Monday, July 30, 2012

The Cell Phone, the Property Room and the 4th Amendment

After he was indicted for “improper photography or visual recording” in violation of Texas Penal Code § 21.15(b), Anthony Granville moved to suppress the evidence.  State v. Granville, __ S.W.3d __, 2012 WL 2847903 (Texas Court of Appeals 2012). 

This is all the opinion says about how the case arose:

The cell phone . . . belonged to Anthony Granville and was taken from him after being arrested and jailed for causing a disturbance at his school. While the phone was within official custody, an officer, having nothing to do with the arrest or any investigation into the disturbance, acquired it.

He did so because he had been told Granville took a picture of a student urinating in a urinal at school the day before. This act was purportedly a crime which stimulated the officer to begin his search for evidence of it. So, without a search warrant, he ventured down to the jail, took Granville's cell phone from the property room, turned it on, and began scrolling through it for the picture in question. It was eventually discovered on the device, and that led to Granville's indictment. . . .

State v. Granville, supra.

The trial court judge granted the motion to suppress “the evidence garnered from the cell phone”, apparently agreeing with Granville that “the officer’s actions constituted an unlawful search.”  State v. Granville, supra. The prosecution then appealed.  State v. Granville, supra.

The Court of Appeals then noted that the issue on appeal was “[m]ay an officer conduct a warrantless search of the contents or stored data in a cell phone when its owner was required to relinquish possession of the phone as part of the booking or jailing process?”  State v. Granville, supra.  More precisely, it explained that the prosecution relied on two claims:  the officer had “probable cause to believe a crime was committed” and Granville had no “reasonable expectation of privacy in the device.”  State v. Granville, supra.

The court quickly “disposed of” the first argument:

We know of no authority that allows the State to search property merely because its officers have probable cause to believe that a crime occurred and evidence of that crime can be found on the property to be searched. Those two indicia simply provide a basis to secure a warrant. . . . 

They alone do not allow a search. Without such a warrant, the search is presumptively unreasonable. . . . So, the State's suggestion that the search of the phone was permissible since probable cause to believe a crime had occurred and that Granville's cell phone contained evidence of it, without more, is wrong.

State v. Granville, supra.  (For more on the requirements for getting a search warrant and on when one is necessary, check out Wikipedia’s entry on the 4th Amendment.)

The court then addressed the prosecution’s second argument, which was that the

`search of that inmate's phone was an allowable search [because] . . . [i]t was jail property and therefore Granville had no expectation of privacy.’ It continues by arguing that it `was a phone taken pursuant to a lawful arrest and therefor was subject to being searched’ and that the `manipulation of the phone is no different that [sic] looking at clothing or searching through papers an inmate has in his possession when . . . booked into jail.’ 

Added to those comments was one expressing that `society has never accepted or suggested an individual has an expectation of privacy in a jail setting.’

State v. Granville, supra. 

(For what a reasonable expectation of privacy is, and is not, in the 4th Amendment context, check out Wikipedia’s entry on the 4th Amendment and this post I did on the issue several years ago.)

The Court of Appeals started with the prosecution’s last point, which it found “global and inaccurate”.  State v. Granville, supra.  As the court explained,
[i]t is true that prisoners have no reasonable expectation of privacy in their cells. Hudson v. Palmer, 468 U.S. 517 (1984). Similarly true is the notion that `attributes of privacy of the home are not shared with a jail.” Hernandez v. State, 819 S.W.2d 806 (Texas Court of Appeals 1991). Yet, the prosecutor is simply wrong in saying that no expectation of privacy in a jail setting has been recognized. Indeed, authority cited in the State's own brief holds otherwise.

And, we cite it to Oles v. State, 993 S.W.2d 103 (1999), where our Court of Appeals said arrestees still retain some level of privacy interest in personal effects or belongings taken from them after arrest. . . .  Instead of having none, their expectations of privacy are `diminished.’ McGee v. State, 105 S.W.3d 609 (Texas Court of Appeals 2003); . . . accord U.S. v. Lilly, 576 F.2d 1240 (U.S. Court of Appeals for the 5th Circuit 1978) (the `history and purpose underlying the 4th [A]mendment . . . require that prisoners retain at least some degree of their fourth amendment protection’). . . .
State v. Granville, supra (emphasis in the original).

The court then addressed “the extent, if any, to which an arrestee has an expectation of privacy in the electronically stored data in his cell phone that was taken from him upon booking into jail.”  State v. Granville, supra.  It devoted almost two paragraphs to reviewing the development of cell phones, in the course of which it found that

cell phones have the capability of memorializing personal thoughts, plans, and financial data, facilitating leisure activities, pursuing personal relationships, and the like. . . . [I]t is not farfetched to conclude that a stranger can learn much about the owner, his thought processes, family affairs, friends, religious and political beliefs, and financial matters by simply perusing through it. That such matters are intrinsically private cannot be reasonably doubted.

The importance and private nature of such information has also led to the development of passwords, encrypted programs, and like security measures to prevent its disclosure. Given this, we cannot but hold that a person (whose category encompasses Granville) has a general, reasonable expectation of privacy in the data contained in or accessible by his cell, now `smart,’ phone.

State v. Granville, supra. 

Since it held that a person has a 4th Amendment reasonable expectation of privacy in the “data contained in or accessible” via his/her cell phone, the court noted that the 4th Amendment protects this expectation of privacy.  State v. Granville, supra.  And that means, as I’ve noted in earlier posts, that an officer’s searching the phone has to be “reasonable” under the 4th Amendment, which means the officer needs a search warrant or an exception to the warrant requirement that applies to justify the search.

The court then took up “the effect, if any, of Granville’s incarceration” on his 4th Amendment expectation of privacy.  State v. Granville, supra. Earlier, it noted that being incarcerated tends to diminish someone’s 4th Amendment expectation of privacy in his/her property.  State v. Granville, supra  It also noted that the extent to which an expectation of privacy “survives” in a property room depends on the owner’s subjective expectation of privacy in the item, the “amount of control the owner” retains over it and his use of “measures to maintain his privacy in the item”.  State v. Granville, supra.

The court then explained that applying the above criteria to this case would logically lead to the conclusion that Granville did not have a reasonable expectation of privacy in his impounded cell phone because it would be outside his control and would be exposed to physical manipulation by others.  State v. Granville, supra. The Court of Appeals, though, found that this case was different because

[w]e are looking at a privacy interest in data hidden within electrical components contained in the device as well as potential information not in the phone but accessible through its manipulation, that is, data saved on the internet. The State cited no evidence suggesting that such data can be scraped off the phone surfaces or components, like blood or DNA affixed to clothes. Nor is there evidence of record that the picture found by the officer was somehow playing or appearing upon the phone's screen.

Quite the contrary. The cell phone had to be activated, or turned on, by the officer, and he had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item, which differentiates it from the miscellaneous things accessible on a prisoner's pants.
State v. Granville, supra.

The court also found it significant that the phone was off:

That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, preventing others from seeing anything inside. 

And though some cell phones may require the input of a password before it can be used, no evidence suggests Granville's was of that type. So, the officer's ability to venture into the phone's informational recesses by merely pressing the power button does not suggest that Granville's interest in assuring the privacy of his information was minimal. 

Whether the phone was locked or not via a password, a closed door is sufficient to illustrate an expectation of privacy. 

State v. Granville, supra.

The court then considered the fact that the phone was impounded during the booking process.  State v. Granville, supra.  It found it significant that Granville was a pretrial detainee, because  pretrial detainees “are accorded greater constitutional protection than a convicted individual.” State v. Granville, supra.  The court also noted that pretrial detainees “have a greater chance of being freed soon after their detention through posting bond or other measure.”  State v. Granville, supra.  It also pointed out that Granville “was subject to being released quickly, given that he was arrested for a Class c misdemeanor.”  State v. Granville, supra. 

The court also noted that nothing showed the phone was “capable of use as a weapon or posed some threat to Granville, inmates or jail security”, so “the need to maintain prison discipline and decorum” were not a significant factor here.  State v. Granville, supra. 

The Court of Appeals then explained that the prosecution was

fight[ing] to enable any, if not every, law enforcement officer . . . to walk into a property room, pick up whatever cell phone, ipad, ipod, or like device he may discover therein, turn it on, and use it as he cares to just because the device was within the property room. 

The State . . . [says] little to nothing about the nature of the electronic instrument involved or the vast quantity of personal information about their owner and others that may be contained in them. Instead, it merely compares cell phones to articles of clothing despite their obvious difference.

State v. Granville, supra. 

It explained that it was not dealing with a search conducted under an exception to the warrant requirement, such as search incident to arrest or “one undertaken due to exigent circumstances,” but with a warrantless search,

[b]y a stranger to an arrest, of a cell phone taken as part of an inventory conducted incident to jailing for evidence of a crime distinct from that underlying the owner's arrest. Nothing in those circumstances or the others mentioned herein nullify Granville's reasonable expectation of privacy in the phone searched. Nothing in them allowed the officer to act without a warrant.

State v. Granville, supra. 

It therefore affirmed the trial court’s granting Granville’s motion to suppress the evidence taken from the cell phone.  State v. Granville, supra.  

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