EFF Fights Texas' Claims That Searching A Cell Phone Is No Different Than Searching 'A Pair Of Pants'

Privacy

from the caution:-pants-may-contain-internet-history dept

Although the prevailing winds are now beginning to shift a little, it has been the opinion of many in law enforcement (and backed up by the courts) that they are welcome to search the contents of a detainee’s cell phone without obtaining a warrant. The thought process seems to be that anything on that person (or in their immediate vicinity) is fair game.

The EFF has filed an amicus brief in the Texas Court of Criminal Appeals opposing this mentality in hopes of preventing the state’s flawed logic from becoming legal precedent. The case the EFF is involved with began with a warrantless search of a teenager’s cell phone while he was detained at a Texas county jail.

Teenager Anthony Granville was arrested at his high school for a misdemeanor and booked into the county jail. All of his belongings, including his cell phone, were taken from him and placed in the jail’s property room while he was locked up. Three hours after his arrest, a different officer than the one who arrested Granville at the high school went into the property room and, without a search warrant, looked through Granville’s phone in search of evidence connected to another, unrelated felony.

Fortunately (and correctly), the trial court suppressed the evidence “recovered” from Granville’s phone, stating that the officer had time to obtain a warrant. It also pointed out the likely reason for the lack of a warrant — namely, “no exigent circumstance” to justify searching for unrelated evidence on Granville’s cell phone.

The state appealed, rationalizing the officer’s actions using a couple of rather incredible claims, the second of which shows a complete (or willing) lack of comprehension as to how much information the average cell phone can contain.

The state appealed to the Texas Court of Appeals, arguing that Granville had no expectation of privacy in the contents of his cell phone while it was in the jailhouse, noting that looking through the phone was no different than looking at a person’s clothes when they are booked into jail.

(I would imagine “looking at” means “searching” a person’s clothes, rather than, say, admiring the stitching.)

The appeals court followed the trial court in shooting down the state’s arguments, along with its generally terrible comparison.

The appellate court disagreed with the government’s analogy, finding the amount of information stored on mobile devices make a cell phone search far more invasive than a search of clothing.

Despite the count being 0-2, state prosecutors show no willingness to stop swinging, bringing the case to the Texas Court of Criminal Appeals, where it will once again pit its lousy justification for Fourth Amendment violations against the EFF, the Texas Civil Rights Project and the ACLU of Texas.

The EFF’s amicus brief shoots several holes into the state’s “cell phone = pants” equation.

In our amicus brief we explain the government had no excuse for not obtaining a warrant before searching Granville’s phone. A person doesn’t surrender their expectation of privacy in the contents of their phone once the phone is in the hands of jail officials. Plus none of the exceptions to the search warrant requirement applied. This wasn’t a search “incident to arrest “since it took place hours after Granville was arrested, when the phone was out of his control. And it wasn’t an “inventory search” because once the phone itself was inventoried and secured by the police, there was no need to inventory the data on the phone. Plus, an inventory search can’t be used as a pretext for a clearly investigatory search, which this certainly was.

Refining broad search policies and eliminating procedural gaps is a necessity as cell phones move further and further away from being simply portable phones. The amount of personal information contained on the average cell phone, along with the number of cloud-based services accessed through them, can make for a very rewarding fishing trip.

These days, searching a phone under the pretenses stated above isn’t much different than an officer letting himself into a detainee’s home and rooting around on the home computer. Between social networks and cloud services, much of what’s “contained” in a cell phone is accessible from multiple points. Arguing that a cell phone is nothing more than a set of pants pockets is deliberately understating the reality in order to justify skirting the Fourth Amendment. Here’s hoping the state goes 0-3.

Filed Under: 4th amendment, eff, mobile phones, searches, texas