
    Robert BURTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-1310
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    ON REMAND
   COHEN, C.J.

In Burton v. State, No. SC16-1116, 2018 WL 798521 (Fla. Feb. 9, 2018), the Florida Supreme Court summarily quashed this Court's prior opinion in Burton v. State, 191 So.3d 543 (Fla. 5th DCA 2016), and remanded for reconsideration based on Carpenter v. State, 228 So.3d 535 (Fla. 2017). In Carpenter, the majority held that "the good-faith exception to the exclusionary rule does not apply" when law enforcement is "not relying on the type of longstanding, thirty-year appellate precedent" such as that at issue in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Carpenter, 228 So.3d at 542.

Upon consideration of Carpenter, the good-faith exception as articulated in Davis was inapplicable in the instant case. Therefore, Burton's motion to suppress evidence taken from the warrantless search of his cell phone incident to his arrest should have been granted. See id.

REVERSED AND REMANDED.

PALMER, J., concur.

BERGER, J., concurs specially, with opinion

BERGER, J., concurring specially

While I continue to believe the police acted in good faith when they searched Burton's cell phone without a warrant, I am constrained to concur based on the Florida Supreme Court's opinion in Carpenter v. State, 228 So.3d 535 (Fla. 2017).  