A cell phone is not a pair of pants

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:

https://www.eff.org/sites/default/files/filenode/granville_coa_opinion.pdf

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 unreasonable.

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.

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