In recent history, the search and seizure of cellular phones and cellular devices has created a peculiar issue for police agencies, courts, and criminal defense attorneys. In less than twenty years, cell phones have developed from minimally functioning mechanisms for voice calls to complex, miniature computers. Most modern phones have capabilities to store detailed contact information, calendar and schedule information, call logs, text messages, and voicemails. More sophisticated models, like the Apple iPhone 6s, have the capability to store more intrusive information like geographic location, frequented locations, and suggested identities of unsaved contacts. Cell phones often contact every detail of the user’s life. Many cell phone users possess the same expectation of privacy in their phones as they expect in their homes. This year, Texas legislators agreed and amended legislation as a result.
HB 1396 amends Article 18.02(a) of the Texas TX Code of Criminal Procedure.
Under the new terms, a law enforcement officer must obtain a warrant before searching or seizing a cellular device absent specific exceptions. In the application, the officer must state the facts that establish probable cause that criminal activity is, has been, or will likely be committed; or the search of the telephone or device will likely produce evidence that criminal activity has occurred. Should the evidence alleged in the application for the warrant be unsupported, the evidence obtained from the cell phone search may be inadmissible.
This amendment to Article 18.02(a) provides additional protection for personal information; however, there are exceptions to the warrant requirement, including consent and exigent circumstances. A warrant is not required if the owner or possessor of the cellular device consents to the search and seizure of the device. Further, a warrant is not required in exigent or emergency circumstances as defined in Texas Code of Criminal Procedure Article 18.20. Essentially, a warrant is not required when there is an immediate danger of death and/or serious injury. When a search is conducted under the exigent circumstances exception, the law enforcement officer’s actions can be later examined in a hearing.
So, what does this mean for you? Essentially, Texas law protects your private, personal information from unjustified, intrusive searches. Law enforcement must be able to articulate the facts that establish probable cause that criminal activity is, has, or will likely occur to obtain a warrant. While this warrant requirement may result in the destruction of potential evidence and delay the investigation process, this requirement provides similar protection for cellular devices as citizens have long enjoyed in their homes. For more information about the amended form of Texas TX Code of Criminal Procedure Article 18.02(a) and the warrant exceptions, contact an experienced Houston Criminal Defense Attorney.