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Mind Your Own Business: Does the right of privacy extend to cell phones?


In this modern digital age, almost everyone has a cell phone. We all walk around with an endless amount of information in the palm of our hands or in our pockets. However, some of this information on our cell phones can be highly sensitive and contain the most intimate details of our personal lives including text messages, photos, videos, emails, bank records, and medical information.

The 4th Amendment to the U.S. Constitution protects us from unreasonable searches and seizures. Generally, law enforcement officers need a warrant from a judge based on probable cause before conducting a search of personal property. But there are exceptions to this warrant requirement. One such exception allows a warrantless search to be conducted pursuant to a lawful arrest. When a person is lawfully arrested, police can search their clothing and possessions for contraband.

So can police search digital information on a cell phone seized from an arrested individual without a warrant? Last year the Texas Court of Criminal Appeals, the state supreme court for criminal cases, dealt with this issue. In Texas v. Granville, the court ruled that Texas police can no longer search someone’s cell phone without a warrant after they’ve been arrested. In an 8 to 1 vote, the court rejected prosecutors’ arguments that police officials may search any item belonging to an inmate if there is probable cause to believe a law had been broken. Because cell phones contain a vast array of private information, the court recognized that Texans have a reasonable expectation of privacy in the contents of their cell phones even when in a jail inventory.

The case arose from Anthony Granville’s arrest in November 2010 for causing a disturbance on a Huntsville High School bus. His cell phone and other possessions were placed in a jail property room. Later that day, a Huntsville police officer learned that Granville may have used his phone to photograph another student urinating in a campus bathroom. The officer, who was not involved in Granville’s arrest, drove to the jail and went through the confiscated phone to locate the picture in question. Granville was charged with improper photography, but his defense counsel asked the court to suppress the photo, arguing that it was found during an unlawful search. The trial judge, the 7th Court of Appeals in Amarillo, and Court of Criminal Appeals all agreed.

This means that Texas police must now get a warrant based on probable cause from a judge before searching the cell phone of anyone they arrest. They can no longer casually read every text message or examine every photo from phones in the jail inventory.

If you have become the victim of an illegal search or seizure while in jail, call the The Alband Law Firm to schedule a free case evaluation.