Tuesday, November 27, 2012


That was the question before a Texas appellate court concerning a warrantless search of a cell phone

The phone belonged to a man who had been arrested for causing a disturbance. After he had been booked, an officer who had nothing to do with the arrest or the investigation of the disturbance, took the phone because someone had told him the arrestee had taken a picture the day before of a student peeing in a school urinal. He searched the phone, found the photo and charged the man with ‘Improper Photography or Visual Recording.’


Grits for Breakfast
November 26, 2012

The Seventh Court of Appeals in Amarillo in a recent opinion (pdf) addressed the question, "May an officer conduct a warrantless search of the contents or stored data in a cell phone when its owner was required to relinquish possession of the phone as part of the booking or jailing process?" They said "No," at least barring "exigent circumstances or other recognized exceptions to the warrant requirement." Here's how attorney-blogger Paul Kennedy described the gist of the ruling:

__In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.

__The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.

__The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.

__Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.

I leave y'all with this quote from the opinion:

__While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.

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