                                 NO. 07-11-0415-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  JULY 11, 2012
                         _____________________________

                                THE STATE OF TEXAS,

                                                                Appellant
                                           v.

                               ANTHONY GRANVILLE,

                                                                 Appellee
                         _____________________________

            FROM THE 278TH DISTRICT COURT OF WALKER COUNTY;

           NO. 25,299; HONORABLE KENNETH H. KEELING, PRESIDING
                        _____________________________

                                    Opinion
                         _____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Is a cell phone really a pair of trousers? The State argues as much here, at least

when both come from someone who has been arrested. We disagree and affirm the

trial court’s decision to suppress evidence discovered during a warrantless search of an

impounded cell phone.

      Background

      The cell phone in question belonged to Anthony Granville and was taken from

him after being arrested and jailed for causing a disturbance at his school. While the
phone was within official custody, an officer, having nothing to do with the arrest or any

investigation into the disturbance, acquired it. He did so because he had been told that

Granville took a picture of a student urinating in a urinal at school the day before. This

act was purportedly a crime which stimulated the officer to begin his search for evidence

of it. So, without a search warrant, he ventured down to the jail, took Granville’s cell

phone from the property room, turned it on, and began scrolling through it for the picture

in question. It was eventually discovered on the device, and that led to Granville’s

indictment for “Improper Photography or Visual Recording.”

      Granville moved the trial court to suppress the evidence garnered from the

phone. He believed that the officer’s actions constituted an unlawful search. The trial

court agreed and ordered the evidence suppressed.

      Authority

        The standard of review is a familiar one. It is one of abused discretion. Swain

v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).      Under it, we defer to the trial

court’s resolution of historical fact but consider de novo its conclusions of law. Ford v.

State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). So too does it obligate us to

consider the totality of the circumstances in making our decision. Kothe v. State, 152

S.W.3d 54, 62-63 (Tex. Crim. App. 2004).

      Next, the Fourth Amendment to the United States Constitution as well as article I,

§ 9 of the Texas Constitution protect against unreasonable searches and seizures

conducted by the government.      Furthermore, a search conducted without a warrant is

presumptively unreasonable, United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296,

82 L.Ed.2d 530 (1984) and, when it is initially shown that a warrantless search occurred,



                                            2
the State has the burden of legitimizing it in some manner. Roth v. State, 917 S.W.2d

292, 299 (Tex. App.–Austin 1995, no pet.). We now address whether the State carried

its burden.

       Discussion

       1. Tangential, Yet Pertinent, Observations

       Various preliminary issues warrant comment. The first concerns whether the

officer’s actions viz the cell phone constituted a search. No one disputes that they do,

nor do we.

       Second, when asked about the grounds upon which it relied to justify perusing

the contents of the cell phone, the prosecutor represented to the trial court that “. . . we

are not arguing this is a search incident to arrest.” Rather, “[t]his is simply a probable

cause search of jail property that is a person’s effects when they go to jail” and various

authorities “basically say you don’t have any expectation of privacy and [sic] what is in

your clothes.” Given the limited grounds proferred to support the search, the State’s

effort to attack the trial court’s decision by now invoking legal theories related to

searching incident to arrest or searching in “good faith” or searching under exigent

circumstances were not preserved for consideration.           This is so because grounds

asserted on appeal to support an appellant’s contention must comport with those

uttered at trial. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).        If

they differ, then the new ones cannot be considered by us since the trial court was

denied the chance to assess them. See Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim.

App. 2009) (recognizing that the need to preserve objections is founded upon the policy

of affording the trial court the first opportunity to correct purported mistakes).



                                              3
       Third, the existence of probable cause to believe a crime occurred that justified a

search was broached at trial.     The accused argued that no such probable cause

existed, given the absence of any evidence suggesting that the student whose picture

was taken failed to consent. As indicated in its findings of fact and conclusions of law,

the trial court found that there was no probable cause justifying the search. The State

attacks that conclusion here by arguing, among other things, that “the victim was an

autistic student at the high school” and “[t]hat alone [was] sufficient for probable cause

that the photograph was taken without his consent.” No evidence was proffered to

support the utterance. Furthermore, individuals such as John Elder Robinson (author,

special effects technician, and vintage car restorer), Thomas McKean (advocate), Dawn

Prince-Hughes (recipient of a Ph.D in primate anthropology), Satoshi Tajiri (creator of

Pokémon) and many other successful personages are autistic.          Certainly the State

would not suggest them to be presumptively incompetent simply because of their

condition.   Indeed, their success, and that of many autistic people, belies the

uninformed syllogism offered to us.      So, we reject it and caution others against

tendering courts of appeal such baseless conclusions.

       2.  Substantive Analysis

       Having disposed of the preliminaries, we now focus upon the crux of the dispute

at bar. May an officer conduct a warrantless search of the contents or stored data in a

cell phone when its owner was required to relinquish possession of the phone as part of

the booking or jailing process?     Again, we do not address situations involving the

presence of exigent circumstances or other recognized exceptions to the warrant

requirement. Instead, our review is limited to the grounds urged by the State during the



                                            4
suppression hearing, those grounds being the presence of probable cause to believe a

crime was committed and the supposed lack of any reasonable expectation of privacy in

the device.

              a.  Probable Cause

      The first justification is easily disposed of. We know of no authority that allows

the State to search property merely because its officers have probable cause to believe

that a crime occurred and evidence of that crime can be found on the property to be

searched. Those two indicia simply provide a basis to secure a warrant. See State v.

Jordan, 342 S.W.3d 565, 568-69 (Tex. Crim. App. 2011) (describing the prerequisites to

obtaining a warrant). They alone do not allow a search.        Without such a warrant, the

search is presumptively unreasonable. McGee v. State, 105 S.W.3d 609, 615 (Tex.

Crim. App. 2003).     So, the State’s suggestion that the search of the phone was

permissible since probable cause to believe a crime had occurred and that Granville’s

cell phone contained evidence of it, without more, is wrong.

              b.  Expectation of Privacy

      As for the second and final ground, the State contends that the “search of that

inmate’s phone was an allowable search [because] . . . [i]t was jail property and

therefore Granville had no expectation of privacy.” It continues by arguing that it “was a

phone taken pursuant to a lawful arrest and therefor was subject to being searched” and

that the “manipulation of the phone is no different that [sic] looking at clothing or

searching through papers an inmate has in his possession when . . . booked into jail.”

Added to those comments was one expressing that “society has never accepted or




                                            5
suggested an individual has an expectation of privacy in a jail setting.” Starting with the

latter, we find it global and inaccurate.

         It is true that prisoners have no reasonable expectation of privacy in their cells.

Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

Similarly true is the notion that “attributes of privacy of the home are not shared with a

jail.”   Hernandez v. State, 819 S.W.2d 806, 815 (Tex. Crim. App. 1991). Yet, the

prosecutor is simply wrong in saying that no expectation of privacy in a jail setting has

been recognized. Indeed, authority cited in the State’s own brief holds otherwise. And,

we cite it to Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999), where our Court of

Criminal Appeals said that arrestees still retain some level of privacy interest in personal

effects or belongings taken from them after arrest. Id. at 108. Instead of having none,

their expectations of privacy are “diminished.” McGee v. State, 105 S.W.3d 609, 617

(Tex. Crim. App. 2003); accord United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir.

1978) (stating that the “history and purpose underlying the [F]ourth [A]mendment . . .

require that prisoners retain at least some degree of their fourth amendment

protection”); see also Waddleton v. Jackson, 445 Fed. Appx. 808, 809 (5th Cir. 2011)

(stating that a search and seizure conducted upon prisoners must “be reasonable under

all the facts and circumstances in which they are performed”), quoting Elliott v. Lynn, 38

F.3d 188, 190-91 (5th Cir. 1994).

         Next, we address the extent, if any, to which an arrestee has an expectation of

privacy in the electronically stored data in his cell phone that was taken from him upon

booking into jail. Forty years ago the average person could only dream of having a

device that allowed individuals to walk about talking with whomever they chose.          As



                                              6
with many dreams, this one grew to reality. The younger generation most likely know

little of the multi-pound instrument carried in a bag and slung over one’s shoulder.

Those devices eventually gave way to lighter, but nonetheless bulky, instruments often

seen in television shows of the 1980’s, like “Seinfeld.”      As the years went by, the

mechanism came to look like the equipment Captain Kirk would flip open in the science

fiction show “Star Trek” and command Scotty to “beam me up.” And, much like the

transponder of “Star Trek” fame, cell phones of today are small enough to be easily

carried or hidden in pockets and purses.

       Interestingly, though, while phones shrank in size, they expanded in versatility

and technology. No longer are people limited to simply calling others over the airwaves.

They now permit their owners to do much, much more. Indeed, they liken to mini-

computers or laptops, capable of opening, in many respects, the world to those

possessing them. In addition to seeking out information deemed important to its owner,

cell phones have the capability of memorializing personal thoughts, plans, and financial

data, facilitating leisure activities, pursuing personal relationships, and the like. Due to

the abundance of programs or “apps” available, users also have the ability to

personalize their phone; it is not farfetched to conclude that a stranger can learn much

about the owner, his thought processes, family affairs, friends, religious and political

beliefs, and financial matters by simply perusing through it. That such matters are

intrinsically private cannot be reasonably doubted. The importance and private nature

of such information has also led to the development of passwords, encrypted programs,

and like security measures to prevent its disclosure. Given this, we cannot but hold that

a person (whose category encompasses Granville) has a general, reasonable



                                             7
expectation of privacy in the data contained in or accessible by his cell, now “smart,”

phone. Accord Schlossberg v. Solesbee, No. 10-6014-RC, 2012 U.S. Dist. LEXIS 4431,

at *14-15 (D. Or. Jan. 13, 2012) (so holding).       And that expectation is subject to

protection under both the Fourth Amendment of the United States Constitution and

article 1, § 9 of the Texas Constitution. But, our so holding does not end our work.

      We must next assess the effect, if any, of Granville’s incarceration upon his

expectation of privacy. As previously mentioned, being jailed tends to diminish, though

not necessarily vitiate, such expectations. See Oles v. State, supra. The extent to

which they survive in property lawfully seized as part of the jailing process depends, in

large part, upon the owner’s exhibition of subjective expectations of privacy, whether

they are reasonable, and society’s recognition of the same. Oles v. State, 993 S.W.2d

at 109-10. Furthermore, the amount of control retained by the owner over the item is

also of importance because it influences whether the detainee’s expectation can truly be

said to be reasonable. See id. (discussing Oles’ loss of control over his pants). His use

of precautionary measures to maintain his privacy in the item may also impact the

outcome.    Id. at 109.   And, it was the court’s consideration of those indicia that

eventually led it to hold that Oles had no reasonable expectation of privacy in the

clothing taken from him when jailed. Id.

      We cannot deny that application of the foregoing criteria would lead us to the

same end regarding aspects of a confiscated cell phone. The latter, once impounded,

would be outside the control of its owner. So too would it be exposed to physical

manipulation.   And, much like the situation in Oles, third parties also would be

exercising control over and otherwise physically touching the device. Consequently, we



                                            8
can see how our Court of Criminal Appeals could extend its interpretation of societal

views in Oles to encompass a detainee’s expectations of privacy in the physical

structures of and components in a cell phone. But, here, we are not merely dealing with

surfaces and spaces within clothing or cell phones.

      We are looking at a privacy interest in data hidden within electrical components

contained in the device as well as potential information not in the phone but accessible

through its manipulation, that is, data saved on the internet. The State cited us to no

evidence suggesting that such data can be scraped off the phone surfaces or

components, like blood or DNA affixed to clothes. Nor is there evidence of record that

the picture found by the officer was somehow playing or appearing upon the phone’s

screen. Quite the contrary. The cell phone had to be activated, or turned on, by the

officer, and he had to pull up or scroll through the information imprinted on electronic

chips to uncover the photo. It was not exposed to anyone happening to touch the item,

which differentiates it from the miscellaneous things accessible on a prisoner’s pants.

      Evidence of the phone being off has other import, as well. That evinces some

precautionary measure being taken to secure the data from curious eyes. The power

button can be likened to the front door of a house. When on, the door is open and

some things become readily visible. When off, the door is closed, thereby preventing

others from seeing anything inside. And though some cell phones may require the input

of a password before it can be used, no evidence suggests that Granville’s was of that

type. So, the officer’s ability to venture into the phone’s informational recesses by

merely pressing the power button does not suggest that Granville’s interest in assuring

the privacy of his information was minimal. Whether the phone was locked or not via a



                                            9
password, a closed door is sufficient to illustrate an expectation of privacy.                        See

Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983).

        Now we turn to the subject of society recognizing (or not) an arrestee’s privacy

interest in a cell phone impounded during the booking process.1                             It must be

remembered that Granville was simply a pretrial detainee.                    This is of import since

detainees, in some ways, are accorded greater constitutional protection than a

convicted individual. Ex parte Green, 688 S.W.2d 555, 556 (Tex. Crim. App. 1985)

(punishment); Rocha v. Potter County, No. 07-09-001-2-CV, 2010 Tex. App. LEXIS 2859,

at *10-11 (Tex. App.–Amarillo Apr. 20, 2010, no pet.) (due process). They also have a

greater chance of being freed soon after their detention through posting bond or other

measure. In fact, if the officer who took the cell phone is to be believed, Granville was

subject to being released quickly, given that he was arrested for a class C

misdemeanor. It also lessens the duration of any control law enforcement officials may

exercise over the instrument.

        That the data within the phone was capable of use as a weapon or posed some

threat to Granville, inmates, or jail security has no evidentiary support, either. So, social

views regarding the need to maintain prison discipline and decorum are of lesser

concern here.




        1
         This concept also poses a curiosity. Determining what society would deem reasonable or
unreasonable seems little more than an exercise in self-expression. Though it connotes the idea of
gauging the collective conscious of the people to see what they would think about the subject, no polls
are taken, surveys conducted, or investigations made. E.g., Oles v. State, 993 S.W.2d 103 (Tex. Crim.
App. 1999) (opining that society would not recognize the legitimacy of Oles’ expectation of privacy without
mentioning any polls or the like). Nor is Everyman sought out and asked. Rather, those drafting the
opinion just seem to arrive upon a consensus as to what millions of other people would find acceptable or
not. It would seem as though the answer could differ depending upon the “hood” from which the decision-
maker came. Truly, Oliver Wendell Holmes was right in saying that law is not logic but experience.

                                                    10
       So too is the potential for exceptional intrusion in one’s private matters worth

reiteration. Should the State’s contention be accepted, it would be free to look for

whatever it cared to just because it could. Exposing a detainee to having his private

thoughts, relationships, finances, and the like to arbitrary intrusion seems antithetical to

the societal and civil norm mandating the presumption of innocence until proven guilty.

A detainee, like Granville, who is jailed for a class C misdemeanor is not even the type

of prisoner that society thought should be placed in extended governmental control.

Indeed, those convicted of such a misdemeanor are not susceptible to imprisonment

upon conviction.    TEX. PENAL CODE ANN. § 12.23 (West 2011) (stating that the

punishment applicable to a class C misdemeanor is a fine).

       Due to the potential invasiveness of the search, Granville’s status as a pretrial

detainee, the fact that his stay in jail for a class C misdemeanor would be of short

duration, the utter lack of any nexus between the cell phone and the crime for which

appellant was jailed, and the lack of evidence suggesting that the phone and its

contents posed any risk to the jail’s penalogical interests, we conclude that society

would recognize his continued, and reasonable, privacy interest in the instrument

despite his temporary detention.      Indeed, holding that the mere impoundment of

property does not vitiate all reasonable expectation of privacy in the item confiscated is

nothing new.     Law enforcement officials have long been barred from searching

impounded vehicles in any manner that they may care to.             See South Dakota v.

Opperman, 428 U.S. 364, 372-73, 96 S.Ct. 3092, 3098-99, 49 L.Ed.2d 1000 (1976)

(prescribing the way in which an inventory search of an impounded vehicle must occur

for it to pass Fourth Amendment restrictions). As we recently acknowledged, if



                                            11
impoundment vitiated all reasonable expectation of privacy, then there would be no

reason for the requirements described by the United States Supreme Court in South

Dakota v. Opperman, 428 U.S. at 372, our own Court of Criminal Appeals in Kelley v.

State, 677 S.W.2d 34, 37 (Tex. Crim. App. 1984), or in State v. Hill, No. 07-11-0054-CR,

2011 Tex. App. LEXIS 6510, at *7-8 (Tex. App.–Amarillo, August 16, 2011, no pet.) (not

designated for publication). Thus, the simple act of a governmental body taking custody

over personal property of another “does not put an end to all expectations of privacy.”

State v. Hill, supra. Nor should it. So, under the particular circumstances appearing of

record, we cannot say that the search at bar passed constitutional muster.

       In effect, the State fights to enable any, if not every, law enforcement officer the

ability to walk into a property room, pick up whatever cell phone, ipad, ipod, or like

device he may discover therein, turn it on, and use it as he cares to just because the

device was within the property room. The State pursues this end by saying little to

nothing about the nature of the electronic instrument involved or the vast quantity of

personal information about their owner and others that may be contained in them.

Instead, it merely compares cell phones to articles of clothing despite their obvious

difference. More importantly, the authorities it cites in support of its position fall short of

doing so.

       For instance, the court in United States v. Finley, 477 F.3d 250 (5th Cir. 2007),

did conclude that text messages on a phone may be perused incident to an arrest.

Despite not undertaking any type of analysis like that required by Oles, there is verbiage

in the opinion suggesting that the court reached its decision because the search was

truly incident to the arrest. “[A]s long as the administrative processes incident to the



                                              12
arrest and custody have not been completed, a search of effects seized from the

defendant's person is still incident to the defendant's arrest,” it observed. Id. at 260 n.7.

It “was still substantially contemporaneous with his arrest and was therefore

permissible.” Id. (Emphasis added.) That language hardly encompasses the situation

we have here, that is, one where the suspect has had his property inventoried into the

custody of the state as part of the jailing process and, several hours later, some

stranger to the arrest comes to handle it for purposes completely unrelated to the arrest.

       The same can be said of United States v. Curtis, 635 F.3d 704 (5th Cir. 2011),

cert. denied, ___ U.S. ___, 132 L.Ed.2d 99, 181 L.Ed.2d 99 (2011), the other opinion

relied upon by the State. It involved a search incident to arrest and relied on Finley to

conclude as it did. But, then it took care to distinguish the circumstances before it from

those encompassing perusal of the cell phone’s contents as part of an inventory search.

That an inventory search ”must not be a ruse for a general rummaging in order to

discover incriminating evidence” was acknowledged in Curtis.           Id. at 712, quoting

Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).              And, upon

acknowledging it, the panel said:

       . . . [t]his was not an inventory search. The police were not cataloguing the
       items found in portions of Curtis's car outside of his reach. The search
       extended only to Curtis's person and the area within his immediate control.
       Finley authorizes a police officer to search the electronic contents of a cell
       phone recovered from the area within an arrestee's immediate control.

Id. In view of the language and caveats in both Curtis and Finley, neither suggest that

any law enforcement officer is free to search cell phones inventoried as part of the

booking process.




                                             13
       Research also reveals that there are courts that refuse to follow Finley. They do

so after analyzing the purpose of a cell phone, the quantity of data stored in them, and

the private nature of those contents.             For example, the court in Schlossberg v.

Solesbee, 2012 U.S. Dist. LEXIS 4431, at *13, noted that cell phones and cameras “are

capable of holding large volumes of private information” and that “legitimate concerns

exist regarding the effect of allowing warrantless searches of such devices.” Often they

“include some combination of email services and internet browsing” and the information

stored within them may include “phonebook information, appointment calendars, text

messages, call logs, photographs, audio and video recordings, web browsing history,

electronic documents and user location information.” Id. Consequently, “warrantless

searches of such devices are not reasonable incident to a valid arrest absent a showing

that the search was necessary to prevent the destruction of evidence, to ensure officer

safety, or that other exigent circumstances exist,” according to the court.2

       The same was done in State v. Smith, 920 N.E.2d 949 (Ohio 2009), cert. denied,

___ U.S. ___, 131 S.Ct. 102, 178 L.Ed.2d 242 (2010). And, that analysis lead the Ohio

Supreme Court to hold that 1) Smith had a reasonable expectation of privacy in his cell

phone, 2) the phone was not a container, and 3) a warrant was needed before it could

be searched. Id. at 954-55.

       As we cautioned early on, we deal not with a warrantless search incident to

arrest or one undertaken due to exigent circumstances. Nor do we deal with property

found in a jail cell. Rather, we consider a warrantless search, by a stranger to an arrest,
       2
         The court also determined that it was “impractical to distinguish between electronic devices-
between a laptop and a traditional cell phone or a smart phone and a camera, before an officer decides
whether to proceed with a search of the electronic device incident to arrest.” Schlossberg v. Solesbee,
No. 10-6014-TC, 2012 U.S. Dist. LEXIS 4431, at *14-15 (D. Or. January 13, 2012). While we need not go
so far, we nevertheless acknowledge the similarities between each of those electronic devices and the
privacy implications that may arise when each is manipulated by strangers.

                                                  14
of a cell phone taken as part of an inventory-conducted incident to jailing for evidence of

a crime distinct from that underlying the owner’s arrest. Nothing in those circumstances

or the others mentioned herein nullify Granville’s reasonable expectation of privacy in

the phone searched. Nothing in them allowed the officer to act without a warrant. While

assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas

Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell

phone is not a pair of pants.

       The order of suppression entered below is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Publish.




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