TX10: Consent to cell phone password was limited to seeing who was calling, and it was not a general consent to search

Defendant was stopped for erratic driving. While in the patrol car, defendant’s cell phone rang, and the officer asked for the password to see who was calling. Defendant gave it. That was not a consent to search the whole phone. This was pre-Riley, and it applies, despite the state’s argument it shouldn’t apply retroactively. The automobile exception for containers does not apply, and neither does search incident. Chung v. State, 2014 Tex. App. LEXIS 11724 (Tex. App. – Waco October 23, 2014):

Trooper Putz testified that as he placed Chung in the patrol car, Chung’s phone began to ring. Chung asked who it was. When Putz opened the phone, he asked Chung for his password which was given. Chung’s offer of his password was for a specific reason only; to find out who was calling. There was no request by the officer to search the entire contents of the phone nor was permission granted to search the entire contents of the phone. Further, Putz acknowledged that Chung did not give him consent to generally search Chung’s phone.

In this situation, Chung did not acquiesce to a general, full content, search of his phone by giving Putz his password. And a reasonable person would not have believed permission to search the phone was granted. Thus, the State did not prove by clear and convincing evidence that Chung voluntarily consented to the search of his cell phone, and the warrantless search cannot be justified under this exception.

. . .

The State relies on Acevedo for the proposition that simply because an item such as a cell phone was in a vehicle at one time, even if it was not in the vehicle when it was searched, the automobile exception to the warrant requirement still applies. Acevedo does not stand for that proposition. Rather, Acevedo holds that containers located in a vehicle may be searched without a warrant when there is probable cause to search the vehicle or probable cause to search the container. The State cites us to no other case for its proposition.

Further, we have grave doubts that a cell phone is a “container” that could be searched pursuant to the automobile exception. The United States Supreme Court has said that “treating a cell phone as a container in whose contents may be searched incident to an arrest is a bit strained…” Riley v. California, __ U.S. __; 134 S. Ct. 2473; 189 L. Ed. 2d 430, 448, (2014). We believe the same can be said for treating a cell phone as a container which may be searched as a part of the automobile exception: it is “a bit strained.” The State has not convinced us otherwise and we will not treat it as such on the facts of this case. Thus, the warrantless search cannot be justified under the automobile exception to the warrant requirement.