"Is a cell phone really a pair of trousers?"

That's the question posed in a Texas case dealing with whether the police need a warrant to search the contents of a cell phone sitting in a jail's property room. In a new amicus brief we filed in the Texas Court of Criminal Appeals, we explain police need a warrant before searching an arrested person's cell phone.

Teenager Anthony Granville was arrested at his high school for a misdemeanor and booked into the county jail. All of his belongings, including his cell phone, were taken from him and placed in the jail's property room while he was locked up. Three hours after his arrest, a different officer than the one who arrested Granville at the high school went into the property room and, without a search warrant, looked through Granville's phone in search of evidence connected to another, unrelated misdemeanor felony.

The trial court suppressed the evidence taken from the phone, finding the officer had plenty of time and opportunity to obtain a search warrant and no exigent circumstance justified the search. The state appealed to the Texas Court of Appeals, arguing that Granville had no expectation of privacy in the contents of his cell phone while it was in the jailhouse, noting that looking through the phone was no different than looking at a person's clothes when they are booked into jail. The appellate court disagreed with the government's analogy, finding the amount of information stored on mobile devices make a cell phone search far more invasive than a search of clothing. Now the case is in front of the Texas Court of Criminal Appeals and we've filed an amicus brief along with EFF-Austin, the Texas Civil Rights Project and the ACLU of Texas urging the high court to affirm the decision of the two courts before it that found the government's warrantless search violated the Fourth Amendment.

In our amicus brief we explain the government had no excuse for not obtaining a warrant before searching Granville's phone. A person doesn't surrender their expectation of privacy in the contents of their phone once the phone is in the hands of jail officials. Plus none of the exceptions to the search warrant requirement applied. This wasn't a search "incident to arrest" since it took place hours after Granville was arrested, when the phone was out of his control. And it wasn't an "inventory search" because once the phone itself was inventoried and secured by the police, there was no need to inventory the data on the phone. Plus, a inventory search can't be used as a pretext for a clearly investigatory search, which this certainly was.

Trying to pigeonhole the search of a cell phone into legal precedent addressing something quite different only highlights the need to have the law account for technological changes. As Professor Orin Kerr observed recently, "thanks to changing technology and its widespread adoption, searching a person meant one thing in 1973 and means something quite different today." Courts are slowly recognizing this. In United States v. Cotterman, the Ninth Circuit Court of Appeals recently ruled that given the amount of information stored on electronic devices, border agents must have a reasonable suspicion of criminal activity before engaging in a "forensic examination" of an electronic device. Part of the court's justification was that although the amount of items a person can carry in physical luggage is necessarily limited, the same isn't true with electronic devices. A broad electronic search policy would be the equivalent of searching luggage for "not only what the bag contained on the current trip, but everything it had ever carried."

The appellate court's obvious conclusion that "a cell phone is not a pair of pants" follows this correct line of thinking and makes clear that our privacy rights don't become eviscerated simply because invasive searches not contemplated 30 years ago can now happen with just a few taps on a screen.

Special thanks to Amy Eikel of King & Spalding LLP in Houston, Texas for writing our brief.