## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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T H E S T A T E O F T E X A S

v .
A N T H O N Y G R A N V I L L E , A p p e l l e e

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

W A L K E R C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n i n w h i c h P R IC E , J
. , j o i n e d
.

T h e Su p reme Court’s Four

th Amendment “expectation of privac y ” jurisprudenc e beg an with

a case involving a phone. We have now come full circ le, with a phone ag ain being the cente r of a 1

Four th Amendment controversy

. I nstead of the g overnme nt interce pting a voice conver sation, as

occur red in Katz , we are confr onted with the g overnme nt inspectin g a d i gi t al photogr aph stored
elec tronically . I ag ree with the Court that appellee had a subje ctive and rea sonable e x pecta tion of privac y with respe ct to the elec tronic data stored on his cell phone. I write separ at el y t o fu rt her

Katz v. United States , 389 U.S. 347 (1967). 1GR ANVILLE CONCURRENCE — 2 explore why

appellee had an a ctual subjec tive expectation of privac y in this case.

I n c o n s idering whether appellee had a subjective expectation of privac y , I f o ll o w th e Su

p r e me
Court’s lead i n esche wing the rubric of “standing ” as unhelpful and potentially confusing with

respe ct to the issue befor e us. The questions are , simply , (1) did appellee have an actua l subjective 2 expectation of privac y with respe ct to elec tronic data stored on his cell phone and (2) would society

rec og nize such expectation as re asonable ? I n this case, I focus only

on the first question. Appellee ’s rig ht to posses s the cell phone and his actua l possession of the phone on his

person wer e enoug h to establish his subjective expectation of privac y , at the time of his possession,
with re s p ect to information that was not on public display

. We can infer that the photogr aph in 3 question was not on public display beca use the police wer e not awa re of it at the time the cell phone
was taken from appellee (when he was booked into jail) and because the p h o ne was turned off at

Rakas v. Illinois , 439 U.S. 128, 138-40 (1978) (“[T]he question nece ssarily arises whether 2 it serve s any useful analy

tical purpose to c onsider this princ iple a matter of standing , distinct fr om the merits of a defe ndant’s Four th Amendment claim. We can think of no decide d case s of this Court that wou l d have come out differ ently had we conclude d, as we do now, that the ty pe of standing require ment discussed in Jones and rea ffirme d today is more proper ly subsumed under substantive Four th Amendment doctrine. Rigorous application o f t h e principle that the rig hts secur ed by this Amendment are persona l, in place of a notion of ‘standing ,’ will produce no additional situations in which evidenc e must be excluded. The inquiry under either approa ch is the same. But we think the better analy sis forthrig htly focuse s on the extent of a particula r defe ndant’s rig hts under the Four th Amendment, rathe r than on any theore tically separ ate, but inva r ia b ly in te r tw in e d c o n c e p t o f s ta

n d ing. The Court in Jones also may have been awa re that there was a cer

tain artificia lity in a

naly zing this question in terms of standing beca use in at least three separ ate place s in its opinion the Court place d that term within quotation marks

. . . . [T] his Court’s long history of insistence that Four th Amendment rights are personal in nature has already answe red many of t hese traditional standing inquiries, and we think that definition of those rig hts is more proper ly place d within the purview of substantive Four

th Amendment law than w ithin that of standing.” )
See Ne w Jersey

v. T.L.O. , 469 U.S. 325, 337-38 (1985) ( “A se arc h of a c hild’s person 3 or of a closed purse or other ba g car ried on he r per son, no less than a similar sea rch c arr ied out on an adult, is undoubtedly a seve re violation of subjec tive expectations of privac y .”).GR ANVILLE CONCURRENCE — 3 the time Offic er H arr ell retrie ved it from the jail prope rty room. 4
The rema ining issue is whether appellee lost his subjective expectation of privac y when he lost possession of his ce ll phone

. Had a ppellee a bandoned his phone , he would have relinquished

any expectation of privac y in the data store d there in. Had he relinquished his phone to the police 5 by his own consent, the question would be the scope of that consent. But appellee was require d to 6 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 privac y alre ady been frustra ted (by actions that do not themselves violate the Four th Amendment)?

I n United States v. Jacobse n , the Supreme Court addre ssed a situation in which a defe ndant’s subjective expectation of privac y was frustra ted by the actions of a non-g overnme ntal entity

. A 7 private fre ight car

rier opened a damag ed packa g e and observe d plastic bag s conta i n i n g a white powder y substance. The car

rier’ s ag ents place d the plastic bag s back into the packa g e and contac ted 8
the Drug Enforc ement Administration (DEA)

. A DEA ag ent subsequently reope ned the packa g e, 9

I need not decide whether the i nfer ence that the phot og raph was not on public display is 4 one that must be drawn as a matter of l aw or is one that simply may be drawn as a matter of fa ct. The trial court ruled in appellee ’s favor (and issued favor able finding s of fac t and conclusions of law), so the e vidence is viewed in the lig ht most favorable to appellee ’s position. State v. Powell , 306 S.W .3d 761, 768 n.12 (Tex. Crim. App. 2010); State v. Kelly , 204 S.W .3d 808, 818 & n.19 (Tex. Crim. App. 2006).
See Court’s op. 5
See F lorida v. Jimeno , 500 U.S. 248 (1991). 6 466 U.S. 109 (1984) 7
Id. at 111. 8
Id. 9GR ANVILLE CONCURRENCE — 4 opened the plastic bag s, remove d a trac e amount of the white powder from eac h bag , and conducte d
a fie ld test for coc aine. The fie ld test y ielded positive results. 1 0 1 1
The Supreme Court observe d that a sear ch b y a p ri v at e party does not violate the Four th
Amendm ent. The Court then held that “additional invasions of

. . . privac y by the Gover nment 1 2

ag ent must be tested by

the deg ree to which they exceede d the scope of the private sear ch.” The 1 3 Supreme Court derived t his standard from i ts ear lier decision in W alter v. United States , despite 1 4

W alter being a fra cture d decision, with no single opinion of the Court. The Jacobse n court further 1 5

co n cl u d ed that the Four

th Amendment is implicated only if “the authorities use information wit h

respe ct to which the expectation of privac y has not alre ady been frustra ted.” The Court conclude d 1 6 that the private car

rier’ s act of ope ning the packa g e had alre ady frustra ted the def endant’ s privacy
in t erest in the packa g e’s contents at the time the DEA ag ent perf ormed his own visual inspection
pursuant to the carri er’ s invitation. The only rema ining question was whether the field test was 1 7

Id. at 111-12 & n.1. 1 0
Id. at 112. 1 1
Id. at 113, 115 (“This Court has also consistently construed this protec tion as proscr ibing 1 2 only g overnme ntal action; it is wholly inapplicable to a sear ch or seizure, even an unrea sonable one, eff ecte d by a priva te individual not acting as an ag ent of the G overnme nt or with the participa tion or knowledg e of a

ny g overnme ntal officia l.”) (inter nal quotation marks omitted).
Id. at 115. 1 3 447 U.S. 649 (1980). 1 4
Jacobse n , 466 U.S. at 115-17. 1 5
Id. at 117. 1 6
Id. at 119-20. 1 7GR ANVILLE CONCURRENCE — 5 permissible. The field test could disclose only whether the white powder was a cer tain specie s of 1 8

contra band (coc aine) , which the defe ndant had no leg itimate interest in privately poss es s ing. 1 9

Be ca use the field test could reve al “no other arg uably ‘private ’ fac t,” the test “compr omise [ d ] n o leg itimate privacy

interest.” 2 0
United States v. Edwards and Oles v. State can be viewed as case s in which a defe ndant’s 2 1 2 2 privac y interests have larg ely been f rustrate d as a result of his leg al arrest and incar cer ation in the jail. Any privac y interest that might exis t in such a defe ndant’s clothing has been frustra ted beca use
the police acquir ed phy sical custody of the defe ndant and the righ t t o h an dle the defe ndant’s clothing. When we said in Oles that “ther e is virtually no evidenc e that [t he defe ndant] harbor ed a subjective expectation of privac y i n h i s cl o thing that was in the custody of the police,” we 2 3 essentially

rec og nized that reality

. But Edwards and Oles differ from the prese nt case beca use a defe ndant’s privac y interest in clothing, to the ext ent it exi sts at all, has a pure ly phy sical dimension. A defendant’s clothes may
contain incriminating items in pockets or biologica l e vidence might be discove red on the surfa ce.
But clothing is not a computer or a DVD or a cell phone. These latter items are desig ned to contain information apa

rt from their phy sical cha rac teristics.

Id. at 122. 1 8
Id. at 122-23. 1 9
Id. at 123. 2 0 415 U.S. 872 (1987). 2 1
993 S.W .2d 103 (Tex. Crim. App. 1999). 2 2
Id. at 110-11. 2 3GR ANVILLE CONCURRENCE — 6 There is an analog ous case from the Supreme Court involving a sear ch of film—the W alter

case , relied upon by the Supreme Court in Jacobse n
. I n W alter , a packa g e containing 871 box es of
8-millim eter film was delivere d to the wrong corpor ati o n. One side of the box es had sexually 2 4

sug g estive draw ings, while the other side had expli cit descr iptions of the contents. Employ ees of 2 5
the corpor ation opened the packa g e, opened one or two of the box es, and attempted without succe ss

to view portions of the film by holding it up to the light. The employ ees then called a Fe dera l 2 6

Bur eau of I nvestig ation (F BI ) age nt, who pi cked up the packag es. Wit hout attempting to obtain 2 7

a wa rra nt, FB I ag ents viewe d the films with a projec tor. 2 8

A majority of the Supreme Court reve rsed. I n his opinion announcing the judgme nt of the 2 9
Court, J ustice Stevens conclude d that the defe ndants’ privac y interest with respe ct to the descr iptive
labels on the box es had been frustra ted by a private party (the corpor ation) but that the defe ndants’ expectation of privac y in the content of the films ha d not be en frustra ted. Consequently , the FB I 3 0
violated the Four

th Amendment when i t s ag ents play ed the films without secur ing a war rant. 3 1

W alter , 447 U.S. at 651. 2 4
Id. at 652. 2 5
Id. at 651-52. 2 6
Id. at 652. 2 7
Id. 2 8
Id. at 653-60 (op. of Stevens, J ., joined by Stewart, J .); id. at 660 (Mar shall, J ., concur ring 2 9 in the judgme nt without opini on); id. at 660-62 (White, J ., concur ring , joined by

Br ennan, J.).
Id. at 658 (op. of Steve ns, J .) (“ The priva te sea rch me rely

frustra ted that expectation in 3 0 part. I t did not si mply

strip the rema ining unf

rustrate d portion of that expectation of a ll Fourth Amendment prote ction.”).

Id. 3 1GR ANVILLE CONCURRENCE — 7
J ustice Stevens ref

raine d from deciding whether t h e FB I would have been require d to obtain a

war rant “had the private party been the first to view” the films. J ustice Whit e wrote separ ately to 3 2 disag ree with the sug g estion that the FB I could have play ed the films without a war rant if the private

corpor ation had done so first. The diss ent, on t he other hand, conte nded that the de fenda nts had 3 3

no rema ining ex p ec t at i o n of privac y
. I n the dissent’s view, the sexually expli cit nature of the 3 4
draw ings a

nd labels on the boxes “clea rly reve aled the nature of the ir contents.” 3 5

Al t h oug h W

alter was a fra cture d decision, it contains controlling authority beca use (1) a majo ri t y o f the Court reve rsed the case , which could have happene d only as a result of finding a
Four th Amendment violation, (2) the Court rema nded another case for rec onsideration i n light of

W a l t er , and (3) the Court relied heavily upon W alter in Jacobse n
. What W alter shows is t h at 3 6 3 7
some ty pes of pr operty

have both a

phy sical dimension and an informational dimension a nd that a
d ef en d an t ’s subjective expectation of privac y can attach to either or both. Even if a defe ndant’s subjective expectation of privac y has been entirely frustra ted with respe ct to the phy sical dimension
of such proper

ty , he may y et reta in a subjective expectation with respe ct to t h e informational
dimension.

Id. at 657 n.9. 3 2
Id. at 660 (White, J ., concur ring ). 3 3
Id. at 663 (B lackmun, J ., dissenting, joined by Bur g er, C.J ., and by Powell and Rehnquist, 3 4 J .J .)
Id.

3 5
Grassi v. United States , 448 U.S. 902 (1980). 3 6
See J acobsen , 466 U.S. at 113-14 & n.6, 114 n.7, 115-117 & nn.11, 12, 120 n.18. 3 7GR ANVILLE CONCURRENCE — 8
I n the prese nt case , the police depar tment’s leg itimate phy sical co n t ro l o f appellee ’s cell phone frustrated his expectation of privacy with respe ct t o the phy sical aspects of t he cell phone.
As the Court explains, the State could have tested it for fing erpr ints or DNA. And perha ps the State
could have looked in the battery compar tment or t he memory slot for hidden contra band. But the State’s leg itimate phy sical control of the ce ll phone did not compromise appellee ’s expectation of privac y with respe ct to the elec tronic data stored on the phone, just as the FB I ’s leg itimate phy sical
control over the film in W alter did not compromise the defe ndants’ subjective expectati o n s with

respe ct to the video conte nt of that film.
Wit h these c omments, I join the Court’s opinion.
Filed: F ebrua

ry 26, 2014 Publis h