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evidence of a crime distinct from that underlying the owner s arrest. Nothing in those circumstances
or the others mentioned herein nullify Granvilles reasonable expectation of privacy in
the phone searched. Nothing in them allowed the officer to act without a warrant.

Exclusion of evidence found on the cell phone was affirmed by the Court.

(Author note: This case illustrates the degree of privacy interest the courts are recognizing in electronic
data and information stored on cell phones. As this opinion indicates, its best to consider cell phone data as
private and secure a search warrant based upon probable cause unless exigent circumstances truly exist. The
fact that the phone is in jail property does not change this.)

State v. Granville, NO. 07-11-0415-CR, (Ct. App. Amarillo, July 11, 2012).

SEARCH & SEIZURE VEHICLE SEARCH CONSENT, OBJECTION TO CONSENT BY
PASSENGER (driver s common law spouse).

A patrol officer set up to watch a house where neighbors complained of suspicious activity (people
frequently coming and going). The officer stopped a vehicle which was present at the premises for a short
time after observing a traffic violation. The driver consented to a search of the vehicle, but the passenger, who
had a different last name, objected to the search. Both the driver and passenger stated that they were common
law husband and wife. The vehicle was registered to the driver. The officer searched the vehicle finding
drugs and the occupants were prosecuted.

The passenger moved to suppress the evidence based on an invalid search. It was the States burden to
show that the couple did not meet the elements of a common law marriage. The three elements of a common-
law marriage: (1) an agreement to be husband and wife; (2) living together as husband and wife; and (3) a
holding out to the public that the couple are husband and wife. See Hightower v. State, 629 S.W.2d 920, 924
(Tex. Crim. App. 1981). Since the officer could not disprove the common law marriage relationship and the
State could not disprove the relationship at the suppression hearing, the relationship was presumed; thus, the
passenger had standing to object to, and negate, the consent to search of the driver due to her community
property interest in the vehicle under Georgia v. Randolph.

Texas courts do extend the Georgia v. Randolph holding to vehicles.

The District Court suppressed the evidence finding the consent was ineffective due to the common law
wifes objection. The Court of Appeals affirmed this ruling.

State v. Copeland, No. 13-11-00701-CR, (Ct. App. Corpus Christi, Aug. 09, 2012.)

DETENTION AUTOMOBILE SEARCH

After stopping a vehicle for seatbelt violations, the officer noted the driver seemed quite nervous. After
questioning the driver and passenger about general matters, including where they were going and past criminal
activity, the officer issued citations and continued questioning the driver. The district court found that the
Trooper handed the driver the citations together with his driver s license, and simultaneously asked the driver if
he would answer more questions. The district court did not make a finding in its order as to when the trooper
handed the passenger s identification card back to the driver, though it found that the Trooper asked for
permission to search after handing back the driver s license, the citations, and the passenger s identification card.

A Peace Officer’s Guide to Texas Law 28 2013 Edition