Texas Courts of Appeals
State v. Granville
No. 07-11-0415-CR 07/11/12
Was a warrantless search of an incarcerated person’s cell phone justified by probable cause to believe a crime had been committed (improper photography) and the lack of any reasonable expectation of privacy in the device?
No. “[A] cell phone [is not] really a pair of trousers.” An inventory of a detainee’s property does not include searching the data on his cell phone taken during booking. Moreover, due to the potential invasiveness of the search; the defendant’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 the the defendant was jailed; and the lack of evidence suggesting that the phone and its contents posed any risk to the jail’s interests, “society would recognize his continued, and reasonable, privacy interest in the instrument.” Read opinion
The opinion, while quite important, is oddly written as a philosophical essay and contains arch references to famous autistic people and television shows. The overall purpose seems to be to mock the State’s argument that a cell phone taken during booking may be searched without any expectation of privacy. Nonetheless, there is a serious conclusion: You need a warrant to search the data within a cell phone taken from a pretrial detainee at jail. The reasoning is sound and the outcome is not that surprising given the increasing complex contents of a cell phone (photos, documents, e-mail, financial information, etc.). However, this conclusion contrasts sharply with the same question when applied to the search of owner of that property. Just this last term, SCOTUS said it was reasonable to strip search a pretrial detainee who was brought in for a Class C misdemeanor (failing to appear and pay a ticket). Read the opinion here. One final thought: why couldn’t the State now draft a warrant (using only information available before the search and any other independently obtained information) and legally re-search the contents of the cell phone?
Baldez v. State
No. 04-11-00615-CR 07/11/12
Did the trial court properly restrict cross-examination of an officer about his disciplinary record for violating department rules at a crime scene by taking evidence and concealing that fact and the evidence from his superiors?
Yes. The defense argued only that the excluded evidence was relevant to the officer’s general credibility and not relevant to revealing “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities of the case at hand.” Read opinion
More and more, prosecutors are being asked to disclose personnel and disciplinary records of officers as part of the discovery in a case. While there was no reversible error in this case, prosecutors should consider developing a process for regularly checking whether an officer has a record that might be discoverable as part of their Brady obligation.
Pfeiffer v. State
No. 06-11-00001-CR 07/06/12
Did the trial court wrongly apply the rules of evidence to the State’s evidence at a suppression hearing?
Yes. With the exception of privileges, the rules of evidence do not apply at suppression hearings. But the State failed to develop the record to show that the trial court excluded any evidence and the officer lacked reasonable suspicion to detain the defendant. Also, the Court of Criminal Appeals’ interchange of the terms “cross-point” and “cross-appeal” in its opinion remanding the case seemed “a bit incongruous.” Read opinion
While this case resulted in the CCA’s recognition that the State can raise arguments about the mistakes of the judge (cross-points) within an appeal by a defendant without filing a separate notice of appeal (cross-appeal), the State still needs to make a record sufficient for the appellate court to consider the cross-point. Here, the State failed to get the critical information (hearsay information about why there was reason to believe there were drugs in the defendant’s car) into the record by continuing to question the officer or by making a bill of exceptions should be trial judge prevent the question from being answered. Meanwhile, prosecutors might want to start pretrial hearings by reminding the judge that the rules of evidence don’t apply (and perhaps provide a copy of Granados v. State). But, be careful, since that case applies to both sides of the aisle.