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CELLPHONE SEARCHES: INDIVIDUAL PRIVACY AT RISK

Dec 07 2012
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Consent to Search Vehicle Should Not Extend to Search Cell Phone
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

TheNew York Timesrecently ran an article about the difficulties courts face when law enforcement officials search cellphones for the “cornucopia of evidence” they may contain about criminal wrongdoing. TheTimespointed to one court in Rhode Island that suppressed cellphone evidence because of a warrantless search while a court in Washington held text messages do not enjoy an expectation of privacy under state law because they are like “voice mail messages that can be overheard by anyone in a room.”

“The courts are all over the place,” Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, a San-Francisco-based civil liberties group, told theTimes. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protections.”

TheTimesnoted that the Fifth Circuit Court of Appeals “is weighing [in a Louisiana case] whether location records stored in smartphones deserve privacy protection, or whether they are ‘business records’ that belong to the phone companies.”

With respect to cellphone searches, the Fifth Circuit in 2007 in United States v. Finley held that law enforcement authorities could search a suspect’s cell phone records and text messages “incident to a lawful arrest.” Put another way, after a person is arrested, a full search of the person, and his cell phone, is reasonable under the Fourth Amendment.

The following year the appeals court clarifiedFinleyin United States v. Zavala, involving a search conducted on a cellphone absent consent, probable cause or lawful arrest. A drug case,Zavaladealt with a cellphone search by a DEA agent after Zavala’s vehicle was stopped by the police during which the agent obtained the “subscriber number” (the 6323 number), which led to additional evidence and phone records.

The background facts are necessary to understand why the Zavala cellphone search was declared illegal. The DEA agent received confidential source information that Maria Luna wanted to purchase cocaine in Houston. A short time later two undercover DEA agents met with Luna in a local restaurant parking lot during which one of the agents observed a “large amount of cash in a partially opened bag” in the vehicle. The agents left the meeting with an agreement that they would meet with Luna in the near future about sealing the proposed drug transaction. After Luna drove out of the parking lot, the agents followed him to his residence in the High Manor neighborhood. During a subsequent, and consensual, search of Luna’s residence (conducted in June 2004), the narcotics agents discovered “forty kilograms of cocaine, drug ledgers, and a cellphone.” The drug ledgers contained a number of entries (totaling to 132 kilograms of cocaine) for a man named “Gorro.” Gorro’s name also appeared in Luna’s cellphone. The agents subsequently through a subpoena learned that Gorro’s subscriber number (4886) belonged to Jose Rivera, prompting the agents to set up a surveillance of his residence based on information from Luna’s cellphone indicating that he was distributing cocaine in Houston.

In July 2004, DEA agents followed Rivera as he left his Miramar Shores residence, and during a traffic light stop, one agent dialed the phone number for Gorro and observed Rivera answering his cellphone at the same time. The agents then followed Rivera to his second residence on Tall Timbers where they observed him parking his Ford pickup in the driveway. At this point the agents did not have any confidential source information, or any other evidence, that a drug transaction was going to take place at the Tall Timbers residence on that day. Still, the agents continued what they called a “fluid surveillance” of the residence during which their observations were broadcast over police radio.

After a brief period, Zavala and Javier Pompa-Hernandez arrived at the residence in a Ford Taurus—neither of whom the agents recognized “from any previous investigation.” Zavala parked the Taurus next to the pickup. Pompa removed some “unidentified items” from the Taurus, placed them in a box, and put the box in Rivera’s pickup. Zavala did not touch the box. He simply stood outside the Taurus. Still, DEA agents believed they were witnessing a drug transaction involving all three men. Rivera then left the residence, drove to a nearby garage and retrieved a pair of pliers after which he drove back to the residence. Although the agents did not see what Rivera did with the pliers, they suspect he used them to open a “secret compartment in the Taurus carrying contraband.” The three men then left the residence in the vehicles in which they had arrived. They were followed by two teams of agents.

Based on the belief that they had just witnessed a drug transaction, the federal agents instructed uniformed Houston police officers to stop the Taurus. Zavala had not committed any traffic violation prior to being stopped by the uniformed officers. The uniformed officers ordered Zavala and Pompa out of the vehicle and immediately separated the two men before removing their wallets and cellphones which were placed on the Taurus’s roof. DEA agents arrived shortly thereafter and interviewed both men after which one of the agents searched the cellphone whose subscriber number was 6323. Significantly, the agent had to open the phone to see that number. Zavala had given oral consent for the Taurus to be searched but it was “unclear whether the search of Zavala’s cell phone occurred before or after Zavala first gave his oral consent to search the Taurus.” Both Zavala and Pompa denied the existence of a “cardboard box” or being involved in any drug transaction.

Zavala was handcuffed, placed in a police vehicle, and transported to the Miramar Shores residence where an interrogation of Rivera was underway about what had just transpired at the Tall Timbers residence. Rivera was then escorted back to the Tall Timbers residence where he gave the agents oral consent to search his garage and attached shed. Zavala was detained at the Miramar Shores residence while the Tall Timbers search was being conducted. A drug detection dog alerted to a “red suitcase” during the Tall Timbers search. Rivera immediately confessed that Zavala and Pompa had delivered “twenty-four kilograms of cocaine to him” earlier that day at the Tall Timbers residence after which he took the drugs back to the Miramar Shores residence. He told the agents that an “extra kilogram of cocaine” had gotten stuck in the Taurus from which he could not remove it with the pliers.

Based on the information supplied by Rivera, the federal sought, and secured, a second oral consent from Zavala to search the Taurus. This search occurred “about one hour and fifteen minutes after the initial stop of the Taurus” at the Miramar Shores residence during which the agents “located one kilogram of cocaine in a secret compartment.” Zavala also gave the agents oral consent to search his “Ann Louise residence” where they discovered $27,000 in cash. The Zavala residence search occurred “about four hours” after the initial stop of the Taurus. Like Rivera, Pompa also “flipped” on Zavala, identifying him as “Nejo” and his “cell phone number as the 6323 number.” He said he had called Zavala at that cell phone number to conduct drug transactions.

Zavala was indicted for several counts involving conspiracy to distribute drugs. Prior to his trial, Zavala’s attorneys filed two motions to suppress any evidence seized from the Taurus, his residence, and cellphones. The motions were based on the legal premise that the agents arrested him without probable cause, and, therefore, any evidence seized during his “illegal detention” could not be used against him. The trial court conducted two suppression hearings. Following the first hearing, the court ruled that the initial stop of the Taurus was a permissible “Terry stop” based upon a “reasonable suspicion” of drug activity, but the court pointed out that Zavala had been detained (handcuffed in a police vehicle) for “one hour and thirty minutes before Rivera confessed to Zavala’s participation in the twenty-five kilogram drug transaction” and that “probable cause” to arrest did not develop until that confession. The government argued that the time Zavala was detained was necessary to “confirm or dispel the reasonable suspicion” which justified the initial Terry stop during which no drugs were found. The court was not impressed. It ruled that the cocaine discovered during the second Taurus search and the $27,000 seized at the Ann Louise residence had to be suppressed.

The second suppression motion concerned “three cell phones confiscated” from Zavala. The government argued that the cell phones were admissible evidence because they had been confiscated during the initial permissible Terry stop. The government informed the court it would not seek to introduce the “physical cell phones” but would present testimony from a DEA agent about his search of the 6323 phone. The trial court ruled that this testimony was admissible because the cell phones had been obtained after Zavala’s oral consent to search the Taurus at the initial Terry Stop.

The Fifth Circuit disagreed. While the appeals court recognized that the initial Terry stop was based on reasonable suspicion of drug activity, and while consent to search precludes the necessity of probable cause or the issuance of a warrant before the search of a vehicle, that consent does not automatically extend to the search of a person. The appeals court held that while Zavala had given consent to search his vehicle, it was “objectively” unreasonable to assume this consent extended to his cell phones which had been confiscated and placed on the roof of the Taurus. Thus, the appeals court concluded the DEA agent’s search of Zavala’s 6323 cell phone during the Terry stop was unconstitutional because a Terry stop permits only a “pat down search to determine whether the suspect is carrying a weapon.” Thus, while the uniform officers had authority underTerryto order Zavala to empty his pockets and place the contents on the roof of the Taurus to make sure he was not carrying a weapon, this authority alone did not establish probable cause for the DEA agent to later conduct a warrantless search of the suspect’s cell phone.

The Electronic Communications Privacy Act of 1983 governs how law enforcement officials can monitor digital communications; and as theTimespointed out, “courts have used it to permit warrantless surveillance of certain kinds of cellphone data.” But as Ohio State University law professor Peter P. Swire told theTimes, this 1986 statute, and certainly not the Constitution, could have anticipated how much personal information cellphones would ultimately contain.

“It didn’t take into account what the modern cellphone has – your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Swire told theTimes.

Faced with often conflicting decisions from the courts, it is little wonder that state legislatures are currently grappling with ways to protect personal privacy information while not impeding with law enforcement’s need to detect and prevent criminal activity. For example, as theTimespointed out, an Ohio court held that the police need a warrant before searching a cellphone because of its “large amounts of private data” while California’s highest court has ruled that a warrant is not needed so long as the cellphone is “with the suspect at the time of arrest.” The California ruling prompted “privacy advocates” to lobby for, and secure the passage of, a law requiring law enforcement to obtain a warrant “before demanding location records from cellphone carriers.” The law, however, was vetoed by Gov. Jerry Brown who said the legislation did not strike “the right balance between the operational needs of law enforcement and individual expectations of privacy.”

Other states like Delaware, Maryland and Oklahoma are considering similar legislation that would require law enforcement to obtain a warrant “before demanding records from cellphone carriers.” And such legislation is needed because law enforcement made 1.3 million demands on these carriers in 2011 alone for “text messages and other information about subscribers,” according to the Times report.

TheTimesreport indicates that the Fifth Circuit is back pedaling somewhat on its Zavala ruling. The newspaper said the court earlier this year in a Texas case ruled that law enforcement did not need a warrant to “track suspects through cellphones” and is currently considering a Louisiana case in which prosecutors are “arguing that location information is part of cellphone carriers’ business records and thus not constitutionally protected.”

Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project, told theTimes: “We are in a constitutional moment for location tracking. It’s percolating in all these places.”

We agree. The moment is here to determine where individual privacy ends and law enforcement technology begins. Will law-abiding citizens have their civil liberties trampled under the boot of law enforcement in pursuit of criminal wrongdoing? Or have the comforts technology has bought into our daily lives become more important than our expectations of personal privacy? Thus far, neither the courts nor the legislatures have been able to strike a lasting balance between these competing interests. We are afraid to think how all this will shake out.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

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    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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    One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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    He was very truthful and honest with us very great man I would recommend him and we would use him again
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    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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