J. Paxton Adams, Hunstville, TX, Shane Phelps, Attorney at Law, Bryan, TX, for Appellant. John R. Messinger, Assistant State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and ALCALA, JJ., joined.

This case raises the issue of whether a person retains a legitimate expectation of privacy in the contents of his cell phone when that phone is being temporarily stored in a jail property room.

The trial judge granted Anthony Granville's motion to suppress, concluding that the high-school student did not lose his legitimate expectation of privacy in his cell phone simply because it was being stored in the jail property room after he had been arrested for a Class C misdemeanor. The court of appeals affirmed that ruling.

We granted the SPA's petition for discretionary review, but we reject its argument that a modern-day cell phone is like a pair of pants or a bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room. We therefore affirm the judgment of the court of appeals.

I.

One morning, Anthony Granville was arrested for the Class C offense of causing a disturbance on the school bus. His cell phone was taken from him during the booking procedure and placed in the jail property room. Later that day, Officer Harrell, a Huntsville Police “School Resources Officer,” was told that, the day before he was arrested, Mr. Granville had used his cell phone to take a photograph of another student urinating in the boys' bathroom. Officer Harrell, who was not involved in arresting Mr. Granville, then drove to the jail and retrieved the cell phone from the jail property room. He examined its contents without first getting a warrant. The officer turned on the phone, which had been turned off. He went through it until he found the photograph he was looking for, then took the phone to his office, and printed a copy of the photograph. He kept the phone as evidence.

Mr. Granville was charged with the state-jail felony of Improper Photography, and he filed a motion to suppress, arguing that Officer Harrell could not search his cell phone without a warrant. At the hearing on the motion to suppress, both Officer Harrell and the prosecutor contended that if an officer has probable cause, he may search anything in the jail property room that belongs to a jail inmate. There are no exceptions. The trial judge tested this hypothesis by asking the prosecutor, “[D]o you agree that there is an expectation of privacy on the information the person has on their cell phone?” The prosecutor responded, “If you have it in your possession and not committed a crime, sure.” She elaborated further:

I think if you're in the Walker County jail you have no expectation of privacy in the personal effects that you had on you at the time that you were arrested.... His expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of his release from detainment or incarceration.
Defense counsel disagreed: “[I]t is clear that everybody in this room has some subjective belief that their cell phone is private and it doesn't matter if it is lawfully seized by the cops.”

The trial judge posed the legal issue nicely:

So if I get arrested for jay walking out here this afternoon and get put in jail, any officer in town can go out there and go through my phone, cell phone, and might discover that I have a picture of Prometheus chained to a rock in the mountains and an eagle eating his liver out?
Yes, said the State; “If an officer has probable cause to believe that you committed a crime or evidence of that crime [is] on your phone, then, yes he can look at it. Otherwise, no he can't look at your phone because he wants to. He has to have probable cause.”

After studying the law, the trial judge granted the motion to suppress and entered findings of fact, concluding that the cell phone was the personal property of Anthony Granville; Officer Harrell took possession of it without a warrant; and the officer “searched the contents of the cell phone until he found the photograph he sought.”

Based on his factual findings, the trial judge concluded that Anthony Granville had a subjective, reasonable, and legitimate expectation of privacy in his cell phone “even when that cell phone [was] in the jail inventory of an accused.” Because Officer Harrell had neither a search warrant nor exigent circumstances to make a warrantless search of that phone, the trial judge granted the motion to suppress.

The State appealed, and the court of appeals affirmed, finding that (1) a person “has a general, reasonable expectation of privacy in the data contained in or accessible by his cell, now ‘smart’ phone,”

and (2) a person continues to have a reasonable expectation of privacy in the contents of his cell phone even though it has been placed in a jail property room for safekeeping.

The court of appeals ended its opinion with a rhetorical flourish, noting that “[a] cell phone is not a pair of pants,” like the pants and shoes whose warrantless seizure from the jail property room and later search and testing we upheld in Oles v. State.

II.

Appellate courts afford almost total deference to a trial judge's findings of fact in a suppression hearing as long as those factual findings are supported by the record.

We also view his factual findings in the light most favorable to his ruling.

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.”

The term “papers and effects” obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in “the cloud” and accessible by those electronic devices.

But the “central concern underlying the Fourth Amendment” has remained the same throughout the centuries; it is “the concern about giving police officers unbridled discretion to rummage at will among a person's private effects.”

This is a case about rummaging through a citizen's electronic private effects-a cell phone-without a warrant.

A. Standing: A Cell Phone Owner Has Both a Subjective and Reasonable Expectation of Privacy in His Cell Phone.

A person has “standing” to contend that a search or seizure was unreasonable if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society is prepared to recognize that expectation as “reasonable” or “legitimate.”

The “standing” doctrine ensures that a person may claim only that his own rights have been violated; he cannot assert that he is entitled to benefit because the rights of another have been violated.

A person's constitutional right to be free from unreasonable searches is a personal right that cannot be asserted vicariously.

Courts have held that (1) a person has a subjective expectation of privacy in the contents of his cell phone,

and (2) this expectation of privacy is one that society recognizes as reasonable and legitimate.

A person's subjective expectation of privacy in a cell phone that he owns and possesses is supported by decades of cases on “standing.”

A defendant normally has “standing” to challenge the search of places and objects that he owns. For example, a homeowner has standing to challenge a search of his home.

And a persongenerally has standing to challenge the search or seizure of a car he owns.

A “legitimate” expectation of privacy acknowledges the lawfulness of the person's “subjective” expectation of privacy. As the Supreme Court has explained,

a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence ... is “wrongful”; his expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.

The factors that courts use in deciding whether a person has a reasonable expectation of privacy in the place or object searched include the following:

(1) whether the defendant had a proprietary or possessory interest in the place or object searched;

(2) whether the defendant's presence in or on the place searched was legitimate;

(3) whether the defendant had a right to exclude others from the place or object;

(4) whether the defendant took normal precautions, prior to the search, which are customarily taken to protect privacy in the place or object;

(5) whether the place or object searched was put to a private use;

(6) whether the defendant's claim of privacy is consistent with historical notion of privacy.

Ownership or legal possession of the property searched is not the “be-all-end-all” in deciding whether a person has a legitimate expectation of privacy in it. But courts commonly find that a person has a legitimate expectation of privacy in the contents of his cell phone because of its “ability to store large amounts of private data” both in the cell phone itself and by accessing remote services.

This data may involve the most intimate details of a person's individual life, including text messages, emails, banking, medical, or credit card information, pictures, and videos.

A cell phone is unlike other containers as it can receive, store, and transmit an almost unlimited amount of private information.

The potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.

B. An Arrestee Normally Has an Expectation of Privacy in the Contents of his Cell Phone That Is Being Temporarily Stored in a Jail Property Room.

Although a person may have a reasonable and legitimate expectation of privacy in the contents of his cell phone, he may lose that expectation under some circumstances, such as if he abandons his cell phone,

lends it to others to use, or gives his consent to its search.

Courts across the country have wrestled with questions of when he might lose his reasonable expectation of privacy in other situations, perhaps if he is arrested and police perform a search of his cell phone incident to arrest

or, as here, of his cell phone stored in the jail property room.

Under the Fourth Amendment, police officers may search an arrestee incident to a lawful arrest.

The justification for permitting such a warrantless search is (1) the need for officers to seize weapons or other things which might be used to assault on officer or effect an escape, and (2) the need to prevent the loss or destruction of evidence.

A search is incident to arrest only if it is “substantially contemporaneous” with the arrest and is confined to the area within the immediate control of the arrestee.

Thus, a search incident to arrest cannot normally be justified if the “ ‘search is remote in time or place from the arrest’ ... or no exigency exists.”

In United States v. Edwards,

the Supreme Court recognized an exception to the “substantially contemporaneous” search-incident-to-arrest doctrine and upheld a warrantless search of an arrestee's clothes at the police station ten hours after the arrest.

In Edwards, the police took the arrestee's clothes to look for evidence of paint chips that would match samples that had been taken from the window of the post office during the attempted burglary.

The police waited these ten hours because “it was late at night” and they had no other clothes for Edwards to wear; “it would certainly have been unreasonable for the police to have stripped [Edwards] of his clothing and left him exposed in his cell throughout the night.”

The Court cautioned, however, that in upholding this particular search and seizure of an arrestee's clothing, it had “not conclud [ed] that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee.”

We relied upon the Edwards ruling and rationale in Oles v. State,

in holding that the warrantless search of an arrestee's clothing was not unlawful because the defendant failed to establish a subjective and reasonable expectation of privacy in the clothing he wore when arrested and that had been placed in the jail property room.

We explained that “arrestees do retain some level of privacy interest in the personal effects or belongings taken from them incident to their arrest,”

but that there is a lesser subjective expectation of privacy and a lesser societal expectation of privacy in inventoried property.

Of course, there is a vast difference between the privacy interests and expectations in clothing that one is wearing when arrested and certain other possessions that one might have with them.

Indeed, just a few years after deciding Edwards, the Supreme Court addressed the scenario of a 200–pound footlocker that had been seized when the defendant was arrested leaving a train station, but that was not searched until 90 minutes later and was no longer in the arrestee's possession.

The Court held that the evidence obtained from that search must be suppressed because the footlocker “was property not immediately associated with the arrestee” at the time of the search.

[O]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer incident to the arrest.

In such circumstances, the police may legitimately “seize” the property and hold it while they seek a search warrant.

But they may not embark upon a general, evidence-gathering search, especially of a cell phone which contains “much more personal information ... than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked.”

With that general background, we turn to the present case.

III.

In this case, the court of appeals summarized its holding and reasoning as follows:

Due to the potential invasiveness of the search, Granville's status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which appellant was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail's penalogical interest, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention.

The SPA argues that the court of appeals erred because an arrestee “has no legitimate expectation of privacy in the personal effects immediately associated with his person at the time of lawful arrest.”

In the SPA's view, Oles was “incorrect to hold that expectations of privacy in jail are only diminished-rather than nonexistent-and the court of appeals'[s] decision results directly from that holding and the unnecessary analysis performed to decide that case.”

According to the SPA, when a citizen is arrested for any offense, such as failing to wear a seat belt,

everything that the person possessed at the time of that arrest-purse, briefcase, laptop computer, cell phone, medical records, IRS returns, trade secret information-is subject to a warrantless search because all of that citizen's privacy interests have completely disappeared. We cannot agree with this reasoning.

First, the SPA fails to distinguish between a search incident to arrest and a search of an arrestee's personal property that has already been inventoried and placed in storage. As the Supreme Court recently explained in Arizona v. Gant,

the search incident to an arrest exception to the warrant requirement is premised upon promoting officer safety and preventing the destruction of evidence relating to the crime for which the person was arrested.

Although Gant involved the search of a car, courts have discussed its application to other situations in which “the item searched is removed from the suspect's control between the time of his arrest and the time of the search.”

Some courts have applied Gant in rejecting the lawfulness of a search of the contents of an arrestee's cell phone.

Second, the SPA makes the false analogy that, if a jail detainee does not have any privacy rights in his jail cell,

he therefore does not have any privacy rights in his personal property that is being safeguarded in the jail property room. The assumption that prisoners or pretrial detainees are without any Fourth Amendment rights is not supported by the Supreme Court. As a unanimous Court noted in 1974:

Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the considerations underlying our penal system.” ... But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.

Oles correctly held that jail detainees enjoy a diminished expectation of privacy, not that a detainee has absolutely no reasonable expectation of privacy.

Furthermore, the security rationale and “needs of the institution” that underpin the diminished expectation of privacy in a jail cell is not equally applicable to property that jailers have already inventoried and are safeguarding in the property room.

Third, the SPA contends that, under Oles, any search of any property in the custody of jail officials is permissible. We disagree with that absolutist position and agree with the court of appeals that the object of the search makes all the difference between this situation and that in Oles.

There, the police seized and tested a pair of pants and shoes for blood. We noted that the first question was “whether an arrestee retains any expectation of privacy in clothing lawfully taken and inventoried by police incident to an arrest.”

After analyzing various precedent, we concluded that “arrestees do retain some level of privacy interest in the personal effects or belongings taken from them incident to their arrest,” but that

[r]eviewing this search under a totality of the circumstances, there is virtually no evidence that [defendant] harbored a subjective expectation of privacy in his clothing that was in the custody of the police, nor is there evidence that society would deem such a belief reasonable under these circumstances. [Defendant] has failed to meet his burden of proof in establishing a legitimate expectation of privacy in his clothing.

That is the general doctrine concerning privacy interests in clothing, but clothing does not contain private banking or medical information and records; it does not contain highly personal emails, texts, photographs, videos, or access to a wide variety of other data about the individual citizen, his friends and family. Searching a person's cell phone is like searching his home desk, computer, bank vault, and medicine cabinet all at once. There is no doubt that the Fourth Amendment protects the subjective and reasonable privacy interest of citizens in their homes and in their personal “papers and effects.” Conversely, clothing, like the shoes seized and tested in Oles, is displayed every time a citizen walks out into the world. As now-Presiding Judge Keller noted in her concurrence in Oles,

The outside of a person's shoes while being worn are constantly exposed to the public. When [the defendant] was arrested and incarcerated, the police obtained lawful possession of his shoes. Given that the outside of the shoes are constantly exposed to the public, appellant could not have a reasonable expectation of privacy against a visual inspection of the shoes, on the outside, with the naked eye.

Similarly, here, the officers could have reasonably inspected the outside of appellant's cell phone; they could have tested it for fingerprints or DNA material because portions of the cell phone are routinely exposed to the public. But we do not think that a citizen, including appellant, has lost his expectation of privacy in the contents of his cell phone merely because he has been arrested and his cell phone is in the custody of police for safekeeping.

Although some courts have held that a person does not have a reasonable expectation of privacy in the contents of his cell phone when he is subjected to a search incident to arrest,

citizens themselves have become increasingly concerned about privacy expectations and their cell phones,

even before the current NSA phone controversy.

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. We answer “No” to the SPA's sole question for review, and we affirm the judgment of the court of appeals. KELLER, P.J., filed a concurring opinion in which PRICE, J., joined.
KEASLER, J., filed a dissenting opinion.

KEASLER, J., filed a dissenting opinion.

This case asks us to decide whether Granville retained a reasonable expectation of privacy in the contents of his cell phone, which was seized by police during booking and stored in a jail property room. The majority holds that he did retain such an expectation, on the basis that the contents of a cell phone deserve heightened protection because a cell phone can “receive, store, and transmit an almost unlimited amount of private information.”

However, in reaching its result, the majority ignores the precedent of this court and sidesteps the requirement that an individual manifest a “subjective expectation of privacy” in a space before he has standing to challenge a law enforcement search under the Fourth Amendment.

Based on the record before us, Granville did not meet his burden to prove that subjective expectation. I must respectfully dissent.

APPLICABLE LAW AND ANALYSIS

Under the privacy-based model of the Fourth Amendment set forth by Katz v. United States,

a search is unreasonable when an individual has a legitimate expectation of privacy in the space being invaded by government agents.

A defendant has the burden to prove that a legitimate expectation of privacy existed, and must do so by demonstrating that (1) by his conduct, he exhibited an actual intention to preserve something as private, and (2) this subjective expectation of privacy is one that society is prepared to recognize as reasonable.

If a defendant fails to meet this burden, he does not have standing to challenge a search.

Demonstrating a subjective expectation of privacy is not difficult. An individual simply must, by his conduct, exhibit an “actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private.”

However, in this case, because the cell phone in question had already been seized from Granville and was in police custody at the time of the search, Granville must overcome a heightened burden, based on the lowered expectation of privacy that accompanies arrest and incarceration.

According to our decision in Oles v. State, this heightened burden is applied to searches of “personal effects of an arrestee” that have been lawfully seized by police.

An individual seeking to challenge a search under these circumstances can only meet their burden by conduct that “ can and does exhibit subjective expectations [of privacy].”

As Oles provides the framework upon which the result in this case should be based, an analysis of its facts is helpful. Melvin Oles was arrested pursuant to a warrant issued on a motion to revoke probation, and his clothing was inventoried and stored as part of the booking process.

Oles was also a suspect for murder, and eight days after his arrest and without a warrant, an investigator took Oles's clothing to a medical examiner to determine if the clothing held blood traces.

Oles challenged this subsequent examination of his clothing as an improper search under the Fourth Amendment.

This Court addressed Oles's claim by determining whether he enjoyed both a subjective and an objective expectation of privacy in his clothing after it had been seized and inventoried.

Noting that “[n]o situation imaginable is as alien to the notion of privacy than an arrestee sitting in a jail cell, completely separated from his effects that are lawfully controlled and inventoried by the very police that are investigating him,” we concluded that Oles did not subjectively expect privacy in the seized clothing and that society would not recognize an expectation of privacy in seized clothing as legitimate.

Our determination was based on the fact that Oles could not point to evidence affirming either a subjective or objective expectation of privacy in the clothing, and thus had not met the heightened burden of proof required to establish an expectation of privacy in items seized and inventoried by police.

This case is factually similar to Oles in many respects. There, as here, the personal effects of an arrestee were seized and inventoried by police, and those personal effects were later searched by law enforcement for evidence unrelated to the crime of arrest. As such, the same burden that was applied to Oles should be required of Granville in this case. Granville can only establish that he retained a reasonable expectation of privacy in the contents of his cell phone by (1) exhibiting affirmative conduct that reflects a subjective expectation of privacy in the contents of the phone; and (2) by establishing that society is prepared to accept that expectation of privacy as reasonable.

Based on the record before us, Granville has failed to meet his burden of establishing an actual, subjective expectation of privacy. As I will discuss below, the majority glosses over the issue of Granville's subjective expectation.

However, the court of appeals addressed it in some detail,

and justified its finding of a subjective expectation on two grounds. First, according to the trial judge's findings of fact, Granville's “cell phone was off” when Officer Harrell retrieved it from storage, and the office “had to turn it on to manipulate its contents.” However, the record is undeveloped as to the circumstances in which the cell phone was turned off. Was the phone off at the time of its seizure, or did Granville himself turn it off contemporaneously with his arrest? Did the arresting officer turn it off of his own accord, or did Granville request the officer to do so? Or was the phone turned off by law enforcement during the booking process, prior to being placed in storage? If law enforcement turned off the phone, was Granville aware that it did so? All that the record reflects is that Harrell had to turn on the phone to access the photograph, and action taken by a law enforcement officer alone cannot constitute affirmative conduct on Granville's part that exhibits a subjective expectation of privacy.

Second, the trial judge found that “Officer Harrell [s]earched the contents of the cell phone until he found the photograph he sought.” Based on that finding, the court of appeals held that Harrell “had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item....”

However, the record does not support the conclusion that the officer “had to pull up and scroll through ... information.” All that the record reflects about Harrell's manipulation of Granville's phone is that he “looked at” the phone, “found” the improper photograph, and somehow “retrieved” the photograph by “print[ing] it out directly from the phone.” I agree that when an individual takes steps to ensure that the object of police scrutiny is not readily visible upon casual perusal, the subjective-expectation-of-privacy requirement may be satisfied. But in this case, the record demonstrates next to nothing about the nature of the search. Where was the photograph in question found within Granville's phone? Did it immediately appear when Harrell turned on the phone, or was it set as the phone's wallpaper or screen saver? Was the photo in an obvious location, or hidden in a folder or otherwise made less accessible to an intruder? I pose these questions not in an attempt to define how one maintains a subjective expectation of privacy in a cell phone, but merely to highlight the present record's lack of factual development. The record does not reflect anything about the location of the photo inside Granville's phone or any other facts that weigh in favor of finding a subjective expectation of privacy.

Bound by precedent from this Court and the Supreme Court and the bare record presented in this case, I believe we are constrained to conclude that Granville failed to demonstrate that he exhibited some conduct reflecting a genuine expectation of privacy in the contents of his phone. As such, he failed to meet his burden and prove a reasonable expectation of privacy therein.

THE MAJORITY OPINION

The majority opinion, however, does not follow the clear guidelines of the Supreme Court in reaching its decision. The majority does initially recognize that Granville prevails if he can establish both an objective and a subjective expectation of privacy in the contents of his phone.

But it stumbles when it attempts to define what constitutes a “subjective” expectation of privacy. Instead of reviewing the record to determine whether Granville exhibited affirmative conduct reflecting a subjective expectation of privacy in his phone, the majority concludes that Granville retained a subjective expectation of privacy in his phone based solely on the fact of his ownership of the device and the inherent nature of cell phones.

The majority's determination of what constitutes subjective expectations of privacy is predicated upon the proposition that “the object of the search makes all the difference”—essentially an adoption of the court of appeals' assertion that “a cell phone is not a pair of pants.”

The majority rationalizes its decision by stating that “courts commonly find that a person has a legitimate expectation of privacy in the contents of his cell phone because of its ability to store large amounts of private data both in the cell phone itself and by accessing remote services.”

This generalization conflates the Supreme Court's distinction between the objective and subjective requirements of the Fourth Amendment standing test. I cannot agree that ownership of a particular type of property deemed “special” by a reviewing court means that a defendant automatically enjoys a reasonable expectation of privacy therein. Indeed, what kind of “special”treatment cell phones should receive with respect to the Fourth Amendment is hotly disputed. For example, the First Circuit Court of Appeals' opinion United States v. Wurie, which figures prominently in the majority opinion, is pending review in the Supreme Court.

Presumably, the Court has granted certiorari to address the differing positions courts across the nation have adopted when tackling this sensitive issue.

The majority spends a significant amount of time discussing how cell phones both contain vast amounts of private data in and of themselves, and how they can be used to access additional data via remote services and other devices. It is concerned that “[t]he potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”

Ultimately, I share those concerns and agree that the ubiquity of cell phones and the vast amount of personal data that is commonly stored or accessible therein establishes that society is prepared to accept an expectation of privacy in the contents of a cell phone as legitimate. After all, this second prong of the standing test—which essentially “legitimizes” a defendant's subjective expectation of privacy—necessarily looks to “sources outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

But the fact that cell phones potentially contain vast amounts of private data, by itself, does not automatically result in a finding of a reasonable expectation of privacy in every case. Mere possession of an object does not automatically confer Fourth Amendment standing upon the possessor. In Villarreal v. State, a case involving the search of a house, we stated that “whether the accused had a property or possessory interest in [a] place invaded” was only one of many factors to be considered when making a determination of whether a defendant had established a reasonable expectation of privacy.

As stated above, in order to prove a subjective expectation of privacy, a defendant must have engaged in affirmative conduct exhibiting that such an expectation existed.

Making possession the deciding factor in a subjective-expectations analysis makes even less sense in a case such as this, where Granville's expectations of privacy are necessarily lessened by his incarceration—when the phone was searched, Granville did not presently possess it, and he knew that it was in the hands of law enforcement officers who had the means, if not the legal right, to search it for incriminating evidence.

Despite these constraints on possession as a deciding factor in a subjective-expectationsanalysis, the majority has hinged its entire analysis on this one element. The majority has pointed to no evidence that supports a finding of a subjective expectation of privacy, other than the fact that Granville owned the phone in question. Indeed, it goes so far as to imply that Granville automatically enjoys a reasonable expectation of privacy in his phone—solely on the grounds that he owns it—by stating that a person may “lose” his reasonable expectation of privacy when he abandons a phone or lends it to another.

By so stating, the majority mischaracterizes the burdens imposed by the Fourth Amendment's standing doctrine. The burden is on the defendant to prove a reasonable expectation of privacy, not on the State to disprove that such an expectation exists.

To reach its conclusion, the majority must get around Oles. In that case, this Court clearly held that the burden is on the defendant to establish subjective expectations of privacy

—a far cry from the majority's conclusion that ownership of a cell phone alone bestows automatic standing to challenge a Fourth Amendment search. The majority attempts to distinguish Oles by limiting its holding to clothing alone, but can cite to no authority that justifies this limitation.

Instead, the majority relies on Judge Keller's concurring opinion. Judge Keller stated that she would have decided Oles on the basis of a variation of the plain view doctrine—that is, a reasonable expectation of privacy does not exist when a space is routinely exposed to the public, even where a search results in the discovery of information “that a naked-eye examination would not give them.”

The majority applies this reasoning to the search in this case, indicating that police would have been free to analyze the exterior of Granville's phone, but not the phone's contents, which were hidden from the public eye.

What the majority overlooks in its analysis is that, once again, a subjective expectation of privacy does not turn on what is or is not observable by the public. Such a consideration could only be one factor among many in either the subjective or objective prong of a reasonable-expectations analysis. What is missing from the majority's analysis of Granville's subjective expectation of privacy is a consideration of the totality of the circumstances—a consideration required by our precedent and by the Supreme Court.

And in this case, the record before us does not provide us with any evidence that Granville affirmatively exhibited a subjective expectation of privacy in his phone beyond the fact that he was its owner. If the majority believes that Oles was decided in error, it should say so and explain why—instead of conforming to the view of a concurring opinion that, at the time, received the vote of no judge except its author.

CONCLUSION

The majority's concerns about potential abuse by law enforcement are well-founded. But the majority's resolution of this case has no basis in the law. The fact that a defendant's situation reflects a compelling public interest is not a sufficient reason to gloss over the Supreme Court's clearly articulated constitutional rules. Where the record lacks any evidence demonstrating a defendant's affirmatively expressed expectation of privacy, we cannot draw inferences or conjure up evidence to reach a desired result. I feel constrained to dissent. KELLER, P.J., filed a concurring opinion in which PRICE, J., joined.

The Supreme Court's Fourth Amendment “expectation of privacy” jurisprudence began with a case involving a phone.

We have now come full circle, with a phone again being the center of a Fourth Amendment controversy. Instead of the government intercepting a voice conversation, as occurred in Katz, we are confronted with the government inspecting a digital photograph stored electronically. I agree with the Court that appellee had a subjective and reasonable expectation of privacy with respect to the electronic data stored on his cell phone. I write separately to further explore why appellee had an actual subjective expectation of privacy in this case.

In considering whether appellee had a subjective expectation of privacy, I follow the Supreme Court's lead in eschewing the rubric of “standing” as unhelpful and potentially confusing with respect to the issue before us.

The questions are, simply, (1) did appellee have an actual subjective expectation of privacy with respect to electronic data stored on his cell phone and (2) would society recognize such expectation as reasonable? In this case, I focus only on the first question.

Appellee's right to possess the cell phone and his actual possession of the phone on his person were enough to establish his subjective expectation of privacy, at the time of his possession, with respect to information that was not on public display.

We can infer that the photograph in question was not on public display because the police were not aware of it at the time the cell phone was taken from appellee (when he was booked into jail) and because the phone was turned off at the time Officer Harrell retrieved it from the jail property room.

The remaining issue is whether appellee lost his subjective expectation of privacy when he lost possession of his cell phone. Had appellee abandoned his phone, he would have relinquished any expectation of privacy in the data stored therein.

Had he relinquished his phone to the police by his own consent, the question would be the scope of that consent.

But appellee was required to relinquish his phone; his loss of possession was involuntary. As I discuss below, the proper question when dispossession of an item is involuntary is as follows: To what extent has appellee's subjective expectation of privacy already been frustrated (by actions that do not themselves violate the Fourth Amendment)?

In United States v. Jacobsen, the Supreme Court addressed a situation in which a defendant's subjective expectation of privacy was frustrated by the actions of a non-governmental entity.

A private freight carrier opened a damaged package and observed plastic bags containing a white powdery substance.

The carrier's agents placed the plastic bags back into the package and contacted the Drug Enforcement Administration (DEA).

A DEA agent subsequently reopened the package, opened the plastic bags, removed a trace amount of the white powder from each bag, and conducted a field test for cocaine.

The field test yielded positive results.

The Supreme Court observed that a search by a private party does not violate the Fourth Amendment.

The Court then held that “additional invasions of ... privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search.”

The Supreme Court derived this standard from its earlier decision in Walter v. United States,

despite Walter being a fractured decision, with no single opinion of the Court.

The Jacobsen court further concluded that the Fourth Amendment is implicated only if “the authorities use information with respect to which the expectation of privacy has not already been frustrated.”

The Court concluded that the private carrier's act of opening the package had already frustrated the defendant's privacy interest in the package's contents at the time the DEA agent performed his own visual inspection pursuant to the carrier's invitation.

The only remaining question was whether the field test was permissible.

The field test could disclose only whether the white powder was a certain species of contraband (cocaine), which the defendant had no legitimate interest in privately possessing.

Because the field test could reveal “no other arguably ‘private’ fact,” the test “compromise[d] no legitimate privacy interest.”

United States v. Edwards

and Oles v. State

can be viewed as cases in which a defendant's privacy interests have largely been frustrated as a result of his legal arrest and incarceration in the jail. Any privacy interest that might exist in such a defendant's clothing has been frustrated because the police acquired physical custody of the defendant and the right to handle the defendant's clothing. When we said in Oles that “there is virtually no evidence that [the defendant] harbored a subjective expectation of privacy in his clothing that was in the custody of the police,”

we essentially recognized that reality.

But Edwards and Oles differ from the present case because a defendant's privacy interest in clothing, to the extent it exists at all, has a purely physical dimension. A defendant's clothes may contain incriminating items in pockets or biological evidence might be discovered on the surface. But clothing is not a computer or a DVD or a cell phone. These latter items are designed to contain information apart from their physical characteristics.

There is an analogous case from the Supreme Court involving a search of film—the Walter case, relied upon by the Supreme Court in Jacobsen. In Walter, a package containing 871 boxes of 8–millimeter film was delivered to the wrong corporation.

One side of the boxes had sexually suggestive drawings, while the other side had explicit descriptions of the contents.

Employees of the corporation opened the package, opened one or two of the boxes, and attempted without success to view portions of the film by holding it up to the light.

The employees then called a Federal Bureau of Investigation (FBI) agent, who picked up the packages.

Without attempting to obtain a warrant, FBI agents viewed the films with a projector.

A majority of the Supreme Court reversed.

In his opinion announcing the judgment of the Court, Justice Stevens concluded that the defendants' privacy interest with respect to the descriptive labels on the boxes had been frustrated by a private party (the corporation) but that the defendants' expectation of privacy in the content of the films had not been frustrated.

Consequently, the FBI violated the Fourth Amendment when its agents played the films without securing a warrant.

Justice Stevens refrained from deciding whether the FBI would have been required to obtain a warrant “had the private party been the first to view” the films.

Justice White wrote separately to disagree with the suggestion that the FBI could have played the films without a warrant if the private corporation had done so first.

The dissent, on the other hand, contended that the defendants had no remaining expectation of privacy.

In the dissent's view, the sexually explicit nature of the drawings and labels on the boxes “clearly revealed the nature of their contents.”

Although Walter was a fractured decision, it contains controlling authority because (1) a majority of the Court reversed the case, which could have happened only as a result of finding a Fourth Amendment violation, (2) the Court remanded another case for reconsideration in light of Walter,

and (3) the Court relied heavily upon Walter in Jacobsen.

What Walter shows is that some types of property have both a physical dimension and an informational dimension and that a defendant's subjective expectation of privacy can attach to either or both. Even if a defendant's subjective expectation of privacy has been entirely frustrated with respect to the physical dimension of such property, he may yet retain a subjective expectation with respect to the informational dimension.

In the present case, the police department's legitimate physical control of appellee's cell phone frustrated his expectation of privacy with respect to the physical aspects of the cell phone. As the Court explains, the State could have tested it for fingerprints or DNA. And perhaps the State could have looked in the battery compartment or the memory slot for hidden contraband. But the State's legitimate physical control of the cell phone did not compromise appellee's expectation of privacy with respect to the electronic data stored on the phone, just as the FBI's legitimate physical control over the film in Walter did not compromise the defendants' subjective expectations with respect to the video content of that film.

With these comments, I join the Court's opinion.