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Consent to Examine Mobile Phone Was Valid

Consent is one of the specific exceptions to the general requirement that law enforcement authorities must have a valid search warrant prior to a constitutional search (where there is also a reasonable expectation of privacy). Under Tennessee law, a person has a reasonable expectation of privacy in the contents of the person's cell phone in his or her possession (an abandoned phone may be a different story). A police officer may only search the contents of the phone if there is a valid search warrant to do so or if one of the recognized exceptions to the warrant requirement is present. In the recent case of State v. Kohlmeyer, M2014-01359-CCA-R3-CD (Tenn.Crim.App. 7-7-2015), the Tennessee Court of Criminal Appeals affirmed a trial court decision that an examination of the defendant's cell phone was valid, due to the defendant having consented to it.

In the Kohlmeyer case, police detectives had gone to the defendant's home to check on his welfare after receiving a report that he had threatened suicide. The defendant had allegedly been Facebook messaging with a fifteen-year old girl who was in Pennsylvania, and communicated to her that he might commit suicide. The defendant acknowledged to detectives that he may have indicated that in a message but that he was in no actual distress and had just been "messing around." One detective then asked to examine the defendant's phone. The defendant, in his own home and not under arrest, agreed the detective could examine the phone. The phone was then handed to the second detective who, after searching through media folders on the phone (but not accessing the defendant's Facebook account), discovered photos of what appeared to be young, undressed women. Suspecting the individuals in the photos may be minors, the detective requested to take the phone for further forensic examination. The defendant agreed to this.

A computer forensic examination recovered a number of deleted media files, some of which, by their visual content and file names, seemed to depict illegal content under Tennessee law. The defendant was ultimately convicted of two counts of sexual exploitation of minor, based on two specific video files which had been recovered from the phone's memory.

The defendant challenged the search of the phone, arguing he had only given the phone to detectives so they could search for written messages pertaining to the alleged suicide threat from the Facebook conversation, and that the search of the media files was beyond the scope of consent. The trial court and the Court of Criminal Appeals declined to read the scope so narrowly. The search of the phone, including its entire digital media content, was valid.

For more information regarding search and seizure law in criminal cases, contact Hindman & Associates.

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