After officers pulled over Brian Morton for speeding, they found lots of sex crimes evidence. Later, after they executed a search warrant, they found even more on his cell phone.
Highway Patrol officers stopped Mr. Morton for speeding in September 2018. In a subsequent vehicle search, they found about 100 pairs of women’s underwear, a dozen sex toys, and Ecstasy. After obtaining a warrant, they searched Mr. Morton’s cell phone and found over 19,000 child pornography images. He had downloaded most of them from Tumblr.
In December 2018, the blog/social media site said it would prohibit adult content. The announcement came shortly after Apple removed the Tumblr app from the Apple store because of inadequate content filtering.
Search Warrant Exceptions at Traffic Stops
Officers almost never have search warrants at traffic stops. So, when they seize evidence, a search warrant exception must generally apply.
Until very recently, courts broadly interpreted the search incident to arrest exception. Officers could “arrest” people for offenses like speeding, which is technically an arrestable offense in Texas. Then, they could almost literally tear the car apart in a search for contraband. But in 2009’s Arizona v. Gant, the Supreme Court limited these searches to weapons pat-downs. So, this exception is not used very much anymore.
But there are still many other exceptions, and chances are, at least one of them applies to evidence that officers seize at traffic stops:
· Consent: If the owner allows officers to “have a look around,” they will search the property or vehicle extensively. Effective consent is sometimes an issue with roommates and passengers. The person giving permission must either have the actual or apparent authority to do so.
· Plain View: Officers can take any contraband they see in plain view, assuming that the officer is lawfully at that place at that time. Partial plain view cases (e.g. the butt of a gun is visible) are in a grey area.
· Exigent Circumstances: If officers feel people are in danger, they may enter premises without warrants and seize any contraband they find in plain view. This exception comes up a lot in house searches.
Weapons pat-downs and some automobile searches are also exceptions to the search warrant requirement.
Can Officers Search My Cell Phone?
Criminal defense attorneys field this question a lot in the smartphone era. Many people, including myself, almost have their entire lives on their cell phones.
If officers have probable cause to search the phone and obtain a warrant to do so, pretty much everything on the phone, including cloud storage, is fair game. But what if there is no warrant? What can officers do then?
Fundamentally, the search warrant requirement balances the government’s right to investigate crime with the individual’s reasonable expectation of privacy. If the phone is password-protected, that’s like a locked door. Officers can only go through the door if an exception applies. If the phone is not password-protected, officers can definitely look at the home screens. But the more times they tap the screen to do something like review text messages, the greater the individual’s expectation of privacy becomes.
Officers must obey all procedural requirements when they obtain evidence. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. Home and jail visits are available.
