State of Texas v. Granville, Anthony , 423 S.W.3d 399 ( 2014 )

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).