How a Picture of a Kid Peeing Turned Into a Victory for Cell Phone-Privacy Rights in Texas
Anthony Granville didn't set out to strike a blow for privacy rights on the fateful day in November 2010 when he snapped a cell-phone photo in a boy's restroom at Huntsville High School. Quite the opposite, in fact. According to prosecutors, Granville's photo, taken without the subject's permission, showed another student urinating.
When he was told of the photo, Huntsville High school resource officer Everett Harrell recognized it as a potential case of improper photography, a state jail felony. He just needed the picture to prove it.
Harrell got his chance the next day when Granville was booked into the county lockup on an unrelated charge of causing a disturbance on a school bus. He drove to the jail, retrieved Granville's cell phone from the property room, and printed a copy of the picture.
Had Harrell first gotten a warrant, the case against Granville could have been a slam dunk, but he didn't think he needed to. Neither did the prosecutor.
"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," she said. That applies whether the matter in question is something dug from pants pockets or from a search through the cell phone.
The trial judge sided with the defense and barred the image from being introduced as evidence. So, prosecutors appealed to an appeals court in Amarillo, which, in the course of upholding the judge's ruling, penned an epically terrible history of the cell phone that reads as if the justices are mimicking entry-level copywriters channeling third-rate sci-fi hacks:
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 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 1980s, 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, an the like. Due to the abundance of programs or "apps" available, users also have the ability to personalize their phone; it is not far fetched 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, encrypt 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 expectation of privacy in the data contained in or accessible by his cell, now "smart" phone.
Prosecutors were unmoved, both by the appellate court's prose and the involvement of outside groups like the Electronic Frontiers Foundation and ACLU. They promptly appealed to the Texas Court of Criminal Appeals, the state's ultimate authority in criminal matters, which handed down its decision on Wednesday.
In an 8-1 decision, the court joined the two lower courts in ruling that cops need a warrant to search a suspect's cell phone.
"[W]e 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," they write in their opinion.
People have a reasonable expectation that the information on their cell phones is private, even when they are booked into jail. Just like the documents in a filing cabinet at a person's home, the information on a cell phone is protected from warrantless searches by the Fourth Amendment.
The argument advanced by prosecutor, essentially that "when a citizen is arrested for any offense, such as failing to wear a seat belt, everything that the person possessed at the time of that arrest -- purse, briefcase, laptop computer, cell phone, medical records, IRS returns, trade secret information -- is subject to a warrantless search," does not withstand much scrutiny, they write.
That's not to say that taking pictures of people urinating is OK. It's still really creepy, and it's still illegal. It's just that anyone who does take such pictures would be wise to delete them before the cops can get a warrant.
Send your story tips to the author, Eric Nicholson.