Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Lawyer Jeremy Rosenthal

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It’s becoming more and more frequent where I have clients arrested for drug charges (and even intoxication charges) who are telling me the police simply took their phone and started thumbing through it.  Sometimes the police even keep the phone.

Can Police Search a Cell Phone?

This is an extremely hot legal topic.  As of the writing of this article (June, 2013) the answer simply depends on where you live.

We currently have what we call in the legal profession “splits” between Federal Appellate Courts and between State Courts.  This means Courts on many levels simply can’t agree.  Splits like these are usually resolved by the U.S. Supreme Court when they feel the issue is ripe enough.

What Texas Courts Currently Say about Cell Phone Searches

In United States v. Finley, 477 F.3d 250 (5th Cir. 2007) the Federal Appeals Court for the 5th Circuit (Texas and Louisiana) allowed a search of a cell phone during a drug arrest.  The Court took the position a cell phone was no different than a container found in the car.  The rationale was because police can search a container for evidence after an arrest in a car — they can search a phone too.

As a historical note — the first iPhone was released in June, 2007.  Smart phone technology and usage was comparatively in its infancy compared even with today.

Many courts have grown wary and even antagonistic of the logic of Finley.  In State v. Granville, 373 S.W.3d 218 (Tex.App.– Amarillo, 2012, pet. granted) the Amarillo state court of appeals held the search of a cell phone illegal and discussed the many personal things we have on phones including pictures, calendars, web browsing etc., etc., etc.

The Texas Court of Criminal Appeals has agreed to hear the Granville case which means Texas law will become more clear on the issue one-way or the other.

What Will Ultimately Happen With the Law?

It’s hard to imagine Courts will not draw more privacy distinctions between a smart phone and a glove-box in a car.  In a society where everyone essentially has a smart-phone, the expectation these things are private greater and greater.  Merely because you take one with you in your car doesn’t mean you want the whole world to thumb through it.

What Do I Do if My Cell Phone Was Taken By Police?

Fight it.

Police are on very shaky legal ground when they take a phone and begin to search through it as if it was their own.  Even if some Judge’s think this is okay for them to do — it’s doubtful juries will comfortable with the practice.

Getting the phone back from the police is a different issue.  If it’s technically “evidence” seized in the case you may be without it for a while.  You can always ask the Judge in the case to have the police return your property but it may not be until after the case is resolved.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should always contact an attorney directly.