On February 26, 2014, the Texas Court of Criminal Appeals in State v. Granville addressed the issue of whether a person retains a legitimate expectation of privacy in the contents of his cell phone when the phone is being temporarily stored in a jail property room.


In the early evening hours of November 4, 2010, Anthony Granville, a student at Huntsville High School in Walker County, was arrested near the school for a Class C misdemeanor, Disruption of School Transportation. He was escorted to the local jail where he was booked, after which his personal belongings, including his cell phone, were taken from him and stored in the jail’s property room. He powered off the phone before he relinquished it to Jail authorities.


At around 10 p.m., some three hours after the phone’s confiscation, a Huntsville police officer who did not participate in Granville’s arrest arrived at the jail and requested that jail officials retrieve the student’s phone so he could determine if the phone had been used to take “improper photography”—a separate offense for which the youth had been arrested. An improper photograph was discovered on the phone, resulting in another criminal charge being lodged against Granville.


Prior to trial on the improper photograph charge, Granville’s attorney filed a motion to suppress the photograph on the basis that the officer did not have sufficient probable cause to conduct the phone search. The trial judge agreed, finding that the officer did not have a sufficient basis to believe the youth had committed another offense. More to the point, the trial judge found the officer had ample time to secure a warrant based on probable cause, if he had any, to search the phone; and absent a warrant, there were no “exigent circumstances” creating a need to circumvent the warrant process.


The State appealed the trial judge’s ruling to the Tenth District Court of Appeals, sitting in Waco, which upheld the judge’s ruling. The State then sought, and secured, a discretionary review from the Texas Court of Criminal Appeals (TexCrimApp), which agreed with the court of appeals decision.


The genesis of the court rulings in this case centered on the State’s position that if an officer has probable cause, he may search anything in the jail belonging to an inmate there. The trial judge was taken aback by this prosecutorial hypothesis asking the prosecutor: “[D]o you agree that there is an expectation of privacy on the information the person has on their cell phone?”


“If you have it in your possession and not committed a crime, sure,” the prosecutor replied. She then elaborated for the court: “I think if you’re in the Walker County jail you have no expectation of privacy in the personal effects you had on you at the time that you were arrested … His expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of his release from detainment or incarceration.”


Granville’s attorney disagreed: “It is clear that everybody in this room has some subjective belief that their cell phone is private and it doesn’t matter if it is lawfully seized by the cops.”


As the Court of Criminal Appeals pointed out, the trial judge in the case “posed the legal issue nicely” with this observation:


“So if I get arrested for jaywalking out here this afternoon and get put in jail, any officer in town can go out there and go through my phone, my cell phone, and might discover that I have a picture of Prometheus chained to a rock in the mountains and an eagle eating his liver out.”


The State said he could. “If an officer has probable cause to believe that you committed a crime or evidence of that crime [is] on your phone, yes he can look at it. Otherwise, no he can’t look at your phone because he wants to. He has to have probable cause.”


The trial judge rejected the State’s sweeping, panoramic of probable cause, finding that Granville had a subjective, reasonable, and legitimate expectation of privacy in his cell phone “even when that cell phone [was] in the jail inventory of an accused.” The court of appeals agreed, finding that 1) a person “has a general, reasonable expectation of privacy in the data contained in or accessible by his cell, now ‘smart’ phone” and 2) a person’s reasonable expectation of privacy continues after the contents of his phone are placed in a jail property room for safekeeping. The Court of Criminal Appeals affectionately pointed to the appeals court’s “rhetorical flourish” in sealing the deal on this expectation of privacy issue: “ … a cell phone is not a pair of pants” like those found in the case of Oles v. State (relied upon by the State) which were seized from a jail property room, along with a pair of shoes, searched, and later tested without a warrant.


The TexCrimApp was no less impressed with the State’s argument. The court began its comprehensive, 26-page analysis with this on point opening:  “The Fourth Amendment states that ‘[t]he right of the people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures shall not be violated.’ The term ‘papers and effects’ obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our private information is now frequently stored in electronic devices such as computers, laptops, IPads, and cell phones, or in ‘the cloud’ and accessible by those electronic devices. But the ‘central concern underlying the Fourth Amendment’ has remained the same throughout the centuries: it is ‘the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.’ This is a case about rummaging through a citizen’s electronic effects—a cell phone—without a warrant.”


That kind of “rummaging,” the appeals court held, violates a cell phone owner’s subjective and reasonable expectation of privacy in his cell phone—a right that has been recognized by many other courts. The appeals court then recited the six most common factors utilized by courts to determine whether a reasonable expectation of privacy exists in a place or object searched: 1) whether the defendant has a proprietary interest in the place or object searched; 2) whether the defendant’s presence in or on the place searched was legitimate; 3) whether the defendant had a right to exclude others from the place or object; 4) whether the defendant took normal precautions, prior to the search, which are customarily taken to protect privacy in the place or object; 5) whether the place or object searched was put to a private use; and 6) whether the defendant’s claim of privacy is consistent with historical notion of privacy.


While the TexCrimApp said these factors are not the “be-all-end-all” in determining the issue of a legitimate expectation of privacy, the court pointed out 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’ both in the cell phone itself and by accessing remote services. This data may involve intimate details of a person’s individual life, including text messages, emails, banking, medical, or credit-card information, pictures, and videos. A cell phone is unlike other containers as it can receive, store, and transmit an almost unlimited amount of private information. The potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”


With its decision in Granville, the TexCrimApp has protected our cell phone’s privacy even in a jailhouse property room when there is insufficient evidence to procure a search warrant. Thus, the police’s natural tendency to “rummage” through our most personal effects following an arrest, even for a misdemeanor offense, has been corralled by the Court of Criminal Appeals. All those who support the “right to privacy” welcome this decision. We do.