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The Power of the Police to Search Your Home and Property: 2 New High Court Opinions On When Police Can Search Without a Warrant in Texas

It seems like there are weekly, if not daily, news stories covering excessive force or unwarranted use of police power by law enforcement officers around the country and it is only through the criminal justice system – particularly criminal defense fights and judicial reasoning and opinion – that people can find justice from overzealous police officers who do wrong in the course of their duties to “protect and serve.”

Each of our rights as citizens to privacy and to protection from unwarranted search and seizure of our property is at risk today, and within the past twenty-four hours, the highest court in the United States and the highest court in the State of Texas have each issued major court decisions dealing with the power of police officers to search your stuff.

seal of the united states supreme court, court seal

1. US Supreme Court Okays Police Entering Home Without a Search Warrant

The United States Supreme Court ruled yesterday in the case of Fernandez v. California that police can search your home without a search warrant if one of the occupants agrees to allow the police to enter even if the other occupant does not – and, little surprise here, it’s this refusing occupant who ends up arrested.

You can read the full text of Fernandez v. California here.

What does this mean to you and me here in Texas?

With this new Supreme Court decision, police officers can wait around till their target isn’t home and then knock on the door and ask his girlfriend or roommate or other occupant for consent to search the premises. Easy peasy. Think they won’t do this? Of course they will. Think they won’t be very intimidating in their discussions with that girlfriend or roommate? Of course they will.

Nevertheless, Fernandez isn’t a big landmark change in search warrant and privacy law; there was already a Supreme Court case on the books, Georgia v. Randolph, that speaks to this issue and Fernandez is really giving the High Court’s okay to how the federal appellate courts have followed that case.

Fernandez explains:

In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized …that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared. …

Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent.


2. Texas Court of Criminal Appeals Nixes Police Surfing Cell Phones After Arrest Without a Search Warrant

Today, the highest criminal court in the state, the Texas Court of Criminal Appeals, released its opinion in the case of Texas v. Granville (read the opinion here). This is new law that impacts state law enforcement (and all the local police departments and county sheriff’s offices and other local law organizations, too). We’re still waiting to hear the United States Supreme Court’s ruling in two similar cases at the federal level: Riley v. California and U.S. v. Wurie (see our blog post on those two cases here).

From the Texas v. Granville opinion:

In sum, we conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room. Officer Harrell could have seized appellant’s phone and held it while he sought a search warrant, but, even with probable cause, he could not “activate and search the contents of an inventoried cellular phone” without one.

Texas High Court Opinion Protects Your Cell Phone Privacy From State and Local Police After Arrest

What Texas v. Granville means to you and me: in this new opinion, the Texas Court of Criminal Appeals has decided that in the State of Texas there is constitutional protection provided by the Fourth Amendment against allowing the police to search your cell phone contents as part of your arrest.

In other words, here in Texas just because you’re arrested does not mean that the police can pick up your phone and find out things like:

  • call history (everyone you have called, and everyone who called you);
  • stored voice mails
  • Saved text messages
  • Saved photos
  • Stored videos
  • Personal information discoverable through phone apps (including passwords); and
  • Where you have been via things like geographic tracking using things like cell towers and WiFi networks.

With this new CCA opinion, state and local law enforcement cannot just take your phone after they cuff you and book you and then start surfing through all the stuff you have on your phone once you’re behind jail cell bars. That’s new Texas law today and it’s great news for all Texans as it provides needed protection against police officers exceeding boundaries and going further than they should in their zeal to do their jobs.

3. Why Do We Need to Know About All These Court Decisions? Because You Need to Know Your Rights in Dealing with The Police

It’s important for everyone to know about their rights if they are stopped by law enforcement or otherwise have dealings with the police. No one can assume that law enforcement is going to protect their rights.

And if you think that police officers cannot be overly zealous in performing their job duties, just consider the following video, think about these officers and whether or not you think there need to be legal boundaries or when they can come into your home without a search warrant or prohibiting them from zipping through someone’s smartphone just because they’ve placed them under arrest:

[VIDEO SOURCE:  Baltimore County cops doing their thing at the Towson bars. from Gootz on Vimeo.]


For more information, read Michael Lowe’s discussion of Pre-Arrest Criminal Investigations or watch his explanatory video here


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