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Zendeh Del & Associates, PLLC


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Cop’s Search of Cell Phone Taken from Defendant Was Unreasonable and Cop Needed Warrant

Galveston Texas Criminal Defense Lawyers Zendeh Del & Associates, PLLC
Galveston Texas Criminal Defense Lawyers

Cop’s search of stored data in cell phone taken from the defendant to inventory as part of a jailing process following his arrest was deemed an unreasonable search. The officer should have obtained a warrant. State v. Granville, 373 S.W.3d 218 (Tex.App.-Amarillo Jul 11, 2012) (NO. 07-11-0415-CR).

“It is true that prisoners have no reasonable expectation of privacy in their [holding] cells…..[However,] arrestees still retain some level of privacy interest in personal effects or belongings taken from them after arrest….Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, thereby preventing others from seeing anything inside….Due to the potential invasiveness of the search, Defendant's status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which Defendant was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail's penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention.”

We are looking at a privacy interest in data hidden within electrical components contained in the device as well as potential information not in the phone but accessible through its manipulation, that is, data saved on the internet. The State cited us to no evidence suggesting that such data can be scraped off the phone surfaces or components, like blood or DNA affixed to clothes. Nor is there evidence of record that the picture found by the officer was somehow playing or appearing upon the phone's screen. Quite the contrary. The cell phone had to be activated, or turned on, by the officer, and he had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item, which differentiates it from the miscellaneous things accessible on a prisoner's pants.

Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, thereby preventing others from seeing anything inside. And though some cell phones may require the input of a password before it can be used, no evidence suggests that Granville's was of that type. So, the officer's ability to venture into the phone's informational recesses by merely pressing the power button does not suggest that Granville's interest in assuring the privacy of his information was minimal. Whether the phone was locked or not via a password, a closed door is sufficient to illustrate an expectation of privacy. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983).

Now we turn to the subject of society recognizing (or not) an arrestee's privacy interest in a cell phone impounded during the booking process. It must be remembered that Granville was simply a pretrial detainee. This is of import since detainees, in some ways, are accorded greater constitutional protection than a convicted individual. Ex parte Green, 688 S.W.2d 555, 556 (Tex. Crim. App. 1985) (punishment); Rocha v. Potter County, No. 07-09-001-2-CV, 2010 Tex. App. Lexis 2859, at *10-11 (Tex. App.—Amarillo Apr. 20, 2010, no pet.) (due process). They also have a greater chance of being freed soon after their detention through posting bond or other measure. In fact, if the officer who took the cell phone is to be believed, Granville was subject to being released quickly, given that he was arrested for a class C misdemeanor. It also lessens the duration of any control law enforcement officials may exercise over the instrument.

. . .

Due to the potential invasiveness of the search, Granville's status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which appellant was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail's penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention. Indeed, holding that the mere impoundment of property does not vitiate all reasonable expectation of privacy in the item confiscated is nothing new. Law enforcement officials have long been barred from searching impounded vehicles in any manner that they may care to.


Posted Wed, November 14, 2012 - 8:08:05