

(2009); Arizona v. Evans, 514 U.S. 1, 10-14 (1995); Krull, 480 U.S. at 347-52; Leon,

468 U.S. at 918-19; United States v. Calandra, 414 U.S. 338, 347-54 (1974).6

              This is exactly the type of case for which deterrence has little value. The

officers were complying with the only Florida case addressing the issue (Smallwood I),

which according to Pardo was binding on all trial courts until it was later reversed in

Smallwood II. That is far from the "deliberate," "reckless," or "grossly negligent" conduct

for which the exclusionary rule has a deterrent effect. See Davis, 131 S. Ct. at 2427-28.

Thus, my reading of Davis leads me to conclude that Smallwood I was "binding

precedent" on which the officers could reasonably rely and that, therefore, the good-

faith exception is applicable to this case.

              The majority's efforts to circumvent Pardo are unpersuasive. The majority

notes that an opinion from a single district court is not binding on another district court in

Florida. But that is not the issue here. Here, the issue is whether the good-faith




              6
               The Florida Supreme Court has likewise noted that deterrence is the
primary purpose behind the exclusionary rule. See State v. Teamer, 39 Fla. L. Weekly
S478, S481 (Fla. July 3, 2014). The court also acknowledged Davis's holding that the
good-faith exception applies "where police acted in objectively reasonable reliance on
binding judicial precedent." Id.


                                              - 13 -
exception applies where law enforcement officers in Florida objectively reasonably

relied on the single Florida district court case addressing a Fourth Amendment issue.

              The majority's approach essentially carves out an exception to Pardo for

cases involving Fourth Amendment issues. But there is nothing in Pardo which

precludes its application in Fourth Amendment case law. Further, under the majority's

approach, if a single Florida district court decided in the first instance that a particular

action violated the Fourth Amendment, then law enforcement officers in that district

would have to either refrain from engaging in such conduct or face the prospect of

having evidence suppressed, whereas law enforcement officers in other districts could

freely engage in that conduct without fear of having evidence suppressed. That, in my

opinion, is an absurd result. I conclude then that because Smallwood I was the only

Florida district court case which addressed the issue at the time of the search, the

officers were not only entitled to rely on it pursuant to Pardo, they were bound by duty to

follow it. See Davis, 131 S. Ct. at 2429 (noting that officers who rely on binding

precedent are acting as reasonable officers would and should under the

circumstances). It is simply unreasonable to judge the constitutionality of the search on

a standard which did not exist. Indeed, "[w]hen the police comply with authoritative

precedent, only to see the law evolve after the fact, there is nothing to deter; the police

cannot modify their conduct to accord with cases not yet decided." United States v.

Sparks, 711 F.3d 58, 63 (1st Cir. 2013) (citing Davis, 131 S. Ct. at 2428-28).

              The majority summarily rejects the State's argument that Smallwood II and

Riley should have prospective application only by concluding that "the circumstances

that warranted a prospective approach to the holding in Chimel [v. California, 395 U.S.




                                            - 14 -
752 (1969)], simply do not exist in this case." I do not take issue with the conclusion

that the new rule of law announced in Smallwood II and Riley should apply retroactively.

But, as explained in Davis, the retroactive application of that rule of law is not dispositive

of whether the good-faith exception applies.

              There, the Supreme Court acknowledged that it previously held in Griffith

v. Kentucky, 479 U.S. 314 (1987), that "newly announced rules of constitutional criminal

procedure must apply 'retroactively to all cases, state or federal, pending on direct

review or not yet final, with no exception.' " Davis, 131 S. Ct. at 2430 (quoting Griffith,

479 U.S. at 328). However, the Court explained that the application of the good-faith

exception and the issue of retroactive application were two distinct doctrines:

"retroactive application of a new rule of substantive Fourth Amendment law raises the

question whether a suppression remedy applies; it does not answer that question." Id.

at 2431. The Court held that its decision in Gant, 556 U.S. 332, would apply to Davis's

case because his conviction was not final on direct review at the time Gant was

decided. Davis, 131 S. Ct. at 2431. However, while Davis was entitled to invoke the

new rule of law as announced in Gant as a basis for seeking relief, the Supreme Court

made it clear that the issue of whether he was entitled to a remedy was a separate

issue and that a remedy only applied where its purpose could be " 'effectively

advanced.' " Id. (quoting Krull, 480 U.S. at 347). The Supreme Court ultimately

concluded that the good-faith exception was "an established limit on the remedy of

exclusion" and that "[i]ts application . . . neither contravene[d] Griffith nor denie[d]

retroactive effect to Gant." Id.




                                             - 15 -
              Similarly here, while Willis was entitled to challenge the validity of the

search based upon Smallwood II and Riley, that fact does not answer the question of

whether he is entitled to a remedy. And for the reasons I have already explained, I

would conclude that he is not because the good-faith exception to the exclusionary rule

applies to this case.

              For these reasons, I would affirm.




                                           - 16 -
