NOT FINAL UNTIL TIME EXPI RES 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.

A ppeal 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, A ssistant Attorney General, Tampa, for A ppellee.

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- 2 - decision in Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 201 1) (Smallwood I), that decision was reversed by the supreme court in Smallwood v. Stat e, 113 So. 3d 724 (Fla. 2013) (Smallwood II). Moreover, the United States Suprem e Court reached a decision similar to our supreme court's decision in Riley v. Ca lifornia, 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 th e 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 lic ense was suspended. He arreste d Mr. Willis for driving while license suspended and placed him in his patrol car. Addi tional officers arrived at the scene and decided to tow the vehicle. After removing the t wo passengers from the vehicle, the officers conducted an inventory search. They unlo cked 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 officer s then arrested this passenger and Mr. Willis for posse ssion of cannabis and methamp hetamine and possession with intent to sell. Before Mr. Willis and the passenger were transported for booki ng, Mr. Willis asked the officers to retrieve his cell phone from his t ruck. The officer who retrieved the cell phone looked through the contents of the pho ne expecting to find- 3 - 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 tel ephone call logs and archived telephone numbers, email, text messages, and photograp hs for evidence of drug crimes and children involv ed in sexual conduct. The affid avit in support of the application stated that an inventory was conducted, during whic h time officers found marijuana and methamphetamine. The affidavit explained that th e officer who retrieved Mr. Willis's phone initially l ooked through it "to determine ow nership" 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 passenge rs in the vehicle with him; that the name of one of the passengers was wr itten on a pill bottle containing the marijuana and methamphetamine; that the officers arrested this passenger, along with Mr. Willis, f or 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 posses sion 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 year s' imprisonment followed by six years' probation as a- 4 - sexual offender. He also reserved the right to appeal the deni al of his dispositive motion to suppress. In the trial court, the suppression hearing focused significan tly on whether

the warrantless search exceeded the scope of the search inciden t to arrest permitted under Arizona v. Gant, 566 U.S. 3 32 (2009). Because the police obtained possession of this cell phone at Mr. Willis's request to retrieve it for h im, 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 w ithout a warrant. On appeal, Mr. Willis argues that the evidence acquired from t he cell phone during the warrantless search and the additional evidence acquired after the police obtained a warrant must be suppressed. The State primar ily argues that the evidence acquired by warrant is admissible. In light of the holdings in Smallwood II and Riley, we conclud e that the evidence obtained prior to the s earch warrant must be suppresse d. 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 r ule" existed from the United States Supreme Court on wh ich law enforcement could then reasonably rely. Id. at 738-39. After Smallwood II was decided, the United States S upreme 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.- 5 - We recognize that at the time it occurred, the warrantless sea rch of the cell phone here was permitted by the First District's recent de cision 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 "whe n the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply ." The case law is still devel oping on the type of precedent that qualifies as "binding appellate precedent" that is sufficient to permit "objectively reasonable reliance ." Compare United States v. Ro binson, 903 F. Supp. 2d 766 (E.D. Mo. 2012) (limiting the applicable precedent to Supre me Court and federal circuit court decisions), with United States v. Lopez, 951 F. S upp. 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 appella te courts are intended to be the normal final courts of review. See, e.g., John M. Scheb , Florida's Courts of Appeal: Intermediate Courts Becom e Final, 13 Stetson L. Rev. 47 9, 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 exclusiona ry rule as a remedy for an improper search of a cell phone in which law en forcement found photographs that were relevant t o 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 Fi fth Circuit allowing the warrantless search of an arrestee's cell phone incident to a la wful 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 explaine d in the opinion, we conclude that a Florida distric t court case from another distri ct is not the same kind of binding precedent as a Fifth Circuit case in Texas.- 6 - are not inclined to believe that the rule announced in Pardo sh ould be used in the

Fourth Amendment context to determine whether evidence from a w arrantless search is

admissible.

There was no decision on this issue from either the Florida Su preme Court or the United States Supreme Court at the time of the search, a nd the issue of cell phone searches was clearly an open and unresolved legal issue i n 2012. In light of the discussion in Smallwood II, despite Judge Morris's reasoned dis sent, we are not convinced that our supreme cour t intends for one recent decisio n from another Florida district court of appeal on such a controversial issue to creat e "binding precedent," at least in other districts, for purposes of the good-faith except ion as announced in Davis. See Smallwood II, 113 So. 3d at 739. Thus, without faulting th e officers involved, we conclude that the State cannot rely upon the good-faith excepti on to prevent the

exclusion of this evidence. 2 Distinct from the Davis argument, the State briefly suggests t hat 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 (F la. 1st DCA 1970). O'Steen involved a search incident to arrest that occurred prio r to the decision in

2 It should be noted that Smallwood I was pending on review in th e Florida Supreme Court when this cell pho ne was searched. See Smallwood v. State, 68 So. 3d 235 (Fla. 2011) (table decision). There is nothing in the reco rd to establish that the officers in this case actually knew about the holding in the Fi rst 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 i s rapidly evolving, it is hard to justify an approach to the good-faith exception that al lows 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 princip le of our legal system calling fo r a cautious use of the good-faith exception in situations like the one we face today.- 7 - Chimel v. California, 395 U.S. 752 (1969). Chimel was a case i n which the United States Supreme Court confronted at least two of its own prior d ecisions and attempted to create a more predictable rule. We conclude that the circum stances that warranted a prospective approach to the holding in Chimel simply do not exi st in this case. 3 Concerning the evidence obtained under the warrant, there is a n obvious problem with the fruit of the poisonous tree. See Grant v. Sta te, 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 prob able cause existed to obtain the search warrant. State v. Gibson, 670 So. 2d 1006, 1 009 (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 magi strate 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 af fidavit that the drugs were found inside a locked glove compartment in pill bottles be aring the name of one of Mr. Willis's passengers. We seri ously doubt that such informat ion would be sufficient even to obtain a preliminary warrant to search the record of re cent 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 analys is it used has probably been replaced by the analysis in these more recent cases.- 8 - not have provided probable cause to search the personal photogr aphs on Mr. Willis's cell phone. Accordingly, to the extent that the evidence inclu des 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 i n recognition that the rule in Davis needs a consistent statewide application under Florida's unique court structure, we certify the following question as a questio n of great public importance: IN LIGHT OF PARDO V. STATE, 596 SO. 2D 665, 666 (FLA. 1992), IS A SINGL E RECENT CASE FROM A DISTRICT COURT OF APPEAL, WHICH IS PENDING ON REVIEW IN THE SUPREM E 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 f or them to retrieve it. The question here is whether the s ubsequent search of the conte nts 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 Smallw ood I, 61 So. 3d 448. See- 9 - Pardo, 596 So. 2d at 666 ("[I]n the absence of interdistrict co nflict, district court decisions bind all Florida trial courts."). Smallwood I held t hat a search of a cell phone

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

459. Subsequent to the search involved in this case, the Florida Su preme Court quashed the First District's opinion, holding that law enforcem ent 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 7 24. And following Smallwood II, the United States Supreme Court issued its opinio n 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 Am endment violation and that under Smallwood II, the evidence obtained as a result of t hat search should be excluded because it is not subjec t to the good-faith exception to the exclusionary rule. 4 I conclude, however, that the ma jority's reliance on Smallwood II is misplaced. First, the Smallwood cases can be distinguished fro m this case because at the time Smallwood I was decided, there were no cases from a Fl orida district court dealing with the issue of cell phone content searches. Thus th e Pardo principle did not apply. But here, at the time of the search, Smallwood I existe d as the only district court

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

4 The majority's reliance on Riley is based on the substantive Fo urth 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.- 10 - Second, I believe that the court in Smallwood II interpreted t oo narrowly the good-faith exception as analyzed in Davis. The State argue d in Smallwood II that the good-faith exception to the warrant requirement should appl y 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 s earch of the data, information, and content of a cellular phone under the search-i ncident-to-arrest warrant exception." Smallwood II, 113 So. 3d at 739. The court distin guished Davis on the basis that it involved a "bright-line rule" involving the searc h 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 "b right-line rule" or, more specifically, United States Supreme Court preced ent, in deciding that the good-faith exception did not apply, Davis established no such r equirement for application of the good-faith exception. In fact, in Davis, th e relevant precedent being relied upon was an Eleventh Circuit case that had relied on Uni ted 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 a pply where law enforcement had reasonably relied on binding precedent. 5

5 Of course, Smallwood II did not involve the factual scenario pr esented here, i.e., the search was conduct ed at a time when there was a single Florida district court case addressing the issue. Thus the Florida Supreme Cour t was not presented with the question of whether, under such circumstances, that si ngle opinion would be the equivalent of a "bright-line rule."- 11 - 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 s uch as this one where, at the time of the search, there w as only one Florida district cou rt opinion addressing the issue. Indeed, by adopting the holding that the good-faith exc eption 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 ex tensive analysis in Davis as to both the purpose and reach of the good-faith exception. It is also important to not e that when referring to the type of case law on which law enf orcement officers could reason ably 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 cas e. In Davis, the Supreme Court emphasized that the exclusionary r ule is " 'not a personal constitutional right' " but instead is a " 'j udicially 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 exclus ionary rule 'is neither inten ded nor able to cure "the invasion of the defendant's rights which he has already suffere d." ' " (quoting United- 12 - States v. Leon, 468 U.S. 897, 9 06 (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 tha t 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 tha t 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 whi ch deterrence would be most effective. Citing its earlier opinion in Leon, the Supreme Court differentiated between police conduct that was "deliberat e," "reckless," or "grossly negligent," for which "the deterr ent value of exclusion is stro ng," and police conduct based on an "objectively reasonable good-faith belief that thei r 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 (intern al quotation marks omitted). Because the law enforcement officers in Davis had "a cted in strict compliance with binding precedent" (i.e., an Eleventh Circuit case), the S upreme 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 office r who conducts a search in rel iance on [that] precedent- 13 - does no more than ac[t] as a reasonable officer would and shoul d act under the circumstances" and thus exclusion in such a case would only wor k to "discourage the officer from do[ing] his duty [which] is not the kind of deterr ence 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, 34 7-54 (1974). 6 This is exactly the type of case for which deterrence has litt le value. The officers were complying with the only Florida case addressing t he 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," o r "grossly negligent" conduct for which the exclusionary rule has a deterrent effect. See Da vis, 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 goodfaith exception is applicable to this case. The majority's efforts to circ umvent Pardo are unpersuasive. The majority notes that an opinion from a single district court is not bindi ng on another district court in Florida. But that is not the issue here. Here, the issue is w hether the good-faith

6 The Florida Supreme Court has likewise noted that deterrence is the primary purpose behind the exclusionary rule. See State v. Tea mer, 39 Fla. L. Weekly S478, S481 (Fla. July 3, 2014). The court also acknowledged Da vis's holding that the good-faith exception applies "where police acted in objectively reasonable reliance on binding judicial precedent." Id.- 14 - exception applies where law enforcement officers in Florida obj ectively reasonably relied on the single Florida district court case addressing a F ourth 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 Four th Amendment case law. Furthe r, under the majority's approach, if a single Florida district court decided in the fir st instance that a particular action violated the Fourth Amendment, then law enforcement offi cers in that district

would have to either refrain fro m engaging in s uch conduct or f ace the prospect of having evidence suppres sed, whereas law enfor cement officers in other districts could freely engage in that conduct wit hout fear of having evidence s uppressed. That, in my opinion, is an absurd result. I conclude then that because Sma llwood I was the only

Florida district court case which addressed the issue at the ti me 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 un der the circumstances). It is simply unreasonable to judge the constit utionality of the search on a standard which did not exist. Indeed, "[w]hen the police com ply with authoritative precedent, only to see the law evolve after the fact, there is nothing to deter; the police cannot modify their conduct to acc ord with cases not yet decide d." United States v. Sparks, 711 F.3d 58, 63 (1st Cir. 2013) (citing Davis, 131 S. C t. at 2428-28). The majority summarily rejects the State's argument that Small wood II and Riley should have prospective application only by concluding th at "the circumstances that warranted a prospective approach to the holding in Chimel [v. California, 395 U.S.- 15 - 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 sh ould 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 acknow ledged that it previously held in Griffith v. Kentucky, 479 U.S. 314 (1987), that "newly announced rules o f constitutional criminal procedure must apply 'retroactively to all cases, state or fede ral, pending on direct review or not yet final, with no exception.' " Davis, 131 S. C t. at 2430 (quoting Griffith, 479 U.S. at 328). However, the Court explained that the applic ation of the good-faith exception and the issue of retroactive application were two dis tinct doctrines: "retroactive application of a new rule of substantive Fourth Am endment law raises the question whether a suppression remedy applies; it does not answ er that question." Id. at 2431. The Court held that its decision in Gant, 556 U.S. 33 2, would apply to Davis's

case because his conviction was not final on direct review at t he 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 rel ief, the Supreme Court

made it clear that the issue of whether he was entitled to a re medy 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 Suprem e Court ultimately concluded that the good-faith exception was "an established lim it on the remedy of exclusion" and that "[i]ts application . . . neither contravene [d] Griffith nor denie[d]

retroactive effect to Gant." Id.- 16 - Similarly here, while Willis was entitled to challenge the val idity of the search based upon Smallwood II and Riley, that fact does not an swer 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 b ecause the good-faith exception to the exclusionary rule applies to this case. For these reasons, I would affirm.