TX: Cell phone can’t be searched in jail property room without warrant

Defendant’s cell phone could not be searched in jail property storage without a search warrant. Even in custody, the defendant retains a reasonable expectation of privacy in his “cell [now ‘smart’] phone.” It can’t be justified as a search incident (too late and too far), a jail cell property search, or a jail property inventory. (The court suggests that a general search incident won’t work either.) State v. Granville, 2014 Tex. Crim. App. LEXIS 237 (February 26, 2014), affg State v. Granville, 373 S.W.3d 218, 227 (Tex. App.—Amarillo 2012):

This case raises the issue of whether a person retains a legitimate expectation of privacy in the contents of his cell phone when that phone is being temporarily stored in a jail property room. The trial judge granted Anthony Granville’s motion to suppress, concluding that the high-school student did not lose his legitimate expectation of privacy in his cell phone simply because it was being stored in the jail property room after he had been arrested for a Class C misdemeanor. The court of appeals affirmed that ruling. We granted the SPA’s petition for discretionary review, but we reject its argument that a modern-day cell phone is like a pair of pants or a bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room. We therefore affirm the judgment of the court of appeals.

. . .

Although a person may have a reasonable and legitimate expectation of privacy in the contents of his cell phone, he may lose that expectation under some circumstances, such as if he abandons his cell phone, lends it to others to use, or gives his consent to its search. Courts across the country have wrestled with questions of when he might lose his reasonable expectation of privacy in other situations, perhaps if he is arrested and police perform a search of his cell phone incident to arrest or, as here, of his cell phone stored in the jail property room.

. . .

In sum, we conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room. Officer Harrell could have seized appellant’s phone and held it while he sought a search warrant, but, even with probable cause, he could not “activate and search the contents of an inventoried cellular phone” without one. We answer “No” to the SPA’s sole question for review, and we affirm the judgment of the court of appeals.