State v. Granville, No. PD–1095–12.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation423 S.W.3d 399
Docket NumberNo. PD–1095–12.
PartiesThe STATE of Texas v. Anthony GRANVILLE, Appellee.
Decision Date02 April 2014

423 S.W.3d 399

The STATE of Texas
v.
Anthony GRANVILLE, Appellee.

No. PD–1095–12.

Court of Criminal Appeals of Texas.

Feb. 26, 2014.
Rehearing Denied April 2, 2014.


[423 S.W.3d 402]


J. Paxton Adams, Hunstville, TX, Shane Phelps, Attorney at Law, Bryan, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.


OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and ALCALA, JJ., joined.

This case raises the issue of whether a person retains a legitimate expectation of privacy in the contents of his cell phone when that phone is being temporarily stored in a jail property room.1 The trial judge granted Anthony Granville's motion to suppress, concluding that the high-school student did not lose his legitimate expectation of privacy in his cell phone simply because it was being stored in the jail property room after he had been arrested for a Class C misdemeanor. The court of appeals affirmed that ruling. 2 We granted the SPA's petition for discretionary review, but we reject its argument that a modern-day cell phone is like a pair of pants or a bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room. We therefore affirm the judgment of the court of appeals.

I.

One morning, Anthony Granville was arrested for the Class C offense of causing a disturbance on the school bus. His cell phone was taken from him during the booking procedure and placed in the jail property room. Later that day, Officer Harrell, a Huntsville Police “School Resources Officer,” was told that, the day before he was arrested, Mr. Granville had used his cell phone to take a photograph of another student urinating in the boys' bathroom. Officer Harrell, who was not involved in arresting Mr. Granville, then drove to the jail and retrieved the cell phone from the jail property room. He examined its contents without first getting a warrant. The officer turned on the phone, which had been turned off. He went through it until he found the photograph he was looking for, then took the phone to his office, and printed a copy of the photograph. He kept the phone as evidence.

Mr. Granville was charged with the state-jail felony of Improper Photography, and he filed a motion to suppress, arguing that Officer Harrell could not search his cell phone without a warrant. At the hearing on the motion to suppress, both Officer Harrell and the prosecutor contended that if an officer has probable cause, he may search anything in the jail

[423 S.W.3d 403]

property room that belongs to a jail inmate. There are no exceptions. The trial judge tested this hypothesis by asking the prosecutor, “[D]o you agree that there is an expectation of privacy on the information the person has on their cell phone?” The prosecutor responded, “If you have it in your possession and not committed a crime, sure.” She elaborated further:

I think if you're in the Walker County jail you have no expectation of privacy in the personal effects that you had on you at the time that you were arrested.... His expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of his release from detainment or incarceration.

Defense counsel disagreed: “[I]t is clear that everybody in this room has some subjective belief that their cell phone is private and it doesn't matter if it is lawfully seized by the cops.”


The trial judge posed the legal issue nicely:

So if I get arrested for jay walking out here this afternoon and get put in jail, any officer in town can go out there and go through my phone, cell phone, and might discover that I have a picture of Prometheus chained to a rock in the mountains and an eagle eating his liver out?

Yes, said the State; “If an officer has probable cause to believe that you committed a crime or evidence of that crime [is] on your phone, then, yes he can look at it. Otherwise, no he can't look at your phone because he wants to. He has to have probable cause.”


After studying the law, the trial judge granted the motion to suppress and entered findings of fact, concluding that the cell phone was the personal property of Anthony Granville; Officer Harrell took possession of it without a warrant; and the officer “searched the contents of the cell phone until he found the photograph he sought.” 3 Based on his factual findings, the trial judge concluded that Anthony

[423 S.W.3d 404]

Granville had a subjective, reasonable, and legitimate expectation of privacy in his cell phone “even when that cell phone [was] in the jail inventory of an accused.” Because Officer Harrell had neither a search warrant nor exigent circumstances to make a warrantless search of that phone, the trial judge granted the motion to suppress.4

The State appealed, and the court of appeals affirmed, finding that (1) a person “has a general, reasonable expectation of privacy in the data contained in or accessible by his cell, now ‘smart’ phone,” 5 and (2) a person continues to have a reasonable expectation of privacy in the contents of his cell phone even though it has been placed in a jail property room for safekeeping.6 The court of appeals ended its opinion with a rhetorical flourish, noting that “[a] cell phone is not a pair of pants,” like the pants and shoes whose warrantless seizure from the jail property room and later search and testing we upheld in Oles v. State.7

II.

Appellate courts afford almost total deference to a trial judge's findings of fact in a suppression hearing as long as those factual findings are supported by the record.8 We also view his factual findings in the light most favorable to his ruling.9

[423 S.W.3d 405]

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” 10 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.11 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.” 12 This is a case about rummaging through a citizen's electronic private effects-a cell phone-without a warrant.

A. Standing: A Cell Phone Owner Has Both a Subjective and Reasonable Expectation of Privacy in His Cell Phone.

A person has “standing” to contend that a search or seizure was unreasonable if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society is prepared to recognize that expectation as “reasonable” or “legitimate.” 13 The “standing” doctrine ensures that a person may claim only that his own rights have been violated; he cannot assert that he is entitled to benefit because the rights of another have been violated.14 A person's constitutional right to be free from unreasonable searches is a personal right that cannot be asserted vicariously.15

Courts have held that (1) a person has a subjective expectation of privacy in the contents of his cell phone,16 and (2) this

[423 S.W.3d 406]

expectation of privacy is one that society recognizes as reasonable and legitimate.17

A person's subjective expectation of privacy in a cell phone that he owns and possesses is supported by decades of cases on “standing.” 18 A defendant normally has “standing” to challenge the search of places and objects that he owns. For example, a homeowner has standing to challenge a search of his home.19 And a person

[423 S.W.3d 407]

generally has standing to challenge the search or seizure of a car he owns. 20

A “legitimate” expectation of privacy acknowledges the lawfulness of the person's “subjective” expectation of privacy. As the Supreme Court has explained,

a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence ... is “wrongful”; his expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.21

The factors that courts use in deciding whether a person has a reasonable expectation of privacy in the place or object searched include the following:


(1) whether the defendant had a proprietary or possessory interest in the place or object searched; 22

(2) whether the defendant's presence in or on the place searched was legitimate;

(3) whether the defendant had a right to exclude others from the place or object;

[423 S.W.3d 408]

(4) whether the defendant took normal precautions, prior to the search, which are customarily taken to protect privacy in the place or object;

(5) whether the place or object searched was put...

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139 practice notes
  • State v. Villarreal, NO. PD–0306–14
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 26, 2014
    ...contemporaneous" with the arrest and is confined to the area within the immediate control of the arrestee. State v. Granville, 423 S.W.3d 399, 410 (Tex.Crim.App.2014) (citing Vale v. Louisiana, 399 U.S. 30, 33, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) ). The justification for permitting such a ......
  • Ford v. State, No. 04–12–00317–CR.
    • United States
    • Court of Appeals of Texas
    • August 20, 2014
    ...obtain a warrant before searching the contents of a cell phone seized incident to an arrest. Id. at 2494–95 ; cf. State v. Granville, 423 S.W.3d 399, 417 (Tex.Crim.App.2014) (holding “a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely beca......
  • State v. Rodriguez, NO. PD-1391-15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 7, 2017
    ...about giving police officers unbridled discretion to rummage at will among a person's private effects. 521 S.W.3d 9 State v. Granville , 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). A Fourth Amendment claim may be based on a trespass theory of search (one's own personal effects have been tre......
  • Tracey v. State, No. SC11–2254.
    • United States
    • United States State Supreme Court of Florida
    • October 16, 2014
    ...Oliver v. United States, 466 U.S. 170, 177 n. 7, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Cell phones are “effects.” State v. Granville, 423 S.W.3d 399, 405 (Tex.Crim.App.2014). A vehicle is undisputedly an “effect” as that term is used in the Fourth Amendment. Jones, 132 S.Ct. at 949. Letter......
  • Request a trial to view additional results
139 cases
  • State v. Villarreal, NO. PD–0306–14
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 26, 2014
    ...contemporaneous" with the arrest and is confined to the area within the immediate control of the arrestee. State v. Granville, 423 S.W.3d 399, 410 (Tex.Crim.App.2014) (citing Vale v. Louisiana, 399 U.S. 30, 33, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) ). The justification for permitting such a ......
  • Ford v. State, No. 04–12–00317–CR.
    • United States
    • Court of Appeals of Texas
    • August 20, 2014
    ...obtain a warrant before searching the contents of a cell phone seized incident to an arrest. Id. at 2494–95 ; cf. State v. Granville, 423 S.W.3d 399, 417 (Tex.Crim.App.2014) (holding “a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely beca......
  • State v. Rodriguez, NO. PD-1391-15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 7, 2017
    ...about giving police officers unbridled discretion to rummage at will among a person's private effects. 521 S.W.3d 9 State v. Granville , 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). A Fourth Amendment claim may be based on a trespass theory of search (one's own personal effects have been tre......
  • Tracey v. State, No. SC11–2254.
    • United States
    • United States State Supreme Court of Florida
    • October 16, 2014
    ...Oliver v. United States, 466 U.S. 170, 177 n. 7, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Cell phones are “effects.” State v. Granville, 423 S.W.3d 399, 405 (Tex.Crim.App.2014). A vehicle is undisputedly an “effect” as that term is used in the Fourth Amendment. Jones, 132 S.Ct. at 949. Letter......
  • Request a trial to view additional results

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