October 31, 2014



Texas Courts of Appeals

Chung v. State

No. 10-13-00307-CR              10/23/14


1)      Was the defendant’s cell phone a “container” subject to the automobile exception when it was in his car at the same time a drug dog alerted to the presence of drugs in the vehicle, thereby justifying a warrantless search of the phone?

2)      When the defendant gave the office his passcode to unlock the phone and tell him from whom he had just missed a call, did that function as consent for the officer to also search the phone?


1)      No. As suggested in dicta in Riley v. California, 134 S. Ct. 2473 (2014), a cell phone is not a container that can be searched incident to arrest.

2)      No. The defendant’s consent was limited to unlocking the phone to tell him who had just called, not to search his entire phone.

Read the opinion.


After the decision of the Supreme Court in Riley (as well as the decision of the Court of Criminal Appeals in State v. Granville), the decision in this case is rather predictable. The best way (only way?) to get into a cell phone is with a warrant. Yes, that requires probable cause. But that is where we are now. You might be able to develop an exigent circumstances argument, but such cases will be few. And if you wish to rely upon consent, the defendant’s consent to search his cell phone must be clear.




Dean v. State

No. 12-12-00410-CR              10/22/14


Is a federal income tax return a governmental record for the purposes of §37.01(2) of the Texas Penal Code?


No. The definition of the word “government” does not include the federal government. Read the opinion.


This is a short, straightforward decision that is pretty unassailable. The definition of “government” within §1.07 of the Penal Code would need to be changed before a federal or United States document could be used as the basis for a charge of tampering with a governmental record.




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