No, unless they have a search warrant or your consent.
In December of 2016, the highest court in Texas over criminal matters, the Court of Criminal Appeals, held that citizens have a reasonable expectation of privacy from the government in the content of their text messages. Love v. State, AP-77,024 (Tex. Crim. App. 2016).
What does this mean?
The substance of what you text is protected private information. Unless a magistrate or judge signs a warrant allowing for the search, the State cannot search phone records for the contents of your texts, meaning the words submitted in the texts. This does not mean information associated with texting that you can see on your monthly phone bill like the date and time of texts, the phone number to which texts are sent, data usage, and so on.
However, it’s not hard for police to get a warrant. In fact, it’s fairly easy for a police officer in Denton County to obtain a warrant after submitting a probable cause affidavit. If the judge finds probable cause is sufficient based on the DPD’s sworn statement, he or she signs off and the warrant is issued, allowing for the search.
The Court in Love v. State, held that the defendant in that case maintained a reasonable expectation of privacy in all text messages sent and received on his cell phone, although that information was accessible to his third-party cell phone provider. The Court likened the provider to the post office and letters or envelopes being sent: information about the sender and recipient is visible so there is no expectation of privacy, but the contents of the text messages or emails are protected unless there is a proper warrant to search.
What if the police fail to get a warrant and look at my text messages without my consent?
Under Love v. State, your attorney should file a motion to suppress to keep the evidence with the content of your texts out at trial, and possibly have the case thrown out based on a bad search. Under the Code of Criminal Procedure Article 38.23(a), information obtained in violation of the Constitution is not admissible in a criminal case. The Denton County District Attorney’s office can, and likely will, still prosecute the case, but the contents of the texts cannot be admitted at trial. Best option is not to text anything that may serve to incriminate you.
If your privacy was violated or the police failed to get a search warrant before reading your text, you need an experienced criminal defense attorney fighting for you. Contact us today to schedule a complimentary consultation.