Privacy Concerns of Cell Phone Searches

Evolving Fourth Amendment Standards

I’ve been arrested and the police have my cell phone. What stops them from searching it?

When you are arrested the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution restrict the police department’s ability to search all your possessions. Although the police may search the outside of your clothes and empty your pockets, State v. Granville limits searching your cell phone. The Court of Criminal Appeals, which is the highest criminal court in Texas, recently held that you have a reasonable expectation of privacy that prevents searching the contents of your phone. If the crime that is the reason for your arrest is unrelated to the contents of your phone the police cannot search your phone without having either exigent circumstances or a warrant.

For example, in State v. Granville, a young man was arrested for causing a disturbance on a bus. After being incarcerated at the jail, it came to the officer’s attention that there was a photograph on the young man’s phone that might be evidence of a criminal offense. However, the photograph on the phone was not evidence of causing a disturbance on a bus. Taking the initiative, a police officer retrieved the phone and searched its contents without either establishing exigent circumstance or securing a search warrant. Finding the potentially incriminating photograph, the young man was charged with Improper Photography, a state jail felony.

On appeal to the Court of Criminal Appeals the State of Texas’s lawyers argued that the young man did not have a reasonable expectation of privacy in the contents of his because the phone was lawfully in the possession of the jail. The State of Texas argued that there are not any circumstances which would prevent the State from searching property on a person arrested that is in the possession of the jail. However, the Court of Criminal Appeals reached a different conclusion. After reviewing the evidence and law, the Court of Criminal Appeals concluded that you do have a reasonable expectation of privacy in the contents of your phone that is protected by the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution. The Court of Criminal Appeals reasoned that a cell phone is the same as a desk, cabinet, satchel, or folder. They are the same because like a desk, cabinet, satchel, or folder your cell phone contains personal information that you don’t want shared with the world. People today keep medical information, credit card information, and private communications in the form of emails and text messages that were usually stored in desks, cabinets, satchels, or folders.

Have you been arrested? Did the police search your cell phone? After searching your cell phone were you charged with another crime? If you share the experience of the young man described in this article the attorneys at Guest and Gray Law Firm are your go to resource to combat the possibly illegal search of your private information. Contact the attorneys at Guest and Gray Law Firm for a consultation to help you protect your rights.

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