Wednesday, November 21, 2012

"A cell phone is not a pair of pants"

Anthony Granville got in trouble at school one day. I don't know for what. But he found himself with his hands cuffed behind his back and getting a free ride to the county jail.

The court's opinion just refers to Mr. Granville as having "caused a disturbance." Being that appellate courts are never shy about telling us just how badly a defendant behaved, I find it hard to fathom why the police were carting Mr. Granville off to jail.

But that is a discussion for another time and another day.

While sitting in the county jail, Mr. Granville's cell phone became quite the object of interest from a police officer who had nothing to do with Mr. Granville's arrest. It seems that he somehow caught wind that Mr. Granville had taken a picture of another student urinating.

Armed with this information the officer made his way to the jail, retrieved Mr. Granville's cell phone and, without obtaining a search warrant, began searching through the stored images. Lo and behold, he found the picture in question and Mr. Granville's day suddenly became worse as he was soon charged with the felony offense of "improper photography or visual recording."

Mr. Granville urged a motion to suppress the images on the grounds that the search of his cell phone constituted an unconstitutional search.

The prosecutor argued that the search was "simply a probable cause search of jail property that is a person's effects when they go to jail" and that Mr. Granville had no reasonable expectation of privacy in what was taken from him upon being booked into the jail. According to the prosecutor, a cell phone is the equivalent of a pair of pants.

The trial court was having none of it and granted Mr. Granville's motion.

But that wasn't the end of the matter as the State just couldn't let the matter go and appealed the judge's order suppressing the photograph.

In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.

The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.

The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.

Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.

I leave y'all with this quote from the opinion:
While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.

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