This was the issue addressed in oral arguments before the Texas Court of
Criminal Appeals in Houston last week. I was invited by the Court of Criminal
Appeals, Texas’s highest criminal appellate court, to argue the
case before a special session of the Court to commemorate the opening
of the new home of the 1st and 14th Courts of Appeals in downtown Houston.
The Court heard two cases: ours and a death penalty case.
The issue in my case was whether the police must obtain a search warrant
to seize and search a cell phone held in jail property. This is an issue
that is cropping up frequently in jurisdictions all over Texas and the
country, with courts reaching different results. In my case, we won a
suppression hearing in the trial court and the State of Texas, through
the Walker County District Attorney’s Office, appealed the trial
court’s decision to the Court of Appeals. The case was assigned
to the Amarillo Court of Appeals and they handed down a unanimous opinion
upholding the trial court’s ruling. The opinion was written by Chief
Justice Brian Quinn and was, in my opinion, well-written and properly
decided. The opinion can be read here:
Here are the facts of the case: I represent a high school student in an
Improper Visual Photography case in which he was arrested and charged
with taking a photograph of another student at a urinal at their high
school. Turns out, it’s a felony in Texas to take a photograph of
another person in a bathroom or dressing room without their consent and
with the intent to invade their privacy. It’s a state jail felony,
punishable by confinement in a state jail (prison) from six months to
two years and up to a $10,000 fine. A school resource officer (a peace
officer assigned to a school) heard about the photograph from other students
and found out that my client had been arrested for a class C offense and
was presently in the Walker County Jail. A class C misdemeanor is a fine-only
misdemeanor on the level of a traffic ticket. The class C offense had
nothing to do with my client having taken the cell phone picture that
was the focus of the police officer’s investigation. Rather than
seek a search warrant, the officer went to the Walker County Jail and
seized my client’s cell phone from his inventoried property (when
you are arrested, the jail staff takes all of your property from you and
stores it in a property locker for you until you are released). After
seizing the phone, the officer turned the phone on and searched through
it until he found the photo in question. He then charged and arrested
my client for the felony offense of Improper Visual Photography. The photo
in question showed the other student at the urinal with his back, and
part of his buttocks, showing.
On appeal, the State of Texas argued that once a person is arrested, he
or she has virtually no reasonable expectation of privacy in any of his
or her property associated with them when arrested, including a cell phone
and its contents. This position is based on case law that holds that citizens
have a diminished expectation of privacy in their possessions when arrested,
especially when facing strong governmental interests in officer safety
and evidence preservation. The cases that have addressed this issue in
the past have involved clothing: a person is arrested for murder, his
clothing taken from him subsequent to his arrest, and his clothing inspected
for evidence of the crime for which he was arrested. This is accomplished
without a search warrant and such searches have been upheld by almost
every court that has addressed the issue. The reasoning behind upholding
such searches is that citizens have such a reduced expectation of privacy
in the clothes that they wear in public that the Fourth Amendment protection
against unreasonable searches and seizures is not violated by a search
without a warrant. Put another way, such a search is not Constitutionally
But, in our case, we’re not talking about clothing, we’re talking
about a smart phone, capable of storing enormous amounts of personal and
private information about almost every facet of the cell phone owner’s
life. Take a moment to look at your phone to appreciate how much of your
life is laid bare to anyone who gains access to your phone. I argued to
the Court of Criminal Appeals that someone looking at my phone would be
able to access my emails, text messages, Facebook posts, banking information,
voicemail, healthcare information, calendar (where I’ve been, where
I am, and where I’ll be), photographs, videos, personal notes, and
myriad of other personal information.
The Fourth Amendment to the United States and Article I, Section 9 of the
Texas Constitution protect the privacy of citizens from unreasonable search
and seizure. The United States Supreme Court has held repeatedly that
the Fourth Amendment requires police to obtain a search warrant. The Supreme
Court has held that a search conducted outside the judicial process (a
neutral and detached magistrate reviewing and either approving or disapproving
a sworn affidavit of facts from a peace officer in support of a search
or seizure) is
per se unreasonable and, hence, unconstitutional, unless it falls under one of
several exceptions (exigent circumstances, plain view, etc.).
I am a free citizen in a free republic and I like the idea that the government
has to demonstrate that it has a damn good reason to invade my privacy.
I understand that it is sometimes necessary for our freedom from governmental
intrusion to give way in order to ferret out crime, but I think the Framers
of our Constitution had a monumentally good idea when they wrote and ratified
the Fourth Amendment.
The oral arguments before the Court of Criminal Appeals were fun. I prepared
for days, researching, reading and re-reading Supreme Court and Court
of Criminal Appeals opinions, and writing and re-writing the outline for
my argument. The State, because it was the appellant, went first. The
State, through Mr. John Messinger of the Office of the State Prosecutor,
argued that the search in our case fell under the exception to the general
warrant requirement known as “search incident to arrest.”
That is, that anything associated with you when you are arrested is subject
to being seized and searched to insure the safety of the arresting officers
and to protect evidence of crime. The Court was very active, quickly interrupting
Mr. Messinger to pepper him with questions about the State’s position.
Several members of the Court asked a number of questions directed at trying
to pin the State down to its argument. Ultimately, the State argued that
the facts of this case fell under the search incident to arrest exception.
I went next, and didn’t get a minute into my argument before the
questions began. I spent the next 22 minutes responding to the very perceptive
questioning of the judges of the Court, never once looking at my carefully-prepared
outline. That was a good thing. I would much rather have the opportunity
to address the questions on the minds of the judges who will be handing
down the decision than try to guess what issues are important to them.
I argued, not surprisingly, that a cell phone is not a pair of pants and
that there was a constitutionally-significant difference between the two.
I further argued that the facts of the case did not fall under the search
incident to arrest as asserted by the State because my client was already
booked in and sitting in a cell by the time the search occurred, the search
incident to arrest exception having ended at the conclusion of the administrative
booking process. The justifications for the search incident to arrest,
that of officer safety and preventing evidence destruction, simply did
not apply, I argued, to a situation in which the State had exclusive control
of my client’s phone while my client sat locked in a cell unable
to access the phone. The officer could easily have obtained a search warrant,
and given the significant privacy interests of my client in the information
on his cell phone, should have.
Of course, I have thought of a thousand things I should have said to the
Court after I sat down.
The judges of the Court of Criminal Appeals seemed sympathetic to the privacy
issue presented by this case of first impression. They will hand down
their opinion in the next several months and I anticipate that the opinion
will be controversial and significant, whatever the outcome.
My thanks to the Court of Criminal Appeals for the invitation to argue
before the special session in Houston, to my co-counsel Paxton Adams of
Huntsville, Texas, for his assistance in preparing our brief to the court,
and to several organizations who joined forces to file an Amicus Curiae
brief in support of our position.
Now, we wait.