{"id":3143,"date":"2010-03-23T09:22:15","date_gmt":"2009-05-19T07:02:04","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-05-19T07:02:04","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3143","title":{"rendered":"TX12: Handing over phone to “can I look at your cell phone?” was consent to look at photos on phone"},"content":{"rendered":"

Officers were told that defendant was communicating with a 14 year old girl, and they went to talk to him. They asked if they could look at his cell phone, and he turned it over. One officer hit the camera button and looked at the photographs on it. Defendant consented to a search of the cell phone. Lemons v. State<\/a>, 298 S.W.3d 658 (Tex. App.\u2013Tyler 2009):<\/p>\n

We have reviewed the record as it pertains to Appellant’s giving consent. The epicenter of our inquiry is Thornhill’s request to Appellant that he be allowed to examine Appellant’s cellular telephone and Appellant’s nonverbal response of simply handing his cellular telephone to Thornhill. There is no indication from the record that would allow a reasonable person to conclude that Appellant intended to shape the confines of his forthcoming consent by the subject matter of the conversation between him and Thornhill in the moments preceding Appellant’s relinquishment of his cellular telephone to Thornhill. Instead, it is reasonable to conclude that Appellant’s surrender to Thornhill of his cellular telephone in response to Thornhill’s open ended request implied Appellant’s grant of equally unbridled consent for Thornhill to examine the phone and the information contained therein. See, e.g., Cannon v. State, 29 F.3d 472, 477 (2d Cir.1994) (holding that defendant’s answer to “go ahead” and look in car justified search of trunk). Moreover, Appellant’s failure to object to Thornhill’s continued search of his phone after bestowing on him such general consent to search was an indication that Thornhill’s search was within the scope of Appellant’s initial consent. See id.<\/p>\n

In sum, the State was required to prove by clear and convincing evidence that Appellant’s consent to a search of his cellular telephone was unequivocal; in other words, that Appellant’s expression of consent was, viewed in the totality of the circumstances, capable of only one reasonable interpretation. See Reasor, 12 S.W.3d at 818; Allridge, 850 S.W.2d at 493. Having applied a deferential standard of review to the trial court’s determination of historical facts, we conclude that a reasonable person could have interpreted Appellant’s handing his cellular telephone to Thornhill in response to Thornhill’s open ended request as an unlimited consent to examine the information contained therein. See Mendoza-Gonzalez, 318 F.3d at 667. Therefore, we hold that the trial court acted within its discretion by finding that the State proved by clear and convincing evidence that Thornhill’s search of Appellant’s cellular telephone was within the scope of Appellant’s consent. Appellant’s sole issue is overruled.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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