Cellphones, Privacy and The Fourth Amendment

Originally published by John Floyd.

Within the parameters of longstanding judicially recognized exceptions, law enforcement officials under the Fourth Amendment cannot conduct a search of an individual or their property without a warrant.

 

However, as far back as 1921, the U.S. Supreme Court has held that a search conducted by a private party and any wrongful conduct associated with a private party search does not enjoy Fourth Amendment protection.

 

Private Party Searches in Texas

 

What is the law on a private party search in Texas?

 

The Texas Court of Appeals in July had an opportunity to address this issue.

 

Lauro Eduardo Ruiz was a substitute teacher at a private school. Allegations were leveled by students that Ruiz was taking photos up the skirts of female students. He was summoned to the vice principal’s office where he met with Principal Gilbert Saenz. The principal requested and received Ruiz’s cellphone after which Saenz scrolled through it locating what the Court of Appeals described as “legs of girls who were dressed in the school uniform.”

 

Principal Saenz did not have either Ruiz’s consent or a warrant to search the teacher’s cellphone.

 

Saenz then placed the cellphone in an envelope that he would later give to the police who used the information the principal had located on the phone to establish probable cause for the issuance of a warrant for the police to search Ruiz’s phone.

 

Ruiz was arrested and charged with attempted production of sexual performance by a child for the photos found on his cellphone under Texas Penal Code §§ 15.01, 43.25.

 

Fourth Amendment and Private Searches

 

Ruiz’s defense counsel filed a motion to suppress the cellphone evidence because it was secured through Saenz’s unauthorized private search. The trial court granted the motion. The State appealed this ruling to the Court of Appeals Texas, San Antonio. That court reversed the lower court ruling on July 26, 2017, finding that the Fourth Amendment does not apply to private individuals acting in a non-law enforcement manner.

 

Ruiz’s attorney based his appeal on the arguments that the Saenz search violated two Texas statutes: Article 38.23 of the Texas Code of Criminal Procedure and Section 33.02 of the Texas Penal Code.

 

Subsection (a) of Article 38.23 provides:

 

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Therefore, if the search or seizure violated the law, the Texas exclusionary rule is applicable to `other persons,’ even when those other persons are not acting in conjunction with, or at the request of, government officials and should be suppressed.

 

Subsection (a) of Section 38.02 provides:

 

“A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

 

The Court of Criminal Appeals rejected Ruiz’s Article 38.23 argument, concluding:

 

“Appellee cites no case – and we have found none – in which evidence was suppressed under Article 38.23 for a Fourth Amendment violation by a private individual acting in a private capacity.

 

“We disavow the idea that Article 38.23 extends the Fourth Amendment to private citizens acting in a private capacity. We reaffirm that the Fourth Amendment is a restraint on government and that it does not apply to private individuals who are acting as such. The court of appeals correctly held that Saenz’s search of Appellee’s phone was not a violation of the Fourth Amendment because Saenz was acting as a private individual when he looked at the pictures.”

 

Private Search Doesn’t Trigger 4^th Amendment

 

The Court then turned its attention to Ruiz’s Section 38.02 argument. The Court’s analysis began with this significant observation:

 

“It is a defense to breach of computer security that the accused ‘acted with the intent to facilitate a lawful seizure or search of, or lawful access to, a computer, computer network, or computer system for a legitimate law enforcement purpose.’”

 

After noting the trial court found that Saenz had accessed Ruiz’s cellphone without the teacher’s consent, the Court of Criminal Appeals rejected Ruiz’s Section 38.02 argument with this conclusion:

 

“ … The trial court made no findings about Saenz’s intent in accessing the phone, and the undisputed evidence showed that Saenz took the phone and looked through it for the purpose of giving it to the police for investigation. The record thus would not support a finding against the statutory defense of intent to facilitate a lawful search for a legitimate law enforcement purpose, and Appellee failed in his burden of showing a statutory violation.”

 

There is a legal instruction to this case:

 

Never give your cellphone to anyone who either suspects or accuses you of any wrongdoing involving that electronic device—and make sure your personal property, including your home and vehicle, is not accessible to any sort of “private party” search.

 

For nearly 100 years the U.S. Supreme Court has held that private parties have no constitutional restraints and the Texas Court of Criminal Appeals with the Ruiz decision effectively held that private parties are not constrained by statutory prohibitions when they conduct searches and seizures.

 

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