Do You Have An Expectation of Privacy in the Contents of Your Cell Phone?
Can law enforcement access the information and data stored on your cell phone? Everyone has a cell phone. It is predicted that by the end of 2013 there will be more active cell phones in-use than there are people on the planet-7.3 billion. They have evolved from bulky bags to sleek and can fit in the palm of your hand. They are capable of taking high resolution photos, videos, playing movies, playing games, storing personal data and financial information, contact information for friends and business, as well as surfing the internet. The question becomes whether you have an expectation of privacy for the information and data stored on your phone. A recent Texas case held that people in Texas have an expectation of privacy in the information and data stored on your phone.
Anthony Granville was arrested for causing a disturbance at school. While the phone was in the custody of police during booking, an officer, who was not involved in his arrest, had heard that he had taken a photo of a student urinating in a urinal at the school. The officer scrolled through his phone and found the photo Granville had taken in the rest room. He was charged with Improper Photography or Visual Recording. The trial court suppressed the evidence and refused to allow the State to use it against Granville, thereby causing the charges to be dismissed.
There are several interesting aspects to the decision. First, the court found that the officer's review of the phone's contents was a search. Since Granville had an expectation of privacy in the information and data stored on his cell phone, the 4th Amendment against unreasonable searches and seizures applied. The Court concluded that the simple act of a governmental body taking custody over personal property of another does not put an end to all expectations of privacy. The Court noted that the phone was not evidence of the crime for which he was arrested. Further, there was no evidence that the phone was capable of being used as a weapon, posed some harm to the Defendant, inmates, or jail security. As a detainee who was expected to post bond and be released shortly after his arrest, he still retained some privacy rights although convicted prisoners lose most expectations of privacy.
The bottom line is this. Turn off your phone if you believe you are going to be arrested. Also, have a security code on the phone so that if law enforcement does power on your phone, any information will be inaccessible to them.