Georgia Appellate Court reverses and remands for more hearings regarding scope of consent to search a phone.

In this case, the defendant had child pornography on his phone which the police found. The appellate court affirmed the trial court finding that the defendant gave consent, but reversed and remanded for further proceedings since the trial court made no findings regarding the scope of the consent to search the cell phone.

In this case, the defendant handed his phone over to an agent who saw one image she believed to be child pornography. She then handed the phone to another agent who did an on-site forensic review of the phone, finding 1000 images.

Here, the appellate court conceded that “(m)odern cell phones — or ‘smart phones’ — present new and complicated issues for law enforcement seeking to conduct a search. Smart phones can hold a wealth of information reaching many different and personal areas of an individual’s life, ostensibly leading to a greater invasion of privacy than a search of a person or place would usually entail. Indeed, the United States Supreme Court has recognized that ‘[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.’ Riley, supra, 573 U. S. ___ (III) (B) (1), 134 SCt at 2488-89.”

Here is some really good language: “Warrantless searches of cell phones is a developing area of law for our courts and must take into consideration the changing nature of technology and the corresponding ability of law enforcement to invade a person’s privacy. In the context of other types of searches, we have addressed the scope of consent based on the interaction between authorities and the defendant, focusing on what the defendant knew at the time he gave consent.”

The case is Martinez v. State, 2018 Ga. App. LEXIS 584, Court of Appeals of Georgia, October 19.

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