State of Texas v. Granville, Anthony

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1095-12

THE STATE OF TEXAS

v.

ANTHONY GRANVILLE, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

WALKER COUNTY

C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and

M EYERS, P RICE, W OMACK, J OHNSON, H ERVEY, and A LCALA, JJ., joined. K ELLER,

P.J., filed a concurring opinion in which P RICE, J., joined. K EASLER, J., filed a

dissenting opinion.

OPINION

This case raises the issue of whether a person retains a legitimate expectation of

privacy in the contents of his cell phone when that phone is being temporarily stored in a jail

property room.1 The trial judge granted Anthony Granville’s motion to suppress, concluding

1

We granted the State Prosecuting Attorney’s (SPA’s) sole ground for review which asks,

May law enforcement, with or without probable cause, activate and search the

Granville Page 2

that the high-school student did not lose his legitimate expectation of privacy in his cell

phone simply because it was being stored in the jail property room after he had been arrested

for a Class C misdemeanor. The court of appeals affirmed that ruling.2 We granted the

SPA’s petition for discretionary review, but we reject its argument that a modern-day cell

phone is like a pair of pants or a bag of groceries, for which a person loses all privacy

protection once it is checked into a jail property room. We therefore affirm the judgment of

the court of appeals.

I.

One morning, Anthony Granville was arrested for the Class C offense of causing a

disturbance on the school bus. His cell phone was taken from him during the booking

procedure and placed in the jail property room. Later that day, Officer Harrell, a Huntsville

Police “School Resources Officer,” was told that, the day before he was arrested, Mr.

Granville had used his cell phone to take a photograph of another student urinating in the

boys’ bathroom. Officer Harrell, who was not involved in arresting Mr. Granville, then

drove to the jail and retrieved the cell phone from the jail property room. He examined its

contents without first getting a warrant. The officer turned on the phone, which had been

turned off. He went through it until he found the photograph he was looking for, then took

contents of an inventoried cellular phone that was immediately associated with the

person at the time of his lawful arrest?

2

State v. Granville, 373 S.W.3d 218, 227 (Tex. App.–Amarillo 2012) (fact that defendant’s

cell phone was in jail property room did nothing to “nullify” his “reasonable expectation of privacy

in the phone searched.”).

Granville Page 3

the phone to his office, and printed a copy of the photograph. He kept the phone as evidence.

Mr. Granville was charged with the state-jail felony of Improper Photography, and he

filed a motion to suppress, arguing that Officer Harrell could not search his cell phone

without a warrant. At the hearing on the motion to suppress, both Officer Harrell and the

prosecutor contended that if an officer has probable cause, he may search anything in the jail

property room that belongs to a jail inmate. There are no exceptions. The trial judge tested

this hypothesis by asking the prosecutor, “[D]o you agree that there is an expectation of

privacy on the information the person has on their cell phone?” The prosecutor responded,

“If you have it in your possession and not committed a crime, sure.” She elaborated further:

I think if you’re in the Walker County jail you have no expectation of privacy

in the personal effects that you had on you at the time that you were arrested.

. . . His expectation of privacy is diminished in those effects until he can and

does exhibit subjective expectations through his conduct, presumably at the

time of his release from detainment or incarceration.

Defense counsel disagreed: “[I]t is clear that everybody in this room has some subjective

belief that their cell phone is private and it doesn’t matter if it is lawfully seized by the cops.”

The trial judge posed the legal issue nicely:

So if I get arrested for jay walking out here this afternoon and get put in jail,

any officer in town can go out there and go through my phone, cell phone, and

might discover that I have a picture of Prometheus chained to a rock in the

mountains and an eagle eating his liver out?

Yes, said the State; “If an officer has probable cause to believe that you committed a crime

or evidence of that crime [is] on your phone, then, yes he can look at it. Otherwise, no he

can’t look at your phone because he wants to. He has to have probable cause.”

Granville Page 4

After studying the law, the trial judge granted the motion to suppress and entered

findings of fact, concluding that the cell phone was the personal property of Anthony

Granville; Officer Harrell took possession of it without a warrant; and the officer “searched

the contents of the cell phone until he found the photograph he sought.” 3 Based on his factual

findings, the trial judge concluded that Anthony Granville had a subjective, reasonable, and

legitimate expectation of privacy in his cell phone “even when that cell phone [was] in the

3

The trial judge’s complete findings of fact are as follows:

1. Anthony Granville was arrested and jailed for a class C misdemeanor of Disruption of

School Transportation.

2. When booked into the Walker County Jail, Anthony Granville’s personal effects were taken

from him by Walker County Jail personnel and placed into his property.

3. Among the items taken from Anthony Granville by Walker County Jailers was a cell phone.

4. The cell phone taken from Anthony Granville was the personal property of Anthony

Granville.

5. After his incarceration, Officer Everett Harrell, a school resource officer at the school

Anthony Granville attends, heard from others at the school that Anthony Granville had taken

a photograph of another student.

6. Believing the taking of the photograph to be a possible criminal offense, Officer Harrell went

to the Walker County Jail and took possession of Anthony Granville’s cell phone.

7. The cell phone was off and Officer Harrell had to turn it on to manipulate its controls.

8. Officer Harrell [s]earched the contents of the cell phone until he found the photograph he

sought.

9. Officer Harrell seized the cell phone and checked it into property at the Huntsville Police

Department.

10. Based on the content of the photograph allegedly taken by Anthony Granville, Anthony

Granville was charged with the State Jail Felony offense of Improper Visual Photography.

11. At the time Officer Harrell took possession of Anthony Granville’s phone, he had no valid

search warrant.

12. Officer Harrell had sufficient time to obtain a search warrant for the contents of Anthony

Granville’s cell phone.

13. Officer Harrell took possession of Anthony Granville’s cell phone and could have held it

until a warrant could have been obtained.

14. No exigent circumstances existed that would have necessitated circumventing the search

warrant requirement.

Granville Page 5

jail inventory of an accused.” Because Officer Harrell had neither a search warrant nor

exigent circumstances to make a warrantless search of that phone, the trial judge granted the

motion to suppress.4

The State appealed, and the court of appeals affirmed, finding that (1) a person “has

a general, reasonable expectation of privacy in the data contained in or accessible by his cell,

now ‘smart’ phone,”5 and (2) a person continues to have a reasonable expectation of privacy

in the contents of his cell phone even though it has been placed in a jail property room for

4

The trial judge’s full conclusions of law were as follows:

1. Officer Everett Harrell had no valid search warrant when he seized the cell phone belonging

to Anthony Granville.

2. Exigent circumstances did not exist to lawfully circumvent the necessity of obtaining a

search warrant.

3. The seizure of Anthony Granville’s cell phone was not accomplished as a search incident to

arrest.

4. To the extent that probable cause was necessary for Officer Harrell to search the contents of

Anthony Granville’s cell phone, the Court finds that the State of Texas did not meet its

burden in demonstrating probable cause as it wholly failed in its evidence to show that

Officer Harrell had in his possession at the time he took possession of Anthony Granville’s

cell phone sufficient information to believe that a criminal offense has been committed by

Anthony Granville, specifically that he did not state in his testimony that he had information

that the photograph was taken without the consent of the student photographed or that the

photograph was taken with the intent to invade the student’s privacy.

5. The Court finds that Anthony Granville had a reasonable expectation of privacy in the

contents of his cell phone.

6. The Court finds that Anthony Granville demonstrated subjective expectation of privacy in

the contents of the cell phone.

7. The Court finds that the expectation of privacy in the contents of one’s cell phone is

reasonable and one that society accepts as legitimate, even when that cell phone is in the jail

inventory of an accused.

5

Granville, 373 S.W.3d at 223.

Granville Page 6

safekeeping.6 The court of appeals ended its opinion with a rhetorical flourish, noting that

“[a] cell phone is not a pair of pants,” like the pants and shoes whose warrantless seizure

from the jail property room and later search and testing we upheld in Oles v. State.7

II.

Appellate courts afford almost total deference to a trial judge’s findings of fact in a

suppression hearing as long as those factual findings are supported by the record.8 We also

view his factual findings in the light most favorable to his ruling.9

The Fourth Amendment states that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures shall not be

violated.”10 The term “papers and effects” obviously carried a different connotation in the

late eighteenth century than it does today. No longer are they stored only in desks, cabinets,

satchels, and folders. Our most private information is now frequently stored in electronic

6

Id. at 224-27.

7

993 S.W.2d 103 (Tex. Crim. App. 1999).

8

State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (“Appellate courts afford

almost total deference to the trial judge’s determination of facts (if those facts are supported by the

record) when they review a suppression ruling.”); see, e.g., State v. Betts, 397 S.W.3d 198, 204 (Tex.

Crim. App. 2013) (deferring to trial judge’s factual findings and upholding trial judge’s

determination that defendant had reasonable expectation of privacy in his aunt’s back yard where

he kept his dogs).

9

Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (appellate courts must defer to

the trial judge’s factual findings concerning a person’s expectation of privacy and view them in the

light most favorable to the prevailing party; ultimate legal issue of standing is reviewed de novo).

10

U.S. CONST . amend. IV.

Granville Page 7

devices such as computers, laptops, iPads, and cell phones, or in “the cloud” and accessible

by those electronic devices.11 But the “central concern underlying the Fourth Amendment”

has remained the same throughout the centuries; it is “the concern about giving police

officers unbridled discretion to rummage at will among a person’s private effects.” 12 This is

a case about rummaging through a citizen’s electronic private effects–a cell phone–without

a warrant.

A. Standing: A Cell Phone Owner Has Both a Subjective and Reasonable

Expectation of Privacy in His Cell Phone.

A person has “standing” to contend that a search or seizure was unreasonable if (1)

he has a subjective expectation of privacy in the place or object searched, and (2) society is

prepared to recognize that expectation as “reasonable” or “legitimate.”13 The “standing”

doctrine ensures that a person may claim only that his own rights have been violated; he

cannot assert that he is entitled to benefit because the rights of another have been violated.14

11

See Bryan A. Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches, 42

GA . L. REV . 1165, 1194 (2008).

12

Arizona v. Gant, 556 U.S. 332, 345 (2009).

13

Minnesota v. Olson, 495 U.S. 91, 95-97 (1990) (an overnight guest in another’s home has

a legitimate privacy interest in that premises and thus may challenge its search); Kothe v. State, 152

S.W.3d at 59 (Tex. Crim. App. 2004) (“Any defendant seeking to suppress evidence obtained in

violation of the Fourth Amendment must first show that he personally had a reasonable expectation

of privacy that the government invaded. He must prove that he was a “victim” of the unlawful

search or seizure. He has no standing to complain about the invasion of someone else’s personal

rights.”) (footnotes omitted).

14

Olson, 495 U.S. at 95 (“Since the decision in Katz v. United States, 389 U.S. 347 (1967),

it has been the law that ‘capacity to claim the protection of the Fourth Amendment depends . . . upon

whether the person who claims the protection of the Amendment has a legitimate expectation of

Granville Page 8

A person’s constitutional right to be free from unreasonable searches is a personal right that

cannot be asserted vicariously.15

Courts have held that (1) a person has a subjective expectation of privacy in the

contents of his cell phone,16 and (2) this expectation of privacy is one that society recognizes

privacy in the invaded place.’”) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

15

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (“[T]o claim the protection of the Fourth

Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the

place searched, and that his expectation is reasonable”).

16

See United States v. Wurie, 612 F. Supp.2d 104, 109 (D. Mass 2012) (“It seems

indisputable that a person has a subjective expectation of privacy in the contents of his or her cell

phone.”), rev’d on other grounds, 728 F.3d 1 (1st Cir. 2013), cert. granted, 82 U.S.L.W. 3104 (U.S.

Jan. 17, 2014) (No. 13-212) (upholding defendant’s privacy interest and holding that warrantless

search of cell phone taken from an arrestee was unconstitutional). As the First Circuit explained in

Wurie:

We suspect that the eighty-five percent of Americans who own cell phones and “use

the devices to do much more than make phone calls,” . . . would have some difficulty

with the government’s view that “Wurie’s cell phone was indistinguishable from

other kinds of personal possessions, like a cigarette package, wallet, pager, or address

book, that fall within the search incident to arrest exception to the Fourth

Amendment’s warrant requirement. In reality, “a modern cell phone is a computer,”

and “a computer . . . is not just another purse or address book.”

Id. at 8 (citations omitted); see also United States v. DiMarco, ___ F.Supp.2d __, 2013 WL 444764,

*10 (S.D.N.Y. Feb. 5, 2013) (quoting Wurie and stating, “given the unique and significant

information-storing capabilities of the modern cell phone, [defendant] did have a privacy interest in

the cell phone that the NYPD officers found in his pocket” when they arrested him); People v.

Taylor, 296 P.3d 317, 321 (Colo. App. 2012) (quoting Wurie and “assuming” that the defendant “had

a reasonable expectation of privacy in his cellular telephone’s call history”); see generally

Schlossberg v. Solesbee, 844 F. Supp.2d 1165, 1170 (D. Or. 2012) (“[P]ersonal electronic devices

such as cameras and cell phones cannot be considered closed containers” as “these devices are

capable of holding large volumes of private information . . . . On a daily basis citizens may carry

with them digital cameras, smart phones, ipads (or other tablets) and laptops. These devices often

include some combination of email services and internet browsing. Potential information stored on

them includes: phonebook information, appointment calendars, text messages, call logs,

photographs, audio and video recordings, web browsing history, electronic documents and user

location information. Wayne Jansen & Rick Ayers, Nat’l Inst. of Standards and Tech., Guidelines

on Cell Phone Forensics 56 (2007), available at http:// csrc. nist. gov/ publications/ nistpubs/ 800–

Granville Page 9

as reasonable and legitimate.17

A person’s subjective expectation of privacy in a cell phone that he owns and

possesses is supported by decades of cases on “standing.”18 A defendant normally has

“standing” to challenge the search of places and objects that he owns. For example, a

homeowner has standing to challenge a search of his home.19 And a person generally has

101/ SP 800– 101. pdf.”).

17

See, e.g., United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (rejecting

government’s position that because cell phone belonged to his employer, defendant did not have

standing to challenge search of cell phone; defendant had use of phone and took normal precautions

to protect privacy of phone calls and records even though he did not have password protection);

United States v. Lopez-Cruz, 730 F.3d 803, 808-09 (9th Cir. 2013) (upholding trial judge’s finding

that defendant who was in possession of cell phones and was using them had a reasonable

expectation of privacy in them; no evidence that defendant did not legitimately possess the phones

or that he failed to take normal precautions to maintain privacy by abandoning them or throwing

them away when he was stopped by agents); United States v. Quintana, 594 F. Supp.2d 1291, 1299

(M.D. Fla. 2009) (“An owner of a cell phone generally has a reasonable expectation of privacy in

the electronic data stored on the phone.”); State v. Carroll, 778 N.W.2d 1, 10-11 (Wis. 2010)

(defendant had a reasonable expectation of privacy in his cell phone); United States v. Davis, 787

F. Supp.2d 1165, 1170 (D. Or. 2011) (finding “[a] person has a reasonable expectation of privacy

in his or her personal cell phone, including call records and text messages”); United States v. Gomez,

807 F. Supp.2d 1134, 1141 (S.D. Fla. 2011) (defendant had a reasonable expectation of privacy in

his cell phone).

18

When asked at oral argument about specific evidence that Mr. Granville had a subjective

expectation of privacy in his cell phone, defense counsel recalled his law-school memory of res ipsa

loquitur, the notion that “the thing speaks for itself.” It was, after all, a cell phone. Just as one

assumes that a person has a subjective privacy interest in his diary, in his medical records, in his

bank records, in the content of his telephone calls, and in the content of his personal computer, one

may assume, without further proof, that a person has a subjective privacy interest in his cell phone.

19

Alderman v. United States, 394 U.S. 165, 176-80 (1969) (a person’s property interest in

his own home was so great as to allow him to object to electronic surveillance of conversations

emanating from his home, even though he himself was not a party to the conversations).

Granville Page 10

standing to challenge the search or seizure of a car he owns.20

A “legitimate” expectation of privacy acknowledges the lawfulness of the person’s

“subjective” expectation of privacy. As the Supreme Court has explained,

a “legitimate” expectation of privacy by definition means more than a

subjective expectation of not being discovered. A burglar plying his trade in

a summer cabin during the off season may have a thoroughly justified

subjective expectation of privacy, but it is not one which the law recognizes

as “legitimate.” His presence . . . is “wrongful”; his expectation is not “one that

society is prepared to recognize as ‘reasonable.’ ” And it would, of course, be

merely tautological to fall back on the notion that those expectations of privacy

which are legitimate depend primarily on cases deciding exclusionary-rule

issues in criminal cases. Legitimation of expectations of privacy by law must

have a source outside of the Fourth Amendment, either by reference to

concepts of real or personal property law or to understandings that are

recognized and permitted by society. One of the main rights attaching to

property is the right to exclude others, . . . and one who owns or lawfully

possesses or controls property will in all likelihood have a legitimate

expectation of privacy by virtue of this right to exclude.21

The factors that courts use in deciding whether a person has a reasonable expectation of

privacy in the place or object searched include the following:

(1) whether the defendant had a proprietary or possessory interest in the place or

object searched;22

20

United States v. Jones, 132 S.Ct. 945, 950-53 (2012) (trespass upon car by placing GPS

device on its underbelly was an invasion of property rights and constituted a Fourth Amendment

search).

21

Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (citations omitted).

22

In a supplemental brief, the SPA argues that the recent decisions in United States v. Jones,

132 S.Ct. 945 (2012) and Florida v. Jardines, 133 S.Ct. 1409 (2013) superceded the Katz

“expectation of privacy” model with the former common-law Fourth Amendment jurisprudence

based on property law. The SPA suggests that these two views of the Fourth Amendment are

mutually exclusive, but the Supreme Court has stated that they are complementary, not incompatible.

Jones, 132 S.Ct. at 952 (stating that “the Katz reasonable-expectation-of-privacy test [was] added

Granville Page 11

(2) whether the defendant’s presence in or on the place searched was legitimate;

(3) whether the defendant had a right to exclude others from the place or object;

(4) whether the defendant took normal precautions, prior to the search, which are

customarily taken to protect privacy in the place or object;

(5) whether the place or object searched was put to a private use;

(6) whether the defendant’s claim of privacy is consistent with historical notion

of privacy.23

Ownership or legal possession of the property searched is not the “be-all-end-all” in deciding

whether a person has a legitimate expectation of privacy in it. But courts commonly find that

a person has a legitimate expectation of privacy in the contents of his cell phone because of

its “ability to store large amounts of private data” both in the cell phone itself and by

to, not substituted for, the common-law trespassory test.”). The federal courts that have addressed

the issue have agreed with this understanding. See, e.g., United States v. Thomas, 726 F.3d 1086,

1092 (9th Cir. 2013) (Fourth Amendment violation may arise under both the Jones common-law

trespassory test or the Katz reasonable-expectation-of-privacy test); United States v. Jackson, 728

F.3d 367, 374 (4th Cir. 2013) (“The Jardines analysis does not end the Fourth Amendment inquiry,

however, because, as Jardines itself makes clear, ‘property rights are not the sole measure of Fourth

Amendment violations’ and ‘[t]he Katz reasonable-expectations test has been added to . . . the

traditional property-based understanding of the Fourth Amendment.’”) (quoting Jardines, 133 S.Ct.

1414, 1417).

23

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); see also United States v.

Cardoza-Hinojosa, 140 F.3d 610, 615 (5th Cir. 1998) (assessing a defendant’s reasonable

expectation of privacy by considering whether he has a property or “‘possessory interest in the thing

seized or the place searched, whether he has a right to exclude others from that place, whether he has

exhibited a subjective expectation of privacy that it would remain free from governmental intrusion,

whether he took normal precautions to maintain privacy[,] and whether he was legitimately on the

premises’”) (quoting United States v. Ibarra, 948 F.2d 903, 906 (5th Cir. 1991)).

Granville Page 12

accessing remote services.24 This data may involve the most intimate details of a person’s

individual life, including text messages, emails, banking, medical, or credit card information,

pictures, and videos.25 A cell phone is unlike other containers as it can receive, store, and

transmit an almost unlimited amount of private information.26 The potential for invasion of

24

State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (“Although cell phones cannot be equated

with laptop computers, their ability to store large amounts of private data gives their users a

reasonable and justifiable expectation of a higher level of privacy in the information they contain.

Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting

and preserving evidence and can take preventive steps to ensure that the data found on the phone are

neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s

contents, police must then obtain a warrant before intruding into the phone’s contents.”); United

States v. Gomez, 807 F. Supp.2d 1134, 1140-41 (S.D. Fla. 2011) (defendant had standing to contest

search of his cell phone and a reasonable expectation of privacy in its text messages).

25

See United States v. Wurie, 728 F.3d 1, 9 (1st Cir. 2013), cert. granted, 82 U.S.L.W. 3104

(U.S. Jan. 17, 2014) (No. 13-212) (the contents of cell phones are, “by and large, of a highly personal

nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts,

calendar appointments, web search and browsing history, purchases, and financial and medical

records. . . . Indeed, modern cell phones provide direct access to the home in a more literal way as

well; iPhones can now connect their owners directly to a home computer’s webcam, via an

application called iCam, so that users can monitor the inside of their homes remotely. ‘At the touch

of a button a cell phone search becomes a house search, and that is not a search of a “container” in

any normal sense of that word, though a house contains data.’”) (citations omitted).

26

See United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012) (“A modern cell

phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to

contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy

in a search of a cell phone is greater than in a search of a ‘container’ in a conventional sense even

when the conventional container is a purse that contains an address book (itself a container) and

photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a

computer) is not just another purse or address book.”); see also, Maeve Duggan & Lee Rainie, Pew

Research Ctr.’s Internet & Am. Life Project, Cell Phone Activities 2012, at 2 (2012), available at

http://pewinternet.org/~/media//Files/Reports/2012/PIP_CellActivities_11.25.pdf (noting that 29%

of cell phone owners use their phones for online banking, and 31% access medical information);

Elizabeth Woyke, Debate Over Warrantless Cellphone Searches Heats Up, FORBES (Sept. 7, 2011),

available at http://www.forbes.com/sites/elizabethwoyke/2011/09/07/debate-over-warrantless

cellphone-searches-heatsup/ (allowing such warrantless searches would expose sensitive information

commonly stored on businesspersons’ cell phones to governmental view).

Granville Page 13

privacy, identity theft, or, at a minimum, public embarrassment is enormous.27

B. An Arrestee Normally Has an Expectation of Privacy in the Contents of his Cell

Phone That Is Being Temporarily Stored in a Jail Property Room.

Although a person may have a reasonable and legitimate expectation of privacy in the

contents of his cell phone, he may lose that expectation under some circumstances, such as

if he abandons his cell phone,28 lends it to others to use, or gives his consent to its search.29

Courts across the country have wrestled with questions of when he might lose his reasonable

expectation of privacy in other situations, perhaps if he is arrested and police perform a

search of his cell phone incident to arrest30 or, as here, of his cell phone stored in the jail

27

See, e.g., Newhard v. Borders, 649 F. Supp.2d 440, 443-44 (W.D. Va. 2009) (former

school teacher and his girlfriend sued police for invasion of privacy when defendant was arrested for

DUI, officers took cell phone that his girlfriend had lent him, accessed nude photographs of himself

and girlfriend in compromising positions, then shared photographs with other officers, which led to

public notoriety and loss of his teaching position).

28

See United States v. Powell, 732 F.3d 361, 374-75 (5th Cir. 2013) (when defendant-

passenger disclaimed any personal connection to cell phone found in car, she lacked standing to

contest its warrantless search by police officer); compare United States v. Lopez-Cruz, 730 F.3d

803, 808-09 (9th Cir. 2013) (arrestee did not abandon his privacy interest in cell phones when he

denied ownership of them and said they belonged to a friend because he was in possession of them

and using them when he was stopped by border-patrol agent).

29

See Lopez-Cruz, 730 F.3d at 809-11 (defendant consented for border patrol agent to “look

through” his cell phone, but scope of that consent did not include answering incoming calls).

30

Because the State did not rely upon the “search incident to arrest”doctrine in the trial court,

the court of appeals did not address that doctrine in its opinion. We will not do so either, but we do

note that two separate certiorari petitions have been granted by the United States Supreme Court on

the issue of whether the cell phone of an arrestee may be searched without a warrant under the

“search incident to arrest” doctrine. Riley v. California, 82 U.S.L.W. 3082 (U.S. Jan. 17, 2014) (No.

13-132); United States v. Wurie, 82 U.S.L.W. 3104 (U.S. Jan. 17, 2014) (No. 13-212). The legal

issue in the present case is similar to, but not the same as, that in Riley and Wurie which came to

opposite conclusions; the California court of appeals upheld the warrantless search as incident to an

arrest, while the First Circuit held that such a warrantless search violated the Fourth Amendment.

Granville Page 14

property room.

Under the Fourth Amendment, police officers may search an arrestee incident to a

lawful arrest.31 The justification for permitting such a warrantless search is (1) the need for

Courts across the nation are split on this issue. Compare Smallwood v. State, 113 So. 3d 724, 735-38

(Fla. 2013) (condemning warrantless search of cell phone as part of a search incident to arrest); State

v. Smith, 920 N.E.2d 949, 956 (Ohio 2009) (same), cert. denied, 131 S. Ct.102 (2010), with United

States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (need to preserve evidence justified officers’

warrantless retrieval of call records and text messages from cell phone of suspected narcotics

arrestee), cert. denied, 129 S. Ct. 2016 (2009); United States v.Finley, 477 F.3d 250, 259-60 (5th Cir.

2007) (although arrestee has a reasonable expectation of privacy in his cell phone and thus had

standing to complain about search, warrantless search of cell phone was permissible as incident to

arrest).

Even if the State had relied upon the “search incident to arrest” doctrine in this case, we note

that the majority of recent cases that have considered the issue in the context of a cell-phone search

have held that the search must be contemporaneous (or nearly so) to the arrest itself. See, e.g.,

Murphy, 552 F.3d at 411 (initial search of cell phone occurred when arrestee handed phone to

arresting officer); United States v. Santillan, 571 F.Supp.2d 1093, 1102 (D. Ariz. 2008) (search of

cell phone occurred “mere minutes after the arrest and seizure”); United States v. Curry, No. 07–100,

2008 WL 219966, *10 (D. Me. Jan.23, 2008) (not designated for publication) (search of cell phone

was “substantially contemporaneous” with arrest). Some courts have held that cell-phone searches

that were not closely contemporaneous were not made incident to arrest. See, e.g., United States v.

Gibson, 2012 WL 1123146, *10 (N.D. Cal. April 3, 2012) (not designated for publication) (search

of cell phone was not incident to arrest when search took place approximately one to two hours after

arrest); United States v. Lasalle, 2007 WL 1390820, *7 (D. Hawaii May 9, 2007) (not designated

for publication) (search of cell phone was not incident to arrest where search was conducted

“somewhere between two hours and fifteen minutes to three hours and forty-five minutes” after

arrest); United States v. Park, 2007 WL 1521573, *7 (N.D. Cal. May 23, 2007) (not designated for

publication) (search of cell phone was not incident to arrest when search took place ninety minutes

after arrest); see also United States v. Chadwick, 433 U.S. 1, 15 (1977) (concluding that search of

locked trunk ninety minutes after an arrest was too remote in time and place to be incident to the

arrest); see generally, Jana L. Knott, Is There an App For That? Reexamining the Doctrine of

Search Incident to Lawful Arrest in the Context of Cell Phones, 35 OKLA . CITY L. REV . 445, 445-47

(2010).

31

United States v. Robinson, 414 U.S. 218, 224-26 (1973) (citing Chimel v. California, 395

U.S. 752, 762-63 (1969) (officer who had made full-custody arrest for driving a car without a permit

could conduct warrantless search of person as part of that arrest; when officer found crumpled

cigarette pack in arrestee’s pocket, he could seize the heroin capsules that he found within that pack).

Granville Page 15

officers to seize weapons or other things which might be used to assault on officer or effect

an escape, and (2) the need to prevent the loss or destruction of evidence.32 A search is

incident to arrest only if it is “substantially contemporaneous” with the arrest and is confined

to the area within the immediate control of the arrestee.33 Thus, a search incident to arrest

cannot normally be justified if the “‘search is remote in time or place from the arrest’ . . . or

no exigency exists.” 34

In United States v. Edwards,35 the Supreme Court recognized an exception to the

“substantially contemporaneous” search-incident-to-arrest doctrine and upheld a warrantless

search of an arrestee’s clothes at the police station ten hours after the arrest.36 In Edwards,

the police took the arrestee’s clothes to look for evidence of paint chips that would match

samples that had been taken from the window of the post office during the attempted

burglary.37 The police waited these ten hours because “it was late at night” and they had no

32

Id.

33

Vale v. Louisiana, 399 U.S. 30, 33 (1970).

34

United States v. Chadwick, 433 U.S. 1, 15 (1977); see also Schlossberg v. Solesbee, 844

F. Supp.2d 1163, 1167-71 (D. Or. 2012) (declining to distinguish between electronic devices such

as cell phones, digital cameras, and laptops, and holding that a warrantless search of the contents of

a digital camera as a search incident to arrest violated the Fourth Amendment); United States v.

LaSalle, No. 07-00032 SOM, 2007 WL 1390820, *7 (D. Hawaii May 9, 2007) (not designated for

publication) (because police officer did not search cell phone contemporaneously with defendant’s

arrest, the “search incident to arrest” doctrine did not apply; motion to suppress granted).

35

415 U.S. 800 (1974).

36

Id. at 805.

37

Id. at 801-02.

Granville Page 16

other clothes for Edwards to wear; “it would certainly have been unreasonable for the police

to have stripped [Edwards] of his clothing and left him exposed in his cell throughout the

night.”38 The Court cautioned, however, that in upholding this particular search and seizure

of an arrestee’s clothing, it had “not conclud[ed] that the Warrant Clause of the Fourth

Amendment is never applicable to postarrest seizures of the effects of an arrestee.” 39

We relied upon the Edwards ruling and rationale in Oles v. State,40 in holding that the

warrantless search of an arrestee’s clothing was not unlawful because the defendant failed

to establish a subjective and reasonable expectation of privacy in the clothing he wore when

arrested and that had been placed in the jail property room.41 We explained that “arrestees

do retain some level of privacy interest in the personal effects or belongings taken from them

incident to their arrest,”42 but that there is a lesser subjective expectation of privacy and a

38

Id. at 805.

39

Id. at 808; see id. at n.9 (“Holding the Warrant Clause inapplicable in the circumstances

present here does not leave law enforcement officials subject to no restraints.”) (emphasis added).

40

993 S.W.2d 103 (Tex. Crim. App. 1999). We noted the distinctions between the situation

in Oles and that in Edwards, including the facts that (1) Oles’s clothes didn’t show any obvious signs

of blood, whereas the clothes in Edwards were “blood-spattered”; (2) Oles’s clothes were taken eight

days after his arrest, whereas the police took Edwards’s clothes just ten hours after his arrest; (3)

there was clear probable cause to search Edwards’s clothing, whereas there was not probable cause

to believe that Oles’s clothes contained bloodstain evidence relevant to the murder until the clothes

had actually been tested. Based upon those distinction, we concluded that “although Edwards and

Marquez [v. State, 725 S.W.2d 217 (Tex. Crim. App. 1987)] provide the foundation for today’s

ruling, clearly they are not dispositive of the issues presented in the instant case.” Id. at 107-08.

41

Id. at 108-11.

42

Id. at 108.

Granville Page 17

lesser societal expectation of privacy in inventoried property.43 Of course, there is a vast

difference between the privacy interests and expectations in clothing that one is wearing

when arrested and certain other possessions that one might have with them.

Indeed, just a few years after deciding Edwards, the Supreme Court addressed the

scenario of a 200-pound footlocker that had been seized when the defendant was arrested

leaving a train station, but that was not searched until 90 minutes later and was no longer in

the arrestee’s possession.44 The Court held that the evidence obtained from that search must

be suppressed because the footlocker “was property not immediately associated with the

arrestee” at the time of the search.

[O]nce law enforcement officers have reduced luggage or other personal

property not immediately associated with the person of the arrestee to their

exclusive control, and there is no longer any danger that the arrestee might

gain access to the property to seize a weapon or destroy evidence, a search of

that property is no longer incident to the arrest.45

In such circumstances, the police may legitimately “seize” the property and hold it while they

seek a search warrant.46 But they may not embark upon a general, evidence-gathering search,

43

Id. at 109-10.

44

United States v. Chadwick, 433 U.S. 1, 4 (1977), overruled on other grounds by California

v. Acevedo, 500 U.S. 565 (1991); see United States v. Jhan, 74 F.3d 537, 542 n.2 (4th Cir. 1996)

(Chadwick has been overruled only as to closed containers seized from inside an automobile).

45

Chadwick, 433 U.S. at 15. See also Thornton v. United States, 541 U.S. 615, 632 (2004)

(Scalia, J., concurring) (“When officer safety or imminent evidence concealment or destruction is

at issue, officers should not have to make fine judgments in the heat of the moment. But in the

context of a general evidence-gathering search, the state interests that might justify any overbreadth

are far less compelling.”).

46

Chadwick, 433 U.S. at 13.

Granville Page 18

especially of a cell phone which contains “much more personal information . . . than could

ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the

government has invoked.” 47

With that general background, we turn to the present case.

III.

In this case, the court of appeals summarized its holding and reasoning as follows:

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 interest, we

conclude that society would recognize his continued, and reasonable, privacy

interest in the instrument despite his temporary detention.48

The SPA argues that the court of appeals erred because an arrestee “has no legitimate

expectation of privacy in the personal effects immediately associated with his person at the

time of lawful arrest.”49 In the SPA’s view, Oles was “incorrect to hold that expectations of

privacy in jail are only diminished–rather than nonexistent–and the court of appeals’[s]

decision results directly from that holding and the unnecessary analysis performed to decide

47

United States v. Wurie, 728 F.3d 1, 9 (1st Cir. 2013) (“Just as customs officers in the early

colonies could use writs of assistance to rummage through homes and warehouses, without any

showing of probable cause linked to a particular place or item sought, the government’s proposed

rule would give law enforcement automatic access to ‘a virtual warehouse’ of an individual’s ‘most

intimate communications and photographs without probable cause’ if the individual is subject to a

custodial arrest, even for something as minor as a traffic violation.”).

48

Granville, 373 S.W.3d at 225.

49

SPA’s Brief at 3.

Granville Page 19

that case.”50 According to the SPA, when a citizen is arrested for any offense, such as failing

to wear a seat belt,51 everything that the person possessed at the time of that arrest–purse,

briefcase, laptop computer, cell phone, medical records, IRS returns, trade secret

information–is subject to a warrantless search because all of that citizen’s privacy interests

have completely disappeared. We cannot agree with this reasoning.

First, the SPA fails to distinguish between a search incident to arrest and a search of

an arrestee’s personal property that has already been inventoried and placed in storage. As

the Supreme Court recently explained in Arizona v. Gant,52 the search incident to an arrest

exception to the warrant requirement is premised upon promoting officer safety and

preventing the destruction of evidence relating to the crime for which the person was

arrested.53 Although Gant involved the search of a car, courts have discussed its application

to other situations in which “the item searched is removed from the suspect’s control between

50

Id. at 3-4.

51

See, e.g., Atwater v. Lago Vista, 532 U.S. 318, 354-55 (2001) (officers could arrest and jail

mother who, along with her children, was not wearing a seat belt in her truck; officers at jail made

her remove her shoes, jewelry, and eyeglasses, and detained her in a jail cell).

52

556 U.S. 332 (2009).

53

Id. at 351. In Gant, police officers arrested the defendant for driving with a suspended

license, handcuffed him, and locked him in the back of a patrol car. Id. at 335. Then the police

searched his car and found cocaine in the pocket of a jacket that had been lying in the back seat. The

Supreme Court held that this search was unlawful under the “search incident to arrest” exception

because, under that exception, officers may search the passenger compartment of a car “only if the

arrestee is within reaching distance of the passenger compartment at the time of the search or if it

is reasonable to believe that the vehicle contains evidence of the offense of arrest.” Id. at 351.

Granville Page 20

the time of his arrest and the time of the search.”54 Some courts have applied Gant in

rejecting the lawfulness of a search of the contents of an arrestee’s cell phone.55

54

United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) (applying Gant to search of a

gym bag that was lying at arrestee’s feet when he was arrested and handcuffed; upholding search

because defendant was still close to gym bag, was not fully secure, and handcuffs are not fail-safe

in preventing dangerous acts by an arrestee); see also United States v. Perdoma, 621 F.3d 745, 750-

52 (8th Cir. 2010) (applying Gant principles to search incident to arrest in bus terminal).

55

See United States v. Wurie, 728 F.3d 1, 3 (1st Cir. 2013), cert. granted, 82 U.S.L.W. 3104

(U.S. Jan. 17, 2014) (No. 13-212) (citing Gant and holding that “the search-incident-to-arrest

exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s

person, because the government has not convinced us that such a search is ever necessary to protect

arresting officers or preserve destructible evidence.”); United States v. DiMarco, No. 12 CR 205

(RPP), 2013 WL 444764,*8 & 11-12 (S.D.N.Y. Feb. 5, 2013) (not designated for publication) (citing

Gant and concluding that warrantless search of arrestee’s cell phone more than six hours after

defendant’s arrest was unlawful; “delayed search” was not incident to arrest nor supported by the

officer-safety and evidence-protection justifications of that exception); United States v. Dixon, __

F. Supp.2d __, 2013 WL 6055396, *3 (N.D. Ga. 2013) (citing Gant and concluding that agent’s

action of taking arrestee’s cell phone back to his office and searching it was not a search incident to

arrest and was unlawful; motion to suppress granted); United States v. Brown, No. 12-79-KKC,

2013 WL 1185223, *3 (E.D. Ky. March 20, 2013) (not designated for publication) (citing Gant and

upholding initial, brief search of cell phone that was immediately incident to arrest because

defendant was “manipulating” cell phone at time officers ordered him out of truck; defendant could

have been warning confederate to escape or requesting assistance from him, or he could have been

destroying evidence on cell phone; but once officers determined that “no helpful information was

readily available” on arrestee’s phone, officers should have ceased search of phone’s “contact list”

and sought a warrant); Anthony v. Oliva, No. ED CV 12-1369-FMO, 2013 WL 1127104, *6-7 (C.D.

Cal. Jan. 29, 2013) (not designated for publication) (citing Gant and holding that civil-rights plaintiff

had pled a cause of action against police department when officers allegedly went beyond legitimate

purpose of search incident to arrest and began to “look” and “navigate” through cell phone); State

v. Cooper, No. 66-CR-11-2228, 2013 WL 264430, *5 (Minn. Ct. App. Jan. 14, 2013) (not designated

for publication) (citing Gant and upholding trial court’s suppression of search of cell phone made

long after officer had seized it from arrestee, who could not have retrieved it); see also State v. Smith,

920 N.E.2d 949, 955 (Ohio 2009) (noting, in a case involving the warrantless search of an arrestee’s

cell phone incident to arrest, that: “Once the cell phone is in police custody, the state has satisfied

its immediate interest in collecting and preserving evidence and can take preventive steps to ensure

that the data found on the phone are neither lost nor erased. But because a person has a high

expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding

into the phone’s contents.”).

Granville Page 21

Second, the SPA makes the false analogy that, if a jail detainee does not have any

privacy rights in his jail cell,56 he therefore does not have any privacy rights in his personal

property that is being safeguarded in the jail property room. The assumption that prisoners

or pretrial detainees are without any Fourth Amendment rights is not supported by the

Supreme Court. As a unanimous Court noted in 1974:

Lawful imprisonment necessarily makes unavailable many rights and

privileges of the ordinary citizen, a “retraction justified by the considerations

underlying our penal system.”. . . But though his rights may be diminished by

the needs and exigencies of the institutional environment, a prisoner is not

wholly stripped of constitutional protections when he is imprisoned for crime.

There is no iron curtain drawn between the Constitution and the prisons of this

country.57

Oles correctly held that jail detainees enjoy a diminished expectation of privacy, not that a

detainee has absolutely no reasonable expectation of privacy.58 Furthermore, the security

56

See Hudson v. Palmer, 468 U.S. 517, 527-36 (1973) (holding “that the Fourth Amendment

has no applicability to a prison cell” because of the needs of institutional security; “A right of privacy

in traditional Fourth Amendment terms is fundamentally incompatible with the close and continued

surveillance of inmates and their cells required to ensure institutional security and internal order.”).

57

Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974) (citation omitted).

58

Oles, 993 S.W.2d at 108; see Bell v. Wolfish, 441 U.S. 520, 556-57 (1979) (“It may well

be argued that a person confined in a detention facility has no reasonable expectation of privacy with

respect to his room or cell and that therefore the Fourth Amendment provides no protection for such

a person. . . . In any case, given the realities of institutional confinement, any reasonable expectation

of privacy that a detainee retained necessarily would be of a diminished scope. Assuming, arguendo,

that a pretrial detainee retains such a diminished expectation of privacy after commitment to a

custodial facility, we nonetheless find that the room-search rule does not violate the Fourth

Amendment.”); see also United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir. 1986) (detainee “retains

an expectation of privacy within his cell sufficient to challenge the investigatory search ordered by

the prosecutor” to get evidence to aid them “in laying additional indictments against a detainee”;

search was unrelated to jail-security concerns); Lowe v. State, 416 S.E.2d 750, 752 (Ga. Ct. App.

1999) (pretrial detainee had reasonable expectation of privacy in papers in his cell containing his

Granville Page 22

rationale and “needs of the institution” that underpin the diminished expectation of privacy

in a jail cell is not equally applicable to property that jailers have already inventoried and are

safeguarding in the property room.59

Third, the SPA contends that, under Oles, any search of any property in the custody

of jail officials is permissible. We disagree with that absolutist position and agree with the

court of appeals that the object of the search makes all the difference between this situation

and that in Oles.60 There, the police seized and tested a pair of pants and shoes for blood.

We noted that the first question was “whether an arrestee retains any expectation of privacy

in clothing lawfully taken and inventoried by police incident to an arrest.” 61 After analyzing

various precedent, we concluded that “arrestees do retain some level of privacy interest in

the personal effects or belongings taken from them incident to their arrest,” but that

handwriting because search was unrelated to needs of jail and was an attempt to find evidence to

bolster State’s case); State v. Neely, 462 N.W.2d 105, 112 (Neb. 1990) (pretrial detainee retained

reasonable expectation of privacy in her luggage while it remained in the jail’s locked inventory).

59

See, e.g., Illinois v. Lafayette, 462 U.S. 640, 648 (1983) (as part of routine procedure

incident to jailing an arrested person, officers may “search any container or article in [police]

possession, in accordance with established inventory procedures.”; emphasizing that inventory

search must be conducted pursuant to established procedures); Florida v. Wells, 495 U.S. 1, 4 (1990)

(inventory searches must be conducted pursuant to established inventory procedures, so that they do

not become “a ruse for a general rummaging in order to discover incriminating evidence.”).

60

In Oles, the defendant was initially detained at the police station as a witness to a murder.

When officers discovered that he had an outstanding felony warrant, they arrested him, then

inventoried and stored his clothing. Eight days later, while the defendant was still in jail, an

investigator took his clothing to the medical examiner if see if he could find any blood. A serologist

discovered blood on the defendant’s shoes that matched the victim’s blood. 993 S.W.2d at 105.

61

Id. at 106.

Granville Page 23

[r]eviewing this search under a totality of the circumstances, there is virtually

no evidence that [defendant] harbored a subjective expectation of privacy in

his clothing that was in the custody of the police, nor is there evidence that

society would deem such a belief reasonable under these circumstances.

[Defendant] has failed to meet his burden of proof in establishing a legitimate

expectation of privacy in his clothing.62

That is the general doctrine concerning privacy interests in clothing, but clothing does not

contain private banking or medical information and records; it does not contain highly

personal emails, texts, photographs, videos, or access to a wide variety of other data about

the individual citizen, his friends and family. Searching a person’s cell phone is like

searching his home desk, computer, bank vault, and medicine cabinet all at once. There is

no doubt that the Fourth Amendment protects the subjective and reasonable privacy interest

of citizens in their homes and in their personal “papers and effects.” Conversely, clothing,

like the shoes seized and tested in Oles, is displayed every time a citizen walks out into the

world. As now-Presiding Judge Keller noted in her concurrence in Oles,

The outside of a person’s shoes while being worn are constantly exposed to the

public. When [the defendant] was arrested and incarcerated, the police

obtained lawful possession of his shoes. Given that the outside of the shoes

62

Id. at 110-11. In Oles, we did not state, or even suggest, that a defendant would never have

a reasonable expectation of privacy in any item that was in the custody of the police. Suppose, for

example, that the officer in Oles had taken a sealed personal letter out of the defendant’s clothes,

opened it, and read it. At least one court has said that the Fourth Amendment would not permit that

officer to open and read someone’s else’s mail without a warrant. See United States v. Wall, No. 08-

60016-CR, 2008 WL 5381412, *3 (S.D. Fla. 2008) (not designated for publication) (warrantless

search of cell phone made during jail booking was improper; stating that “searching through

information stored on a cell phone is analogous to a search of a sealed letter, which requires a

warrant.”) (citing United States v. Jacobson, 466 U.S. 109, 114 (1984) (“Letters and other sealed

packages are in the general class of effects in which the public at large has a legitimate expectation

of privacy; warrantless search of such effects are presumptively unreasonable.”).

Granville Page 24

are constantly exposed to the public, appellant could not have a reasonable

expectation of privacy against a visual inspection of the shoes, on the outside,

with the naked eye.63

Similarly, here, the officers could have reasonably inspected the outside of appellant’s cell

phone; they could have tested it for fingerprints or DNA material because portions of the cell

phone are routinely exposed to the public. But we do not think that a citizen, including

appellant, has lost his expectation of privacy in the contents of his cell phone merely because

he has been arrested and his cell phone is in the custody of police for safekeeping.

Although some courts have held that a person does not have a reasonable expectation

of privacy in the contents of his cell phone when he is subjected to a search incident to

arrest,64 citizens themselves have become increasingly concerned about privacy expectations

63

Oles, 993 S.W.2d at 111 (Keller, J., concurring). Judge Keller went on to note that,

because the police could also legitimately handle and store the shoes, “even the inside of the shoes

would be exposed to the officers,” so that the defendant did not have a reasonable expectation of

privacy in either the inside or outside of the shoes. Id.

64

See, e.g.,United States v. Flores-Lopez, 670 F.3d 803, 810 (7th Cir. 2012) (upholding

search incident to arrest of cell phone to obtain its phone number but questioning whether a more

invasive search would be permissible); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)

(stating that a cell phone is just another “container” and upholding its search as incident to arrest);

People v. Diaz, 244 P.3d 501, 506-08 (Cal. 2011) (upholding search of cell phone 90 minutes after

the arrest of narcotics defendant; concluding that a search of an item “immediately associated with

the person” at the time of arrest is valid because of “reduced expectations of privacy caused by the

arrest,” not the nature of the item seized). In Diaz, the court recognized that it was contributing to

a deepening split between state and federal courts on whether a person has a reasonable expectation

of privacy in the contents of his cell phone, but left it to the United States Supreme Court to decide

if modern technology makes a difference to the traditional ability to search the contents of containers

as part of an otherwise legitimate search incident to arrest.

The citizens of California disagreed with the California Supreme Court’s holding, and the

California Legislature promptly passed a bill requiring police to obtain a search warrant before

searching the contents of any “‘portable electronic devices,’ including cell phones.” Supplemental

Brief in Opposition, Diaz v. California, 132 S.Ct. 94 (2011) (No. 10-1231), 2011 WL 4366007, at

Granville Page 25

and their cell phones,65 even before the current NSA phone controversy.66

*1(describing Senate Bill 914 (2011)). After the state’s attorneys brought that legislation to the

attention of the United States Supreme Court and urged the Court to deny Diaz’s writ of certiorari,

the Court did so, and, one week later, California’s governor vetoed the “cell phone privacy” bill,

stating that the “courts are better suited to resolve the complex and case-specific issues relating to

constitutional search-and-seizures protections.” Letter from Edmund G. Brown Jr., Governor, to

Members of the California State Senate (Oct. 9, 2011), available at

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0901-0950/sb_914_vt_20111009.html. See also

Petition for Certiorari at 6, Riley v. California, No. 13-132, available at

http://www.volokh.com/wp-content/uploads/ 2013/08/Riley-cert-petition-final-1.pdf.

65

See, e.g., United States v. Wurie, 728 F.3d 1, 8 (1st Cir. 2013), cert. granted 82 U.S.L.W.

3104 (U.S. Jan. 17, 2014) (No. 13-212) (quoting Maeve Duggan & Lee Rainie, Pew Internet and

American Life Project, Privacy and Data Management on Mobile Devices (Sept. 5, 2012))

(publishing poll survey results that “[m]ore than half of mobile app users have uninstalled or avoided

cell phone apps because of privacy concerns,” and “[n]early one third of cell owners have

experienced a lost or stolen phone, and 12% have had another person access the contents of their

phone in a way that made them feel their privacy was invaded”; “[t]he rise of the smartphone has

dramatically altered the relationship between cell owners and their phones when it comes to

monitoring and safeguarding their personal information,” said Aaron Smith, a Research Associate

with the Project and report co-author. “The wealth of intimate details stored on smartphones makes

them akin to the personal diaries of the past—the information they contain is hard to replace if lost,

a n d p o t e n t i a l l y em barras s i ng i n t he wrong hands .”), avai l abl e a t

http://www.pewinternet.org/Press-Releases/2012/Mobile-Privacy.aspx.

66

Compare Klayman v. Obama, ___ F.Supp.2d ___, 2013 WL 6571596, * 20 (D.D.C. Dec.

16, 2013) (citing numerous internet data compilations concerning the ubiquity of cell phones and

other technological devices and noting, “Put simply, people in 2013 have an entirely different

relationship with phones than they did thirty-four years ago. As a result, people make calls and send

text messages now that they would not (really, could not ) have made or sent back when” earlier

search and seizure cases were decided). Judge Leon explained, “Records that once would have

revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant

and constantly updating picture of the person’s life. Whereas some may assume that these cultural

changes will force people to reconcile themselves to an inevitable diminution of privacy that new

technology entails, I think it is more likely that these trends have resulted in a greater expectation

of privacy and a recognition that society views that expectation as reasonable.” Id. at 21 & n. 59

(noting, “Public opinion polls bear this out. See, e.g., Associated Press, 9/11 Anniversary: Poll Finds

Public Doubts Growing on Federal Surveillance, Privacy, Hous. Chron., Sept. 11, 2013, at A6

(“Some 56 percent oppose the NSA’s collection of telephone records for future investigations even

though they do not include actual conversations.”)), with ACLU v. Clapper, __ F. Supp.2d ___, 2013

WL 6819708 *20-22 (S.D.N.Y. Dec. 27, 2013) (NSA’s collection of “bulk telephony metadata” did

not violate Fourth Amendment principles; “Some ponder the ubiquity of cellular telephones and how

Granville Page 26

In sum, we conclude, as did the court of appeals, that a cell phone is not like a pair of

pants or a shoe. Given modern technology and the incredible amount of personal information

stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable

expectation of privacy in the contents of his cell phone merely because that cell phone is

being stored in a jail property room. Officer Harrell could have seized appellant’s phone and

held it while he sought a search warrant, but, even with probable cause, he could not

“activate and search the contents of an inventoried cellular phone” without one. We answer

“No” to the SPA’s sole question for review, and we affirm the judgment of the court of

appeals.

Delivered: February 26, 2014

Publish

subscribers’ relationships with their telephones have evolved since Smith. While people may ‘have

an entirely different relationship with telephones than they did thirty-four years ago,’ this Court

observes that their relationship with their telecommunications providers has not changed and is just

as frustrating. Telephones have far more versatility now than when Smith was decided, but this case

only concerns their use as telephones. The fact that there are more calls placed does not undermine

the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony

metadata.”) (citation to Klayman omitted).