If police seized a phone, a camera, or a video system in your case and the data is now gone, you may be wondering whether the case can survive without it. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a veteran of the Major Crimes Unit, where I handled homicide cases, I have tried cases where the State’s own mishandling became the center of the defense. Our attorneys work with forensic experts in data recovery, video, and digital devices who can testify about what police should have done and what was lost because they did not.

What happens when police destroy evidence in Florida?

When police destroy evidence, the court first decides whether the evidence was materially exculpatory or only potentially useful. Exculpatory evidence is evidence that would clearly have helped clear the defendant. Potentially useful evidence is evidence that might have helped if it had been tested or viewed. For potentially useful evidence, the defense must prove bad faith to win dismissal or exclusion.

In Arizona v. Youngblood, 488 U.S. 51 (1988), police failed to refrigerate a victim’s clothing and test semen samples in a child sexual assault case. The U.S. Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” The Court also said the defendant “is free to argue to the finder of fact” that a test police never ran might have cleared him.

Florida applies the same rule. In Patterson v. State, 199 So. 3d 253 (Fla. 2016), an arson defendant’s burned truck was destroyed by his insurer after the State released it, before he was ever charged. The Florida Supreme Court held that the bad faith requirement applies even when the defense asks only to exclude evidence rather than dismiss the case, and it found no bad faith on that record.

Can a case be dismissed because police lost a video?

A case can be dismissed for a lost video only in narrow circumstances. In State v. Hampton, 113 So. 3d 109 (Fla. 5th DCA 2013), a trial court dismissed a charge after the State failed to get surveillance video from the store where the defendant was arrested, and the store said any tape would have been erased within 24 hours. The Fifth District reversed, holding that the video was only potentially useful for impeaching the deputy and that the defense had not proven bad faith.

Legal scholars have long debated this standard. Norman C. Bay’s article Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 241 (2008) examines the different approaches states have taken in adopting or rejecting Youngblood. Florida has kept the bad faith test, so in most cases the destroyed evidence becomes a trial issue rather than a ground for dismissal.

How can destroyed evidence help the defense at trial?

Destroyed evidence helps the defense when the jury learns that the State had the evidence, understood its value, and failed to keep it. The defense can cross-examine the officers about the protocol they skipped, call an expert to explain how the data should have been preserved, and argue that the missing evidence leaves reasonable doubt. Jurors understand that if the evidence had proven the State’s case, the State would have made sure they saw it.

Digital evidence is especially easy to lose. In 2020, publicly funded crime laboratories in the United States received about 27,000 requests for digital evidence analysis, and only 22.9% of labs performed that kind of work, according to the Bureau of Justice Statistics report Publicly Funded Forensic Crime Laboratories, 2020. In many cases, the officer who first handles a phone or camera system is not a trained forensic examiner.

Case study: the destroyed surveillance video in a murder trial

Our firm defended a man charged with second-degree murder after a fatal fight with his roommate inside their shared home. He said he acted in self-defense. A surveillance camera in the home pointed out a window, and based on its angle and field of view it would have captured key moments of the fight.

Police seized the camera, watched part of the footage, and confirmed in their reports that it showed the incident. They did not make a forensic download, which is a complete bit-by-bit copy of the device’s data that preserves the original. Instead, officers worked with the device directly, and the footage was lost.

What the forensic expert found

We retained a forensic data recovery expert and obtained a court order to send the camera to the expert. The expert had two jobs: recover any remaining video, and determine whether the device had been handled according to forensic protocol. His conclusion was clear: no data remained on the device. The video that police confirmed existed was gone.

The expert could not recover the footage, and that was not the point of his testimony. The point was that police had critical evidence, failed to preserve it, and destroyed it through their handling.

Two defenses that supported each other

At trial we presented self-defense and the destruction of evidence together. Under section 776.012, Florida Statutes, a person is justified in using deadly force if he reasonably believes it is necessary to prevent imminent death or great bodily harm. My client testified to the fight as he lived it. The expert, whose testimony had to meet the reliability standard in section 90.702, Florida Statutes, explained the protocol for preserving digital video, that police skipped the forensic download, and that their handling destroyed the footage.

The message to the jury was direct: the State had evidence that could have shown exactly what happened, the State destroyed it, and now it asked the jury to convict without it.

What should you do if evidence in your case was lost or destroyed?

Tell your attorney about every device and camera involved as early as possible, so the defense can trace what police seized and what happened to it. Our attorneys follow five steps in these cases:

1. Review every police report for evidence that was seized, viewed, or mentioned but never produced in discovery.
2. Demand the evidence in discovery and ask for a court order to examine any device independently.
3. Retain a forensic expert even when recovery looks unlikely, because testimony about the lost evidence can matter as much as the evidence.
4. Move for dismissal or exclusion when the record shows bad faith.
5. Build the destruction into the trial defense, so it supports the client’s own account.

When the case is still under investigation and no charge has been filed, our attorneys can send preservation demands and track devices as part of our representation before charges are filed. In a homicide case, our Tampa homicide attorney page explains how our firm prepares for trial from the first week.

Official misconduct is a recurring factor in wrongful convictions. Of the 147 exonerations recorded nationwide in 2024, at least 104, or 71%, involved official misconduct, according to the National Registry of Exonerations 2024 Annual Report. Mishandled evidence is not always misconduct, but juries take the State’s handling of evidence seriously when the defense shows them the details.

Frequently asked questions

What is spoliation of evidence in a criminal case?

Spoliation is the destruction, alteration, or failure to preserve evidence relevant to a case. In a Florida criminal case, spoliation by the State leads to dismissal or exclusion only with proof of bad faith or clearly exculpatory evidence, and The Brancato Law Firm otherwise uses it at trial through cross-examination and expert testimony.

What is a forensic download?

A forensic download is a complete, bit-by-bit copy of all the data on a device, including deleted files and metadata, made before anyone examines the original. Our attorneys at The Brancato Law Firm ask in every digital evidence case whether police made one, because skipping it is often where data is lost.

Should I hire a data recovery expert if the evidence is already gone?

Often, yes. Even when nothing can be recovered, an expert can testify about proper preservation and how police departed from it, and The Brancato Law Firm retains these experts through the network described on our Tampa forensic science attorney page.

Does the State have to preserve all evidence?

No. Under Arizona v. Youngblood, police do not have a constitutional duty to preserve everything that might conceivably help, only to avoid bad faith destruction of potentially useful evidence. Our attorneys at The Brancato Law Firm send preservation demands early so the record shows exactly what the State was asked to keep.

Can police destroying evidence lead to a not guilty verdict?

It can contribute to one. The Brancato Law Firm won a not guilty verdict in a second-degree murder trial where police destroyed surveillance video, and our post on why expert witnesses matter in major crimes cases explains how experts carry that kind of defense.

What if the evidence was never collected at all?

Evidence police never collected is treated much like lost evidence: the case goes forward, and the defense can show the jury the gap. Our firm’s guide to why a defense attorney should visit the crime scene describes how The Brancato Law Firm finds cameras and witnesses police missed.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Talk to our attorneys about lost or destroyed evidence

Our attorneys can start by tracing every device and recording police seized in your case and demanding that what remains be preserved. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, handles murder and other serious felony cases from our office two blocks from the courthouse; call (813) 727-7159 at any hour, because each week can cost evidence. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. For more about our defense strategies, visit our Forensic Science page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If police took your phone after a complaint from a roommate, a coworker, or a stranger in a store, the case against you is already inside that device. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I bring to these cases my years in the Major Crimes Unit handling sex crime prosecutions and more than 150 jury trials to verdict. Our attorneys defend digital voyeurism charges in Hillsborough, Pinellas, and Pasco Counties by testing every element the State must prove, starting with what the camera actually captured and where.

What is video voyeurism under Florida law?

Video voyeurism is secretly using a camera or other imaging device to view, record, or broadcast someone who is undressing or exposed in a private place, without that person’s knowledge and consent. Since October 1, 2024, section 810.145, Florida Statutes calls the offense “digital voyeurism.” Chapter 2024-132, Laws of Florida (CS/CS/HB 1389), renamed the crime, added “exploiting” as a prohibited purpose, and created new dissemination offenses. The statute covers three kinds of conduct:

1. Secret recording in a private place. Using or installing a device to secretly view, broadcast, or record a person who is dressing, undressing, or privately exposing the body where that person has a reasonable expectation of privacy.
2. Permitting someone else to do it. Allowing another person to use or install the device for that person’s gratification or profit.
3. Recording under or through clothing. Secretly recording under or through another person’s clothing to view the body or undergarments, often called upskirting. This version does not require a private place, so it reaches stores, escalators, and other public spaces.

The statute defines a reasonable expectation of privacy as circumstances in which a reasonable person would believe he or she could fully disrobe without being watched or recorded, including the inside of a home, a bathroom, a changing or fitting room, a dressing room, or a tanning booth. Our Tampa sex crimes lawyer page explains how our firm defends the full range of sexual offense charges.

Is video voyeurism a felony or a misdemeanor in Florida?

It depends on the accused person’s age, the alleged victim’s age, the relationship between them, and any prior record. For an adult with no prior voyeurism conviction, the base offense is a third-degree felony. These are the degrees under section 810.145 and the maximum penalties under section 775.082, Florida Statutes:

Two more rules drive exposure. First, each instance of viewing, recording, or sharing is a separate offense with a separate penalty, so one phone can produce many counts. Second, when an accused 19 or older is a family or household member of the person recorded, or holds a position of authority or trust such as a coach, caregiver, or employer, the court must reclassify the felony one degree higher. The offense levels come from section 921.0022, Florida Statutes, the offense severity ranking chart on the Criminal Punishment Code scoresheet.

Do you have to register as a sex offender for video voyeurism in Florida?

Only for the child-victim version of the offense. Florida’s registration statute, section 943.0435, Florida Statutes, lists section 810.145(8) as a qualifying offense, not the rest of section 810.145. A conviction for recording an adult, or for sharing an adult’s recording, does not by itself trigger registration. A conviction under subsection (8), which covers victims under 16 and accused persons who are 24 or older, caretakers, or school employees, requires registration as a sexual offender.

That distinction makes the charging decision the most important event in many cases. Whether the State files under subsection (2) or subsection (8), and whether it can prove the alleged victim’s age and the accused person’s role, decides whether a client faces a lifetime of registration. Our overview of sex offender registration in Florida explains what registration requires.

How often do video voyeurism convictions lead to prison in Florida?

For an adult first offense, rarely; for the child-victim version, usually. In fiscal year 2022-23, the Florida Department of Corrections recorded 1 prison admission and 31 supervision admissions for adults 19 or older convicted of video voyeurism, a 3.1% incarceration rate, according to the Office of Economic and Demographic Research impact analysis of the 2024 bill. For second or subsequent offenses the rate was 12.5%, and for the child-victim offenses under subsection (8) it was 71.4%, with 10 prison admissions and 4 supervision admissions.

The scoresheet explains the gap. A single Level 3 count scores 16 points, well below the 44 points at which prison becomes the lowest permissible sentence, so a first-offense adult case often resolves with probation. Multiple counts, a Level 5 primary offense, or a prior record can push the score past that line. The same analysis reported 22 misdemeanor video voyeurism arrests statewide in fiscal year 2022-23, a reminder that most of these cases are charged as felonies.

How do you fight a video voyeurism charge in Florida?

You fight it by holding the State to each element: a secret recording, of a person undressing or exposed, in a place with a reasonable expectation of privacy, without consent, for a prohibited purpose, by you. Our attorneys build the defense around the elements the evidence does not support:

• Not secret. A camera that was visible, a security system with posted notice, or a device installed so its presence was “clearly and immediately obvious” falls under the statute’s exceptions in subsection (5).
• No reasonable expectation of privacy. A person visible from a street or a public area may not meet the statute’s definition, except in an under-the-clothing case.
• Consent. Recordings made with a partner’s knowledge and agreement are not secret. Text messages and prior conduct often prove consent.
• No prohibited purpose. The State must prove amusement, sexual gratification, profit, or an intent to degrade, exploit, or abuse. A home security camera installed to watch a front door is not voyeurism.
• Identity. Shared phones, cloud accounts, and household devices raise the question of who actually made or viewed the recording.
• Count stacking. Duplicates, thumbnails, and automatic cloud copies of one recording should not become separate charges.

Secrecy is often contested. In J.T.R. v. State, 79 So. 3d 839 (Fla. 1st DCA 2012), a juvenile held a phone over a school bathroom stall and argued the State had not proven the recording was secret because the victim looked up at the camera. The First District affirmed, holding that a victim who notices the camera only after recording starts does not defeat secrecy. The lesson is that secrecy is judged at the moment the recording begins, so the defense must establish what the person knew before then.

Can police make you unlock your phone in a voyeurism case?

In the Second District, which covers Hillsborough, Pinellas, and Pasco Counties, a court can order you to provide a phone passcode when police already hold a warrant for the phone. In State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016), a man was accused of holding an illuminated phone under a shopper’s skirt in a store, then withdrew his consent to search his iPhone. The Second District held that compelling the passcode did not violate the Fifth Amendment because the State already had a warrant and knew the phone was his, calling it “a case of surrender and not testimony.”

Other Florida appellate courts have since disagreed with Stahl, so the issue remains contested. The practical lesson is the same everywhere: do not give consent to search a phone, do not unlock it, and do not explain what is on it. Ask for a lawyer and let your attorney handle any court order. Our article on secretly recording someone in Florida covers the separate audio recording law that often appears alongside these charges.

What happens after a video voyeurism arrest in Hillsborough County?

After an arrest in Hillsborough County, the accused goes before a judge at first appearance at the Orient Road Jail within 24 hours, where bond and release conditions are set. In our experience, judges routinely add a condition barring any contact with the person recorded, and the State asks the court to keep the accused away from the location, such as a workplace or apartment complex, where the camera was found. Violating those conditions can lead to bond revocation, so our attorneys explain them to clients before release.

The phone, laptop, or hidden camera usually goes to a forensic examiner, and that report often takes months. That delay is an opportunity. Before the State files formal charges, our attorneys can present facts about consent, ownership of the device, or the purpose of a camera through pre-file advocacy, which can lead the State to file a lesser charge or no charge at all. Our Hillsborough County criminal defense page describes the local process.

Why does Florida treat upskirting differently?

Florida separately criminalizes recording under or through clothing because older voyeurism laws required a private place, and courts often held there is no expectation of privacy in public. A 2006 study in Criminal Justice Studies, Valerie Bell, Craig Hemmens, and Benjamin Steiner’s Up Skirts and Down Blouses: A Statutory Analysis of Legislative Responses to Video Voyeurism, reviewed 47 state and federal voyeurism statutes and found that most required an invasion of privacy, leaving upskirt recordings in public places uncovered. Florida closed that gap with the under-the-clothing provision, which is why a store or a stadium can be the scene of a felony.

For the defense, the shift moves the fight from where the recording happened to what it shows and why it was made. Our attorneys examine the actual footage frame by frame, because a recording that does not capture the body or undergarments under the clothing does not meet this version of the offense.

Frequently asked questions about video voyeurism in Florida

Is it illegal to have a hidden camera in your own home in Florida?

Not by itself. A camera becomes digital voyeurism when it secretly records someone undressing or exposed in a private area, such as a guest bathroom or a tenant’s bedroom, for a prohibited purpose. The Brancato Law Firm examines where each camera pointed and why it was installed, because a security camera covering a door or driveway is lawful.

Can video voyeurism charges be dropped in Florida?

Yes. Charges can be dropped or reduced when the evidence does not show secrecy, a private place, a prohibited purpose, or who made the recording, or when a search was unlawful. Our attorneys at The Brancato Law Firm raise these issues with prosecutors early, often before charges are filed, through representation before charges are filed.

Is sharing a secret recording a separate crime in Florida?

Yes. Since October 1, 2024, sending a recording you know or have reason to believe was made by digital voyeurism is digital voyeurism dissemination, a third-degree felony, and selling it is commercial dissemination. The Brancato Law Firm looks at whether the client knew how the recording was made, an element the State must prove for sharing charges.

Does recording a partner during sex count as video voyeurism?

It can, if the partner did not know about or consent to the recording. Consent to sex is not consent to be recorded, but consent to recording can be shown through messages, a visible device, or past practice. Our attorneys at The Brancato Law Firm gather that evidence early, and our article on revenge porn charges in Florida covers later sharing of intimate images.

Is a teenager who records a classmate charged with a felony?

Usually not as an adult felony. An accused under 19 commits a first-degree misdemeanor under section 810.145(2)(b), and most cases involving minors go to juvenile court. The Brancato Law Firm works to keep these cases in diversion programs that avoid a permanent record.

Will I have to register as a sex offender if the person I recorded was 17?

Not under section 810.145(8) unless the person was under 16, or you were a caretaker or school employee of a student. Registration applies only to subsection (8) convictions, so the age of the person recorded and your role decide the question. Our sex crimes defense attorneys at The Brancato Law Firm challenge the State’s proof of both facts.

Speak with our attorneys before the forensic report comes back

The weeks after a phone or camera is seized are when the defense can shape the charge, before a prosecutor decides between a misdemeanor, a third-degree felony, or a registrable offense. Tampa Criminal Defense Attorney Rocky Brancato founded The Brancato Law Firm, P.A. to defend people in exactly this position, and our attorneys can review the warrant, the device report, and the facts about consent. Call us at any hour at (813) 727-7159 for a confidential consultation. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Most child pornography cases in Tampa begin with an automated report from a tech company, months before anyone knocks on a door. I learned how investigators build these cases as a police academy instructor teaching officers search-and-seizure law, and as a Major Crimes Unit attorney handling sex crime and child abuse cases. Today, as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I lead a team that defends people charged in Hillsborough, Pinellas, and Pasco Counties, many of whom had no record before the search warrant. Our attorneys start with the evidence trail: the report, the warrant, and the forensic image of each device.

How do child pornography investigations start in Florida?

Most cases start with a CyberTipline report from an online platform to the National Center for Missing and Exploited Children (NCMEC), which routes it to law enforcement. Federal law, 18 U.S.C. § 2258A, requires providers to report apparent CSAM once they have actual knowledge of it, but expressly does not require them to monitor users or scan content. Many large platforms scan anyway, usually by comparing a file’s hash value, a digital fingerprint, to a list of known images.

The volume is enormous. In 2025, NCMEC made 126,256 CyberTipline reports available to law enforcement for Florida, including 70,812 referrals, according to NCMEC’s 2025 CyberTipline Reports by State. Nationally, NCMEC received 20.5 million reports in 2024. Each report then has to be traced to a person through subpoenas for subscriber and IP address records, which is where the State’s first assumptions enter the case.

Can the search be challenged?

Yes. A search challenge is often the strongest defense, because if the warrant falls, the files usually fall with it. In Burnett v. State, 848 So. 2d 1170 (Fla. 2d DCA 2003), a case investigated by the Polk County Sheriff’s Office, the Second District held that the affidavit supporting the warrant for the defendant’s computer and diskettes was fatally defective and reversed 136 counts of possession that flowed from the seizure. The court affirmed other convictions but threw out every possession count.

Our attorneys look for these warrant problems in every case:

• Thin probable cause. The affidavit must connect the person and the place to be searched to the files, not just repeat that a tip exists.
• Staleness. Months can pass between the tip and the warrant. Our article on the 10-day search warrant rule explains a reversal on timing grounds.
• Scope. A warrant for one device or account does not authorize a search of everything a person owns.
• Account warrants. Warrants to Google, Apple, or other providers raise their own issues, covered in our guide to a Google account legal request.

What is a private search doctrine motion to suppress?

A private search doctrine motion asks the court to suppress evidence because police opened a flagged file without a warrant when no person at the reporting company had looked at that file first. Under the U.S. Supreme Court’s private search cases, police may repeat a search a private party already did, but may not go beyond it without a warrant. When a tech company flags a file only by an automated hash match, the defense argues that no private person ever saw the contents, so the officer who opened the file conducted a new government search. Because police in many CyberTip cases open the files first and get warrants afterward, a win on this motion can take down every warrant built on that first look.

Our firm files these motions in Hillsborough County cases, and we build them from the CyberTip itself. Google’s CyberTips answer a question for each reported file: “Was File Reviewed by Company?” A “No” means no Google reviewer looked at that file for the report; the flag rests on a hash match to a different file someone reviewed in the past. We match every file the detective opened to that answer, and we point out what the State must prove at the hearing. A warrantless search shifts the burden to the State, so the prosecution must show, file by file, that a private person actually viewed what the officer opened.

Where do the courts stand on opening hash-matched files?

The courts are split, and Florida’s state appellate courts have not settled the question for the files a company never viewed. In Morales v. State, 274 So. 3d 1213 (Fla. 1st DCA 2019), a Santa Rosa County defendant uploaded an image to a chatroom whose service matched it to known CSAM through Microsoft’s PhotoDNA. No one at the company or NCMEC opened it before an FDLE agent did, without a warrant. The First District held that the agent’s viewing did not exceed the private search because the hash match identified the image with near certainty.

In Lowers, Google hash-matched 156 files in a Google Drive account, a reviewer opened 31, and the CyberTip showed which files were opened and which were not. A detective then opened files that neither Google nor NCMEC had viewed. The Fourth Circuit held that was an unconstitutional search. Brillhart, an appeal from the Middle District of Florida, went the other way on its record, but only because the file’s hash traced to a file a human at Google had already confirmed. The Second District, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, has not squarely decided the question in the decisions we have reviewed. In Youngman v. State, 342 So. 3d 770 (Fla. 2d DCA 2022), it held only that police software finding files a defendant shared publicly on BitTorrent was not a search at all.

Legal scholars have questioned how far hash searches should reach. A 2018 Stanford Law Review note, Dennis Martin’s Demystifying Hash Searches, argues that police conduct a Fourth Amendment search whenever they use an algorithm to do what would be a search if done by hand.

How do our attorneys build a private search motion?

Our attorneys build the motion from the State’s own documents, in five steps:

1. Pull the per-file review answers. We read the CyberTip’s “Was File Reviewed by Company?” answer for every reported file.
2. Match them to what the detective opened. The warrant affidavits usually describe specific files; we check whether each described file was one no company employee viewed.
3. Hold the State to its burden. At the evidentiary hearing, the State must prove with competent evidence, not the tip’s own label, that a person reviewed each file the officer opened.
4. Excise the tainted descriptions. We ask the court to strike the officer’s descriptions of unlawfully viewed files from each warrant affidavit and test whether probable cause remains.
5. Defeat good faith and attenuation. Searches done after the 2021 Wilson decision are harder to excuse as good faith, and a client who invoked the right to counsel and gave no statement leaves the State no break in the chain, unlike the defendant in Lowers.

Lowers carries a practical lesson. The Fourth Circuit found the search unconstitutional and still let the evidence in because the defendant talked to police and consented to searches afterward. A person who stays silent and asks for a lawyer protects the motion as well as the case.

Can a CyberTip be wrong?

Yes. A CyberTip is a report, not proof, and both its labels and its claims about human review can be wrong. The clearest Florida example involves William Lawshe, a Florida Fish and Wildlife Conservation Commission officer who had been named national wildlife officer of the year in 2014. According to News4JAX reporting, a St. Johns County investigation that began with a February 2023 tip led to three counts of possessing child pornography, he left the agency, and the charges were dropped that December after his lawyers produced evidence they said proved his innocence.

Lawshe then sued Verizon and its cloud-storage contractor. In Lawshe v. Verizon Communications, Inc., No. 3:24-cv-137-MMH-LLL (M.D. Fla. Feb. 28, 2025), he alleged that his account held legal images of adult models and that the CyberTip behind his arrest rested on a hash match to an image tagged only “unconfirmed.” He alleged the report still stated that the company “had viewed the entire contents” of the image and that it showed a “pre-pubescent” minor, when the people pictured were plainly adults. Judge Marcia Morales Howard held that federal reporting immunity did not defeat his defamation and Stored Communications Act claims over that report at the pleading stage, writing that the defendants “conflate an intent to immunize mistaken reports with an intent to immunize unfounded reports.” The parties later settled, and in February 2026 the court vacated the order at their request, so it is not precedent. It remains a public record of how an automated flag, and a claim that someone reviewed it, can be wrong.

That is why our attorneys never accept a CyberTip at face value. We check whether each file was actually reviewed, whether it was labeled “apparent” or only “unconfirmed,” and whether an independent examiner agrees the image shows a minor at all. A person who has been falsely flagged has a defense, and the first step is to say nothing to investigators and call a lawyer.

What does the State have to prove about knowledge?

The State must prove you knowingly possessed, controlled, or intentionally viewed material you knew contained CSAM. Under section 827.071, Florida Statutes, the file’s presence on a device is not enough by itself. When the device or home is shared, Florida applies constructive possession rules: the State must show you knew of the files and could exercise control over them through evidence beyond mere proximity, as the Second District explained in Jenrette-Smith v. State, 114 So. 3d 427 (Fla. 2d DCA 2013).

Forensic evidence decides most knowledge disputes. Our attorneys retain independent digital forensic examiners to answer questions the State’s report often skips:

1. Who was using the device? Login records, user profiles, and activity at the time of download.
2. Were the files ever opened? Access dates, thumbnails, and viewing history.
3. Where did the files sit? A deleted file, a cache, or an automatic sync folder tells a different story than an organized collection.
4. How did they arrive? Bulk downloads, file-sharing programs, malware, or a synced account a user never opened.
5. Are the counts right? Duplicates, thumbnails of the same image, and files of uncertain age inflate the count.

Deleted files raise their own issue. In Burnett, the State’s expert found deleted images on diskettes but could not say when or by whom they were deleted. The Second District resolved the case on the warrant and expressly left open whether deleted images retrievable only by an expert prove knowing possession. Our attorneys press that question when the evidence is deleted or fragmentary. Because constructive possession works the same way across offenses, our guide to constructive possession in Florida is useful background.

What changed in Florida’s CSAM law on July 1, 2026?

On July 1, 2026, Chapter 2026-20, Laws of Florida (CS/CS/HB 1159), renamed “child pornography” as “child sexual abuse material” throughout the statutes and raised several penalties. Possessing, controlling, or intentionally viewing CSAM under section 827.071(5) became a second-degree felony, and each image and each child depicted is still a separate offense. Our post on child pornography penalties in Florida covers sentencing, scoring, and the image-count enhancement in detail. The changes that most affect defense strategy are these:

The transmission change builds on earlier law about file sharing. Section 847.0137 reaches a person who knew or reasonably should have known he was transmitting CSAM. In Jeror v. State, 313 So. 3d 178 (Fla. 2d DCA 2021), a Sarasota County defendant moved downloaded videos into a folder a BitTorrent program shared automatically. The Second District held the evidence let the jury find he reasonably should have known the files were being shared, and affirmed. With cloud links now included, how a folder was shared, and whether the user knew, is a central fact our attorneys investigate.

Can a child pornography charge be dropped or reduced in Florida?

Yes. Charges can be dismissed, reduced, or resolved for fewer counts when the search is suppressed, the knowledge evidence is weak, or mitigation persuades the prosecutor. Counts tied to unreliable forensics can also be dropped. Early work matters most, and when an investigation is still underway, pre-file advocacy can shape what the State files.

One example from our firm: a young man who had just turned 18 was charged with possession of child pornography and faced prison and sexual offender registration. Our attorneys built a detailed mitigation case and negotiated with the prosecutor, and the case resolved with a plea to a non-registerable offense with treatment. Past results do not guarantee future outcomes. Our guide to a mitigation report explains that work, and our overview of sex offender registration in Florida explains what registration under section 943.0435, Florida Statutes requires.

Charges involving chats with a minor are a different offense with different defenses; see solicitation of a child using a computer and what to do if you messaged a minor online. Our Tampa internet crimes attorney page describes how our firm defends these cases.

What should you do if police contact you about a CSAM investigation?

Do not answer questions, consent to a device search, or delete anything; call a defense attorney first. Deleting files after you learn of an investigation can lead to a separate tampering charge and can be argued as evidence of knowledge. Investigators often arrive with a warrant already signed and ask friendly questions while the search happens. Anything said during that visit can supply the knowledge element the forensic evidence lacks.

• Say you want a lawyer and will not answer questions.
• Do not give passwords or unlock devices without advice from counsel.
• Write down who came, what they took, and what they said.
• Keep the warrant and inventory paperwork.

Frequently asked questions about fighting a child pornography charge in Florida

Is accidentally downloading child pornography a crime in Florida?

Not if it was accidental. Section 827.071(5) requires knowing possession or intentional viewing of material the person knew contained CSAM. The Brancato Law Firm uses forensic evidence, such as whether a file was ever opened, to show what a client did and did not know.

Can I be charged if other people used my computer or Wi-Fi?

You can be charged, but shared access is a real defense. On a shared device or network, the State must prove knowledge and control beyond simple proximity to the files. Our attorneys at The Brancato Law Firm build a timeline of who used each device and account when the files arrived.

Is sharing a Google Drive or Dropbox link a crime under Florida’s 2026 law?

Sharing a link or access credential to cloud storage that contains CSAM can now be charged as transmission under section 847.0137, a second-degree felony. The Brancato Law Firm examines whether the client created the link, knew what it contained, and knew it was shared, which is where these cases are won or lost.

Can a CyberTip search be suppressed if no one at Google viewed the file?

It can, in some courts. Several federal appeals courts have held that police violate the Fourth Amendment by opening a hash-matched file no company employee viewed, while others, including the Eleventh Circuit on a record of prior human review, have allowed it. The Brancato Law Firm files private search doctrine motions built on the CyberTip’s file-by-file review answers, a question Florida’s Second District has not settled.

What if a CyberTip flagged an image of an adult?

Then the State cannot prove a key element, because CSAM must depict a minor. Automated tags such as “unconfirmed” signal that even the reporting system was unsure of the person’s age. The Brancato Law Firm retains independent examiners to test age and origin, and cases like Lawshe v. Verizon Communications, Inc., No. 3:24-cv-137-MMH-LLL (M.D. Fla. Feb. 28, 2025) show that these reports can be wrong.

Can a search warrant based on a CyberTip be thrown out?

Yes, if the affidavit lacks probable cause, the information was stale, or police exceeded the scope of the warrant or the private search. In Burnett v. State, 848 So. 2d 1170 (Fla. 2d DCA 2003), a defective affidavit led to reversal of 136 possession counts. Our attorneys at The Brancato Law Firm file motions to suppress when the warrant or the tip falls short.

Does Florida’s July 2026 law apply to my case if the files were downloaded earlier?

The new penalties apply to offenses committed on or after July 1, 2026. When downloads span that date, The Brancato Law Firm uses the forensic timeline to argue which law applies to each count; our internet crimes defense team reviews the file dates in every case.

Will I be arrested before I know I am being investigated?

Often, yes. Many people first learn of a CSAM investigation when police execute a search warrant, sometimes months after the original tip. If you think an investigation is underway, The Brancato Law Firm can step in before charges are filed through representation before charges are filed.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa sex crimes defense practice.

Talk to our attorneys before you talk to investigators

The first conversation with police and the first forensic image of a device shape everything that follows. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys can step in before an interview, review the warrant and CyberTip, and bring in an independent forensic examiner. Call us at any hour at (813) 727-7159 for a confidential consultation. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Internet Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have watched gang labels follow young clients from their first arrest through sentencing. Florida’s new gang law makes that label easier to apply, and much of the new proof will come from phones and social media accounts. Our attorneys now treat a client’s online history as evidence to review on day one of any case where a gang allegation is possible.

This guide explains what HB 429 (chapter 2026-156, Laws of Florida) changed, why the Legislature split along party lines on it, what a gang label actually does to a criminal case, and how the allegation is challenged.

What Changed in Florida’s Gang Member Definition?

HB 429 rewrote the list of criteria in section 874.03(3), Florida Statutes. The two-criteria minimum stayed the same, but the list grew and several criteria became easier to meet.

The law also adds a definition of “gang-related language”: any verbal or written statement “that signals gang affiliation, supports gang activity, or uses recognized gang codes, symbols, or terminology associated with criminal organizations.” Written statements expressly include “any digital or electronic statements,” including social media posts.

The other criteria did not change. They include identification by a documented reliable informant, adopting a gang’s style of dress or hand signs, gang tattoos, associating with known gang members, identification by a corroborated untested informant, and physical evidence.

Can One Social Media Post Make Someone a Gang Member?

Possibly. Section 874.03(3) has long provided that when “a single act or factual transaction satisfies the requirements of more than one of the criteria,” each of those criteria is satisfied. Before October 1, 2026, that rule mattered mostly for tattoos and clothing. Now it applies to online speech.

In our reading of the statute, a single post in which a person claims a gang, uses its terminology, and references its activity could be argued to satisfy three criteria at once: an online admission, authoring a communication indicating gang affiliation, and using gang-related language on social media. Two criteria are enough. Whether a court accepts that argument in a particular case will depend on the post, its context, and whether the State can prove who wrote it.

The lower threshold for observation also matters. Being seen with known gang members two times, instead of four, now counts as a criterion. Observations inside a jail or prison count only if the association was “willful,” because the Legislature wanted to reach gang recruiting in custody without punishing people for who they are housed with.

Why Did Florida Pass HB 429?

Supporters said the law brings Florida’s gang statute into the social media era. The Senate sponsor, Senator Jonathan Martin of Fort Myers, told the Senate the bill “modernizes Florida’s gang statutes to reflect how gangs operate today,” according to the Florida Phoenix. He also emphasized that being in a gang is still not a crime and that two criteria must still be met.

The bill drew more opposition than most criminal justice bills this session. The House passed it 100 to 7 on February 4, 2026, but the Senate vote on March 10, 2026 was 29 to 9, largely along party lines. In Senate committees the votes were 6 to 2 in Criminal Justice, 5 to 3 in the Appropriations Committee on Criminal and Civil Justice, and 12 to 6 in Fiscal Policy. Governor DeSantis signed the bill on June 16, 2026. Vote tallies come from the official bill history and the Senate companion’s history.

Critics’ concerns track a body of research on how police read social media. In a 2017 article in the journal Social Media + Society, Columbia University researcher Desmond Patton and colleagues described social media policing as a form of “everyday racism in digital policing,” citing cases such as a New York teenager held at Rikers Island for 19 months in part because of his Facebook activity. Their point is that slang, music, and photos posted by young people are easy to misread as proof of gang activity.

How Often Are Gang Enhancements Used in Florida?

Rarely, at least on paper. According to the Senate Criminal Justice Committee’s analysis of SB 536, the Florida Department of Law Enforcement reported no arrests and no convictions for gang-related penalty enhancements under section 874.04 in fiscal year 2024-25, and the Department of Corrections reported no new prison commitments under that section. FDLE reported 15 arrests for other chapter 874 felonies that year.

Gang labels show up more often after sentencing. The same analysis reports that of 469 people admitted to Florida prisons with life sentences in fiscal year 2024-25, the Department of Corrections listed 67 as gang members and 25 as gang associates. The Legislature’s economists projected a “positive indeterminate” prison bed impact from HB 429, meaning more prison time in an amount they could not estimate.

Those numbers suggest the new criteria may matter less as a separate charge and more as pressure: in bond arguments, in plea negotiations, and in how a defendant is classified once in custody.

What Does a Gang Label Do to a Criminal Case?

A gang allegation can raise the maximum penalty, change the scoresheet, and delay release. These are the main consequences under Florida law:

• Reclassification. Under section 874.04, if the factfinder finds beyond a reasonable doubt that the defendant committed the offense “for the purpose of benefiting, promoting, or furthering the interests of a criminal gang,” the offense can be punished one degree higher. A third-degree felony becomes punishable as a second-degree felony, and a first-degree felony as a life felony.
• Scoresheet multiplier. Florida’s sentencing code applies a gang multiplier to the primary offense points when the enhancement applies, which can raise the lowest permissible sentence.
• No bond before first appearance. Under section 903.046(2)(l), a defendant charged with a chapter 874 crime, or with a crime alleged to be subject to gang enhancement, “is not eligible for release on bail or surety bond until the first appearance.”
• Separate gang crimes. Chapter 874 also punishes recruiting gang members and directing gang activity as standalone felonies.

Our guide to how a bond hearing works in Tampa explains how judges weigh these allegations when setting release conditions.

Is Gang Membership Alone Enough for an Enhancement?

No. The Florida Supreme Court settled that in State v. O.C., 748 So. 2d 945 (Fla. 1999). O.C., an Orlando-area juvenile, was found guilty of attempted aggravated battery and battery, and the trial court bumped the felony up a degree because it found O.C. was a gang member. The Supreme Court struck down that version of section 874.04, holding that it punished “gang membership without requiring any nexus between the criminal activity and gang membership,” which violated substantive due process.

The current statute was rewritten to require that nexus. The State must prove beyond a reasonable doubt that the crime was committed to benefit, promote, or further the gang. HB 429 makes membership easier to prove, but it did not change the nexus requirement. That is where many gang enhancements can be defeated.

The First Amendment adds another limit. In Dawson v. Delaware, 503 U.S. 159 (1992), the U.S. Supreme Court set aside a ruling that upheld a death sentence, because the prosecution told the sentencing jury the defendant belonged to a white racist prison gang without connecting that membership to the crime or any issue in sentencing. The Court held the evidence was “totally without relevance,” while making clear that association evidence can be admitted when it is relevant. The rule for defense lawyers is the same as in O.C.: membership without connection to the crime is not proof of anything.

How Do You Fight a Gang Allegation Based on Social Media?

Social media evidence has to be authenticated, interpreted, and connected to the crime, and each step can be challenged. Our Tampa violent crimes lawyer team works through these questions:

1. Who wrote it? Accounts are shared, hacked, and impersonated. The State must authenticate a post as the defendant’s before it can be used, which usually requires more than a profile name and photo.
2. What does it mean? Song lyrics, slang, neighborhood pride, and jokes are not admissions. The criterion requires gang-related language used “in furtherance of criminal gang-related activity,” not just language that sounds like it. A defense expert can explain context that a detective may miss.
3. Is there a “criminal gang” at all? The State must prove the group is an ongoing organization with three or more members whose primary activities include criminal acts. A neighborhood friend group with a name is not automatically a criminal gang.
4. Is each criterion independently proved? A spouse’s identification, an informant’s tip, and a detective’s observations all have to be proved with admissible evidence. Florida’s spousal privilege in section 90.504 protects confidential communications between spouses, which can limit what a spouse may repeat.
5. Where is the nexus? Even a proven member cannot receive an enhancement unless the State proves the specific crime benefited the gang.
6. Should the jury hear it at all? Gang evidence is highly prejudicial. Our attorneys file motions in limine to keep gang references out of trial when they are not needed to prove an element.

Gang investigations often begin long before an arrest. If you have been contacted by a detective about a group or a social media account, representation before charges are filed lets our attorneys respond before the State decides what to charge.

What Should You Do About Your Social Media Now?

Assume detectives can see anything you post publicly, and think about how a stranger would read it. These steps reduce risk without hiding evidence:

• Do not post, like, or repost content that claims a group, uses its symbols, or references crimes, even as a joke or song lyric.
• Review your privacy settings and who can see your posts and stories.
• Do not delete content after you learn of an investigation or arrest; that can be charged as tampering with evidence. Talk to a lawyer first.
• Do not accept friend or follow requests from people you do not know.
• If you are arrested, do not discuss the case or your associations on jail phones or messaging apps.

This post is part of our guide to the new Florida criminal laws that took effect October 1, 2026, which summarizes all eight laws in one place.

Frequently Asked Questions

Is it illegal to be in a gang in Florida?

No. Florida does not make gang membership a crime by itself, but membership can lead to enhanced penalties when a crime is committed to benefit a gang, and chapter 874 punishes recruiting and directing gang activity. The Brancato Law Firm challenges gang allegations at the bond stage, in plea negotiations, and at trial.

Can rap lyrics be used as gang evidence in Florida?

They can be offered as evidence, but the State must show the lyrics are relevant to the charged crime, and a judge can exclude them when their unfair prejudice outweighs their value. Our attorneys at The Brancato Law Firm move to exclude creative expression that the State uses only to suggest bad character.

Can my spouse identify me as a gang member?

Yes. Since October 1, 2026, identification by a spouse who lives with you is one of the 13 criteria, though it counts only if a second criterion is also proved. The Brancato Law Firm examines whether a spouse’s statement rests on privileged confidential communications or on reliable personal knowledge.

Does the new gang law apply to old social media posts?

The enhanced penalties apply only to crimes committed on or after October 1, 2026, but the statute does not say whether posts made before that date can be used to prove membership. Our attorneys at The Brancato Law Firm will argue that pre-October 2026 posts cannot be used to satisfy criteria that did not exist when they were posted.

Can a juvenile be labeled a gang member in Florida?

Yes. Section 874.04 applies to delinquent acts as well as adult crimes, and the same membership criteria apply to juveniles. The Brancato Law Firm defends juveniles in Hillsborough County, where a gang allegation can affect detention decisions and the disposition of the case.

Does a gang allegation affect bond in Hillsborough County?

Yes. When the State alleges a gang enhancement, the defendant cannot bond out on a schedule and must wait for a judge at first appearance, where the allegation is weighed in setting conditions. Our attorneys at The Brancato Law Firm prepare to contest the gang allegation at that first hearing, through our violent crimes defense practice.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa internet crimes defense practice.

Talk to a Tampa Violent Crimes Lawyer Today

For more about our defense strategies, visit our Violent Crimes practice page.

A gang allegation can keep someone in jail until first appearance and double the stakes of a case. Our attorneys will review the arrest report, the social media evidence, and every criterion the State relies on, and we will be ready to argue at the first hearing. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you just realized the person you were chatting with is underage, or you received a message from someone claiming to be a parent or a detective, the hours that follow can shape whether you are ever charged. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I handled sex crimes cases in the Major Crimes Unit of the Hillsborough County Public Defender’s Office before going on to serve as its Chief Operations Officer, overseeing a staff of over 100 attorneys. Our attorneys represent people at this stage, before an arrest, and we read the full conversation before giving advice about what happens next.

What Should You Do Right Now If You Messaged a Minor Online?

Stop, preserve, stay silent, and call a lawyer. These five steps protect you whether the other person is a real teenager, an adult who lied about age, a detective, or a vigilante group:

Can You Be Charged for Messaging a Minor Online in Florida?

Yes. Under section 847.0135(3), Florida Statutes, it is a crime to knowingly use “any other device capable of electronic data storage or transmission” to “seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child” to engage in unlawful sexual conduct. No meeting is required. In Cashatt v. State, 873 So. 2d 430 (Fla. 1st DCA 2004), a man arranged online to meet a “14-year-old boy” in Jacksonville who was actually a vice detective. The First District upheld his conviction and held that “the Internet communications alone constituted a prima facie case of guilt” under the statute.

Cashatt also matters for anyone who believed the other person was an adult. The court rejected the argument that the statute had no mental state as to age, holding that the statute is presumed to require knowledge “including the age of the child sought to be ‘lured.'” In practice, that means what you knew or believed about the person’s age is central to whether the solicitation statute applies.

Which Florida Charges Can Come From Online Messages to a Minor?

The charge depends on what was said, what was sent, and whether anyone traveled to meet. Our Tampa internet crimes attorney page covers each of these in more depth.

Registration follows from the list of qualifying offenses in section 943.0435, Florida Statutes, which includes section 847.0133 and section 847.0135 (other than subsection 6). Section 847.0133 defines a minor as “any person under the age of 18 years.” Our guide to sex offender registration in Florida explains what registration requires.

What If You Did Not Know the Person Was a Minor?

It depends on the charge. For computer solicitation, your belief about age is part of what the State must prove, so an adult profile, an adult photo, or a stated adult age can be strong evidence. For in-person sexual contact, the rule is the opposite: under section 800.04(3), Florida Statutes, “the perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense” to lewd or lascivious offenses involving someone under 16.

That difference is why the conversation should end the moment you learn the person may be underage. Our age of consent in Florida guide explains the age lines in Florida law.

Was It a Real Minor or a Police Sting?

Many of these cases involve no real child at all. In our practice, Hillsborough County Sheriff’s Office online stings follow two patterns: a deputy answers or posts an adult ad and then claims a teenage age once the conversation is under way, or a deputy poses as an adult offering access to a child. If you were talking with a detective, entrapment and charge-stacking defenses may apply; our post on solicitation of a child using a computer covers those defenses and the leading cases in detail.

Research on real cases points the other way from popular belief. In “Online ‘Predators’ and Their Victims,” published in American Psychologist in 2008 (vol. 63, pp. 111-128), researchers Janis Wolak, David Finkelhor, Kimberly Mitchell, and Michele Ybarra of the University of New Hampshire’s Crimes Against Children Research Center reported that in their national study of arrests, only 5 percent of offenders pretended to be teens when they met potential victims online, and 99 percent of victims of internet-initiated sex crimes were ages 13 to 17. The cases that reach court are usually about older teenagers and conversations that moved toward sex over time, which is why the full chat history matters.

How Do These Investigations Usually Start?

Most investigations start with a report from a parent, a platform, or a tip to the National Center for Missing and Exploited Children. NCMEC reports that in 2023, Florida law enforcement received more than 47,500 actionable CyberTipline reports, and more than 1,800 of them concerned suspected online enticement, including sextortion.

Signs you may already be under investigation include:

• The other person suddenly reveals an underage age after a sexual turn in the conversation.
• The account blocks you, disappears, or is replaced by a message from someone claiming to be a parent.
• Someone asks you to meet, then sends a location you do not recognize.
• A detective calls, leaves a card, or asks you to “come in and talk.”
• Your service provider notifies you of a legal request for your account records.

Our article on signs you are being investigated for a crime in Florida covers other warning signs.

Should You Talk to Police If a Detective Contacts You?

No, not without a lawyer. A detective who calls or knocks is usually trying to confirm that you were the person typing the messages, and a voluntary interview often supplies the identity proof the State does not yet have. You can politely decline to answer questions, decline consent to search your phone, and ask for your lawyer. If officers have a search warrant, do not resist, but do not discuss the case.

Early representation gives the defense a chance to act before the State’s charging decision. Our page on representation before charges are filed explains how our attorneys communicate with investigators and prosecutors on a client’s behalf. If the first contact came from a self-described predator-catcher group rather than police, see our post on vigilante predator catchers in Florida.

How Can a Defense Attorney Help Before You Are Charged?

A defense attorney can review the conversation, preserve evidence that helps you, and keep you from making the statements that most often prove the State’s case. Our attorneys focus on four questions in every case:

1. What did the messages actually say? Sexual talk is not always solicitation; the State must prove an attempt to seduce, solicit, lure, or entice.
2. What did you believe about age? The profile, the photos, and when age was first mentioned matter under Cashatt.
3. Can the State prove you sent the messages? Shared phones, shared accounts, and incomplete screenshots can leave doubt about identity.
4. Was there inducement? If a detective or decoy pushed the conversation toward sex after you pulled back, entrapment may apply.

Frequently Asked Questions About Messaging a Minor Online in Florida

Can I go to jail for texting a 16-year-old in Florida?

You can if the messages solicited sexual conduct, or if you sent obscene material, because Florida treats anyone under 18 as a minor for these offenses. The Brancato Law Firm reviews the actual messages before advising a client, since ordinary conversation is not a crime.

Should I delete the messages if I talked to a minor online?

No, deleting messages can lead to a tampering charge and can destroy proof that the other person claimed to be an adult. Our attorneys at The Brancato Law Firm preserve the full conversation so it can be reviewed for defenses; see our internet crimes defense page.

What if the minor said they were 18?

A stated adult age is strong evidence on the belief element of computer solicitation, but it does not help if the case involves in-person sexual contact with someone under 16. The Brancato Law Firm builds the defense around the exact point where age entered the conversation.

Can a parent press charges for messages to their child?

A parent can report the messages, but the State Attorney’s Office, not the parent, decides whether to file charges. Our attorneys at The Brancato Law Firm can contact the prosecutor before a decision is made; learn more about pre-file advocacy.

How long does an online solicitation investigation take in Florida?

It can take days in a sting case and months when police need records from an app or phone carrier, and an arrest can come without warning. The Brancato Law Firm advises clients during that window so they do not make statements that strengthen the case.

Can charges for messaging a minor be dropped in Florida?

Yes, charges can be declined or dismissed when the messages do not show solicitation, the State cannot prove who sent them, or entrapment applies. The Brancato Law Firm presents those problems to prosecutors early, and when a case is filed we file the motions that test them in court.

Call a Tampa Defense Attorney Before You Talk to Anyone

What you say in the first conversation with a detective can matter more than anything in the chat. Before you answer a call or open the door, talk with The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys will review the conversation with you and tell you what to expect. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

For more about our defense strategies, visit our Tampa Internet Crimes Attorney page, or our Tampa sex crimes lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida search warrant comes with a clock, and the date stamped on it can decide a case before anyone looks at the evidence. As a former police academy instructor, I trained officers on how to do things by the book, and as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have spent more than 25 years in Hillsborough County courtrooms holding them to it. Our attorneys compare the issuance date, the execution date, and the return on every warrant in every case, because a late search can end the prosecution.

What Is Florida’s 10-Day Search Warrant Rule?

The rule is a deadline set by statute. Under section 933.05, Florida Statutes, a search warrant “must be returned within 10 days after issuance, not including the date of issuance.” Courts read that return deadline as an execution deadline: police have to carry out the search within the same 10 days.

The deadline dates back to 1923, and Florida courts enforce it strictly. In Spera v. State, 467 So. 2d 329 (Fla. 2d DCA 1985), officers searched a home for drugs 13 days after the warrant issued and found cocaine. The Second District held that “a search warrant in Florida becomes stale ten days after its issuance” and that a stale warrant “requires suppression of any evidence seized as a consequence of the search.”

The 10-day rule still governs warrants for homes, cars, and most physical evidence. The Legislature has carved out longer periods for a few kinds of warrants:

What Happened in Moschella v. State?

In Moschella v. State, 413 So. 3d 851 (Fla. 2d DCA 2025), the Second District reversed a child pornography conviction because a forensic search warrant was executed weeks late. Detectives from the Manatee County Sheriff’s Office seized two phones, a tablet, and a laptop. A judge issued a warrant to search the devices on July 27, 2020, but the detective admitted the search did not happen until “sometime in September.”

James Moschella pleaded no contest and reserved the right to appeal the denial of his motion to suppress. The State stipulated that the suppression issue was dispositive, meaning the case could not go forward without the evidence. The trial court had denied suppression because the delay did not prejudice him.

The Second District disagreed. Quoting Spera, it said “the legislature has decided that ten days is a reasonable time,” and it refused to add a prejudice requirement to “the firmly established statutory time limit.” Because the State’s stipulation was binding, the court reversed the judgment and sentences and remanded for dismissal of the charges.

Moschella matters in Tampa Bay for a specific reason. The Second District Court of Appeal hears appeals from Hillsborough, Pinellas, and Pasco Counties, so its rulings bind the trial judges our clients appear before.

Did Florida Change the Search Warrant Rule for Phones and Computers?

Yes, twice. A 2025 law gave police 45 days to return a warrant for a computer or electronic device already in police possession. Then the Legislature passed CS/HB 359, signed June 26, 2026 and effective July 1, 2026 as chapter 2026-177, Laws of Florida. Under the current statute, a device warrant is “considered timely executed” if police seize the device within 10 days, the return is due within 365 days, and the agency does not have to finish its forensic analysis within the return period.

The House Criminal Justice Subcommittee’s staff analysis of HB 359 discussed Moschella directly, and the bill responds to the problem the case exposed: forensic exams of phones and computers take longer than 10 days.

The change does not make device warrants deadline-free. The device still has to be seized within 10 days of the warrant, and the return still has a deadline. It also leaves open which version of the statute applies to a warrant issued before July 1, 2026. Our attorneys check the issuance date against the version of section 933.05 in effect that day, and we raise Moschella wherever the older rule governed.

Why Do Warrant Deadlines Matter So Much in Child Pornography Cases?

They matter because these cases usually rest entirely on what a forensic examiner finds on a seized device. Under section 827.071, Florida Statutes, knowingly possessing child sexual abuse material is a second-degree felony, and each image, and each child in each image, is a separate offense. A single phone can produce dozens of counts, each punishable by up to 15 years in prison.

Federal numbers show how heavily these cases are prosecuted. The U.S. Sentencing Commission’s Quick Facts on child pornography offenses report that 1,432 people were sentenced for these offenses in federal court in fiscal year 2025, with an average sentence of 118 months. The Middle District of Florida, which includes Tampa, sentenced 70 of them, among the most of any district in the country.

When the search that found the files was invalid, the files cannot be used. That is why a warrant timing problem can end a case that looks unbeatable. Our Tampa internet crimes attorney team treats the warrant file as the first piece of evidence to examine.

How Do Defense Attorneys Find a Late Warrant?

They line up the dates in the paperwork. The warrant shows when a judge signed it. The return and inventory show when officers executed it and what they took. Forensic reports, property receipts, and lab request forms often show when the device search actually started. Moschella’s case turned on a detective’s admission at the suppression hearing, so depositions matter too.

Our attorneys check these points in every case involving a search warrant:

1. Issuance date. The day the judge signed the warrant, which starts the clock the next day.
2. Execution date. When officers searched the place or seized the device.
3. Return date. When the warrant and inventory went back to the court.
4. Forensic start date. When the examiner began the device search, from lab logs and reports.
5. Applicable statute. Which version of section 933.05 was in effect on the issuance date.

Do Other Warrant Problems Lead to Suppression?

Yes. A late warrant is only one of several grounds for a motion to suppress in a digital evidence case. A warrant may lack probable cause, describe the place or files too broadly, or be searched beyond its scope. In Smallwood v. State, 113 So. 3d 724 (Fla. 2013), a Jacksonville robbery case, the Florida Supreme Court held that police could take a phone during an arrest but needed a warrant before searching its data, and it ordered a new trial because the photos found on the phone should have been excluded.

Many child exploitation investigations begin before any warrant, with a tip from a tech company and a subpoena for account records. Our guide to a Google account legal request in Florida explains that stage. If you suspect an investigation, representation before charges are filed can keep you from consenting to a search that no warrant would have allowed.

How Soon Should You Talk to a Lawyer After a Device Seizure?

Talk to a lawyer right away, ideally before the forensic exam is finished. Dates and chain-of-custody records are easiest to pin down early, and a lawyer can demand the warrant, the return, and the lab paperwork through discovery and take depositions before memories fade. For the charges and sentencing exposure in these cases, see our pages on child pornography defense in Tampa and child pornography sentencing enhancements.

Frequently Asked Questions

Does a late search warrant always get a case dismissed in Florida?

No. A late warrant leads to suppression of the evidence from that search, and dismissal follows only when the State cannot prove the case without it, as happened when the State stipulated in Moschella. The Brancato Law Firm evaluates what evidence would remain after suppression before advising a client on a plea or trial, as explained on our Tampa sex crimes lawyer page.

Do I have to prove the delay hurt my case?

No. The Second District held in Moschella that a defendant does not have to show prejudice from a late warrant, because the Legislature already decided what a reasonable time is. Our attorneys at The Brancato Law Firm raise the deadline issue on its own terms rather than trying to show harm.

How many days do police have to search my phone under a warrant in Florida?

Under the current section 933.05, police must seize the phone within 10 days of the warrant, and the return is due within 365 days. The Brancato Law Firm checks whether an older version of the statute, with a shorter deadline, applied to your warrant, using the statute itself on Online Sunshine.

What is a dispositive plea, and why did it matter in Moschella?

A dispositive plea is a no contest plea that reserves the right to appeal a pretrial ruling the parties agree will decide the case, so a win on appeal ends in dismissal instead of a new trial. Our team at The Brancato Law Firm uses this tool when a suppression ruling is strong enough to carry an appeal.

Can child pornography charges be dropped in Florida?

Yes. Charges can be dropped or dismissed when key evidence is suppressed, when the State cannot prove the person knowingly possessed the files, or when the files were on a device others used. The Brancato Law Firm attacks each of those points, and our Tampa internet crime lawyer attorneys handle these cases in Hillsborough, Pinellas, and Pasco Counties.

Does the 10-day rule apply to search warrants for my house or car?

Yes. Warrants for homes, vehicles, and physical items still must be executed and returned within 10 days, as in Spera, where a home search on day 13 required suppression. The Brancato Law Firm reviews every warrant in a case, not only the device warrant, because one late search can taint the evidence that followed.

Talk to a Tampa Defense Attorney About a Search Warrant

The dates on a warrant do not change, but the chance to use them can slip away once a plea is entered. Our attorneys at The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review every warrant, return, and forensic report in your case for timing and scope problems. Call (813) 727-7159; you can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Internet Crimes Attorney page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you opened an email from Google saying it received legal process about your account, an investigation has already reached your data, and what you do in the next few days matters. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and in more than 25 years in Hillsborough County courtrooms, including my years in the Major Crimes Unit, I have seen how many serious cases begin with a subpoena to a tech company. Today our attorneys take these notices from the other side: we call the agency, learn what it wants, and work to keep the case from ever being filed.

What Does a Google Legal Process Notice Mean?

It means a government agency served Google with legal process for information tied to your account, and Google is telling you about it. Google’s published policy on how it handles government requests for user information says it emails the user before disclosing information unless the law prohibits notice, the account is disabled or hijacked, or an emergency, such as a threat to a child’s safety, justifies waiting. When the gag order or emergency ends, Google sends the notice.

That last point explains why many notices arrive late. The data may have been produced long before you heard about it. Other companies, including Apple, Microsoft, Meta, and Amazon, send similar notices under their own policies.

Florida law follows the same pattern. Under section 934.25, Florida Statutes, officers can delay notice to a subscriber for up to 90 days at a time, with 90-day extensions, if notice might lead to flight, destroyed evidence, witness intimidation, danger to someone’s safety, or a seriously jeopardized investigation. A court can also order the provider not to tell anyone for “such period as the court deems appropriate.” The federal version, 18 U.S.C. § 2705, works the same way for federal agencies.

Is a Google Legal Request Email a Scam?

Usually not, but verify it without clicking anything. Real notices come from Google’s own domain and name an agency or court, while fake ones ask for passwords, payment, or a phone call to a number in the email. Sign in to your Google account directly through a browser, not through a link, and do not reply to the message. Then forward the notice to your attorney, who can confirm it with the agency.

What Legal Process Can Police Use to Get Your Google Data?

The type of legal process depends on what the government wants. Under section 934.23, Florida Statutes, a Florida officer can get basic subscriber records with a subpoena: your name, address, session times, length of service, payment method, and assigned IP addresses. Officers who get records this way do not have to notify you at all. Recent stored content, such as emails held 180 days or less, requires a warrant from a judge.

Google’s policy tracks the same tiers for U.S. requests: a subpoena for basic subscriber information and certain IP addresses, a court order for other non-content records in criminal cases, and a search warrant for content. Professor Orin Kerr’s widely cited article, “A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It,” 72 Geo. Wash. L. Rev. 1208 (2004), explains how this tiered system lets the government get more data with less judicial review when it asks for records instead of content.

Courts have pushed the warrant line outward. In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), a federal fraud case, the Sixth Circuit held that the government “may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” In Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court required a warrant for historical cell site location records. When the State skipped a required warrant, our attorneys file a motion to suppress.

Why Would Police Want Your Google Account?

Police want an account because it holds evidence about someone, and that someone is not always the account owner. Account requests usually fall into a few groups:

• Child exploitation tips. Providers scan uploads and report suspected child sexual abuse material to the National Center for Missing and Exploited Children, which routes the tip to local police.
• Fraud and scams. Account, payment, and login records are central to wire fraud, identity theft, and investment fraud cases.
• Threats, stalking, and harassment. Messages, posts, and IP logs can identify who sent them.
• Drug cases. Messages and location history can show transactions and meetings.
• Someone else’s conduct. A family member on your Wi-Fi, a hacked account, or contact with a suspect can put your account in the file.

Internet crime reports are heavy in Florida. The FBI Internet Crime Complaint Center 2024 report counted 52,191 complaints from Florida in 2024, the 3rd most of any state, with reported losses of $1,071,909,632. Each complaint is a possible subpoena to a tech company.

How Does an Account Request Turn Into an Arrest?

It usually follows a set path: a tip or complaint, a subpoena for subscriber information, a visit to the home, and then a search warrant. A Second District case from nearby Manatee County shows each step. In State v. McNeela, No. 2D2022-1418 (Fla. 2d DCA June 21, 2023), Microsoft reported suspected child pornography uploaded from a Sarasota IP address. A detective subpoenaed the internet provider, which returned the account holder’s name, phone number, and address. Officers went to the house, the man told them he was the computer’s primary user, and he consented to a search. The court reversed an order suppressing the evidence and held that those facts were enough for a search warrant.

The lesson is about the knock on the door. The subpoena gave police a name and address. The conversation and the consent gave them the rest. A lawyer who is already on the case before that visit can tell the agency that you will not be interviewed and will not consent to a search.

What Should You Do After Getting a Google Legal Request Notice?

Take five steps, in this order:

1. Do not contact the agency yourself. Anything you say can be used to build probable cause, and calling to “clear it up” is how many cases are made.
2. Do not delete data or the account. Deleting can be charged as tampering with evidence, and the provider has often preserved a copy already.
3. Do not discuss the notice. Texts, emails, and calls with friends or family are not privileged and can be subpoenaed too.
4. Save the notice and secure your devices. Keep the original email, change passwords on shared devices, and note who else uses your Wi-Fi or accounts.
5. Call a defense attorney. Your lawyer can contact the agency, learn whether you are a target or a witness, and speak for you from that point forward.

How Can a Lawyer Help Before Charges Are Filed?

A lawyer can often learn what the investigation is about and stop it from growing. Our attorneys contact the investigating agency directly and tell it that you are represented, so detectives must go through us and cannot question you on your doorstep. We work to find out which agency served the process, what data it got, whether the case is open or closed, and whether you are a suspect or a witness. Some clients learn they were only a witness, and that answer alone ends weeks of worry.

When the risk is real, we advocate with investigators and the prosecutor before a filing decision is made. Our firm offers this representation before charges are filed for a separate flat fee, and that fee is credited toward the full defense fee if a case is later filed and you keep us on it. If the request involves an online sex offense, our Tampa internet crimes attorney page explains how we defend those cases.

How Soon Should You Act on an Account Notice?

Act right away, within days. Because notice can be delayed for months, the investigation may be far along when the email arrives, and the next step could be a search warrant for your home. In Hillsborough, Pinellas, and Pasco Counties, our attorneys contact the investigating detective as soon as we know the agency, because an early call is the best chance to shape what happens next. Our Hillsborough County criminal defense attorneys handle these calls with HCSO, Tampa PD, and federal agencies.

For more on how digital evidence is gathered and challenged, see our posts on social media evidence in Tampa criminal cases and cell phone location evidence, and our guide to geofence warrants and the Chatrie case.

Frequently Asked Questions

Does a Google legal process notice mean I am being charged with a crime?

No. A notice means an agency obtained or sought your data, not that a charge has been filed, and many people who get one are witnesses or account holders whose network someone else used. The Brancato Law Firm contacts the agency to find out where you stand, as described on our pre-file advocacy page.

Why did I get the notice months after Google gave police my data?

A court or a supervising officer probably delayed the notice, which Florida’s section 934.25 allows for up to 90 days at a time with extensions. Our attorneys at The Brancato Law Firm treat a late notice as a sign the investigation is advanced, because Google sends it only after the delay ends.

Can I ask Google or a court to stop the disclosure?

Sometimes, if the data has not yet been produced, a lawyer can ask the agency to narrow the request or move to quash process that is overbroad or lacks the required approval. The Brancato Law Firm reviews the process itself to see whether it met the requirements of section 934.23.

Should I delete my Google account after getting the notice?

No. Deleting data after you know about an investigation can lead to a separate charge for tampering with evidence, and the provider may have preserved a copy anyway. Our team at The Brancato Law Firm advises clients on what to keep and how to protect their devices without creating new problems.

What if someone else used my account or Wi-Fi?

Tell your lawyer, not the police. Shared devices, hacked accounts, and open networks are real explanations, but they must be supported with evidence such as login records and device data before they are raised. The Brancato Law Firm gathers that proof, and our Tampa internet crime defense attorneys use it when an account is wrongly tied to a client.

Can Google account charges be dropped in Florida if a case is filed?

Yes, a filed case can still be dropped. The State Attorney’s Office can decline to prosecute or later dismiss the case (a nolle prosequi) when the account evidence does not prove who used the account, or when the data was obtained without required legal process. The Brancato Law Firm presses those weaknesses with prosecutors and in a motion to suppress when the facts support it.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a Tampa Defense Attorney About an Account Notice

Before a detective knocks on your door, put a lawyer between you and the investigation. Our attorneys at The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will contact the agency, find out what it has, and speak for you from that point on. Call (813) 727-7159; you can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Tampa Internet Crimes Attorney page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

This article is not affiliated with or endorsed by Google, Apple, Microsoft, Meta, or any law enforcement agency.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have watched phone data decide cases in both directions. Prosecutors use it to put a client at the scene. Our attorneys use the same records, examined by an independent forensic expert, to show the jury where the client actually was.

What Is Cell Phone Location Evidence?

Cell phone location evidence is any record that shows where a phone was at a specific time. It comes from two places: the phone itself, and the companies that serve it. The phone stores GPS points, Wi-Fi connections, photo metadata, and app histories. The carrier keeps cell site records showing which tower and sector handled each call, text, or data session.

These sources are not equally precise. A GPS point from the phone can place it on a single block. A cell tower record only shows the general area the tower covers. The U.S. Supreme Court noted in Carpenter v. United States, 585 U.S. 296 (2018), which held that police generally need a warrant to obtain historical cell site records, that the precision of tower data “depends on the size of the geographic area covered by the cell site,” and that carriers can now pinpoint some phones within 50 meters. Knowing which kind of record you have is the first step in using it.

Can Cell Phone Location Data Prove You Were Not at the Crime Scene?

Yes, if three things line up: the data puts the phone somewhere else at the time of the crime, the phone is proven to be yours, and the evidence shows you had it with you. Location data proves where a device was. It does not, by itself, prove where a person was. The defense case is built on closing that gap.

This matters most in cases that turn on identification. Hillsborough County recorded 2,473 violent crime arrests in 2025 (murder, rape, robbery, and aggravated assault), according to Florida Department of Law Enforcement arrest data published by Florida Health CHARTS. In many of those cases the State’s proof that the accused was present rests on a witness who saw the offender for seconds. The National Registry of Exonerations 2024 Annual Report found that 38 of the 147 exonerations recorded nationwide in 2024, or 26%, were based at least in part on mistaken witness identification. Objective phone data is one of the few kinds of evidence that can contradict an eyewitness who is sincere but wrong.

Case Study: The Robbery Case Where Police Never Examined the Phone

In a Hillsborough County robbery case from my time leading the Public Defender’s Office, the client was accused of committing a robbery at one location and was arrested later at another. His cell phone was left in the car and went into police evidence. Nobody from law enforcement ever examined it.

As Chief Operations Officer, I held daily case conferences with trial attorneys on their hardest strategy calls. This was one of them. The phone could hold location data that cleared the client. It could also hold texts, photos, or searches that made the case worse.

Why asking for the phone was a calculated risk

Once the defense asks to examine evidence the State has ignored, the State will examine it too. If the client was lying about where he was, the defense would have handed the prosecution new proof. I sent the attorney back to the jail to question the client hard on one point: was he certain he was nowhere near the robbery? He was. He insisted the phone would help him, and he understood the downside.

How the phone was examined

The defense filed a motion to obtain the phone from evidence and retained an independent forensic data expert. The expert used Cellebrite, a forensic extraction tool that copies the phone’s contents without altering them, including location records, photos, messages, and app data. The extraction showed that location services were on and that the phone was miles from the robbery when it happened.

How the State attacked the evidence, and how it failed

The prosecution argued that someone else may have been carrying the phone. The extraction answered that, too. It held photos of the client, email accounts in his name, social media profiles linked to him, and personal messages consistent with his identity. The case went to trial, the jury heard the location evidence, and the jury returned a verdict of not guilty.

Past results do not guarantee future outcomes. Every case turns on its own facts.

How Do You Prove the Phone Was Yours and With You?

You prove ownership and possession with the contents of the phone and the circumstances around it. Florida requires every exhibit to be authenticated, which section 90.901, Florida Statutes, satisfies with “evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Florida courts accept circumstantial proof of who used a phone. In Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012), a robbery and murder case, the Fourth District upheld the State’s use of text messages from a phone taken from the defendant at arrest, because a witness identified the messages she exchanged with him and explained their context. The same rule works for the defense. The evidence that tied the phone to our client included:

• Photos of the client stored on the device
• Email and social media accounts in his name, logged in on the phone
• Messages whose content matched his relationships and daily routine
• Activity on the phone, such as calls, texts, or app use, during the window of the crime

That last item answers the State’s other argument: that you owned the phone but left it with someone else. Active use at the critical time, such as a call to a family member, a payment, or a selfie, helps show the phone was in your hand.

Is Cell Phone Location Evidence Admissible in Florida Courts?

Yes. Carrier records and forensic extraction reports are both regularly admitted in Florida trials, but each needs the right foundation.

Carrier records are business records. Under section 90.803(6), Florida Statutes, they come in through a records custodian’s testimony or a certification, and a party using a certification must give the other side reasonable written notice. In Perez v. State, 980 So. 2d 1126 (Fla. 3d DCA 2008), a Miami-Dade robbery and shooting case, the Third District held that carrier custodians could explain which towers handled the calls without being qualified as experts, because they were only explaining the records and did not claim to place the phone at a precise spot inside the tower’s one-to-three-mile coverage area. Our attorneys treat any testimony that tries to pinpoint a phone inside that area as expert testimony that must meet the rules below.

Phone extraction reports are treated differently. In Gayle v. State, 216 So. 3d 656 (Fla. 4th DCA 2017), the Fourth District held that a report generated by forensic extraction software was not hearsay, because it “was created by a machine” and not by a person. The court noted it was not deciding whether such a report could be challenged as inaccurate. That leaves room for both sides to fight about how the extraction was done, which is why the defense expert’s process matters.

Any expert who interprets location data must meet section 90.702, Florida Statutes: the testimony must rest on sufficient facts or data, use reliable principles and methods, and apply them reliably to the case. Our attorneys use the same three requirements to challenge a State analyst who claims more precision than tower records can give.

Do You Have to Tell the Prosecutor About a Cell Phone Alibi?

Yes, if the State demands it. Under Florida Rule of Criminal Procedure 3.200, once the prosecutor serves a written demand, a defendant who intends to offer an alibi must file a notice not less than 10 days before trial. The notice must state where the defendant claims to have been and list the alibi witnesses, which can include the forensic expert and records custodians.

If the defense skips the notice, the judge may exclude the alibi evidence except the defendant’s own testimony. The State then gets 5 days to list its rebuttal witnesses. Our attorneys plan for this deadline from the start, because a strong phone alibi is worth nothing if the jury never hears it.

What Are the Steps to Build a Cell Phone Alibi Defense?

A cell phone alibi is built in five steps, and the order matters:

1. Question the client before touching the phone. Once the defense asks for it, the State will look too. Our attorneys make sure the client understands that risk and is certain about where he was.
2. Preserve the data fast. Carrier and app records are not kept forever. We send preservation letters and subpoenas early, and we move to obtain a phone held in evidence.
3. Use an independent forensic expert. A proper extraction, with tools like Cellebrite, preserves the original and captures location data, deleted items, and proof of ownership.
4. Prove the phone was yours and with you. We gather photos, accounts, messages, and activity during the time of the crime.
5. Give notice and prepare for the attack. We serve the Rule 3.200 notice when demanded and prepare the expert for a cross-examination about precision and possession.

Can Police Get Your Location Data Without a Warrant?

Usually no. In Carpenter, the U.S. Supreme Court held that the government “must generally obtain a warrant supported by probable cause” before getting historical cell site records from a carrier. Florida’s Supreme Court reached a similar result for real-time tracking in Tracey v. State, 152 So. 3d 504 (Fla. 2014), where officers followed a suspect’s phone in real time under an order that only authorized call records. The court held that tracking him that way was a search requiring probable cause and that the evidence should have been suppressed.

When the State’s location data was obtained without a valid warrant, our attorneys file a motion to suppress. Our post on Chatrie and geofence warrants covers the government’s side of this issue in more detail. If you think police are looking at your phone before any charge is filed, representation before charges are filed can protect both your rights and your data.

How Soon Should You Act on Cell Phone Evidence?

Act within days, not months. Phone records are routinely overwritten or deleted on schedules set by carriers and app companies, and a phone sitting in a property room can lose its charge, update, or be returned. In the Hillsborough County case above, the defense needed a court order to get the phone out of police evidence for an independent extraction, and that takes time to schedule. Our Hillsborough County criminal defense attorneys start that process at the first meeting when location evidence could matter.

Our Tampa criminal forensic science attorney page explains how we work with forensic experts on digital evidence. When police data has been lost or destroyed, see our case study on what happens when police destroy evidence. For robbery charges specifically, read how to defend against an armed robbery charge in Florida.

Frequently Asked Questions

How accurate are cell tower records compared to GPS?

Cell tower records are much less precise than GPS. A tower record shows only that the phone was somewhere inside that tower’s coverage area, which can be a fraction of a mile in a city or several miles in a rural area, while GPS can place the phone on a specific block. Our attorneys at The Brancato Law Firm have an expert explain that difference to the jury, whether the State is overstating its tower data or we are relying on GPS.

Can the prosecutor use my phone against me if I ask to have it examined?

Yes. Once the defense seeks to examine a phone, the State can examine it too, and anything on it may become evidence. That is why The Brancato Law Firm questions the client closely before requesting a phone from evidence, as described in our Tampa criminal forensic science lawyer work.

What is Cellebrite, and can the defense use it?

Cellebrite is forensic software that makes a complete copy of a phone’s data, including location history, deleted files, messages, and photos, without changing the original. The defense can hire an independent expert who uses it. Our team at The Brancato Law Firm works with forensic data experts who perform the extraction and testify about how it was done, as explained in our post on expert witnesses in criminal defense.

What if I did not have location services turned on?

You may still have location evidence. Carrier cell site records exist whether or not location services are on, and Wi-Fi logs, photo metadata, and app activity can fill gaps. The Brancato Law Firm subpoenas carrier records and reviews the full extraction to find every timestamped location point.

Can social media posts or check-ins prove where I was?

Yes, they can add to an alibi. Timestamped posts, check-ins, and uploads can place your account at a location, but the State may argue someone else posted them, so they work best alongside phone data. Our attorneys at The Brancato Law Firm collect and authenticate this material, as covered in our guide to social media evidence in Tampa criminal cases.

Can cell phone evidence get robbery charges dropped in Florida?

It can. If phone data clearly puts you elsewhere before trial, the State Attorney’s Office may drop the charge (a nolle prosequi) rather than try a case it is likely to lose. The Brancato Law Firm presents strong alibi evidence to prosecutors early when doing so helps the client, and our Tampa violent crime lawyer page explains how we defend robbery cases.

Talk to a Tampa Defense Attorney About Cell Phone Evidence

Location records can disappear on a carrier’s schedule, so the time to secure them is now. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will identify every source of location data in your case and move to preserve it. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Tampa Criminal Forensic Science Attorney page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If an officer stopped you in Tampa and mentioned a “hit” on your plate, a camera on a pole may have made the first decision in your case before any person did. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who has spent more than 25 years in Hillsborough County courtrooms. I taught officers how stops are supposed to work, and our attorneys now use that training to test whether a plate-reader alert gave police a lawful reason to pull a car over.

What Is a Flock Camera?

A Flock camera is an automated license plate reader sold by Flock Safety, an Atlanta-based company that is one of the largest ALPR vendors in the country. Florida law, in section 316.0777, Florida Statutes, defines an automated license plate recognition system as one or more mobile or fixed high-speed cameras combined with computer algorithms that convert images of license plates into computer-readable data. Flock’s version also records the vehicle’s make, color, and distinguishing features such as roof racks or bumper stickers, which Flock markets as a “Vehicle Fingerprint.”

The cameras take still photographs of the rear of passing cars, not continuous video of drivers. Each read is time-stamped and stored in a database that the agency that owns the camera can search, and agencies can choose to share access with other agencies. The Brancato Law Firm treats every ALPR read in a case as evidence with a source, a time stamp, and an error rate that can be tested.

Does Florida Have Flock Cameras, and Are They Legal?

Yes. ALPRs, including Flock cameras, are legal in Florida, and law enforcement agencies, cities, homeowners associations, and businesses across Tampa Bay use them. Section 316.0777(2)(b) lets the Department of Transportation, at its discretion, allow a law enforcement agency to install an ALPR in the right-of-way of a state highway for the purpose of collecting active criminal intelligence or investigative information. The same statute says an ALPR may not be used to issue a traffic citation or notice of violation, and that a camera must come down within 30 days after the department tells the agency to remove it.

The department used that power on August 31, 2026. FDOT Engineering and Operations Memorandum No. 26-01 revoked every approval for law enforcement ALPRs on state highway rights-of-way, gave agencies 30 days to remove them, and stopped issuing new permits. The memo cited “the recent exponential increase in deployments” and “concerning reports of misuse, data privacy concerns, and surveillance schemes.” The order does not reach cameras on city or county roads, private property, or HOA entrances, so many Flock cameras in Hillsborough, Pinellas, and Pasco Counties remain in place. Our attorneys at The Brancato Law Firm check where the camera in a client’s case was mounted and whether its permit was valid on the date of the read.

Are There Flock Cameras in Tampa, Hillsborough, Pinellas, and Pasco?

Yes. All three counties’ largest law enforcement agencies have used license plate readers, and each responded differently to the state order. In September 2026, the Tampa Police Department said it would remove 17 cameras on the State Highway System and reported that its readers had aided in 622 arrests, recovered 485 vehicles and 68 firearms, and helped in 14 missing persons cases, according to WUSF reporting on the removals. The Pasco County Sheriff’s Office said it was removing all 70 of its Flock cameras in county and state rights-of-way. The Hillsborough County Sheriff’s Office declined to say how many cameras had to come down, citing a public records exemption.

In Pinellas County, Sheriff Bob Gualtieri told county commissioners in October 2026 that his office runs 79 stationary cameras under a Flock contract costing $287,000 a year, according to Bay News 9. That presentation came about a week after a former Pinellas deputy was arrested on felony charges for allegedly running a license plate reader database about 300 times to track a woman. Prosecutors dropped that deputy’s charges on October 29, 2026, and on November 5, 2026, a third former Pinellas deputy, Ronald Scott, was arrested after an agency audit found more than 100 unauthorized Flock and driver’s license searches on his estranged wife and her circle. Our separate guide on whether police can be charged for misusing Flock cameras in Florida covers that side of the issue.

These agency figures describe what the cameras find, and they leave out what defense lawyers see. In a 2019 study published in Police Quarterly, George Mason University researchers Christopher Koper and Cynthia Lum examined a city that installed nearly 100 fixed readers and found that clearances for auto theft and robbery improved, but the improvements were not statistically significant once other factors were controlled (National Criminal Justice Reference Service abstract). A camera network produces many reads; each read still has to be connected to the right car, the right driver, and the right moment.

Can a Flock Camera Hit Lead to a Traffic Stop and Arrest in Tampa?

Yes. A plate-reader alert can lead to a stop, but the officer must still have reasonable suspicion that the specific car or driver is involved in a crime or traffic violation. Florida’s stop law, section 901.151, Florida Statutes, and the Fourth Amendment both require it. The usual sequence in Hillsborough County looks like this:

1. The camera reads a plate and the system matches it to a hotlist entry, such as a stolen vehicle, a warrant, or a be-on-the-lookout alert.
2. Nearby officers receive the alert with the read’s location, time, and photo.
3. An officer finds the car and decides whether to stop it.
4. During the stop, the officer may find a suspended license, drugs, a weapon, or a warrant, and that is where most criminal cases start.

Kansas v. Glover: what a database check can and cannot justify

In Kansas v. Glover, 589 U.S. 376 (2020), a Kansas deputy ran a pickup’s plate, learned the registered owner’s license was revoked, and stopped the truck without seeing any traffic violation. The U.S. Supreme Court held the stop was lawful because it was reasonable to infer that the owner was driving, and the deputy had no information suggesting otherwise. The Court stressed that its holding was narrow: if the officer knows facts that undercut the inference, such as an owner in his mid-sixties and a driver who looks to be in her mid-twenties, the database result alone does not justify the stop. Our attorneys look for those facts in the body-camera video.

State v. Teamer: a mismatch in the database is not enough by itself

In State v. Teamer, 151 So. 3d 421 (Fla. 2014), a deputy ran a plate and saw that the registration listed a different color than the car in front of him. The Florida Supreme Court held that the color discrepancy alone did not give reasonable suspicion for a stop, because it is not illegal in Florida to repaint a car without telling the state, and ordered the defendant discharged. Flock’s “Vehicle Fingerprint” records the same kind of color and feature data, so Teamer gives our attorneys a Florida Supreme Court rule for stops based on a description mismatch in the system.

These cases matter at more than one stage. A stop that lacked reasonable suspicion can be challenged with a motion to suppress before trial, and if the motion succeeds, the drugs, weapon, or statements found after the stop can be excluded. For impaired-driving arrests that began with a plate-reader alert, our Tampa DUI lawyer page explains how the stop is evaluated with the rest of the case.

Is a License Plate Scan a Search Under the Fourth Amendment?

Usually not. Courts have generally held that photographing a license plate on a public road is not a Fourth Amendment search, because the plate is displayed for anyone to see. The harder question is what happens when police search weeks of stored reads to reconstruct where a person drove, and no Florida appellate decision we have found resolves that question for ALPR databases.

The guidepost is Carpenter v. United States, 585 U.S. 296 (2018). The Supreme Court held that obtaining 127 days of historical cell-site location records was a search that generally requires a warrant, because the records gave an all-encompassing picture of the person’s movements. The Court called its decision narrow and said it was not calling into question conventional surveillance tools such as security cameras. Defense lawyers nationwide argue that a dense ALPR network can approach the tracking Carpenter described; prosecutors answer that scattered plate photos are closer to a security camera. The Brancato Law Firm raises the argument when the State’s case depends on a long history of reads rather than a single alert.

Historical searches are already being used as trial evidence in Florida. In Mathis v. State, No. 4D2024-1543 (Fla. 4th DCA Apr. 8, 2026), a Broward County second-degree murder case, license plate readers in Lighthouse Point captured the defendant’s car following the victim’s van into the city and leaving about six minutes later, and the reader database showed the car had never been in Lighthouse Point before. The Fourth District affirmed the conviction, relying on that evidence along with DNA, video, and phone records. The case shows how an ALPR history becomes part of a circumstantial case, which is why our attorneys demand the full search log, not just the reads the State chose to print.

Who Can See Flock Camera Data, and How Long Is It Kept?

In Florida, ALPR images and data that contain personal identifying information are confidential and exempt from public records requests under section 316.0777(3). The statute allows the information to be shared with criminal justice agencies performing their official duties, and it gives one important right to drivers: information relating to a license plate registered to you may be disclosed to you, unless it is active criminal intelligence or active criminal investigative information. The Brancato Law Firm uses that provision, along with criminal discovery, to obtain the reads of a client’s own plate.

Retention is capped by section 316.0778, Florida Statutes, which directs the Department of State, in consultation with the Florida Department of Law Enforcement, to set a maximum retention period by schedule. Agencies often keep data for much less. Flock’s long-standing default was 30 days, and on August 13, 2026, Flock’s CEO announced that the company recommends agencies cut retention to seven days, according to WECT reporting. A shorter retention period means a defense request has to go out fast, before the reads that help a client are deleted.

Do Flock Cameras Record Speed or Share Data With ICE?

Flock license plate readers do not measure speed. School-zone speed cameras are a separate system governed by section 316.1896, Florida Statutes, which bars using those cameras for remote surveillance, limits their photos and video to school-zone speeding enforcement and incidents captured along the way, and requires the images to be destroyed within 90 days after final disposition. Tampa’s school-zone program uses RedSpeed cameras, and Tampa police told the City Council in July 2026 that the cameras will not include license plate readers or share data with Flock, according to the Pineapple Report.

On immigration, Flock says it does not contract directly with U.S. Immigration and Customs Enforcement, but local agencies can share the data they collect. Suncoast Searchlight reported in 2025 that the Florida Highway Patrol ran more than 250 immigration-related searches of the Flock network between March 13 and May 5, 2025 (WUSF republication). If a family member was stopped and questioned about immigration status, our attorneys defend the criminal case and coordinate with immigration counsel on the immigration side. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French, so families can talk through what happened in their own language.

How Do Our Attorneys Challenge License Plate Reader Evidence?

Our attorneys challenge ALPR evidence by testing the read, the alert, the stop, and the data trail, in that order. These are the questions we answer first:

1. Was the plate read correctly? We obtain the raw image and compare every character. Plate-reading software can confuse similar characters, and a misread can send officers after the wrong car.
2. Was the alert still valid? We obtain the hotlist entry and its time stamp. A stolen car that was recovered or a warrant that was cleared can stay on a list after it should have been removed.
3. Did the officer confirm before stopping? Under Glover and Teamer, we look at what the officer saw: whether the car, the driver, and the alert actually matched.
4. Was the camera lawfully placed? After FDOT Memorandum No. 26-01, a camera still operating on a state right-of-way after the removal deadline is a fact worth litigating.
5. Who searched the data, and why? We request the audit log of searches on the client’s plate, which can reveal fishing expeditions or misuse.
6. Was the data preserved? We send preservation requests early, because short retention periods can erase reads that support the defense.

Drug, weapon, and stolen-vehicle cases often begin with a plate-reader stop, and our Tampa drug crimes attorney page describes how we defend the charges that follow. When someone learns that investigators are pulling plate-reader history before any arrest, our representation before charges are filed can address the investigation directly.

What Should You Do If Police Stop You Because of a License Plate Reader?

Stay calm, do not argue about the camera at the roadside, and protect the record. The stop itself is where the strongest defenses are built, so details matter:

• Ask, calmly, why you were stopped, and remember the officer’s exact words about a “hit” or “alert.”
• Do not consent to a search of your car; you can say so politely.
• Do not answer questions about where you have been; the reads already tell police where the car went.
• Write down the time, the street, and the direction you were driving as soon as you can.
• Call a defense attorney quickly so preservation requests go out before the data is deleted.

Frequently Asked Questions About Flock Cameras in Florida

Are Flock cameras being removed from Florida roads?

Yes, Flock and other law enforcement license plate readers on state highway rights-of-way had to come down within 30 days of the FDOT memorandum issued August 31, 2026. The Brancato Law Firm checks whether the camera in a client’s case sat on a state, county, city, or private site, because only state rights-of-way were covered.

Who pays for Flock cameras in Tampa Bay?

Taxpayers pay for law enforcement cameras through agency contracts, and HOAs or businesses pay for the cameras they buy. Our attorneys at The Brancato Law Firm request the contract and sharing settings in cases where a private camera fed an alert to police, as with the Pinellas Sheriff’s $287,000-a-year Flock contract reported in October 2026.

Can police use a Flock camera to give me a speeding or red-light ticket?

No, an ALPR installed on a state highway may not be used to issue a traffic citation or notice of violation under section 316.0777. The Brancato Law Firm separates camera-based school-zone and red-light tickets, which have their own statutes, from criminal stops that start with a plate-reader alert; see our Hillsborough County criminal defense attorney page for the criminal side.

Can I find out whether a Flock camera recorded my car?

Often yes, because section 316.0777(4)(b) allows information about a plate registered to you to be disclosed to you unless it is active criminal intelligence or investigative information. When a client is charged, The Brancato Law Firm obtains those reads through discovery, which reaches more than a public records request.

Can a license plate reader stop be thrown out in Florida?

Yes, if the officer lacked reasonable suspicion for the specific car and driver, the evidence from the stop can be suppressed. Our attorneys at The Brancato Law Firm build those motions around the raw image, the hotlist time stamp, and the body-camera video, using Teamer and Glover as the framework, including in St. Petersburg and Clearwater cases covered on our Pinellas County criminal defense page.

Are Flock cameras the same as police misusing the database?

No, using the cameras is legal, but searching the database for personal reasons can be a crime for the officer who does it. The Brancato Law Firm explains those charges in our guide to police misuse of Flock cameras in Florida.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa internet crimes defense practice.

Talk to a Tampa Defense Attorney About a License Plate Reader Stop

Write down where and when you were stopped, then call us before the reads are deleted. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can be reached at (813) 727-7159, and our attorneys will start by requesting the raw image, the alert record, and the search log for your plate. Call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

For more about our defense strategies, visit our Tampa DUI Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you hit an age-check screen on an adult site, found that a site you used now blocks Florida, or got a call from a detective about something on your account, you probably want to know exactly where Florida draws the line. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I defended sex crimes cases in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, and I am the former Chief Operations Officer of that office, where I oversaw a staff of over 100 attorneys. Our attorneys defend internet and child pornography investigations across Hillsborough, Pinellas, and Pasco Counties, often before any charge is filed.

Is porn legal in Florida in 2026?

Yes, watching, buying, or owning adult pornography is legal in Florida for anyone 18 or older. No Florida statute makes it a crime for an adult to view lawful adult content, and the 2024 age verification law does not change that. Three things decide whether sexual material crosses into criminal territory: who is depicted, who receives it, and whether it is legally obscene.

• Who is depicted. Any image of a person under 18 engaged in sexual conduct is child sexual abuse material under section 827.071, Florida Statutes, no matter who made it or why.
• Who receives it. Showing, giving, or sending sexual material to a minor is a felony.
• Whether it is obscene. Material that meets the legal test for obscenity can be prosecuted when it is sold, distributed, or shown, even between adults.

Consent also matters for adults. Publishing a sexually explicit image of a real person without that person’s consent can be a crime under Florida’s sexual cyberharassment law, covered below. Nearly every question our attorneys hear about Florida porn law turns on one of these three facts.

Is porn banned in Florida? What the age verification law requires

No, porn is not banned in Florida. HB 3, signed in March 2024 as chapter 2024-42, Laws of Florida, created section 501.1737, Florida Statutes, which took effect on January 1, 2025. It requires adult websites to verify a visitor’s age before showing sexual material. The law regulates the businesses that publish the content. It does not punish the adult who views it.

“Material harmful to minors” has a specific meaning under section 847.001, Florida Statutes: sexual content that predominantly appeals to a prurient interest, is patently offensive under adult community standards for what is suitable for minors, and lacks serious literary, artistic, political, or scientific value for minors. Mainstream adult video sites fall squarely within that definition, which is why they are the main target of the law, as our attorneys explain to clients who worry that their own browsing puts them at risk.

Why do some porn sites block Florida?

Some adult sites block Florida because their owners chose not to collect age verification from Florida users. Aylo, the company that owns Pornhub, cut off Florida access on January 1, 2025, the day the law took effect. Other large sites stayed open and added an age check. A blocked site is a business decision by the company, and it does not mean Florida made adult content illegal.

Florida has gone after sites that did neither. In August 2025, Attorney General James Uthmeier sued the operators of XVideos, XNXX, BangBros, and Girls Gone Wild for failing to verify ages, and in September 2025 his office filed two more complaints, including one against Aylo entities over sites such as SpiceVids and Nutaku. The State seeks injunctions and penalties of up to $50,000 per violation. We have not found a reported final judgment in those cases as of this update. None of these lawsuits targets individual viewers, and our attorneys give clients the same answer: the law’s penalties fall on the companies.

Is Florida’s age verification law constitutional after Free Speech Coalition v. Paxton?

Yes, as things stand, Florida’s law is in force and no court has blocked it. In Free Speech Coalition, Inc. v. Paxton, 606 U.S. 461 (2025), an adult-industry trade group challenged Texas’s nearly identical age verification law. On June 27, 2025, the U.S. Supreme Court upheld the Texas law by a 6-3 vote. The Court applied intermediate scrutiny, recognized that adults have a right to view sexual material that is obscene only for minors, and held that “adults have no First Amendment right to avoid age verification.”

The same trade group had sued Florida in federal court in December 2024. After Paxton, the plaintiffs voluntarily dismissed the Florida case in July 2025. The practical lesson for Florida residents is simple: age checks on adult sites are here to stay, and the legal fight has shifted to whether particular sites are complying. The Brancato Law Firm follows these rulings because the same First Amendment principles shape obscenity and harmful-to-minors prosecutions.

Is it illegal to use a VPN to watch porn in Florida?

No, using a VPN is legal in Florida, and no Florida law punishes an adult for using one to reach lawful adult content. Section 501.1737 does not mention VPNs, and its duties fall on the website. Florida has not passed any law that restricts VPN use.

Research shows many people respond to these laws by changing how they get to adult content. A study by David Lang and colleagues at NYU’s Center for Social Media, AI, and Politics, published in the Journal of Law & Empirical Analysis in 2026, found that in the three months after age verification laws took effect, Google searches for VPN services rose 23.6%, searches for the leading site that complied fell about 51%, and searches for the leading site that did not comply rose 48.1%.

A VPN changes your apparent location. It does not change the legality of the content. If the material involves a minor, a VPN is no defense, and it does not erase what is stored on your phone, laptop, or cloud account. In our experience, the evidence in these cases usually comes from the devices and accounts themselves, plus records from the companies that run them.

When does pornography become a crime in Florida?

Pornography becomes a crime in Florida when it involves a minor, when it is legally obscene and distributed, or when it is published without the depicted person’s consent. The table below lists the offenses our attorneys see most, with current classifications, and our Tampa internet crimes attorney page explains how we defend each charge. Felony maximums come from section 775.082, Florida Statutes: 5 years for a third-degree felony, 15 years for a second-degree felony, and 30 years for a first-degree felony.

What makes porn “obscene” under Florida law?

Material is obscene only if it meets all three parts of the test from Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court case about a man prosecuted for mailing sexually explicit advertising brochures. Florida copies that test into section 847.001: the average person, applying contemporary community standards, would find the work as a whole appeals to the prurient interest; it depicts sexual conduct in a patently offensive way; and, taken as a whole, it lacks serious literary, artistic, political, or scientific value. Most mainstream adult content is not prosecuted as obscene.

Under section 847.011, Florida Statutes, selling, distributing, or showing obscene material is a first-degree misdemeanor, and the statute still lists simple knowing possession as a second-degree misdemeanor. Private possession has constitutional protection, though. In Stanley v. Georgia, 394 U.S. 557 (1969), police searching a Georgia man’s home for bookmaking evidence found obscene films, and the Supreme Court held that a state cannot make “mere private possession of obscene material” in the home a crime. That protection stops at material involving children, as explained below.

Is it a crime to show or send porn to someone under 18?

Yes, and it is a felony. Knowingly showing, giving, or transmitting obscene material to a minor is a third-degree felony under section 847.0133. Sending an image or data that is harmful to minors to a specific person you know or believe is a minor is also a third-degree felony under section 847.0138, and that statute reaches senders outside Florida. The “believed” language is why undercover officers posing as teenagers can bring this charge even when no real child was involved.

Both offenses are on the list in section 943.0435, Florida Statutes that requires sex offender registration, which generally lasts for life. Questions about lawful sexual activity between people of different ages are a separate topic, covered in our guide to the age of consent in Florida.

What are the penalties for child pornography in Florida after July 1, 2026?

Knowingly possessing, controlling, or intentionally viewing child sexual abuse material is now a second-degree felony, punishable by up to 15 years in prison for each image. Chapter 2026-20, Laws of Florida (HB 1159), raised the offense from a third-degree felony for conduct on or after July 1, 2026, and renamed “child pornography” as “child sexual abuse material” throughout the statutes. Under section 827.071(5), each image is a separate offense, and an image showing more than one child counts once for each child. “Intentionally view” requires proof of more than a single image.

Sentences can climb further. Under section 775.0847, Florida Statutes, the charge is reclassified one degree higher when a person possesses 10 or more images and at least one shows a child under 12, sadomasochistic abuse, sexual battery, bestiality, or any video of a child. Transmitting the material to another person now carries a 5-year mandatory minimum for adults under section 847.0137, and that statute’s definition of “transmit” covers sharing a cloud link or login. A conviction under section 827.071 requires sex offender registration. For how the reclassification math works on a scoresheet, see our post on child pornography enhancements in Florida.

The constitutional rule behind these laws is settled. In Osborne v. Ohio, 495 U.S. 103 (1990), an Ohio man was convicted for possessing nude photographs of a boy in his home, and the Supreme Court held that states may ban private possession and viewing of child pornography because of their compelling interest in protecting children, distinguishing Stanley.

Is AI-generated child pornography illegal in Florida?

Yes. Section 827.072, Florida Statutes makes it a third-degree felony to knowingly possess or intentionally view “generated child sexual abuse material,” meaning computer-created images of a fictitious person a reasonable person would regard as a real minor engaged in sexual conduct. Creating that material, or sending it to another person, is a second-degree felony. An image altered to show an identifiable real child, such as a face swapped onto another body, falls under section 827.071 and its higher penalties.

Is revenge porn illegal in Florida?

Yes. Under section 784.049, Florida Statutes, publishing or electronically sending a sexually explicit image of a person without consent, together with information that identifies the person, is sexual cyberharassment. A first offense is a first-degree misdemeanor, a second is a third-degree felony, and the person shown can sue for the greater of $10,000 or actual damages. Sending an image to a partner does not, by itself, give up that person’s expectation of privacy.

How do child pornography investigations start in Florida?

Most child pornography investigations in Florida start with a tip from a tech company, not a police officer. Platforms that detect suspected child sexual abuse material report it to the CyberTipline run by the National Center for Missing & Exploited Children (NCMEC). In 2025, the CyberTipline received 21.3 million reports nationwide, and 126,256 of them were tied to Florida, according to NCMEC’s 2025 CyberTipline reports by state. NCMEC sends those reports to Internet Crimes Against Children task forces and local agencies, which subpoena account records, identify the internet subscriber, and apply for search warrants.

The same conduct can also be charged in federal court, and the federal district that includes Tampa sentences more of these cases than any other. In fiscal year 2025, the Middle District of Florida, which includes Tampa, sentenced 70 people for federal child pornography offenses, more than any other federal district, according to the U.S. Sentencing Commission’s fiscal year 2025 Quick Facts. The same report found that 74% of people sentenced for federal child pornography offenses that year had little or no prior criminal history.

That pattern matches what we see: many of the people who call us have never been arrested. The account holder is the first person investigators look at, even when someone else in the home did the searching. A teenager who searches for explicit content involving “kids my age” can trigger the same automated report as an adult, and the subpoenas and warrants usually point to the parent who pays for the internet service. Parental controls such as Apple Screen Time and Google Family Link can help prevent that situation, and activity logs from those tools can later help show who was using a device.

Can you be charged for images you did not know were on your device?

The State must prove you knew the material was there, and that element is often where these cases are won. In Strouse v. State, 932 So. 2d 326 (Fla. 4th DCA 2006), a man was charged with seven counts after his girlfriend found images on his laptop. Six counts were dismissed because those images were old temporary internet files or composite images from website banners. The conviction on the remaining count was affirmed because his girlfriend had seen that image appear as a new icon on his screen, which showed it was more than a file the computer stored automatically. A 2008 Florida Law Review note examined the same problem: whether a person should be convicted for files a browser cache saved on its own. Knowledge is tested twice, first in a motion to dismiss or a forensic challenge before trial and again in front of the jury.

What should you do if police contact you about images online?

Do not talk to the detective, do not consent to a device search, and do not delete anything. Call a lawyer before you respond. Deleting files after you know about an investigation can lead to a separate tampering charge, and forensic examiners can often recover deleted data anyway. A detective’s request to “clear this up” is usually an attempt to get the admission that proves knowledge.

1. Day 1: Decline the interview politely and ask for the detective’s name, agency, and case number.
2. Day 1: Do not unlock, wipe, reset, or hand over phones, computers, or cloud passwords without a warrant.
3. Days 1 to 3: Have a lawyer contact the agency, invoke your rights, and route all communication through counsel.
4. First weeks: Build the defense and mitigation record before the State decides what to file.

The weeks before an arrest are the best chance to shape the outcome, which is why our firm offers representation before charges are filed. Our attorneys review the actual files in person at the law enforcement agency rather than relying on a detective’s description, and we bring in forensic experts to test how each file got onto the device. If Google or another provider has notified you that police requested your account records, our guide on what to do after a Google account legal request walks through the first steps. When an investigation involves an in-person sex offense allegation as well, see our Tampa sex crimes lawyer page.

What results has our firm obtained in these cases?

Our attorneys have resolved internet and child pornography investigations without a registrable conviction, and in some cases without any charge. These results are published on our case results page.

Past results do not guarantee future outcomes.

Frequently asked questions about Florida porn laws

Is it illegal for a minor to watch porn in Florida?

Florida’s pornography laws target the websites and people who provide sexual material to minors, and no statute makes a minor’s viewing alone a crime. When teenagers trade nude images with each other, though, Florida’s sexting statute applies, starting with a noncriminal citation. The Brancato Law Firm represents families when a school or detective gets involved and works to keep a teenager’s mistake in juvenile court or out of court entirely.

Can I get in trouble for using a VPN to watch porn in Florida?

No, an adult using a VPN to reach lawful adult content does not violate Florida law, because section 501.1737 regulates websites, not viewers. Our attorneys at The Brancato Law Firm remind clients that a VPN offers no protection when the content involves a minor, since the evidence comes from the device and the accounts.

Is OnlyFans legal in Florida?

Yes, subscribing to or selling adult content on platforms like OnlyFans is legal in Florida when everyone involved is 18 or older and consented. The Brancato Law Firm advises adult creators that the legal risks come from content involving anyone under 18, posting another person’s images without consent, and material that meets the obscenity test.

What happens if my child searched for illegal content on my internet account?

Investigators usually start with the account holder, so a parent can become the first suspect when a child’s search triggers a report. The Brancato Law Firm steps in at that stage through pre-file advocacy, contacting the detective and helping show who actually used the device.

Is sending a nude photo to a 17-year-old a crime in Florida?

Yes, an adult who sends sexual images to someone known or believed to be a minor commits a third-degree felony under section 847.0138, and a conviction requires sex offender registration. The Brancato Law Firm defends these charges, including cases that come from undercover chats, as explained in our post on solicitation of a child using a computer.

Can child pornography charges be dropped in Florida?

Yes, prosecutors can drop or reduce these charges when the evidence of knowledge, age, or identity is weak or when the defense presents strong mitigation. In a 2026 case, The Brancato Law Firm obtained a reduction from four child pornography felonies to obscenity counts that do not require registration; learn more from our internet crimes defense team.

Do you have to register as a sex offender for possessing child pornography in Florida?

Yes, a conviction under section 827.071 requires sex offender registration under section 943.0435, generally for life, with a petition for removal possible only after 25 years in limited cases. The Brancato Law Firm looks for lawful resolutions that avoid a registrable offense, such as the obscenity reduction described above. Our guide to Florida child sexual abuse material charges covers the defenses in more detail.

Can police search my phone if they say they found porn on my account?

Police generally need a search warrant or your consent to search your phone, and you can refuse consent. The Brancato Law Firm reviews every warrant in these cases for problems with the probable cause, the scope of the search, and the timing of the forensic exam.

Talk to a lawyer before you talk to a detective

Your next step, if a detective has called, knocked, or sent a provider notice, is to say nothing about the images and call us first. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will contact the agency for you, protect your devices and accounts from a consent search, and start building the defense before the State decides what to charge. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa Internet Crimes Attorney page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If a former partner, a detective, or a lawyer’s letter says you shared someone’s intimate photos without permission, you are facing a charge built on a law Florida rewrote in 2025. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I defended sex crimes cases in the Public Defender’s Major Crimes Unit and am a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys defend sexual cyberharassment cases by testing every element the State must prove, starting with the digital evidence that ties the image to our client.

What is sexual cyberharassment under Florida law?

Sexual cyberharassment is the crime of intentionally posting a sexually explicit image of another person online, or sending it electronically to someone else, without the depicted person’s consent and contrary to that person’s reasonable expectation that the image would stay private. It is defined in section 784.049, Florida Statutes. The image must also identify the person, either through the image itself or through identifying information posted or sent at the same time.

Florida’s statute treats the offense as a computer-based crime, and our firm handles these cases as part of our work as a Tampa internet crimes attorney team. The table below lists what the State must prove beyond a reasonable doubt.

What changed in Florida’s revenge porn law in 2025?

Florida made sexual cyberharassment easier to prosecute on October 1, 2025. CS/CS/HB 1451, signed May 22, 2025, as Chapter 2025-84, removed the requirement that the State prove the accused acted “for no legitimate purpose, with the intent of causing substantial emotional distress.” It also created a felony for revenge porn committed for money and gave prosecutors more time to file.

The date of the alleged posting matters. A criminal law cannot be applied to conduct that happened before it took effect, so an image shared before October 1, 2025, is judged under the older version of the statute, including the emotional-distress element. Our attorneys check the date of every post and message before we decide which defenses apply.

What are the penalties for revenge porn in Florida?

A first sexual cyberharassment conviction is a first-degree misdemeanor, punishable by up to one year in jail and a $1,000 fine under section 775.082 and section 775.083. The charge becomes a felony in two situations, shown below.

A plea with a withhold of adjudication still counts. Section 784.049(5) defines a “conviction” as any determination of guilt from a plea or trial, even if adjudication is withheld or the plea is no contest. That means a quick plea on a first case can turn the next accusation into a felony.

The law also allows a warrantless arrest on probable cause, search warrants for a home, and a separate civil lawsuit for $10,000 or actual damages, whichever is greater, plus punitive damages and attorney fees. Prosecutors must file a misdemeanor case within 5 years, or within 3 years after the person discovers the offense, whichever is later, under section 775.15. Sexual cyberharassment is not one of the offenses that require sex offender registration under section 943.0435.

What other charges come with a revenge porn accusation?

Revenge porn cases often carry a second, more serious charge. The facts around the image decide which statute the State uses, and the related charges below are all felonies or federal crimes.

The age of the person in the image changes everything. A photo of a 17-year-old is treated as child sexual abuse material, even if the two people were dating. Our firm explains how those cases are scored in our post on child pornography enhancements in Tampa. When both people are minors, Florida’s sexting statute, section 847.0141, makes a first violation a noncriminal citation.

How common are revenge porn and sextortion complaints?

Online image abuse reports are rising fast. In 2025, the FBI’s Internet Crime Complaint Center received more than 75,000 sextortion submissions, according to the FBI IC3 2025 Internet Crime Report. The same report counted 21,557 harassment and stalking complaints in 2025, up from 11,672 in 2024. Florida residents filed 71,843 internet crime complaints with the FBI in 2025, the third most of any state.

Research shows how widespread the conduct is. In a 2020 peer-reviewed study of 3,044 U.S. adults, Ruvalcaba and Eaton, Psychology of Violence, found that 8 percent (about 1 in 12) reported being victims of nonconsensual pornography and 5 percent (about 1 in 20) admitted sharing someone’s image. Most perpetrators in that study shared images of a current or former romantic partner. Because these accusations usually arise between people who once trusted each other, the evidence often turns on old messages, shared accounts, and who had access to whose phone.

How do our attorneys fight a sexual cyberharassment charge?

Our attorneys fight these charges by forcing the State to prove each element with reliable digital evidence. Most revenge porn cases rest on screenshots and an accuser’s account of who sent what. The defenses below are the ones we test first.

1. Prove who actually sent it. A screenshot shows that an image appeared on a screen; it does not prove who posted it. Shared phones, shared cloud accounts, hacked social media, and fake profiles are common. We subpoena the account records the State relies on and examine IP addresses, login history, and device data. Our post on what to do after a Google account legal request in Florida explains how those records are obtained.
2. Show consent. If the person shown agreed to the posting or sharing, there is no crime. Messages, prior posts, and the way the image was first created can all show consent.
3. Challenge the identification element. The State must prove the image, or information sent with it, identified the person. A cropped body image sent with no name, number, or distinctive feature may not meet the statute.
4. Test whether the image is “sexually explicit.” The statute borrows the definition of nudity from section 847.001. Suggestive photos, swimwear, and covered images often fall outside it.
5. Contest “willful and malicious.” The standard jury instruction for this crime leaves the meaning of “maliciously” to the trial judge, as explained below. That gives our attorneys room to argue the accused lacked the required state of mind.
6. Check the date and the statute of limitations. Conduct before October 1, 2025, must be judged under the older law, which required intent to cause substantial emotional distress.
7. Move to suppress unlawful phone searches. Phone and account searches need a valid warrant with a proper scope. A motion to suppress can remove evidence taken outside the warrant.

Does “maliciously” require proof of ill will?

The standard jury instruction leaves that choice to the trial judge. In In re Standard Jury Instructions in Criminal Cases—Report 2019-11, 290 So. 3d 864 (Fla. 2020), the Florida Supreme Court approved amendments to the jury instruction for this crime, and the instruction’s comment states that the courts had not decided whether the statute requires actual malice or legal malice. It tells trial judges to choose one.

The two definitions come from Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007), an aggravated stalking case in which a man repeatedly called a former girlfriend despite a court order. The Fourth District held that “maliciously” in the stalking statute means legal malice, which is acting “wrongfully, intentionally, without legal justification or excuse,” and distinguished actual malice, which means “ill will, hatred, spite, an evil intent.” Prosecutors will cite Seese to ask for the easier legal-malice definition. Our attorneys argue for actual malice, because a revenge porn statute that no longer requires intent to cause distress needs some meaningful intent requirement to separate a crime from a careless share.

Can you be charged in a different county than where you live?

Yes. Under section 910.15, a crime committed through the internet can be tried in any Florida county, because the law treats an internet communication as made in every county in the state.

The Sixth District applied that rule to sexual cyberharassment this year in Fuller v. State, No. 6D2025-0818 (Fla. 6th DCA July 17, 2026). A man emailed sexually explicit videos of a woman to her significant other, who received them in Orange County. The couple reported the crime in Osceola County, and an Osceola County jury convicted him. On appeal, he argued the case belonged in Orange County, where the email was received. The court affirmed, holding that because the email traveled over the internet, venue was proper in every county, including Osceola. The lesson is practical: a person living in Pasco or Pinellas County can be prosecuted in Hillsborough County if the accuser reports there, so our attorneys plan for the court and the prosecutor’s office where the case will actually be filed.

What happens after a revenge porn arrest in Hillsborough County?

An arrest leads to a first appearance before a judge within 24 hours, usually at the Orient Road Jail, where the judge sets bond and conditions of release. Officers may arrest without a warrant on probable cause for this crime. The judge will usually order no contact with the person shown in the image under section 903.047, and that order covers texts, social media, and messages sent through friends.

Hillsborough County does not have the pretrial services supervision program that some nearby counties use, so release conditions are set directly by the judge and enforced through the court. A misdemeanor case is heard in Hillsborough County Court, and a felony goes to the 13th Judicial Circuit. Our firm explains local procedure in more detail on our Hillsborough County criminal defense page.

What should you do if you are under investigation for revenge porn?

Stop all contact with the accuser and call a lawyer before you speak with a detective. Many sexual cyberharassment cases start with a detective’s phone call asking for “your side,” and the statements made in that call often supply the intent and identification evidence the State is missing.

• Do not contact the accuser. Apologies, explanations, and requests to drop the case can lead to stalking or witness tampering charges.
• Do not delete posts, accounts, or phone data. Destroying evidence after you learn of an investigation can be charged as tampering, a third-degree felony under section 918.13.
• Do not hand over your phone or passcode without a lawyer. A consent search can reach far more than the image at issue.
• Write down who had access to your devices and accounts. That list often becomes the core of an identification defense.
• Remember the civil exposure. Anything you say to police can also be used in a civil lawsuit seeking $10,000 or more.

The weeks before charges are filed are when our attorneys can do the most. Through our representation before charges are filed, we can speak with the detective, present evidence of consent or misidentification, and work to keep a case from being filed at all.

For more about our defense strategies, visit our Internet Crimes page. For related reading, see our guide to solicitation of a child using a computer in Florida.

Frequently asked questions about Florida revenge porn charges

Can revenge porn charges be dropped in Florida?

Yes. Prosecutors can drop a sexual cyberharassment charge, called a nolle prosequi, when the evidence of identification, consent, or malice is weak, or when the accuser no longer supports the case. Our attorneys at The Brancato Law Firm present that evidence to the State Attorney’s Office early, often before the first court date, through our Tampa internet crimes defense practice.

Is it a crime to show a nude photo on my phone to a friend in person?

It may not be. Section 784.049 covers posting an image to a website or disseminating it “through electronic means to another person,” so handing someone your phone raises a real question about whether the image was disseminated electronically. The Brancato Law Firm examines exactly how an image moved from one person to another, because that detail can decide whether the statute applies at all.

Is sharing an AI-generated or deepfake nude illegal in Florida?

Yes. Creating, soliciting, or maliciously promoting a realistic altered sexual image of an identifiable person without consent is a third-degree felony under section 836.13, and each act is a separate offense. Our attorneys at The Brancato Law Firm challenge whether the image is “realistic” and whether the person is actually identifiable, which are both required elements.

Do you have to register as a sex offender for sexual cyberharassment in Florida?

No. Sexual cyberharassment under section 784.049 is not on Florida’s list of registrable offenses in section 943.0435, but registration applies if the person shown was a minor and the charge is filed under section 827.071. The Brancato Law Firm reviews the age evidence in every case for that reason, since a single year can change the entire outcome.

How long does the State have to file a revenge porn charge in Florida?

The State has 5 years for a misdemeanor and 7 years for a felony, or 3 years after the person shown discovers the posting, whichever is later. Our attorneys at The Brancato Law Firm check every date in the timeline, because conduct before October 1, 2025, also falls under the older, harder-to-prove version of the law. Our pre-file advocacy work starts as soon as you learn of an investigation.

Can the person in the image sue me even if the criminal case is dropped?

Yes. Section 784.049(7) gives the person shown a separate civil claim for $10,000 or actual damages, whichever is greater, plus punitive damages and attorney fees, and a civil case does not depend on a criminal conviction. The Brancato Law Firm coordinates the criminal defense with that civil exposure so that statements made in one case do not damage the other.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa sex crimes defense practice.

How do you get help with a sexual cyberharassment charge?

Before you answer a detective’s call or reply to the person in the photo, call The Brancato Law Firm, P.A. at (813) 727-7159. The firm was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys can step in before charges are filed, when evidence of consent or misidentification does the most good. Our office is two blocks from the courthouse, and you can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge lets a jury see a photo pulled from your phone only after the State shows two things: the photo is what the State says it is, and it connects to the crime charged. I have fought over that kind of evidence for more than 25 years in Hillsborough County courtrooms, including as a former Major Crimes Unit attorney, and today as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. When a case turns on a phone, our attorneys bring in defense-side forensic experts who re-run the State’s extraction, check the timestamps, and look for content law enforcement missed.

Can police recover deleted photos and posts from your phone?

Yes. Police can often recover deleted photos, messages, and posts, because pressing “delete” on a phone rarely erases the data right away. The National Institute of Standards and Technology explains in its Guidelines on Mobile Device Forensics (NIST SP 800-101 Rev. 1, 2014) that a “physical” extraction of a phone’s memory allows deleted objects and data remnants to be examined. A simpler “logical” extraction captures less, and a manual review of the screen cannot recover deleted information at all. So the type of extraction in your case matters, and our attorneys find out which one was used before deciding how to attack it. Our Tampa criminal forensic science attorney page explains how we use independent experts on this kind of evidence.

Deleted content also survives outside the phone. Apple’s support page states that deleted iPhone photos go to the Recently Deleted album for 30 days, and Google says a deleted photo backed up to Google Photos stays in the trash for 30 days. Copies can sit on a synced computer, in a cloud account, or on the phone of anyone who received the picture or took a screenshot.

Most crime labs do not analyze phones at all. In 2020, publicly funded crime labs in the United States received about 27,000 digital evidence requests, less than 1% of their 3.3 million total requests, and only 23% of those labs performed digital evidence analysis at all, according to the Bureau of Justice Statistics census of publicly funded forensic crime laboratories. That means the person who extracted the phone in your case may be a detective trained on extraction software rather than a crime lab analyst. Our firm finds out who did the work, which tool and version they used, and whether anyone checked the results.

What makes a phone photo or social media post admissible in Florida?

A photo or post is admissible in a Florida criminal trial only if it is relevant, authentic, and not unfairly prejudicial. Three sections of the Florida Evidence Code do most of the work:

• Relevance. Under section 90.401, relevant evidence is evidence “tending to prove or disprove a material fact.” A photo with no link to the charged crime fails this test.
• Unfair prejudice. Under section 90.403, a judge must exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.
• Authentication. Under section 90.901, the State must offer evidence sufficient to support a finding that the item “is what its proponent claims.”

Authentication is a low bar, but it is a real one. In State v. Torres, 304 So. 3d 781 (Fla. 4th DCA 2020), a teenage victim kept screenshots of sexual messages sent through the Kik app by someone she said was her adult cousin. The appeals court held the screenshots were authenticated by circumstantial proof: the sender used a family nickname, the messages mentioned facts only the two of them knew, and the victim had a long history of messaging him on the app. The court said the State did not need to search the sender’s phone, and it noted that testimony that a person merely received a message from someone is not enough by itself to prove who sent it. Our attorneys use that line to press the State on who actually typed a message or posted a picture, especially when accounts are shared, hacked, or created under fake names.

Can a deleted photo of you holding a gun be used if police never found the gun?

Yes, if the State links the photo to the crime with enough other facts. The Third District Court of Appeal applied that rule this summer in Cosby v. State, No. 3D24-2141 (Fla. 3d DCA July 29, 2026), a felony murder appeal built largely on data recovered from a phone.

What happened. On April 7, 2020, a high school student selling aftermarket sneakers drove with his girlfriend to an abandoned house in Southwest Miami-Dade County to meet a buyer. The meeting had been arranged through Instagram messages. While George Walton talked to the seller about the shoes, Adrian Cosby walked up from behind the car and fired. The seller was hit in the arm and survived. His girlfriend died. Both were shot with a 9mm gun that police never recovered.

The phone. Cosby had lost his own phone, so he and Walton were sharing Walton’s. The day after the shooting, police canvassed the neighborhood and questioned the Cosby family. That night the family held a meeting at home, and Cosby’s mother’s phone recorded video of Cosby and Walton deleting items from Walton’s phone. A forensic examination later showed that 161 items had been deleted on the day of the shooting and another 541 that night. One of the recovered items was a selfie taken about two months earlier showing Cosby and Walton posing with 9mm guns. Police also found 9mm ammunition in Cosby’s bedroom under a search warrant.

The ruling. Cosby argued the photo was irrelevant under section 90.401 and unfairly prejudicial under section 90.403, because nothing tied the pictured gun to the murder weapon and the photo invited the jury to see him as a violent person. The court found the State’s response persuasive and pointed to the matching caliber, the ammunition in his room, the trial court’s finding that the pictured gun was “consistent” with the gun used, the two-month gap, and the deletion the night after the shooting. Given that “aggregation of facts connecting the photograph to the charged crimes,” the court found no abuse of discretion and affirmed his convictions for first-degree felony murder, attempted felony murder, and attempted robbery, with life sentences on the murder and attempted murder counts. Because it found no error, the court never reached the State’s fallback argument that any error was harmless.

Why the same kind of photo gets excluded in other cases. Cosby is a link case, and the links decided it. In Agatheas v. State, 77 So. 3d 1232 (Fla. 2011), the Florida Supreme Court held that a .45-caliber revolver found in the defendant’s backpack five years after a murder was inadmissible, because it was undisputed that the revolver was not the murder weapon. The court held that firearm evidence requires “a sufficient link between the weapon and the crime,” and that the unrelated gun confused and misled the jury.

The lesson for anyone facing a gun charge or a violent felony is that a photo of you with a firearm is a fight about links. Our attorneys build the record on each factor in that table before trial, because a judge’s ruling on admissibility is reviewed for abuse of discretion and is hard to reverse on appeal. Our Tampa gun crimes lawyer page covers how we defend cases where the State relies on firearm photos and ammunition.

Is deleting photos or posts after an arrest a crime in Florida?

It can be. Under section 918.13, a person commits tampering with evidence if, knowing that a criminal investigation, proceeding, or trial is pending or about to begin, the person alters, destroys, conceals, or removes any record, document, or other item with the purpose of impairing its truth or availability. Tampering is a third-degree felony, punishable by up to five years in prison under section 775.082. It becomes a second-degree felony, punishable by up to 15 years, when the investigation involves a capital felony.

Knowledge is the element that matters most. Clearing old photos long before you had any reason to expect an investigation does not meet that element. Deleting a thread the night after a detective knocks on your door looks different, and the Cosby record shows why: the deletions came the same day police canvassed the family home, and the State used them as part of its case.

Deleting can also hurt you even if no tampering charge is filed. In Straight v. State, 397 So. 2d 903 (Fla. 1981), the Florida Supreme Court held that evidence a suspect tried to evade prosecution through flight, concealment, or similar conduct is admissible because a jury may infer consciousness of guilt from it. Prosecutors make that argument about deleted messages and photos. Our firm’s guidance in what to do if you are named in an “I Am Jane Doe” post applies here too: once you know an investigation may be coming, do not delete anything.

Do police need a warrant to search your phone in Florida?

Generally, yes. In Riley v. California, 573 U.S. 373 (2014), the U.S. Supreme Court held that police who arrest someone and take a phone must generally get a warrant before searching the data on it. The Court summed up the rule in three words: “get a warrant.” It stressed that a phone can hold thousands of pictures and a record of nearly every part of a person’s life. Exceptions still exist, such as a real emergency or your own consent.

Social media companies are a separate route. Under the federal Stored Communications Act, 18 U.S.C. § 2703, police need a warrant to make a provider disclose the contents of messages stored for 180 days or less. The same statute lets police ask a provider to preserve your records for 90 days, extended another 90 days on request, while they apply for a warrant or court order. A post you delete today may already be frozen on the company’s servers. Location data follows its own rules, which we cover in can police track your phone without a warrant in Florida.

A phone search without a valid warrant or exception can be suppressed. When a warrant exists, our attorneys read it line by line, because the search must stay within what the warrant actually authorizes.

How do defense attorneys fight photo and social media evidence?

Defense attorneys fight digital evidence on five fronts: relevance, prejudice, authentication, the legality of the search, and the reliability of the extraction. A loss on one front does not end the others. A judge can deny a motion to suppress and still exclude the same photo at trial as unfairly prejudicial, and an authentication ruling at trial does not stop the defense from arguing to the jury that a message was fabricated, which Torres treated as a question of weight.

The reliability challenge usually requires an expert. NIST’s guidelines report that testing has found “discrepancies in recovering and reporting the data residing on a device,” that tool updates were sometimes less capable than earlier versions, and that examiners can compare the output of several tools to verify results. Our attorneys hire independent examiners to do exactly that. A timestamp that reflects when a file was copied, not when the photo was taken, can change the meaning of an entire exhibit.

Can social media help your defense?

Yes. The same posts and messages prosecutors use can disprove an accusation, and our firm looks for them. In one Tampa case, our client was charged with unlawful sexual contact with a minor. I investigated the alleged victim’s social media and found posts that directly contradicted the story she had told police, and the State Attorney’s Office dismissed the charges completely. Past results do not guarantee future outcomes.

Messages also matter before an arrest. In delayed sexual assault reports, detectives with the Hillsborough County Sheriff’s Office, Tampa Police Department, and Pasco Sheriff’s Office commonly have the accuser call or text the accused while they record, hoping for an apology or admission. Those texts become evidence, and our post on whether it is illegal to secretly record someone in Florida explains how recordings are handled in court.

Social media monitoring continues through trial. In one high-profile trial, I caught a juror posting online about the active case in violation of the judge’s instructions, and the defense raised the misconduct in court.

What should you do right now if police want your phone or your posts?

Act before you are charged, because the decisions you make in the first days shape what evidence exists. If you see the warning signs described in our post on signs you are being investigated for a crime in Florida, follow these steps:

1. Do not delete anything. Deleting after you know of an investigation can be charged under section 918.13 and argued as consciousness of guilt.
2. Stop posting. Do not post about the incident, the accuser, or the police, and ask friends not to post about you.
3. Do not consent to a phone search. You can tell officers you do not consent and that you want to speak with a lawyer.
4. Do not message witnesses or the accuser. A controlled text or call may be recorded by detectives.
5. Tell your lawyer what exists. Photos, messages, and posts that help you should be preserved by your attorney, not by you sending them around.
6. Get counsel before charges are filed. Our firm’s pre-file advocacy work includes sending preservation letters, investigating the social media of witnesses and alleged victims, and presenting favorable evidence to the prosecutor before a charging decision.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa internet crimes defense practice.

Frequently asked questions

Is deleting texts after being arrested a crime in Florida?

It can be tampering with evidence, a third-degree felony under section 918.13, if you delete texts knowing an investigation or prosecution is pending or about to begin. The Brancato Law Firm tells clients on the first call to stop deleting and to let our attorneys handle preservation, so a cleanup impulse does not become a new felony.

Can police make Instagram or Facebook hand over my deleted messages?

Police can ask the company to preserve your records for up to 90 days, renewable for 90 more, and can then seek a warrant for message content under 18 U.S.C. § 2703. When the State relies on records from a provider, our attorneys at The Brancato Law Firm compare the full return with the State’s exhibits and look for missing context.

Can screenshots of social media messages be used as evidence in Florida?

Yes, if the State authenticates them, which can be done with circumstantial proof such as nicknames, shared facts, and message history under State v. Torres. The Brancato Law Firm challenges screenshots that are cropped, missing context, or tied to accounts other people could access.

Can the State use photos from someone else’s phone against me?

Yes, if the State authenticates the photo and links it to the charged crime; the selfie in Cosby came from a co-defendant’s phone, not Cosby’s own. The Brancato Law Firm challenges these photos for relevance and unfair prejudice under sections 90.401 and 90.403, and our gun crime defense work often turns on exactly this kind of exhibit.

Can police look through my phone during a traffic stop in Florida?

Generally no; Riley v. California requires a warrant to search a phone’s data even after an arrest, unless an exception such as an emergency or your consent applies. Our attorneys at The Brancato Law Firm move to suppress phone evidence obtained without a valid warrant, and our post on how long a traffic stop can last in Florida explains your other rights at the roadside.

Do I need a digital forensic expert in a phone evidence case?

In many cases yes, because only an examiner can test whether the State’s extraction tool reported dates, sources, and deleted items correctly. The Brancato Law Firm retains independent experts to re-run extractions and recover content law enforcement missed, as described on our forensic science defense page.

What should I do if I think police are investigating my social media?

Stop posting, delete nothing, and contact a lawyer before you speak with detectives. The Brancato Law Firm offers representation before charges are filed so that favorable posts and messages are preserved and the State hears our side early.

For more about our defense strategies, visit our Forensic Science page.

The first thing our team does in a phone or social media case is lock down the evidence: we send preservation letters, obtain the State’s extraction report, and put an independent examiner on the data before anything else is lost. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and we defend clients in Hillsborough, Pinellas, and Pasco Counties. If police have your phone or have contacted you about your posts, call (813) 727-7159 today, before you talk to detectives or delete a single file.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.