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20150527

Featured: Rep. Terry Canales, D-Edinburg, speaking from the back microphone on the floor of the House of Representatives in April 2015.

Photograph By HOUSE PHOTOGRAPHY

Texans’ Fourth Amendment protections against unreasonable search and seizure would be better protected under legislation sponsored by Rep. Terry Canales, D-Edinburg, which would require police to obtain a search warrant from a judge before being allowed to look at the contents of a cell phone or other wireless communications device belonging to individuals who are involved in a search incident to arrest. In general, a search incident to arrest, formally known as a search incident to lawful arrest (SITA) or the Chimel rule, is defined as a legal principle that allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence. In addition to protecting Texans’ Fourth Amendment privacy rights, Senate Bill 1864 “gives our law enforcement officers a clean and clear description of how to handle the search of a cell phone,” Canales added. The measure, whose primary author is Sen. Konni Burton, R-Colleyville, passed the Senate on Thursday, April 30. Canales secured passage by the House Committee on Criminal Jurisprudence – of which he is a member – on Friday, May 21. Sen. Juan “Chuy” Hinojosa, D-McAllen, is a joint author of Burton’s SB 1864, which was approved by the Senate on Thursday, April 30. “Unless it is an emergency that involves the safety of our law enforcement officers, or the police reasonably believe the information in the phone is vital to saving someone’s life, a search warrant must be obtained before they can begin looking at all the information – some if it very private – that all of us have in our cell phones,” said Canales. He noted that when an individual is stopped for an alleged offense, police can examine a cell phone to make sure it can not be used as a weapon against them. “Police can look at the contents of a cell phone or other wireless communications device without a search warrant if the owner of the phone consents, the phone is reported stolen, or if the officer reasonably believes the phone is in possession of a fugitive from justice for whom an arrest warrant has been issued for a felony offense,” Canales added. According to U.S. Courts (uscourts.gov), the Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law. Whether a particular type of search is considered reasonable in the eyes of the law, is determined by balancing two important interests, according to U.S. Courts. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety. Burton characterized SB 1864 as “a privacy protection bill that takes proactive steps to protect the Fourth Amendment rights of not only Texans, but of all who come to our great state. We now carry around with us everyday items that contain more personal information, photos, contacts, and transcripts of conversations than most people kept in their homes just ten years ago. A police officer looking through a cell phone’s contents is as invasive a search as rummaging through every private paper and item in your home.” In June 2014, the U.S. Supreme Court unanimously ruled that during a search incident to arrest, a warrant is required in order to search a cell phone or other wireless communication device. In his concurrence to that decision, Justice Samuel Alito called for legislatures to not allow privacy protections in the 21st century to rely primarily upon the blunt instrument of the Fourth Amendment, and to take up the challenge of placing into statue the protections necessary to guarantee those rights in this ever changing technological environment.

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Privacy rights, public safety involving cell phones and other wireless communications devices being addressed by Sen. Burton/Rep. Canales legislation

By DAVID A. DÍAZ
Legislativemedia@aol.com

Texans’ Fourth Amendment protections against unreasonable search and seizure would be better protected under legislation sponsored by Rep. Terry Canales, D-Edinburg, which would require police to obtain a search warrant from a judge before being allowed to look at the contents of a cell phone or other wireless communications device belonging to individuals who are involved in a search incident to arrest.

In general, a search incident to arrest, formally known as a search incident to lawful arrest (SITA) or the Chimel rule, is defined as a legal principle that allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence.

In addition to protecting Texans’ Fourth Amendment privacy rights, Senate Bill 1864 “gives our law enforcement officers a clean and clear description of how to handle the search of a cell phone,” Canales added.

The measure, whose primary author is Sen. Konni Burton, R-Colleyville, passed the Senate on Thursday, April 30. Canales secured passage by the House Committee on Criminal Jurisprudence – of which he is a member – on Friday, May 21.

Sen. Juan “Chuy” Hinojosa, D-McAllen, is a joint author of Burton’s SB 1864, which was approved by the Senate on Thursday, April 30.

“Unless it is an emergency that involves the safety of our law enforcement officers, or the police reasonably believe the information in the phone is vital to saving someone’s life, a search warrant must be obtained before they can begin looking at all the information – some if it very private – that all of us have in our cell phones,” said Canales.

He noted that when an individual is stopped for an alleged offense, police can examine a cell phone to make sure it can not be used as a weapon against them.

“Police can look at the contents of a cell phone or other wireless communications device without a search warrant if the owner of the phone consents, the phone is reported stolen, or if the officer reasonably believes the phone is in possession of a fugitive from justice for whom an arrest warrant has been issued for a felony offense,” Canales added.

According to U.S. Courts (uscourts.gov), the Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

Whether a particular type of search is considered reasonable in the eyes of the law, is determined by balancing two important interests, according to U.S. Courts. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

Burton characterized SB 1864 as “a privacy protection bill that takes proactive steps to protect the Fourth Amendment rights of not only Texans, but of all who come to our great state. We now carry around with us everyday items that contain more personal information, photos, contacts, and transcripts of conversations than most people kept in their homes just ten years ago. A police officer looking through a cell phone’s contents is as invasive a search as rummaging through every private paper and item in your home.”

It was the Supreme Court decision on Riley v. California last summer that prompted SB 1864.

In June 2014, the U.S. Supreme Court unanimously ruled that during a search incident to arrest, a warrant is required in order to search a cell phone or other wireless communication device. In his concurrence to that decision, Justice Samuel Alito called for state legislatures to take up the challenge of placing into statue the protections necessary to guarantee those rights in this ever-changing technological environment.

“I don’t always agree with Justice Alito, but this bill is an attempt to implement the Supreme Court ruling into Texas law,” Canales said.

“We all aware of how prolific, how sensitive, how personal is the amount of information we carry in our phone,” the South Texas lawmaker noted. “The U.S. Constitution protects us from unreasonable searches and seizures. This does say police cannot get it, but that there is a protection. The government can’t just go raffling through our things. SB 1864 codifies the ruling of the U.S. Supreme Court.”

Canales, an attorney, said requiring police to go to a district judge for access to cellphone information protects everyone, and is consistent with legal requirements currently in place for wiretapping.

“Wireless communications most closely tracks the wireless communication statue, the wire-tapping statue, since our cell phones are wireless. SB 1864 precisely meets the standards required for wiretapping,” he said. “So, I don’t think would be difficult to find a court – law enforcement could probably call a district judge on his wireless phone – to get this warrant executed.”

Forty-eight jurisdictions (the federal government, the District of Columbia, the Virgin Islands, Puerto Rico, and 44 states) currently have laws that authorize courts to issue orders permitting wire, oral, or electronic surveillance, according to U.S. Courts (uscourts.gov).

In addition, U.S. Courts reports, in its 2013 update:

The number of federal and state wiretaps reported in 2013 increased 5 percent from 2012. A total of 3,576 wiretaps were reported as authorized in 2013, with 1,476 authorized by federal judges and 2,100 authorized by state judges. Compared to the applications approved during 2012, the number approved by federal judges increased 9 percent in 2013, and the number approved by state judges rose 3 percent. One state wiretap application was denied in 2013.

In 27 states, a total of 142 separate local jurisdictions (including counties, cities, and judicial districts) reported wiretap applications for 2013. Applications in California, New York, Nevada, New Jersey, Georgia, and Florida accounted for 80 percent of all applications approved by state judges. Eighty federal jurisdictions submitted reports for 2013. The Southern District of California authorized the most federal wiretaps, approximately 8 percent of the applications approved by federal judges.

Federal judges and state judges authorized 1,097 wiretaps and 101 wiretaps, respectively, for which the no corresponding data was received from prosecuting officials.

Burton and Canales offered the following history and additional perspectives on SB 1864:

Question: What about law enforcement in prisons who confiscate cell phones a contraband? Will they have to obtain a warrant to examine the content of those phones?

This question brings up an important portion of this law. Given that there might be time sensitive issues involving such searches, there is a built in window of time following a warrantless search for law enforcement to obtain a warrant. They will still be able to obtain the investigatory information they need, while fulfilling their Fourth Amendment responsibilities by demonstrating that the search was indeed warranted, which should not be difficult for law enforcement, provided their actions in doing so were above board.

Question: Will police be required to obtain a warrant to look through a missing person’s phone to help locate them?

In the case where a police officer must make a warrantless search in order to find out information, and they do not obtain a warrant, then the only ramification is that the information they obtain through that search cannot be entered into evidence in a criminal proceeding. If police have cause to perform a warrantless search of a cell phone, and are not concerned with any information they uncover, nor any investigation that takes place as a result of such information, being inadmissible, as is the situation in your scenario, then they may perform the search without worry.

Question: Why does SB1864 require that a district judge sign off on the warrant?

In working with legislative council to draft this bill, it was determined that it is standard practice to require a district judge to sign off on any warrant dealing with wireless communication, or the computers that store information regarding those communications. Since cell phones fall into the category of computers that store information regarding wireless communications, we chose to stay with the current convention.

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Rep. Terry Canales, D-Edinburg, represents House District 40 in Hidalgo County. HD 4o includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr, San Carlos and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426.

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