Wednesday, April 3, 2013

Question on appeal: "Is a cell phone really a pair of trousers?"

In a Texas appellate case, the Electronic Frontier Foundation is arguing that a warrant is required before police search a cell phone being held in a jail's property room. A teenager was arrested at school for a "disturbance" and taken to jail. His cell phone was taken from him and searched, revealing evidence of an unrelated felony (he was arrested for a misdemeanor). The trial court and lower appellate court found that the evidence should be suppressed.

The lower appellate court had framed the issue this way:

Is a cell phone really a pair of trousers? The State argues as much here, at least when both come from someone who has been arrested. We disagree and affirm the trial court's decision to suppress evidence discovered during a warrantless search of an impounded cell phone.
On appeal again before the Texas high court, the EFF and others argue:

The Court’s ruling in this case thus has the potential to affect every Texan who possesses a cell phone and who might someday be arrested and jailed, even briefly, for a misdemeanor offense. Cell phones and smart phones with immense digital memories containing their users’ most private information are now in the pockets of millions of Americans each day. The state contends that a pretrial detainee being held in jail has “no legitimate expectation of privacy” in his inventoried personal effects, including the data stored in personal electronic devices. If the state’s argument in this case were to be accepted, any law officer, even a stranger to the arrest, would be able to enter a jail property room with no warrant, probable cause or exigency
whatsoever, power up any detainee’s stored and inventoried cell phone, and freely rummage through the device, either for mere curiosity or a personal vendetta, or searching for incriminating photographs, emails, texts or other data related to any potential criminal offense. This is not the law, nor should it be. 
In sum, no exception to the warrant requirement applies on these facts, and the appellate court’s decision below, suppressing the evidence obtained from the warrantless search of Anthony Granville’s cell phone, should be affirmed.... 
A cell phone is not a pair of pants.

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