Jason D. Cassel

Jason Cassel, a member of the TCDLA Board of Directors 2008–present (and the Associate Board 2006–2008), received his BA in History from Texas A&M in 1995 and his JD from the South Texas College of Law in 1998. A member of the State Bar of Texas, District 2 Grievance Committee, Jason also belongs to the National College for DUI Defense. A frequent speaker at TCDLA seminars, he was named a Rising Star by Texas Monthly magazine for 2011 and 2012. Jason is a partner with the Albritton Law Firm.

If My Phone Is Just a Pair of Trousers, Why Did I Pay $500 for It?

“Is a cell phone really a pair of trousers?”1 This was Justice Brian Quinn’s question in State v Granville. It is also the question we each should be asking as police practices exploit old-fashioned search and seizure law to conduct warrantless searches and gain access to the most private and intimate details of our lives, far beyond what a traditional diary would have held.

Technology moves faster than the law. As our daily use of technology grows and becomes more complex and intertwined with our life, there seems to be an effort, or maybe it is a need, to apply yesterday’s logic and terminology to today’s technological gadgetry. This is especially true in the opinions coming out of some federal and state courts of appeals. It seems that courts are struggling with whether a phone is really a phone anymore, or is that just the word we use out of simplicity and tradition. Today, a phone is so much more than what it was just ten years ago, and phone makers and wireless companies spend billions a year in advertising telling us why.

Who under the age of 30 really even “talks” on the phone anymore? Almost no one uses the smart phone to talk as their primary way of communicating. People text; and boy do they text. Whether it is “sexting,” looking for a gram of weed, or what bar to go to, people text. They also maintain their Facebook account. They make posts about how much, where and with whom they drink, smoke, or have sex with. They “check in” to bars, restaurants, and clubs that have Facebook pages. They post pictures, tag them, and send them. They send and receive emails. They take pictures of checks that are then deposited into their bank accounts. They watch videos, stream live TV, control their home alarm, security system, and thermostat. They even can take an ECG approved by the FDA.2 They synchronize photos and personal information with their laptop at home or at work. Everything nowadays is in the clouds. What can be done on or with a smart phone is limitless. Anyone can create an app and upload it for anyone else in the world to use. Remember, there’s an app for that.

To the lay person it seems obvious that all of this would be protected and private, especially if you got arrested for a mis­demeanor DWI or Possession of Marihuana. Not so fast. How many clients sitting in the backseat of a patrol car do you hear screaming on video, “Why are you searching my phone?” In United States v. Finley, the Fifth Circuit upheld the search of a cell phone as a search incident to an arrest.3 The Court found that because the cell phone was found on Finley’s person it was subject to search, just as any container, open or closed, located within an arrestee’s reach.4 However, did Finley, and the courts that have followed or employed the same logic, miss the point or at least torture the meaning of “container”?5

The most obvious point is that a cell phone is not really a “container.” If a cell phone is a “container,” was a regular phone also a “container”? Or did a cell phone become a “container,” as discussed in New York v. Belton, by virtue of its technological uses to browse the internet and to maintain vast amounts of information?6 Calling a cell phone a “container” is simply trying to fit a technologically advanced square into an archaic round hole. Schlossberg v. Solesbee makes this point.7 A phone is not a “container” in the literal sense, as it is not capable of holding an object.8 Furthermore, once a container is opened its contents are in plain view, while a smart phone has to be “awake” or unlocked and then the contents must be rummaged through with swipes of the thumb. None of this is in plain view without manipulation. This is where decades of thought and case law lag behind the technological advances and societal expectations and changes.

Schlossberg recognized that technology and society have shifted to where people have a tremendous expectation of privacy in their smart phones.9 We use them in a way that we would have never conceived of even ten years ago. The law has not caught up to these changes.10 Instead, courts are applying antiquated ideas about what a “container” is to decide the constitutionality of searches of smart phones, which can hold or access practically every detail of your life.

State v. Granville has recognized these technological and societal shifts as well. Granville was arrested for creating a school disturbance, a Class C misdemeanor.11 Another officer learned of his arrest and, believing he might have information about a case he was investigating, took the phone from Granville’s property.12 After discovering a photo of a fellow student urinating, Granville was indicted for Improper Photography.13 Granville moved to suppress the photo, arguing it was obtained without a warrant and the trial court agreed. The State argued that the phone was seized pursuant to a lawful arrest, and because Granville was an arrestee, he did not have an expectation of privacy in the electronically stored information on his cell phone that was in his jail property. Justice Quinn outlined the remarkable leaps in smart phone technology and discussed opinions from around the country on the issues. In the end, the Amarillo Court of Appeals recognized that the expectation of privacy in Granville’s smart phone sets it apart from a pocket or other containers that might be found on an arrestee’s person. The opinion does, however, leave the door open to some warrantless searches of smart phones, such as exigent circumstances.

The Court of Criminal Appeals granted discretionary review on October 10, 2012. It will be interesting to see how the Court addresses these issues. This is an important issue as I have had countless clients tell me how the officer rummaged through their phone, scrolling through it at the jail or while they sat in the police car. Fortunately, rarely was anything ever discovered that made a difference in the outcome of a case, but it is only a matter of time. As we all know, it is often through the guilty that our collective rights are preserved.

Notes

1. State v. Granville, 373 S.W.3d 218 (Tex. App.—Amarillo 2012, pet. granted).

2. http://www.alivecor.com .

3. United States v. Finley, 477 F.3d 250, 259–60 (5th Cir. 2007).

4. Id., citing New York v. Belton, 453 U.S. 454, 460–61, 101 S.Ct. 2860, 69 L.Ed.2d. 768 (1981).

5. United States v. Hill, 2011 U.S. Dist. LEXIS 4104, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011); United States v. Curtis, 635 F.3d 704 (5th Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 191, 181 L. Ed. 2d 99 (2011); United States v. Butler, et al., No 11-20310 (5th Cir. May 18, 2012).

6. New York v. Belton, 453 U.S. 454, 460 (1981).

7. Schlossberg v. Solesbee, 844 F. Supp. 2d 1165 (D. Oregon 2012).

8. Id. at 1169, Belton at 461.

9. If the search of a phone incident to arrest is lawful, will owners be required to provide the password to the arresting officer or will a “data dump” back at the station be permissible?

10. Don’t take my word for it. Ask anyone under the age of 30 about how they view the information contained on their cell phone or ask any divorce lawyer how many issues they have with what was thought to be secret information be­ing pulled from cell phones in divorce cases.

11. Granville, 373 S.W.3d at 218.

12. Id.

13. Id.