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Court of Criminal Appeals bars warrantless searches of cell phones, electronics incident to arrest- Law Offices of Tim Powers, Denton, Texas

Court of Criminal Appeals bars warrantless searches of cell phones, electronics incident to arrest

Tim Powers

Law Offices of Tim Powers, Denton, Texas

The Texas Court of Criminal Appeals today held in Texas v. Granville that the Fourth Amendment protects against searches of cell phones incident to arrest. Texans now cannot have the contents of their cell phones and other electronic devices searched indiscriminately after they're booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.

Denton attorney and Legal analyst for the Russ Martin Show on 97.1 KEGL summarized the ruling. "The primary issue was whether the Fourth Amendment exception that allows searches of an arrestee's property for contraband also allows a wholesale search of a cell phone. The decision has a good explanation about why modern technology requires heightened protection above that applied to shoes, pants, etc. The decision even cites with approval the recent DC Circuit decision holding the NSA metadata collection program unconstitutional." Here's an notable excerpt from the majority opinion:

The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects – a cell phone – without a warrant.

See the majority opinion from Judge Cochran, a concurrence from Judge Keller, and a lone dissent from Judge Keasler.

The US Supreme Court agreed this term to consider similar issues in a pair of related cases. According to Reuters, "The court will hear oral arguments in April and issue rulings by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212." The Texas CCA opinion governs state and local law enforcement, not the feds.