David C. Newell
In case you were wondering, a cell phone is not a pair of pants. In this age of Galaxy Gear and Google Glass, the Court of Criminal Appeals recently made clear in State v. Granville that our smart phones are not merely fashion accessories.1 This is due in large part to a cell phone’s potential to store much more personal information than your pockets. So if the police collect an individual’s cell phone while booking that individual into jail, officers will need to get a warrant to examine the contents of the cell phone if they want to pull it out of the property room to search it. And while there are certainly exceptions to the search warrant requirement, it remains to be seen whether the “search incident to arrest” doctrine will justify a warrantless search of a cell phone after Arizona v. Gant.
Police search for TMI
Factually, Granville did not make for an ideal test case to authorize warrantless cell phone searches. Anthony Granville was a high school student arrested for the Class C offense of causing a disturbance on a school bus. His cell phone was taken from him during the booking procedure and placed in the jail property room. Later that day, an officer having nothing to do with the arrest or any investigation of the disturbance got the phone out of the property room. He did so because he had heard the day before that Granville had taken a picture of a student urinating in the urinal at school the day before.2 After taking Granville’s phone from the property room, the officer turned it on and began scrolling through it to find the picture in question. It was there, of course, and the State charged Granville with the state-jail felony offense of Improper Photography or Visual Recording.
At the motion to suppress, the prosecution argued that the officer could search anything in the property room without a warrant so long as he had probable cause to believe the defendant had committed a crime or that there was evidence on the phone. The prosecutor also argued that any expectation of privacy in Granville’s personal belongings was diminished, and he never exhibited a subjective expectation of privacy. The trial court disagreed and suppressed the evidence. The trial court entered specific findings that the phone belonged to Granville, the officer had to manipulate it to conduct the search, and there was no search warrant even though there was sufficient time to get one.3 The State appealed.
Cell phones are private :-/
A nearly unanimous Court of Criminal Appeals held that Granville had a legitimate expectation of privacy in his seized phone.4 Judge Cochran explained that courts commonly find that a person has a legitimate expectation of privacy in the contents of his cell phone because of its “ability to store large amounts of private data in both the cell phone and by accessing remote services.” According to Judge Cochran, “A cell phone is unlike other containers as it can receive, store, and transmit an almost unlimited amount of private information.”5 Because the potential for an invasion of privacy is so great, a defendant has a legitimate expectation of privacy in the contents of his cell phone.
But to better understand the controversy in the case, you have to go back to a case called Oles v. State. There, a murder suspect was arrested on an open warrant, and police inventoried his clothing.6 There was no evidence on or within the clothing that was immediately apparent to the naked eye. Eight days after the clothes were inventoried, an investigator took the clothes to a medical examiner’s office to determine if the clothing contained blood traces. Blood on the suspect’s shoes matched the murder victim. The CCA upheld the warrantless search by relying upon United States v. Edwards, where the United States Supreme Court upheld a search of obviously bloody clothes taken much closer to arrest. The CCA held, consistent with Edwards, that the defendant in Oles still retained an expectation of privacy in his belongings, but it was diminished. Consequently, the CCA doubted that Oles harbored a subjective expectation that his inventoried items were still private. As mentioned above, this formed the basis for the prosecutor’s argument to the trial court.
However, the Court of Criminal Appeals refused to extend this diminished-expectation-of-privacy-in-clothes rationale to the contents of a cell phone.7 According to the court, clothing does not contain private banking or medical information or records. Searching a person’s cell phone is like searching his home desk, computer, bank vault, and medicine cabinet all at once.8 Clothing is displayed every time a citizen walks out into the world, but the contents of a cell phone are not. Furthermore, the institutional needs that underpin the diminished expectation of privacy in jail are not necessarily as great when considering property that jailers have already inventoried and are safeguarding in the property room. Finally, the court seemed to rely upon the doctrine of res ipsa loquitor to obviate the need for a showing of a subjective expectation of privacy in the contents of a cell phone. In a footnote, the court wrote, “Just as one assumes that a person has a subjective interest in his diary, in his medical records, in his bank records, in the content of his telephone calls, and the content of his personal computer, one may assume, without further proof, that a person has a subjective privacy interest in his cell phone.” Or, the thing speaks for itself.9
Presiding Judge Keller and Judge Price concurred to analogize the cell phone to the previously seized but unseen pornographic film in Walter v. United States.10 In Walter, 871 boxes of pornographic film were delivered to the wrong corporation.11 The employees of the corporation were unable to see what was on the film by holding it up to the light, so they turned the film over to the FBI. Without obtaining a warrant, the agents viewed the films with a projector.12 Likening the contents of a cell phone to sealed packages in the mail that had to be manipulated by law enforcement to ascertain the contents, the concurrence felt that the United States Supreme Court had already decided the issue.13 Judge Keasler was the only judge who dissented, doing so on the basis that the majority erroneously found a subjective expectation of privacy in the phone based solely upon former possession and the ability of the phone to contain vast amounts of data.
BTW, what about search warrant exceptions?
Of course, this case decides how to regard the contents of a cell phone only after the phone has been lawfully seized, not how those contents are affected by search warrant exceptions. At the trial court level, the State did not argue exigent circumstances or any other recognized exceptions to the warrant requirement, such as search incident to arrest.14 So, for example, the court does not discuss how the threat of remote wiping might create an exigent circumstance.15 However, the court did note that most courts addressing the search-incident-to-arrest exception have required the search of the phone to be contemporaneous (or nearly so) to the arrest itself. The court cited several examples where searches were declared invalid because they occurred up to an hour or more after the arrest.16 The court contrasted this with cases where the search occurred mere minutes after the arrest and seizure.17 Make of that what you will.
But more importantly, the court acknowledged that the United States Supreme Court has agreed to consider two cases on each side of the issue. Most notably, the Court of Criminal Appeals relied upon one of those cases, United States v. Wurie, to support the decision to uphold the suppression.18 In Wurie, police arrested the defendant after watching him sell someone crack. At the station after the arrest (prior to booking), the officer noticed the defendant’s cell phone kept ringing, and the officer opened the phone to see who it was. The officer pressed one button to see the call log indicating the call was coming from the defendant’s home. The police used the phone number to get the defendant’s address, and they later used the information to obtain a search warrant.
The First Circuit Court of Appeals followed much the same analysis later adopted by the Court of Criminal Appeals to invalidate the warrantless search incident to arrest. After acknowledging that the majority of courts addressing the issue have upheld these types of searches, the First Circuit Court of Appeals nevertheless equated the cell phone with the footlocker in United States v. Chadwick rather than an item immediately associated with the arrestee like the clothing in United States v. Edwards.19 And much like the Court of Criminal Appeals after it, the First Circuit waxed rhapsodic about how much and how personal the information contained on a modern cell phone is. Because the information is the kind one would normally store in his home, it would be off limits to officers performing a search incident to arrest under the original standard set out in Chimel v. California.20
But the United States Supreme Court also granted review in People v. Riley, an unpublished California case that upheld a more thorough search of a cell phone incident to arrest.21 There, the defendant was stopped for expired registration, and an inventory of the car yielded two guns that were later connected to a drive-by shooting. Upon finding the guns, police placed the defendant under arrest and searched through his cell phone. The officer noticed that all of the entries starting with a letter “K” were preceded by the letter “C” which gang members use to signify “Crip Killer.” Consistent with California precedent, the California appellate court upheld the search because the phone was an item immediately associated with the defendant’s person. Obviously, the court did not rely upon Riley, but that could easily be because the analysis in Riley is not as fleshed out as the analysis in Wurie.
W.W.S.D? (What Would Scalia Do)?
So, at the risk of devolving into a round of fantasySCOTUS,22 which is it, Wurie or Riley? While the Court of Criminal Appeals was not addressing a search incident to arrest in Granville, the majority seemed to find the analysis in Wurie more persuasive. That may reflect that the court is betting that a majority of the Supreme Court will follow an analysis similar to that set out in Wurie. After all, a major component of Wurie was the observation that information contained on a phone would fall outside of the search-incident-to-arrest rationale first announced in Chimel, a rationale the Supreme Court sought to get back to in Arizona v. Gant.
But remember that Justice Scalia was the crucial vote in Gant. And in his concurring opinion in that case, he advocated for a warrantless, “reasonable belief” search for evidence of the crime of arrest contemporaneous with a traffic stop.23 With that in mind, Justice Scalia might be amenable to a quick scan of a phone similar to the conduct in Wurie because it would be contemporaneous with the arrest, limited in scope, and arguably related to the offense of arrest.24 Moreover, Justice Scalia did not accept Justice Sotomayor’s invitation to re-examine the reasonable expectation of privacy test in light of “the digital age” in his majority opinion in United States v. Jones.25 So, perhaps he would not be that impressed with the vast amounts of digital information currently accessible from a cell phone.
And yet, Justice Scalia routinely tries to find the traditional values of the framers even in applications of the most modern technology such as thermal imaging or GPS tracking.26 In light of these cases, perhaps he will find the analogy between the contents of a cell phone and the personal papers found in a home persuasive. And he was strongly opposed to the idea of a search incident to arrest (or any exception to the warrant requirement for that matter) justifying the taking of buccal swabs on booking for purely identification purposes in Maryland v. King.27 He could equate the type of rummaging around in a person’s cell phone as a “general warrant” that the Constitution was designed to prohibit. Fortunately, we should get an answer by the end of this term.
End of line28
As is always the case, it is better practice for law enforcement to get a search warrant if they have the time and facts to do so. While the Court of Criminal Appeals did acknowledge, consistent with Oles, that police could search the outside of a lawfully seized cell phone for DNA and fingerprints without a warrant, Granville categorically rules out any additional search of the contents of a cell phone without either a warrant or an applicable warrant exception. Future cases will flesh out what constitutes exigent circumstances or consent in the digital age, but fortunately we will likely have an answer to whether police can search a cell phone incident to arrest when the search is contemporaneous with that arrest. Until that time, keep Granville in your pocket—right next to your cell phone.
Sent from my iPhone
1 “A lot of alliteration from anxious anchors placed in powerful posts.” Broadcast News, Gracie Films (1987).
2 The pictures of twerking would have been constitutionally protected. Ex parte Lo, 2013 WL 5807802 (Tex. Crim. App. Oct. 30, 2013).
3 The trial court also framed the legal issue by asking prosecutors if police could arrest him for jaywalking and search his phone for pictures of Prometheus afterwards. State v. Granville, 2014 WL 714730 at *2 (Tex. Crim. App. Feb. 26, 2014). Dude, you had Judge Cochran at hello. Jerry Maguire, Gracie Films (1996).
4 State v. Granville, 2014 WL 714730 (Tex. Crim. App. Feb. 26, 2014).
5 Practitioners interested in gaining a full appreciation of the debate surrounding this issue should not only read this opinion carefully, but they should also examine the references and authority. The court refers not only to a number of different and thoughtful cases, but also studies, polls, and news articles when discussing the nature of cellphones and privacy in the digital age. Resorting to such a wide variety of materials may be necessary when arguing metaphysically about the nature of privacy and how it intersects with technology. This case is a good place to start for such an approach.
6 Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999).
7 The Court of Criminal Appeals chose not to discuss the warrantless search of the crumpled cigarette package found in the defendant’s pocket that the United States Supreme Court upheld in United States v. Robinson, 414 U.S. 218 (1973). Arguably, a cell phone is a “container” that is more analogous to an empty package of cigarettes than a pair of pants. But by framing the issue in Granville as a choice between a cell phone and clothing rather than a cell phone and a pack of cigarettes, the Court of Criminal Appeals avoided the comparisons between a cell phone and a container associated with the arrestee that many courts have relied upon to uphold such searches. And besides, cigarettes are bad.
8 One case the court relied upon to justify this distinction was United States v. Chadwick, 433 U.S. 1 (1977). There, the United States Supreme Court held that the warrantless search of a 200-pound footlocker seized pursuant to a defendant’s arrest at a train station required a warrant. Thus, it was analogous to a subsequent search of a seized cell phone, albeit one of those brick phones from the ’80s.
9 Just ask Siri. (Yes, I looked up how to cite to Siri, but there is no accepted citation format. Guess I should have just asked her.)
10 Walter v. United States, 447 U.S. 649 (1980).
11 Because corporations are people and they have needs, too.
12 No word on whether there were exigent circumstances.
13 Admittedly, the concurrence doesn’t fully flesh out the parallel, but I am trying to draw out the implication of their reliance upon Walter here. Presiding Judge Keller does not mention the role played by the First Amendment in Walter’s holding, but she clearly sees a parallel between the snailmail in Walter and the email in Granville. At least I hope it was that and not a subconscious acknowledgment that the Internet is essentially a repository for porn. And pictures of cats.
14 State v. Granville, 373 S.W.3d 218, 222 (Tex. App.—Amarillo 2012, pet. granted). Obviously, exceptions such as exigent circumstances or consent will have to be litigated, but the court only hints at how the search-incident-to-arrest might play out in the future.
15 See e.g. United States v. Gomez, 807 F.Supp. 2d 1134 (S.D. Florida 2011) (holding that police could search cell phone that was ringing due to exigent circumstances); see also United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) (discussing possibilities and ways to deal with danger of remote wiping); but consider Turrubiate v State, 399 S.W.3d 147 (Tex. Crim. App. 2013) (holding that the smell of burning marijuana inside a home coupled with occupant’s knowledge of police interest did not establish that destruction of evidence was imminent to establish exigent circumstances); Missouri v. McNeely, 133 S.Ct. 1552 (2013) (holding that the natural destruction of alcohol in the bloodstream did not amount to an exigent circumstance by itself).
16 See e.g. United States v. Gibson, 2012 WL 1123146 (N.D. Cal. April 3, 2012) (one to two hours); United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007) (not designated for publication)(90 mintues).
17 See e.g. United States v. Murphy, 552 F.3d 405 (4th Cir. 2009) (need to preserve evidence justified officers’ warrantless retrieval of call records and text messages from cell phone of suspected narcotics arrestee immediately upon arrest); United States v. Curry, 2008 WL 219966 (D. Me. Jan. 23, 2008) (not designated for publication) (search of cell phone was “substantially contemporaneous” with arrest).
18 United States v. Wurie, 728 F.3d 1 (1st Cir. 2013).
19 Or like a cigarette package in United States v. Robinson.
20 Chimel v. California, 395 U.S. 752 (1969).
21 People v. Riley, 2013 WL 475242 (Cal. App. Feb. 8, 2013)(not designated for publication), cert. granted, 134 S.Ct. 999 (2014). Please note that I am not trying at all to offer perfectly correct citation form. I’m just giving you enough so you can look the stuff up on your phone if you want. LOL.
23 Arizona v. Gant, 556 U.S. 332, 353 (2009) (Scalia, J. concurring).
24 Indeed, it is possible that a majority of the United States Supreme Court will agree with the analysis in Wurie but believe that the limited search conducted in that case was justifiable similar to the facts in United States v. Flores-Lopez. There, the 7th Circuit viewed the cellphone at issue in the same way the 1st Circuit and the Court of Criminal Appeals did when they describe a modern cell phone as “a diary writ large.” However, the 7th Circuit felt the invasion was permissible when it consisted of only looking up the cell phone’s number. Flores-Lopez, 670 F.3d at 810. This type of cost-benefit analysis is also the kind of thinking that could persuade Justice Breyer to join the four “conservatives” on the court. See e.g. Maryland v. King, 133 S.Ct. 1958 (2013).
25 United States v. Jones, 132 S.Ct. 945, 957 (2012) (Sotomayor, J. concurring).
26 See e.g. Kyllo v. United States, 121 S.Ct. 2038 (2001) (likening thermal imaging of the inside of a home to a trespass); United States v. Jones, 132 S.Ct. 945 (2012) (likening a GPS tracker to a trespass of a carriage). Come to think of it, maybe Justice Scalia hates trespass and likes to yell, “Hey you kids, get the hell off my lawn!” See e.g. Florida v. Jardines, 133 S.Ct. 1409 (2013).
27 Maryland v. King, 133 S.Ct. 1958, 1982 (2013) (Scalia, J. dissenting).
28 This is how the Master Control Program indicated a conclusion. Tron, Walt Disney Productions (1982).