KIRSCH, J.
Kirk argues that his power to suppress [his stepson] D.K.’s statements still exists because the “plain language of [Indiana Code section 31-32-5-1] clearly grants to parents broad control over a juvenile’s statements made during a custodial interrogation.” Appellant’s Br. at 17. For example, “[w]here a child has a parent but not counsel, the parent’s waiver of the juvenile’s rights is one of the prerequisites to admissibility of that [juvenile’s] statement against the juvenile.” Id. Even so, Kirk admits that a parent’s control extends to protecting a juvenile’s right against self-incrimination, i.e., being able to prevent a juvenile’s own statement from being used “against the juvenile.” Appellant’s Br. at 17. As such, Kirk cannot suppress D.K.’s statements by asserting D.K.’s privilege against self-incrimination. See Randall v. State, 455 N.E.2d 916, 920 (Ind. 1983) (defendant cannot claim violation of his own constitutional rights by showing violation of someone else’s constitutional rights). Stated differently, Kirk does not have standing to complain that the introduction of D.K.’s statements to police violated D.K.’s privilege against self-incrimination. Thus, the trial court did not abuse its discretion in determining that D.K.’s statements were admissible at Kirk’s trial, notwithstanding the fact that they were taken by police in violation of Indiana Code section 31-32-5-1.
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Here, officers responded to Barnett’s 911 call that two men, one of whom was brandishing a gun, were threatening “to use that gun to beat [Barnett].” Tr. at 25. When officers stopped D.K. and Kirk, it was reasonable to perform a pat down search for officer safety and to search D.K. incident to arrest after finding that he was carrying a loaded gun. Police then arrested Kirk for neglect of a dependent and public intoxication and, while performing a search incident to arrest, found he was in possession of marijuana, a pipe, and a cell phone. Immediately after finding Kirk’s cell phone, Detective Schwomeyer opened the inbox and looked at six to eight text messages. Tr. at 31, 37.
By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. See State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (officers should have obtained search warrant for locked box just as they had done to investigate contents of cell phone), trans. denied; Smith, 713 N.E.2d at 345 (cell phones and evidence flowing therefrom should not have been admitted into evidence when State failed to justify warrantless search). The State did not make clear the reason for the search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.
Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.
The State contends that the law enforcement needs to search the phone immediately were great because the contents of the cell phone could have been remotely cleansed. The State, however, fails to prove that this was a reasonable concern or to demonstrate that less intrusive means such as removing the SIM card or simply turning the cell phone off could not have been used to block any effort to remotely cleanse the cell phone until a warrant could be obtained.
Furthermore, we find that the police actions subsequent to Kirk’s arrest call into question the claim of the importance of the contents of the cell phone. Kirk’s phone was seized in June 2010 and was not accessed by either party for the next three months. During that time, the property room misplaced and later found the cell phone. When Kirk’s cell phone reappeared, it was in need of being charged and required a code to unlock it. The State could not obtain the code from Kirk, and yet made no effort to obtain a search warrant to again view the text messages. The State’s failure to act promptly to secure the contents of the text messages suggests that the warrantless search was not motivated by concerns about the destruction of evidence. Under these facts and circumstances, we conclude that the warrantless search of the cell phone was unreasonable under Article I, Section 11 of the Indiana Constitution, and it was error for the trial court to admit the testimony regarding the contents of Kirk’s cell phone.
BAKER, J., and BROWN, J., concur.