The Fourth Amendment to the U.S. Constitution is quite clear.
It says, in part, “The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures shall not be violated …”
Let’s stipulate that the writers of the Constitution lived in the late 18th century and they did not have cell phones to include certain “effects.” Cell phones, though, are “effects” and as such, ought to be included in that Fourth Amendment provision.
So, let’s suppose you’re accused of committing a crime. The police want to seize your cell phone to gather evidence. Do you give it up without a warrant? The Constitution says you don’t have to surrender your phone any more than you have to surrender “papers.”
A case out of Walker County illustrates the point. The case involved a young man who was part of a disturbance aboard a Huntsville Independent School District bus. The young man had sought a motion to suppress evidence when his cell phone was taken by police and stored in an evidence room. The Texas Court of Criminal Appeals eventually heard the case and concurred with a lower-court ruling that had granted the young man’s motion.
The student had been arrested on a Class C misdemeanor after he allegedly used his cell phone to photograph another student urinating in the boys’ bathroom. An officer obtained the cell phone from the evidence room without a warrant from the court and then examined its contents. The officer turned the phone on and searched it for the photograph in question. He found it, printed a copy of the picture and presented the picture as evidence in court.
The student was charged with improper photography, which is a state-jail felony under Texas law.
The court ruled that a cell phone is not like “pair of pants” that’s been kept in the evidence room and that the student had a reasonable expectation to be granted his privacy rights under the Fourth Amendment.
Cell phones, therefore, may be someone’s personal property, but they contain information that an individual can claim to be his or hers alone – and no one else’s.