             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-1095-12



                                   THE STATE OF TEXAS

                                                v.

                             ANTHONY GRANVILLE, Appellee

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SEVENTH COURT OF APPEALS
                             WALKER COUNTY

                K ELLER, P.J., filed a concurring opinion in which P RICE, J., joined.


       The Supreme Court’s Fourth Amendment “expectation of privacy” jurisprudence began with

a case involving a phone.1 We have now come full circle, with a phone again being the center of a

Fourth Amendment controversy. Instead of the government intercepting a voice conversation, as

occurred in Katz, we are confronted with the government inspecting a digital photograph stored

electronically. I agree with the Court that appellee had a subjective and reasonable expectation of

privacy with respect to the electronic data stored on his cell phone. I write separately to further



       1
           Katz v. United States, 389 U.S. 347 (1967).
                                                            GRANVILLE CONCURRENCE — 2

explore why appellee had an actual subjective expectation of privacy in this case.

       In considering whether appellee had a subjective expectation of privacy, I follow the Supreme

Court’s lead in eschewing the rubric of “standing” as unhelpful and potentially confusing with

respect to the issue before us.2 The questions are, simply, (1) did appellee have an actual subjective

expectation of privacy with respect to electronic data stored on his cell phone and (2) would society

recognize such expectation as reasonable? In this case, I focus only on the first question.

       Appellee’s right to possess the cell phone and his actual possession of the phone on his

person were enough to establish his subjective expectation of privacy, at the time of his possession,

with respect to information that was not on public display.3 We can infer that the photograph in

question was not on public display because the police were not aware of it at the time the cell phone

was taken from appellee (when he was booked into jail) and because the phone was turned off at



       2
          Rakas v. Illinois, 439 U.S. 128, 138-40 (1978) (“[T]he question necessarily arises whether
it serves any useful analytical purpose to consider this principle a matter of standing, distinct from
the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases of this Court
that would have come out differently had we concluded, as we do now, that the type of standing
requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive
Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this
Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in
which evidence must be excluded. The inquiry under either approach is the same. But we think the
better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth
Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.
The Court in Jones also may have been aware that there was a certain artificiality in analyzing this
question in terms of standing because in at least three separate places in its opinion the Court placed
that term within quotation marks . . . . [T]his Court’s long history of insistence that Fourth
Amendment rights are personal in nature has already answered many of these traditional standing
inquiries, and we think that definition of those rights is more properly placed within the purview of
substantive Fourth Amendment law than within that of standing.”)
       3
          See New Jersey v. T.L.O., 469 U.S. 325, 337-38 (1985) (“A search of a child’s person
or of a closed purse or other bag carried on her person, no less than a similar search carried out
on an adult, is undoubtedly a severe violation of subjective expectations of privacy.”).
                                                           GRANVILLE CONCURRENCE — 3
the time Officer Harrell retrieved it from the jail property room.4

       The remaining issue is whether appellee lost his subjective expectation of privacy when he

lost possession of his cell phone. Had appellee abandoned his phone, he would have relinquished

any expectation of privacy in the data stored therein.5 Had he relinquished his phone to the police

by his own consent, the question would be the scope of that consent.6 But appellee was required to

relinquish his phone; his loss of possession was involuntary. As I discuss below, the proper question

when dispossession of an item is involuntary is as follows: To what extent has appellee’s subjective

expectation of privacy already been frustrated (by actions that do not themselves violate the Fourth

Amendment)?

       In United States v. Jacobsen, the Supreme Court addressed a situation in which a defendant’s

subjective expectation of privacy was frustrated by the actions of a non-governmental entity.7 A

private freight carrier opened a damaged package and observed plastic bags containing a white

powdery substance.8 The carrier’s agents placed the plastic bags back into the package and contacted

the Drug Enforcement Administration (DEA).9 A DEA agent subsequently reopened the package,


       4
          I need not decide whether the inference that the photograph was not on public display is
one that must be drawn as a matter of law or is one that simply may be drawn as a matter of fact.
The trial court ruled in appellee’s favor (and issued favorable findings of fact and conclusions of
law), so the evidence is viewed in the light most favorable to appellee’s position. State v. Powell,
306 S.W.3d 761, 768 n.12 (Tex. Crim. App. 2010); State v. Kelly, 204 S.W.3d 808, 818 & n.19 (Tex.
Crim. App. 2006).
       5
           See Court’s op.
       6
           See Florida v. Jimeno, 500 U.S. 248 (1991).
       7
           466 U.S. 109 (1984)
       8
           Id. at 111.
       9
           Id.
                                                              GRANVILLE CONCURRENCE — 4
opened the plastic bags, removed a trace amount of the white powder from each bag, and conducted

a field test for cocaine.10 The field test yielded positive results.11

        The Supreme Court observed that a search by a private party does not violate the Fourth

Amendment.12 The Court then held that “additional invasions of . . . privacy by the Government

agent must be tested by the degree to which they exceeded the scope of the private search.”13 The

Supreme Court derived this standard from its earlier decision in Walter v. United States,14 despite

Walter being a fractured decision, with no single opinion of the Court.15 The Jacobsen court further

concluded that the Fourth Amendment is implicated only if “the authorities use information with

respect to which the expectation of privacy has not already been frustrated.”16 The Court concluded

that the private carrier’s act of opening the package had already frustrated the defendant’s privacy

interest in the package’s contents at the time the DEA agent performed his own visual inspection

pursuant to the carrier’s invitation.17 The only remaining question was whether the field test was




        10
             Id. at 111-12 & n.1.
        11
             Id. at 112.
        12
          Id. at 113, 115 (“This Court has also consistently construed this protection as proscribing
only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the Government or with the participation
or knowledge of any governmental official.”) (internal quotation marks omitted).
        13
             Id. at 115.
        14
             447 U.S. 649 (1980).
        15
             Jacobsen, 466 U.S. at 115-17.
        16
             Id. at 117.
        17
             Id. at 119-20.
                                                            GRANVILLE CONCURRENCE — 5
permissible.18 The field test could disclose only whether the white powder was a certain species of

contraband (cocaine), which the defendant had no legitimate interest in privately possessing.19

Because the field test could reveal “no other arguably ‘private’ fact,” the test “compromise[d] no

legitimate privacy interest.”20

       United States v. Edwards21 and Oles v. State22 can be viewed as cases in which a defendant’s

privacy interests have largely been frustrated as a result of his legal arrest and incarceration in the

jail. Any privacy interest that might exist in such a defendant’s clothing has been frustrated because

the police acquired physical custody of the defendant and the right to handle the defendant’s

clothing. When we said in Oles that “there is virtually no evidence that [the defendant] harbored a

subjective expectation of privacy in his clothing that was in the custody of the police,”23 we

essentially recognized that reality.

       But Edwards and Oles differ from the present case because a defendant’s privacy interest in

clothing, to the extent it exists at all, has a purely physical dimension. A defendant’s clothes may

contain incriminating items in pockets or biological evidence might be discovered on the surface.

But clothing is not a computer or a DVD or a cell phone. These latter items are designed to contain

information apart from their physical characteristics.



       18
            Id. at 122.
       19
            Id. at 122-23.
       20
            Id. at 123.
       21
            415 U.S. 872 (1987).
       22
            993 S.W.2d 103 (Tex. Crim. App. 1999).
       23
            Id. at 110-11.
                                                             GRANVILLE CONCURRENCE — 6
        There is an analogous case from the Supreme Court involving a search of film—the Walter

case, relied upon by the Supreme Court in Jacobsen. In Walter, a package containing 871 boxes of

8-millimeter film was delivered to the wrong corporation.24 One side of the boxes had sexually

suggestive drawings, while the other side had explicit descriptions of the contents.25 Employees of

the corporation opened the package, opened one or two of the boxes, and attempted without success

to view portions of the film by holding it up to the light.26 The employees then called a Federal

Bureau of Investigation (FBI) agent, who picked up the packages.27 Without attempting to obtain

a warrant, FBI agents viewed the films with a projector.28

        A majority of the Supreme Court reversed.29 In his opinion announcing the judgment of the

Court, Justice Stevens concluded that the defendants’ privacy interest with respect to the descriptive

labels on the boxes had been frustrated by a private party (the corporation) but that the defendants’

expectation of privacy in the content of the films had not been frustrated.30 Consequently, the FBI

violated the Fourth Amendment when its agents played the films without securing a warrant.31


        24
             Walter, 447 U.S. at 651.
        25
             Id. at 652.
        26
             Id. at 651-52.
        27
             Id. at 652.
        28
             Id.
        29
          Id. at 653-60 (op. of Stevens, J., joined by Stewart, J.); id. at 660 (Marshall, J., concurring
in the judgment without opinion); id. at 660-62 (White, J., concurring, joined by Brennan, J.).
        30
           Id. at 658 (op. of Stevens, J.) (“The private search merely frustrated that expectation in
part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth
Amendment protection.”).
        31
             Id.
                                                             GRANVILLE CONCURRENCE — 7

Justice Stevens refrained from deciding whether the FBI would have been required to obtain a

warrant “had the private party been the first to view” the films.32 Justice White wrote separately to

disagree with the suggestion that the FBI could have played the films without a warrant if the private

corporation had done so first.33 The dissent, on the other hand, contended that the defendants had

no remaining expectation of privacy.34 In the dissent’s view, the sexually explicit nature of the

drawings and labels on the boxes “clearly revealed the nature of their contents.”35

        Although Walter was a fractured decision, it contains controlling authority because (1) a

majority of the Court reversed the case, which could have happened only as a result of finding a

Fourth Amendment violation, (2) the Court remanded another case for reconsideration in light of

Walter,36 and (3) the Court relied heavily upon Walter in Jacobsen.37 What Walter shows is that

some types of property have both a physical dimension and an informational dimension and that a

defendant’s subjective expectation of privacy can attach to either or both. Even if a defendant’s

subjective expectation of privacy has been entirely frustrated with respect to the physical dimension

of such property, he may yet retain a subjective expectation with respect to the informational

dimension.




        32
             Id. at 657 n.9.
        33
             Id. at 660 (White, J., concurring).
        34
             Id. at 663 (Blackmun, J., dissenting, joined by Burger, C.J., and by Powell and Rehnquist,
J.J.)
        35
             Id.
        36
             Grassi v. United States, 448 U.S. 902 (1980).
        37
             See Jacobsen, 466 U.S. at 113-14 & n.6, 114 n.7, 115-117 & nn.11, 12, 120 n.18.
                                                           GRANVILLE CONCURRENCE — 8

       In the present case, the police department’s legitimate physical control of appellee’s cell

phone frustrated his expectation of privacy with respect to the physical aspects of the cell phone.

As the Court explains, the State could have tested it for fingerprints or DNA. And perhaps the State

could have looked in the battery compartment or the memory slot for hidden contraband. But the

State’s legitimate physical control of the cell phone did not compromise appellee’s expectation of

privacy with respect to the electronic data stored on the phone, just as the FBI’s legitimate physical

control over the film in Walter did not compromise the defendants’ subjective expectations with

respect to the video content of that film.

       With these comments, I join the Court’s opinion.

Filed: February 26, 2014
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