Just about everyone has a smart phone these days. While these devices can serve as excellent and efficient tools, many people have no idea how to protect their privacy. Just about everything that you do on your cellular phone can be tracked even if you attempt to delete something. As our phones become smarter and smarter they can become an even greater liability. Your website usage, texting, media messaging, and just about everything else you do has the potential to put your privacy at risk. This is even more of a reason to fully know and understand your rights.

In the Supreme Court case Riley v. United States 573 U.S. ___ (2014), the justices of the highest court in the land discussed cell phone privacy. It was one of the first times that the court set out rules and operating guidelines for law enforcement officers regarding cell phones.

The court generally decided that law enforcement officers need a warrant to search your cell phone. One justice went so far as to say that the sheer volume of information stored on a cell phone makes searching it almost as invasive as searching your home. If that sounds extreme to you, then you probably didn’t know that:

• Location Services. Your smart phone likely, by default, has location serves enabled. This allows for third parties like Facebook, Snapchat, Google Maps, and your cellular service provider to not only know where you are but to pinpoint your actual location.

• Geo tags. Every file on your smart phone is riddled with “metadata” which is stored on your phone. For example, on most smart phones every picture that you take has “geo tags” embedded in the images that you take. These tags save the time, place, and manner in which your picture was taken.

• Sharing Media. Anything that you email/text or otherwise send to anyone via a third party app can almost always be downloaded, saved, or captured via screenshot. Even if taking a screen shot is disabled by an app, nothing would prevent someone from taking a picture of their screen with another device.

• Cell Phone Tower Data. Your phone has to automatically “connect” with a cell phone tower for you to make or receive a phone call or data. Every time your phone connects to a tower, that information is stored by your cellular service provider. It is possible that information can be made available in order to trace your whereabouts.

• Undeletable. Nothing that you do on your cell phone or other electronic device is deleted by “deleting it.” Bits and pieces of data and information are still able to be recovered even if they have been deleted. This includes: email, texts, call logs, pictures and videos!

• Third party apps. If you use an app to access the internet or to send and receive data, there is a good chance that information is stored somewhere. Social media websites and apps maintain records of what and when you do things that can be possibly reviewed by law enforcement. Even if the data is no longer on your phone, it is more than likely on a server somewhere around the world.

  • Even Snapchat storage retains logs of previous messages sent and received. The logs contain meta-data about the messages, but not the content. The content, however may be obtainable via a valid search warrant.

Pursuant to Texas Code of Criminal Procedure Article 18.0215 “ACCESS TO CELLULAR TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE”, law enforcement officers are generally required to have a valid search warrant to search your phone. This law is a State version/interpretation of the rules and guidelines set forth in the Riley v. United States case. Exceptions to this requirement include:

• Consent. Obviously, if you tell a law enforcement officer that they can search your phone without a warrant then they do not necessarily have to get a warrant. Remember, you always have a right to politely but firmly refuse to give consent to a search. This includes your cell phone, computer, car, or home. It is very important to always be polite but to be firm in your denial of the consent that is requested.

  • Keep in mind, that law enforcement officers, in some situations, may still be able to get a warrant even if you do not consent.

• Reported Stolen. If your phone has been reported stolen or lost.

• Throwing it Away. If you “abandon” your property, cell phone or any other device, it can be searched without a warrant.

  • This includes all property, even the trash that you take to your street for pickup on trash day. Legally, you have abandoned that property and it can be searched without a warrant.

• Exigent Circumstances. These include but are not limited to: 1) if a law enforcement officer believes that there is an immediate life-threatening situation, and 2) if the phone is in possession of a fugitive for which there is a warrant for a felony offense.

• Seizing Your Phone. In certain instances, it is completely lawful for a law enforcement officer to seize or take your cell phone and to wait to obtain a warrant. That still doesn’t mean that you have to give them consent to actually search your phone. You can politely but firmly refuse and force them to attempt get a valid warrant.

Always keep in mind that law enforcement officers will need valid probable cause to apply for a search warrant. Probable cause is sufficient reason based on known facts to believe that a crime has been committed. There is no bright-line rule regarding what actually constitutes probable cause because every contact with law enforcement is unique. As long as there is valid probable cause, law enforcement will likely get a search warrant.