State of Florida v. Nealy

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2024-1249
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S TATE OF FLORIDA ,
Appellant,
v.
LANCE NEALY , JR .,
Appellee.
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On appeal from the Circuit Court for Jefferson County.
Dawn Caloca-Johnson, Judge.
January 7, 2026
R OWE , J.
The State 	appeals 	the 	trial 	court’s 	order granting Lance
Nealy’s motion to suppress evidence found on his cellphone.1 The
State raises multiple arguments for reversal. We address only one
and reverse.
1 We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B).

2
Facts
On August 23, 2021, two gang members shot and killed each
other in the front yard of a Monticello home. One of the gang
members—Jamien 	Davis—was 	a 	friend 	of 	Nealy’s 	and 	was
affiliated with the same gang as Nealy. Exactly a year later—on
August 23, 2022—another fatal shooting occurred at that same
home around 9:30 p.m.
A surveillance video captured the 2022 shooting. The video
showed a tall, thin, light-skinned black male approach the home,
knock on the door, wait for someone to answer, shoot five times
through 	the 	door, 	and 	then 	run 	away. 	Nealy 	matched 	the
description of and closely resembled the shooter depicted in the
video. Criminal investigators at the scene recovered .40 caliber
shell casings.
Around 	two 	weeks 	before 	the 	shooting, 	law 	enforcement
received an intelligence bulletin stating that Nealy had stolen a
.40 caliber Glock from a friend. Nealy’s friend had been trying to
sell the weapon and had texted pictures of it to Nealy. The friend
informed 	law 	enforcement 	that 	Nealy 	commonly 	used 	his
cellphone to facilitate the purchase, sale, and theft of firearms. In
fact, in June 2022, law enforcement learned through monitoring a
gang member’s jail calls that Nealy was sent to retrieve a firearm
so that one of his associates could carry out a murder. Nealy was
instructed to use Instagram, a social media application accessible
by mobile phone, to contact the person who had the firearm.
At 	another 	point 	before 	the 	August 	2022 	shooting, 	a
confidential 	informant 	notified 	law 	enforcement 	that 	Nealy
mentioned that he was going to retaliate for Jamien Davis’ death.
Investigators also learned that Nealy told his school resource
officer that he was going to skip school on August 23 to “celebrate
. . . the life of Jamien Davis on the one-year anniversary of his
death.” Nealy skipped school on August 23. But he was back in
school the following morning, mere hours after the lethal shooting.
Based on this information, law enforcement developed Nealy as a
suspect and sent an officer to contact Nealy at the school.

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Nealy became visibly nervous as soon as he saw the officer. He
was scanning the area, sweating, and asked multiple times if he
would be arrested. The officer asked Nealy if he had any weapons
on him. Nealy responded by placing his phone on the counter and
emptying his pockets. The officer seized the phone. The officer then
told Nealy that she was present at the school to discuss the
shooting from the night before. Nealy immediately asked to leave.
After Nealy left the school, the officer went to Nealy’s house.
Nealy admitted that there were firearms in the home but refused
to turn them over, so law enforcement secured the residence while
they obtained a search warrant. The process for obtaining a search
warrant involved several steps. First, law enforcement had to draft
a warrant application, which usually took several hours. The draft
then had to be sent to the State Attorney’s Office for approval, and
sometimes, multiple drafts would go back and forth between the
sheriff’s office and the State Attorney’s Office before a final version
was approved. After a final version was approved, the sheriff’s
office could submit it to a judge. But because Jefferson County did
not have an electronic warrant system, the warrant application
had to be submitted in person.
Furthermore, the sheriff’s office, which was going through a
staff shortage, needed to summon all its available officers to secure
Nealy’s home and obtain the search warrant for the home. Then,
once that warrant was obtained, those same officers were needed
to conduct the search. Only after the search of the home was
completed could the sheriff’s office turn its attention to obtaining
a search warrant for Nealy’s cellphone, and it did so. But because
the courthouse was not open overnight, law enforcement had to
wait until the next morning to get the warrant application in front
of a judge. A search warrant for Nealy’s cellphone was issued early
the next day, around twenty-four hours after law enforcement
seized the phone. Law enforcement found incriminating evidence
on the phone, and Nealy was indicted for first-degree murder.
Nealy moved to suppress the evidence found on his phone,
arguing that law enforcement had unlawfully seized the phone
without a warrant. At the motion hearing, the State argued that
law enforcement had probable cause to seize Nealy’s phone. The
State then argued that the exigent circumstances exception to the

4
warrant requirement applied because Nealy could have deleted
evidence from the phone if he had been allowed to leave the school
with it. 	Defense counsel argued 	that 	law enforcement 	lacked
probable cause to seize the phone and that the sheriff’s office
created the exigent circumstances by choosing to confront Nealy
before getting a search warrant for his phone. The State explained
the 	delays 	in 	obtaining 	the 	warrant 	and 	argued 	that 	it 	was
necessary to confront Nealy as soon as possible because he went to
school just hours after the shooting and might still have been
armed.
After the hearing, 	the trial court issued a 	written order
granting Nealy’s motion to suppress. The trial court found that law
enforcement had probable cause to seize Nealy’s phone but that no
exigent circumstances existed. The court concluded that, when the
State seizes a cellphone based on suspicion that evidence will be
destroyed before a warrant can be secured, the State “must”
identify some “affirmative” indication from the defendant that he
will imminently destroy evidence. Finding that Nealy gave no such
affirmative 	indication 	here, 	the 	court 	granted 	his 	motion 	to
suppress. This appeal follows.
Analysis
The State argues that the trial court erred when it concluded
that the exigent circumstances exception applied only if Nealy
“affirmatively indicate[d]” that he would destroy evidence on the
cellphone if it were not immediately seized. The State argues that
no such “affirmative indication” is required. Rather, the trial court
should have considered the totality of the circumstances that
existed at the time of the seizure to determine whether exigent
circumstances 	justified 	the 	warrantless 	seizure 	of 	Nealy’s
cellphone. We agree.
We review a trial court’s ruling on a motion to suppress under
a mixed standard. See Channell v. State, 257 So. 3d 1228, 1232
(Fla. 1st DCA 2018). We review the court’s factual findings for
competent, 	substantial 	evidence, 	and 	we 	review 	its 	legal
conclusions de novo. Id.

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Before reaching the merits of the State’s argument, we first
address Nealy’s argument that the State failed to preserve its
challenge to the trial court’s “affirmative indication” ruling. Nealy
argues that the State did not raise that challenge at the motion
hearing. But the State’s failure to do so is unsurprising given that
the trial court’s “affirmative indication” ruling appeared for the
first time in its written order granting suppression.
In any event, the State preserved its argument that the trial
court had to consider the totality of the circumstances to determine
whether 	there 	were 	exigent 	circumstances 	to 	support 	the
warrantless seizure of the phone. The State made that argument
at the suppression hearing and repeated the argument in its briefs
on 	appeal. 	See 	§ 924.051(1)(b), 	Fla. 	Stat. 	(providing 	that 	to
preserve an issue for appeal, an issue or legal argument raised
below should be “sufficiently precise that it fairly apprised the trial
court of the relief sought and the grounds therefor”).
Turning to the merits, the Florida Constitution guarantees
the “right of the people to be secure in their persons, houses, papers
and 	effects 	against 	unreasonable 	searches 	and 	seizures” 	and
specifies that this right “shall be construed in conformity with the
4th Amendment to the United States Constitution, as interpreted
by the United States Supreme Court.” Art. I, § 12, Fla. Const. “A
‘search’ occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed. A ‘seizure’ of property
occurs 	when 	there 	is 	some 	meaningful 	interference 	with 	an
individual’s possessory interests in that property.” United States
v. Jacobsen, 466 U.S. 109, 113 (1984) (footnote omitted); see also
Segura v. United States, 468 U.S. 796, 810 (1984) (explaining that
searches are entitled to heightened protection when compared to
seizures).
A warrantless search or seizure is “per se unreasonable under
the 	Fourth 	Amendment—subject 	only 	to 	a 	few 	specifically
established and well-delineated exceptions.” Katz v. United States,
389 	U.S. 	347, 	357 	(1967). 	A 	warrantless 	seizure 	will 	not 	be
considered 	unreasonable 	when 	(1) 	there 	is 	probable 	cause 	to
believe the property is or contains evidence of a crime and (2) the
seizure 	falls 	within 	an 	established 	exception 	to 	the 	warrant

6
requirement. Jones v. State, 648 So. 2d 669, 676 (Fla. 1994) (citing
United States v. Place, 462 U.S. 696, 701 (1983)).
The first prong 	that must be satisfied for 	a 	warrantless
seizure to be permissible is probable cause. See id. “[P]robable
cause is a flexible, common-sense standard” that “merely requires
that the facts available to the officer would ‘warrant a [person] of
reasonable caution in the belief,’ that certain items may be . . .
useful as evidence of a crime; it does not demand any showing that
such a belief be correct or more likely true than false.” Texas v.
Brown, 460 U.S. 730, 742 (1983) (internal citation omitted). Here,
the trial court correctly found that law enforcement had probable
cause to seize Nealy’s phone.
Once probable cause is established, the other prong that
must be satisfied for a warrantless seizure to be permitted is an
established exception to the warrant requirement. See Jones, 648
So. 2d at 676. One such exception is exigent circumstances. Id. In
determining whether exigent circumstances existed at the time of
a seizure, courts employ “a fact-specific inquiry that depends on
the totality of the circumstances.” State v. Darter, 350 So. 3d 370,
384 (Fla. 4th DCA 2022) (quoting United States v. Arellano-Ochoa,
461 F.3d 1142, 1145 (9th Cir. 2006)). The exigent circumstance the
State argued here was that, if the investigating officer did not seize
Nealy’s phone after alerting him that law enforcement was on to
him, Nealy would have destroyed the evidence on his phone.
To determine whether the officer’s fear that Nealy would
destroy evidence could justify a warrantless seizure, the trial court
had to conduct a fact-specific inquiry to determine whether the
totality of the circumstances indicated that it was reasonable for
the 	officer 	“to 	believe 	there 	was 	a 	risk 	evidence 	would 	be
destroyed.” See State v. Smith, 172 So. 3d 993, 999–1000 (Fla. 1st
DCA 2015). Missing here is any requirement that the defendant
must affirmatively indicate that he is about to destroy evidence.
While such an indication or the lack thereof is a circumstance, the
inquiry focuses on the totality of the circumstances. See id.
Even so, the trial court concluded that for the exception to
apply, Nealy had to affirmatively indicate he was about to destroy
evidence before the officer could seize his phone without a warrant.

7
In reaching this conclusion, the trial court cited several opinions
where 	appellate 	courts 	upheld 	warrantless 	seizures 	after 	the
defendants gave such indications. Darter, 350 So. 3d at 384–85;
United States v. Babcock, 924 F.3d 1180, 1194–95 (11th Cir. 2019);
Hanifan v. State, 177 So. 3d 277, 279–80 (Fla. 2d DCA 2015). While
each defendant’s affirmative indication was a circumstance that
helped establish exigency in those cases, it does not mean that the
same circumstance is necessary to establish exigency in every case.
Instead, 	the 	proper 	inquiry 	focuses 	on 	the 	totality 	of 	the
circumstances in a given case. See Darter, 350 So. 3d at 384; see
also Herring v. State, 168 So. 3d 240, 243 (Fla. 1st DCA 2015)
(observing that “[t]here is no exhaustive list of what constitutes
exigent circumstances” while identifying factors that may indicate
exigency including the “likelihood that delay could cause . . . the
destruction of essential evidence”). And so, we hold that the trial
court erred when it concluded that Nealy had to affirmatively
indicate that he planned to destroy the evidence on his phone
before officers could seize the phone without a warrant.
We therefore REVERSE the trial court’s order.
LEWIS and W INOKUR , JJ., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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James 	Uthmeier, 	Attorney 	General, 	and 	Adam 	B. 	Wilson,
Assistant Attorney General, Tallahassee, for Appellant.
Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant
Public Defender, Tallahassee, for Appellee.