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Texas Warrant Requirement for the Search and Seizure of a Cell Phone: What Does This Mean for You?

In recent history, the search and seizure of cellular phones and cellular devices has created a peculiar issue for police agencies, courts, and criminal defense attorneys. In less than twenty years, cell phones have developed from minimally functioning mechanisms for voice calls to complex, miniature computers. Most modern phones have capabilities to store detailed contact information, calendar and schedule information, call logs, text messages, and voicemails. More sophisticated models, like the Apple iPhone 6s, have the capability to store more intrusive information like geographic location, frequented locations, and suggested identities of unsaved contacts. Cell phones often contact every detail of the user’s life. Many cell phone users possess the same expectation of privacy in their phones as they expect in their homes. This year, Texas legislators agreed and amended legislation as a result.

HB 1396 amends Article 18.02(a) of the Texas TX Code of Criminal Procedure.

Under the new terms, a law enforcement officer must obtain a warrant before searching or seizing a cellular device absent specific exceptions. In the application, the officer must state the facts that establish probable cause that criminal activity is, has been, or will likely be committed; or the search of the telephone or device will likely produce evidence that criminal activity has occurred. Should the evidence alleged in the application for the warrant be unsupported, the evidence obtained from the cell phone search may be inadmissible.

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