Jones, Ex Parte Kerry G. ( 2015 )

PD-1373&1374&1375-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/9/2015 4:13:53 PM
Accepted 12/11/2015 11:54:51 AM
ABEL ACOSTA
CLERK
PD-1373 & 1374 & 1375-15
_____________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
_____________________________________________
EX PARTE: KERRY G. JONES
Petitioner /Appellant.
______________________________________________________________________
FROM THE 230TH DISTRICT COURT OF HARRIS COUNTY, TEXAS
TRIAL COURT NO. 1283328-A & 1283329-A & 1283330-A
COURT OF APPEALS NO. 14-14-00488-CR & 14-14-00489-CR & 14-14-00490-CR
______________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_______________________________________________
JAMES D. LUCAS
2316 Montana Avenue
El Paso, Texas 79903
Tel: (915) 532-8811
Fax: (915) 532-8807
SBN 12658300
jlucas2@elp.rr.com
Attorney for Petitioner/Appellant
KERRY G. JONES
December 11, 2015
TABLE OF CONTENTS
TABLE OF CONTENTS..................................................................................................i, ii
IDENTITY OF THE PARTIES...........................................................................................iii
INDEX OF AUTHORITIES............................................................................................iv, v
STATEMENT REGARDING ORAL ARGUMENT...........................................................1
STATEMENT OF THE CASE.............................................................................................2
STATEMENT OF PROCEDURAL HISTORY...................................................................2
GROUNDS PRESENTED....................................................................................................3
ARGUMENT.........................................................................................................................4
1. By failing to address whether the Government violated Jones’ Fourth
Amendment right to be free of unreasonable searches and seizures by relying
on facts alleged in a search warrant affidavit to obtain a search warrant which
the Government acquired these facts from customer-based electronic
transaction logs PayPal voluntarily turned over without a warrant or court
order, the court of appeals has so far departed from the accepted and usual
course of judicial proceeding as to call for an exercise of the Court of Criminal
Appeals’ power of supervision ........................................................................4
A. The Relevant Facts.................................................................................4
B. Legal Analysis........................................................................................9
2. Whether content-based electronic information maintained by a third party
intermediary’s transaction logs is protected from a warrantless search under the
Fourth Amendment and by Article 1, Section 9 of the Texas Constitution is an
issue of both state and federal law which has not, but should be, settled by the
Texas Court of Criminal Appeals ..................................................................13
3. By ruling that probable cause exists to issue a search warrant for child
pornography when the supporting facts alleged in the affidavit failed to
i
establish a fair probability that child pornography would be found and were
based on events which occurred years earlier, the court of appeals has decided
an important question of state law in a way which conflicts with applicable
decisions of the United States Supreme Court .............................................16
PRAYER.............................................................................................................................19
CERTIFICATE OF COMPLIANCE..................................................................................20
CERTIFICATE OF SERVICE............................................................................................20
APPENDIX.........................................................................................................................21
ii
IDENTITY OF THE PARTIES
For Petitioner Kerry G. Jones:
James D. Lucas
Writ and Appellate Attorney
2316 Montana Avenue
El Paso, Texas 79903
Sergio A. Saldivar
Writ Co-counsel
2301 Montana Avenue
El Paso, Texas 79903
For the State of Texas:
Alan Curry, Trial Counsel
Assistant District Attorney
1201 Franklin, Suite 600
Houston, Texas 77002
Devon Anderson
District Attorney
Appellate Counsel
1201 Franklin, Suite 600
Houston, Texas 77002
Lisa McMinn
Appellate Counsel
JUDGE:
Hon. Brad Hart
230th District Court of
Harris County, Texas
iii
INDEX OF AUTHORITIES
FEDERAL CASES PAGES
Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D.Cal.2010).........15
Ornelas v. United States, 517 U.S. 690, 696 (1996)................................................17
Sgro v. United States, 287 U.S. 206, 211 (1932)......................................................17
United States v. D'Andrea, 497 F. Supp. 2d 117, 120 (D.Mass.2007).......................11
United States v. Forrester, 512 F.3d 500, at 511 (9th Cir. 2007)...........................14, 15
United States v. Hambrick, 225 F.3d 656 (4th Cir.2000) (unpublished)..................11
United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012)........................................14
United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008)...........................9, 10
United States v. Perez, 247 F. Supp. 2d 459, 483-484(S.D.N.Y. 2003)..................18
United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)..................................13, 14
United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008)..................................14, 15
CASE
Russo v. State, 228 S.W3d 779, 802 (Tex.App.–Austin 2007, pet. ref’d)...............11
STATUTE
TEX . CODE CRIM . PROC . art. 11.072...................................................................2, 7, 8, 11
18 U.S.C. § 2703........................................................................................................14
iv
CONSTITUTIONS
U.S. CONST. amend. IV..............................................................................13, 14, 15
TEX. CONST. art. I, § 9.................................................................................1, 13, 15
v
STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument in this case and believes oral argument would
be helpful. The application of the Fourth Amendment law in the area of electronically
stored and transmitted information is relatively novel and its contours have not been
directly addressed by the Texas Court of Criminal Appeals. This case offers this Court
a meaningful opportunity to address how the Fourth Amendment and Article 1,
Section 9 of the Texas Constitution should be applied to searches of electronic date
supplied to internet companies by its customers, to include content-based information
held by internet service providers.
Page -1-
STATEMENT OF THE CASE
AND STATEMENT OF PROCEDURAL HISTORY
This petition for discretionary review concerns the trial court’s decision to deny
the Petitioner, Kerry Jones, relief on an article 11.072 writ application he filed. CR
2. Jones filed his writ application on July 9, 2012. Id. On May 1, 2014, an evidentiary
hearing was held on Jones’ writ application. RR 1,1. At the conclusion of the hearing,
the trial court denied Jones’ relief on his writ application. RR 1, 209. After the
evidentiary hearing, the trial court made written findings of fact and conclusions of
law, which were filed on May 12, 2014. CR 85-89. Jones filed his notice of appeal as
to all three causes of action on May 30, 2014. CR 91.
Jones thereafter filed his appellate briefs on all three indicted causes with the
Fourteenth Court of Appeals. The State did not file any response briefs. On August
18, 2015, the Fourteenth Court of Appeals handed down a written opinion affirming
the trial court’s denial of writ relief on all three indicted cases. On September 17,
2015, Jones filed a motion for rehearing and a motion to extend time to file this motion
for rehearing with the Fourteenth Court of Appeals on the indicted causes. The
motion to extend time to file motion for rehearing was granted on September 24, 2015.
However, the motion for rehearing on these cases was overruled on September 29,
2015.
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GROUNDS FOR REVIEW
1. The Government violated Jones’ Fourth Amendment right to be free of
unreasonable searches and seizures by relying on facts alleged in a search
warrant affidavit to obtain a search warrant which the Government acquired
these facts from customer-based electronic transaction logs PayPal voluntarily
turned over without a warrant or court order.
2. The court of appeals erred by failing to address whether content-based
electronic data maintained in a third party intermediary’s transaction logs is
protected from warrantless searches under the Fourth Amendment and by
Article 1, Section 9 of the Texas Constitution.
3. By ruling that probable cause exists to issue a search warrant for child
pornography when the supporting facts alleged in the affidavit failed to
establish a fair probability that child pornography would be found and were
based on events which transpired years earlier, the court of appeals has decided
an important question of state law in a way which conflicts with applicable
decisions of the United States Supreme Court
Page -3-
ARGUMENT
1. By failing to address whether the Government violated Jones’ Fourth
Amendment right to be free of unreasonable searches and seizures by
relying on facts alleged in a search warrant affidavit to obtain a search
warrant which the Government acquired these facts from customer-based
electronic transaction logs PayPal voluntarily turned over without a
warrant or court order, the court of appeals has so far departed from the
accepted and usual course of judicial proceeding as to call for an exercise
of the Court of Criminal Appeals’ power of supervision
A. The Relevant Facts
Petitioner Jones was convicted of unlawful possession of child pornography
after the search of his residence on February 19, 2009 resulted in the seizure of a
computer and hard drives on which child pornography was found. The child
pornography seized from Petitioner’s residence was based on a state search warrant
which was issued pursuant to an affidavit signed by Juanae S. Thompson, a law
enforcement officer of the Department of Homeland Security assigned to ICE. CR 1,9.
Pages 14 through 20 of Ms. Thompson’s affidavit stated in relevant part:
Your Affiant received this case for investigation as a result of a joint
investigation between the ICE RAC/Birmingham office, the ICE Cyber-Crimes
Center (C3) Child Exploitation Section (CES), the U.S. Postal Inspection
Service (USPIS), the U.S. Department of Justice (DOJ) Child Exploitation and
Obscenity Section (CEOS), and the U.S. Attorney’s Office for the Northern
District of Alabama into a criminal organization operating a commercial child
pornography web sites [sic] on the internet identified as “Home Collection.”
ICE agents determined that the organization was operating in excess of 18
commercial child pornography web sites and in addition, the organization was
determined to be utilizing multiple PayPal accounts to process the payments
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made by individuals purchasing memberships to the child pornography web
sites. Approximately 5000 United States targets have been identified as being
members of these child pornography sites. RR 1, Defendant’s Exh. 2, pp. 14-
15.
Reports indicate that on October 12, 2006 at approximately 21:37:06 PDT an
individual using the e-mail address of kgj01@hotmail.com purchased a
membership to “Lust Collections” (aka Angel Collection 1007) for $79.95
payable, via PayPal, to Belfastltd@juno.com. Belfastltd@juno.com was
determined by ICE/C#/CES to be associated with one of the multiple PayPal
accounts operated by the criminal organization to facilitate the processing of
membership payments to the commercial child pornography web sites. Id., at
15....
ICE agents were able to purchase undercover memberships to “Angel
Collection 1007" (aka Lust Collection) and were able to verify the web site as
a commercial child pornography site Id....
Reports indicate that on November 1, 2006 at approximately 20:58:52 PST an
individual using the e-mail address of kgj01@hotmail.com purchased a
membership to “Hot Girls Photos” (aka Angel Collection 1010) for $79.95
payable, via PayPal, to Belfstltd@juno.com was determined by ICE/C3/CE3
to be associated with one of the multiple PayPal accounts operated by the
criminal organization to facilitate the processing of membership payments to
the commercial child pornography web sites Id., at 17....
Reports indicate that on January 21, 2007 at approximately 20:41:35 PST an
individual using the e-mail address of kgj01@hotmail.com purchased a
membership to “Real Lola Issue #2" for $79.95 payable, via PayPal, to
Bsofteawh@yahoo.com. Bsofteawh@yahoo.com was determined by
ICE/C3/CES to be associated with one of the multiple PayPal accounts
operated by the criminal organization to facilitate the processing of
membership payments to the commercial child pornography web sites. ICE
agents were able to obtain screen captures of “Real Lolas #2" advertising web
page. The screen captures verify the web site as a commercial child
pornography web site Id., at 19. ....
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Reports indicate that on January 25, 2007 at approximately 20:51:12 PST an
individual using the e-mail address of kgj01@hotmail.com purchased a
membership to “Plazma Girls” for $79.95 payable, via PayPal, to
Bsofteawh@yahoo.com. Bsofteawh@yahoo.com was determined by
ICE/C3/CES to be associated with one of the multiple PayPal accounts
operated by the criminal organization to facilitate the processing of
membership payments to the commercial child pornography web sites. ICE
agents were unable to obtain membership to the “Plazma Girls” website nor
were they able to obtain screen captures of the advertising web page. Id, at 19-
20.
ICE Special Agents were able to obtain all PayPal buyer and seller
transactional logs for all transactions associated with the criminal organization
and the commercial child pornography web sites and the subscribers. ICE
agents obtained buyer contact information by extracting every buyer e-mail
address from the seller’ PayPal transactional logs and submitting those e-mail
addresses to PayPal. PayPal then pulled buyer contact information for each
buyer and provided said information to ICE Agents. Id., at 20.
In addition to the above-referenced e-mail transaction logs linking Petitioner
to the one month membership purchases, PayPal also provided ICE agents with
buyer-contact information which identified kgj01@hotmail.com as Kerry Jones, 901
Country Place Dr #192, Houston, Texas 77079; listed Jones’ associated day phone
number as 281-293-5018, and listed Jones’ night phone number as 281-493-9826.
PayPal also linked Jones to a mailing address of 800 Country Place Dr #1001,
Houston, Texas 77079. CR 18-19. None of the child pornography seized during the
search of Jones’ residence came from any of the websites identified in the search
warrant affidavit. CR 20.
Page -6-
At no point prior to the date Jones entered guilty pleas to the three child
pornography indictments pending against him did his trial counsel file and pursue a
motion to suppress illegally-seized evidence based on: (a) the theory that the facts
alleged in the search warrant affidavit were insufficient to establish probable cause
that an offense had been committed; or (b) the theory that the facts alleged in the
search warrant affidavit were themselves a product of illegally-seized evidence. RR
1, 52. Jones accordingly asserted in his article 11.072 writ application that his trial
counsel rendered ineffective assistance of counsel by not filing and pursuing a motion
to suppress the child pornography seized from his residence. However, the trial court
rejected this argument and determined that Jones had failed to prove that his trial
counsel rendered ineffective assistance.
On appeal, Jones asserted as the first point for review of his principal brief that
the trial court erred in denying relief on his complaint that his trial counsel rendered
ineffective assistance by not filing and pursuing a motion to suppress the child
pornography seized from his residence pursuant to the search warrant. Jones asserted
on page 18 of his brief the following factual basis for his claim that his trial counsel
rendered a deficient performance by failing to move to suppress the digital images of
child pornography stored on a computer and/or hard drive(s) ICE agents removed
from his residence:
Page -7-
The inability of Jones’ trial counsel to recognize during Jones’ article 11.072
evidentiary hearing that the email transactional logs and other confidential
information PayPal voluntarily turned over to ICE agents without being forced
by a search warrant to turn [these items] over demonstrates the deficient
performance Jones’ trial counsel rendered. PayPal was no more than an
intermediary between Jones and the owners of the “Home Collection” website
operating from a location in Europe. Jones’ trial counsel should have
recognized that PayPal was not even a party. PayPal did nothing more than
facilitate Jones’ purchase of three one-month subscriptions between Jones and
this commercial website. The information PayPal voluntarily turned over to
these ICE agents thus went beyond any non-content information Jones
divulged. PayPal divulged information protected by the Fourth Amendment.
Through its transactional email logs and records, PayPal identified for these
ICE agents Jones’ online activities, his purchasing activities, and his personal
contact information– information in which Jones possessed a reasonable
expectation of privacy.
In rejecting this argument and denying Jones relief on point for review one, the court
of appeals ruled:
Here, ICE agents obtained appellant's subscription information from PayPal,
which allowed them to discover appellant's name and address. Appellant did
not have a reasonable expectation of privacy in this information. See United
States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) (“Every federal court
to address this issue has held that subscriber information provided to an
internet provider is not protected by the Fourth Amendment's privacy
expectation.”); see also United States v. Hambrick, 225 F.3d 656 (4th
Cir.2000) (per curiam) (unpublished), affirming United States v. Hambrick, 55
F. Supp. 2d 504, 508–09 (W.D.Va.1999) (holding that there was no legitimate
expectation of privacy in noncontent customer information provided to an
internet service provider by one of its customers); Russo v. State, 228 S.W.3d
779, 802 (Tex.App.–Austin 2007, pet. ref d) (stating that there is no Fourth
Amendment protection against the disclosure of subscriber information by
internet service providers). This is because “[i]ndividuals generally lose a
reasonable expectation of privacy in their information once they reveal it to
third parties.” Guest v. Leis, 255 F.3d 325, 335 (6th Cir.2001); see also
Page -8-
Barfield v. State, 416 S.W.3d 743, 748–49 (Tex.App.–Houston [14th Dist.]
2013, no pet.) (holding that defendant does not have a reasonable expectation
of privacy in cell-site location data because a defendant voluntarily conveys
information to third-party provider).
B. Legal analysis
The court of appeals failed to address the primary argument asserted by Jones’
in his first point for review.1 It confined its analysis to the issue of whether the
Government was entitled to retrieve subscriber information from an internet service
provider without first obtaining a warrant. Although this was the situation in United
States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008), it was not the primary
contention made by Jones in asserting that his trial counsel rendered ineffective
assistance of counsel in failing to pursue a suppression remedy.
Jones’ primary contention on appeal was that the Government did not have the
right to obtain from PayPal all transaction logs for transactions associated with the
criminal organization and commercial child pornography web sites to which he
subscribed without first obtaining a search warrant. It was the information the
Government obtained from these transaction logs which enabled ICE Agent
1
Petitioner will assume, for purposes of this review point, that Pay-Pal is an internet
service provider even though PayPal does not appear to be an “internet service provider” within
the meaning of this term as used in United States v. Perrine, 518 F.3d 1196, 1204 (10th
Cir.2008) or in case law which addresses the right of the Government to access non-content
subscriber information without a search warrant.
Page -9-
Thompson to prepare a search warrant affidavit which connected Jones to child
pornography and to child pornography websites. Without this information, Agent
Thompson would not have possessed sufficient facts in her search warrant affidavit
to enable a neutral and detached magistrate to make a probable cause determination
that Jones possessed child pornography on a home computers or a hard drive.
Even if the court of appeals correctly cites to Perrine as authority that the
Government was authorized to obtain Jones’ name, address and phone number and
internet service provider subscriber-related information without a search warrant, it
failed to address Jones’ primary Fourth Amendment contention – which was that the
Government violated his Fourth Amendment to be free from unreasonable searches
by obtaining from PayPal all transaction logs between Jones and the criminal
organization and the commercial child pornography web sites without a search
warrant. All of this information was content-based and not mere subscriber
information. Thus, Jones contends that the court of appeals erred by addressing only
whether the subscriber information obtained from Pay-Pal was illegally-obtained and
ignoring his complaint that the content-based transaction logs the Government
obtained were also illegally obtained, in violation of the Fourth Amendment.
All of the cases cited in United States v. Perrine, supra, basically draw a
distinction between the Government’s right to obtain internet service provider non-
Page -10-
content subscriber information and its right to obtain content-related subscriber
information. The case of United States v. Hambrick, 225 F.3d 656 (4th Cir.2000)
(unpublished), affirming United States v. Hambrick, 55 F. Supp. 2d 504, 508-09
(W.D.Va.1999) illustrates this point. There, the Fourth Circuit held there was no
legitimate expectation of privacy in non-content customer information provided to
an internet service provider by one of its customers. Similarly, in United States v.
D'Andrea, 497 F. Supp. 2d 117, 120 (D.Mass.2007), the federal court addressing the
search and seizure issue presented ruled: “The Smith line of cases has led federal
courts to uniformly conclude that internet users have no reasonable expectation of
privacy in their subscriber information, the length of their stored files, and other
noncontent data to which service providers must have access.”) (emph. added). See
also Russo v. State, 228 S.W3d 779, 802 (Tex.App.–Austin 2007, pet. ref’d)
(recognizing that there is no Fourth Amendment protection against the disclosure of
subscriber information by internet service providers). This ruling expressly failed to
address whether content-based data was protected by the Fourth Amendment.
In Jones’ case, the primary evidence relied on by the Government to obtain the
issuance of a search warrant against Jones consisted of content data extracted from
transaction logs Pay-Pal voluntarily turned over to the Government. Jones contended
in his article 11.072 writ application and on appeal that these transaction logs should
Page -11-
have been obtained through a search warrant before they could be used by the
Government to obtain a search warrant for Jones’ residence and any computers and
hard drives he possessed. In other words, Jones demonstrated that the only link to
him and child pornography was through these transaction logs which he asserted had
been illegally obtained by the Government, in violation of his right under the Fourth
Amendment and Texas Constitution to be free from illegal searches and seizures.
The court of appeals failed to address Jones’ contention that the Government
violated his right to be free from unreasonable searches and seizures under the Fourth
Amendment and Texas Constitution by securing a search warrant on the basis of
content-based transaction logs the Government obtained without a search warrant. In
addressing only whether the Government was authorized to obtain from Pay-Pal
subscriber information from Jones, the court of appeals failed to grant Petitioner
Jones a meaningful review of the first point for review. It should not have ignored
this argument.
Even though Jones’ name, address, and phone number constituted “subscriber
information”, this non-content information was not the primary legal contention upon
which Jones based his suppression remedy argument. Jones’ primary suppression
theory was that the link drawn to Jones and child pornography resulted from PayPal’s
decision to voluntarily turn over the content-based transaction logs to the
Page -12-
Government. It was this evidence which Jones contended was illegally obtained by
the Government and warranted suppressing the child pornography seized from his
residence, computer(s) and/or hard drives. Given the court of appeals’ total and
complete failure to address whether these content-based transaction logs should have
been suppressed under the fruit of the poisonous tree doctrine, the Court of Criminal
Appeals should grant review of this point and order briefing.
2. Whether content-based electronic information maintained by a third party
intermediary’s transaction logs is protected from a warrantless search
under the Fourth Amendment and by Article 1, Section 9 of the Texas
Constitution is an issue of both state and federal law which has not, but
should be, settled by the Texas Court of Criminal Appeals
The United States Supreme Court has not squarely addressed the issue of
whether content-based electronic information which one person provides to another
through a third party intermediary is protected under the Fourth Amendment to the
United States Constitution. To-date, the Texas Court of Criminal Appeals has not
addressed the issue. In contrast, several courts of appeals have written opinions
which only partially address the issue. With the exception of subscriber information
a person voluntarily provides to an internet service provider, several federal court
have recognized that a Fourth Amendment privacy interest is generally implicated
where electronic communications between two persons are not intended to be viewed
by the public at large. In United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010),
Page -13-
for example, the Sixth Circuit observed that the content of “email requires strong
protection under the Fourth Amendment; otherwise, the Fourth Amendment would
prove an ineffective guardian of private communication, an essential purpose it had
long been recognized to serve.” Id., 286. It further held that a subscriber enjoys a
reasonable expectation of privacy in the contents of emails "that are stored with, or
sent or received through, a commercial [Internet service provider (ISP)]” and further
held that “to the extent that [the Stored Communications Act (SCA), 18 U.S.C.
Section 2703] purports to permit the government to obtain such emails warrantlessly,
the SCA is unconstitutional.” Warshak, at 288.
In United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012), the Fourth Circuit
similarly concluded: "[E]mail has become the modern stenographer. . . . [E]mails
today, ``in common experience,' are confidential." Id. at 408 (citation omitted). The
Fifth and Ninth Circuits have likely recognized that a defendant has a reasonable
expectation of privacy with respect to "private information, including emails." See
United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008); and United States v.
Forrester, 512 F.3d 500, at 511 (9th Cir. 2007) (holding that "The privacy interests in
these two forms of communication [email and traditional mail] are identical."). One
court, comparing private facebook messages to email, has stated that both are
"inherently private" because such messages "are not readily accessible to the general
Page -14-
public." Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D.Cal.2010).
And where the service provider is no more than a conduit or third-party intermediary
which “passively convey[s]” that information to an end-user, the court of appeals for
the Ninth Circuit has concluded that the material is generally not subject to any claim
that the information constitutes business records of the internet service provider.
United States v. Forrester, supra at 510.
The transaction logs at issue involved content-based confidential
communications between Jones and the internet websites through which he ordered
subscriptions. PayPal’s only role in its dealings with Jones was to serve as a third
party intermediary by facilitating the buy-sell transactions between Jones and the
websites through which he purchased digital images. According to the above-cited
federal cases, Jones had a reasonable expectation that the content of his
communications with these websites would be protected by PayPal, much like the
federal courts recognize that email communications are protected under the Fourth
Amendment. See e.g. United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008). But
the issue of whether Jones had a privacy interest in these content-based transaction
logs possessed by PayPal, a third-party intermediary, under the Fourth Amendment
and Article 1, Section 9 of the Texas Constitution is an issue which has not been, but
should be, settled by the Texas Court of Criminal Appeals.
Page -15-
3. By ruling that probable cause exists to issue a search warrant for child
pornography when the supporting facts alleged in the affidavit failed to
establish a fair probability that child pornography would be found and
were based on events which occurred years earlier, the court of appeals
has decided an important question of state law in a way which conflicts
with applicable decisions of the United States Supreme Court
The ICE agents executing the search warrant on Jones’ residence did not
examine or search the content of the computers and storage devices (hard drives) they
seized. CR 13. Instead, they took these items to a forensic expert to be examined.
CR 13; RR 1, 168. The three computers and two disc drives seized from Jones’
residence were not returned to Jones until approximately 18 months after they were
seized by these ICE agents in February of 2009, more than two years after the January
2007 date Jones paid for his last subscription. CR 14. Jones was not arrested until on
or about October 28, 2010 and was not indicted until December 16, 2010. CR 14. The
subscriptions Jones purchased from the Home Collection web sites in connection with
this case were of a one month duration only. CR 14. Further, there was no allegation
in the search warrant affidavit that Jones or any one else accessed these websites or
downloaded any of the images from the pornographic websites referenced in Juana
Thompson’s search warrant affidavit. RR 1, Defendant’s Exh. 2, pp. 14-20. There
was also no link drawn between any specific computer or address where child
pornography might be found. In fact, the information set forth in Thompson’s search
Page -16-
warrant affidavit requested the issuance of a search warrant for a residence address
different from the address listed in Pay-Pal’s customer account records. Id.
The U.S. Supreme Court has held that probable cause to search “exist[s] where
the known facts and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will be found” in the
location to be searched. Ornelas v. United States, 517 U.S. 690, 696 (1996). It also
recognized in Sgro v. United States, 287 U.S. 206, 211 (1932) that in order for a
search warrant to be valid, “the time within which proof of probable cause must be
taken by the judge or commissioner...must be of facts so closely related to the time
of the issuance of the warrant as to justify a finding of probable cause at that time.”
In Jones’ case, the facts alleged in the search warrant affidavit did not allege
sufficient facts to establish probable cause that a specific offense had been
committed. The only evidence the State possessed was that on November 1, 2006 an
individual using the e-mail address of kgj01@hotmail.com purchased a membership
to “Hot Girls Photos” (aka Angel Collection 1010) for $79.95 payable, via PayPal;
that on January 21, 2007 an individual using the e-mail address of
kgj01@hotmail.com purchased a one-month on-line membership to “Real Lola Issue
#2" for $79.95 payable, via PayPal; and that on January 25, 2007 an individual using
the e-mail address of kgj01@hotmail.com purchased a membership to “Plazma Girls”
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for $79.95 payable, via PayPal. These one-month subscription purchases were made
more than two years before the February 19, 2009 affidavit Thompson executed for
the issuance of the search warrant for Jones’ residence. Her affidavit also failed to
allege facts which established whether Jones ever downloaded images of child
pornography from these websites.
Without evidence demonstrating that Jones had transmitted digital images onto
a computer from any of the Home Collection websites he had subscribed to, there was
no basis for making a probable cause finding that the felony offense of child
pornography or some other specific offense had been committed by Jones. See
United States v. Perez, 247 F. Supp. 2d 459, 483-484(S.D.N.Y. 2003) (refusing to
make a probable cause finding by holding that subscription to known child
pornography website created a “chance, but not a fair probability that child
pornography would be found.”). Moreover, the fact that Jones’ last Home Collection
subscription had been made roughly 24 months before the date the search warrant
affidavit was executed rendered the information contained in the affidavit stale.
In other words, the court of appeals disregarded the probable cause proof
standard the Supreme Court requires for issuance of a search warrant, especially the
requirement that the facts alleged in a search warrant affidavit must be so closely
related to the time of the issuance of the warrant. In this regard, it further erred in
Page -18-
determining that a search warrant affidavit for child pornography can almost never
become stale by adopting Affiant Thompson’s statement that “[p]eople who have a
sexual interest in children or minors rarely, if ever, dispose of their sexually explicit
materials.” The Court of Criminal Appeals should accordingly grant review and
correct the misguided “probable cause” analysis of the court of appeals below.
PRAYER
Wherefore, Petitioner Kerry Jones prays the Texas Court of Criminal Appeals
will grant his petition for discretionary review on all three points for review
presented, order briefing, and remand this case to the court of appeals below for
reconsideration of the merits of his appeal.
Respectfully Submitted,
/s/ James D. Lucas
JAMES D. LUCAS
Counsel for Kerry Jones
2316 Montana Avenue
El Paso, Texas 79903
Tel. (915) 532-8811
Fax (915) 532-8807
SBN 12658300
jlucas2@elp.rr.com
Page -19-
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
This brief filed in support of thereof comply with the type-volume limitations
of 9.4. The brief contain 4,032 words, excluding the parts of the brief exempted by
9.4(1); and this brief complies with the typeface requirements of 9.4(e) because this
brief has been prepared in a proportionally spaced typeface using Corel Word Perfect
in Times New Roman, 14-point.
/s/ James D. Lucas
JAMES D. LUCAS
CERTIFICATE OF SERVICE
I, James D. Lucas, hereby certify that on the 9th day of November, 2015, a true
and correct copy of the foregoing petition for discretionary review filed by Petitioner,
Kerry G. Jones, was served on the Office of the District Attorney for Harris County,
Texas and the State Prosecuting Attorney, by electronic means.
/s/ James D. Lucas
JAMES D. LUCAS
Page -20-
APPENDIX
EXHIBIT A. COA OPINION
EXHIBIT B. COA JUDGMENT
Page -21-
EXHIBIT A. COA OPINION
Affirmed and Opinion filed August 18, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00488-CR
NO. 14-14-00489-CR
NO. 14-14-00490-CR
EX PARTE KERRY G. JONES
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 1283328-A, 1283329-A & 1283330-A
OPINION
Appellant Kerry G. Jones appeals the denial of his post-conviction
application for writ of habeas corpus, arguing that he was denied effective
assistance of counsel on the grounds that his trial counsel failed to file a motion to
suppress. We affirm.
BACKGROUND
In April 2006, the child exploitation section of the United States
Immigration and Customs Enforcement Agency (ICE) initiated an investigation
into a criminal organization operating a commercial child pornography website
known as “The Home Collection.” The investigation lasted three years and
subscribers to the website were identified through purchaser transactions obtained
from bank account records. The bank records revealed that a person using a PayPal
account registered to appellant purchased subscriptions to the website. Using the
bank records, the police were able to obtain appellant’s name and physical address.
On February 19, 2009, the police executed a search warrant to seize three
computers and two hard drives from appellant’s home. A forensic analysis of the
computers and hard drives disclosed over 433 digital images of child pornography
on appellant’s computer.
Appellant was indicted for three counts of the third degree felony offense of
possession of child pornography. Appellant pleaded guilty to all three counts. The
trial court deferred an adjudication of appellant’s guilt and placed him on
community supervision for five years.
On July 9, 2012, appellant filed an application for post-conviction writ of
habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.
He alleged that he was denied his claim of ineffective assistance of counsel, among
several other claims. The trial court conducted a hearing and entered an order
denying relief.
STANDARD OF REVIEW
We review a trial court’s determination on an application for writ of habeas
corpus for abuse of discretion. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—
2
Houston [14th Dist.] 2012, no pet.). An applicant seeking post-conviction habeas
corpus relief bears the burden of establishing by a preponderance of the evidence
that the facts entitle him to relief. Id. The trial court is the sole finder of fact in a
habeas proceeding. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App.
2010). In reviewing the trial court’s decision to grant or deny relief, we view the
facts in the light most favorable to the trial court’s ruling. Ex parte Fassi, 388
S.W.3d at 886. We afford almost total deference to the trial court’s findings,
especially when those findings are based on an evaluation of credibility and
demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We
will uphold the trial court’s judgment as long as it is correct on any theory of law
applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001) (per curiam).
ANALYSIS OF APPELLANT’S ISSUE
Appellant contends that the trial court erred by denying him relief on his
claim of ineffective assistance of counsel because his trial counsel failed to file a
motion to suppress the child pornography seized from the computers and hard
drives at his apartment. Appellant argues that his trial counsel should have filed a
motion to suppress because (1) the information set forth in the search warrant
affidavit was obtained from PayPal without a warrant; and (2) the search warrant
affidavit failed to set forth sufficient facts to establish probable cause.
To prevail on a claim of ineffective assistance of counsel, appellant must
satisfy the two-prong test by a preponderance of the evidence showing that: (1) his
attorney’s performance was deficient; and (2) his attorney’s deficient performance
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Under
the first prong, appellant must show that counsel’s performance was deficient to
3
the extent that counsel failed to function as the “counsel” guaranteed by the Sixth
Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Under the second prong, appellant must establish that counsel’s deficient
performance prejudiced the defense. Id. Prejudice is established by a showing that
there is a reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id.
A trial counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 447 U.S. 365, 384
(1986)). Counsel is not required to engage in the filing of futile motions. Id. (citing
Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). To prevail on an
ineffective assistance claim based on counsel’s failure to file a motion to suppress,
appellant must show by a preponderance of the evidence that the result of the
proceeding would have been different—i.e., that the motion to suppress would
have been granted and that the remaining evidence would have been insufficient to
support his conviction. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.
App. 1998) (holding that appellant is required to prove motion to suppress would
have been granted to prove ineffective assistance of counsel).
No Expectation of Privacy in Subscription Information
Appellant first complains that a motion to suppress should have been filed
because the information contained in the search warrant affidavit was obtained
without a warrant. Appellant argues that a warrant was required to obtain his
subscription information from PayPal.
The purpose of the Fourth Amendment is to safeguard an individual’s
legitimate expectation of privacy from unreasonable government intrusions.
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A defendant has
4
standing to challenge the admission of evidence obtained by an intrusion by the
government only if he had a legitimate expectation of privacy in the place invaded.
Id. The accused, as the party asserting the privacy expectation, has the burden of
proving facts to establish that such an expectation exists. Id. To establish a
constitutionally protected privacy interest in a possession, an accused must show
that (1) he had an actual, subjective expectation of privacy in the invaded
possession, and (2) his expectation of privacy was one that society accepts as
objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740 (1979).
Here, ICE agents obtained appellant’s subscription information from PayPal,
which allowed them to discover appellant’s name and address. Appellant did not
have a reasonable expectation of privacy in this information. See United States v.
Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this
issue has held that subscriber information provided to an internet provider is not
protected by the Fourth Amendment’s privacy expectation.”); see also United
States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (per curiam) (unpublished),
affirming United States v. Hambrick, 55 F. Supp. 2d 504, 508−09 (W.D. Va. 1999)
(holding that there was no legitimate expectation of privacy in noncontent
customer information provided to an internet service provider by one of its
customers); Russo v. State, 228 S.W.3d 779, 802 (Tex. App.—Austin 2007, pet.
ref’d) (stating that there is no Fourth Amendment protection against the disclosure
of subscriber information by internet service providers). This is because
“[i]ndividuals generally lose a reasonable expectation of privacy in their
information once they reveal it to third parties.” Guest v. Leis, 255 F.3d 325, 335
(6th Cir. 2001); see also Barfield v. State, 416 S.W.3d 743, 748−49 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (holding that defendant does not have a
reasonable expectation of privacy in cell-site location data because defendant
5
voluntarily conveys information to third-party provider). “What a person
knowingly exposes to the public . . . is not a subject of Fourth Amendment
protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, the
Supreme Court has consistently held that a “person has no legitimate expectation
of privacy in information he voluntarily turns over to third parties.” Smith, 442
U.S. at 743−44.
Because appellant did not have a reasonable expectation of privacy in his
subscription information, ICE agents were not required to secure a warrant in order
to obtain it. Appellant has failed to show that a motion to suppress would have
been granted on this ground. See Jackson, 973 S.W.2d at 957.
Search Warrant Affidavit
Appellant also asserts that a motion to suppress should have been filed
because the search warrant affidavit failed to set forth sufficient facts which could
establish probable cause for possession of child pornography. Specifically,
appellant contends that (1) his subscriptions to the websites did not establish
probable cause for possession of child pornography, and (2) the information in the
search warrant affidavit was stale.
When reviewing the magistrate’s decision to issue a warrant, the court
applies a highly deferential standard because of the constitutional preference for
searches to be conducted pursuant to a warrant as opposed to a warrantless search.
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). A court does not
analyze the affidavit in a hyper-technical manner. Rodriguez v. State, 232 S.W.3d
55, 59 (Tex. Crim. App. 2007). Instead, it interprets the affidavit in a
commonsensical and realistic manner, recognizing that the magistrate may draw
reasonable inferences. Id. at 61. When in doubt, we defer to all reasonable
inferences that the magistrate could have made. Id. If the magistrate had a
6
substantial basis for concluding that probable cause existed, a court will uphold the
magistrate’s probable cause determination. McLain, 337 S.W.3d at 271.
A search warrant must be accompanied by a sworn affidavit that sets forth
substantial facts establishing probable cause. See Tex. Code Crim. Proc. art.
18.01(b). In addition, the affidavit must set forth sufficient facts to establish
probable cause, showing that (1) a specific offense has been committed; (2) the
specifically described item to be seized constitutes evidence of the offense or
evidence that a particular person committed the offense; and (3) the item is located
at or on the person, place, or thing to be searched. Tex. Code Crim. Proc. art.
18.01(c). An affidavit supporting a search warrant is sufficient if, from the totality
of the circumstances reflected in the affidavit, the magistrate was provided with a
substantial basis for concluding that probable cause existed. See State v. Duarte,
389 S.W.3d 349, 354 (Tex. Crim. App. 2012). We look at the four corners of the
affidavit in determining whether there is probable cause to search the identified
locations. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).
Appellant contends that the mere fact that he made four one-month
purchases for child pornography websites fails to establish probable cause that he
committed the offense of possession of child pornography. The affidavit alleged
that a child pornography website known as “Home Collection” offered individuals
monthly access to websites that provided images of child pornography for a
specific fee. The affidavit provided that an individual using the email address of
kgj01@hotmail.com purchased several one-month memberships to “Lust
Collections,” “Hot Girl Photos,” “Real Lola Issue #2,” and “Plazmas Girls.” The
memberships were $79.95 each, payable, via PayPal, to email addresses
determined to be associated with a criminal organization that facilitated the
processing of membership payments to commercial child pornography websites.
7
The affidavit further stated that PayPal provided the ICE agents with buyer contact
information, which identified kgj01@hotmail.com as appellant. Considering the
totality of the circumstances, the magistrate could have reasonably inferred from
the facts set forth in the affidavit that appellant possessed child pornography. The
magistrate could have reasonably concluded a probability existed that child
pornography would be found at appellant’s residence. See State v. Cotter, 360
S.W.3d 647, 653 (Tex. App.—Amarillo 2012, no pet.)
Appellant also argues that the information in the affidavit is stale because
the affidavit was made two years after he purchased the subscriptions to the
websites. To justify a magistrate’s finding that an affidavit is sufficient to establish
probable cause to issue a search warrant, the facts set out in the affidavit must not
have become stale when a magistrate issues the search warrant. State v. Dugas, 296
S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Probable
cause ceases to exist when, at the time the search warrant is issued, it would be
unreasonable to presume the items remain at the suspected place. Id. However,
where the affidavit properly recites facts indicating activity of a protracted and
continuous nature, a course of conduct, the passage of time becomes less
significant. Jones v. State, 364 S.W.3d 854, 861 (Tex. Crim. App. 2012). The
proper method to determine whether the facts supporting a search warrant have
become stale is to examine, in light of the type of criminal activity involved, the
time elapsing between the occurrence of the events set out in the affidavit and the
time the search warrant is issued. Dugas, 296 S.W.3d at 116.
The challenged affidavit was created on February 19, 2009. The affiant
stated that she received the case as a result of a joint investigation into a criminal
organization operating over eighteen commercial child pornography websites. The
organization utilized PayPal accounts to process payments made by individuals
8
purchasing memberships to the child pornography websites. The affiant stated that
records indicated that a PayPal account registered to appellant purchased four one-
month memberships to the websites. The purchases were made on October 12,
2006, November 1, 2006, January 21, 2007, and January 25, 2007.
The magistrate could have reasonably concluded that the pornographic
images were still on appellant’s computer at his apartment at the time the warrant
was issued. Federal courts have repeatedly recognized that in child pornography
cases, collectors of child pornography tend to retain this material. See United
States v. Cox, 190 F. Supp. 2d 330, 333 (N.D. N.Y. 2002); see also United States v.
Ricciardelli, 998 F.2d 8, 12 n.4 (1st Cir. 1993) (noting that “[h]istory teaches that
collectors [of child pornography] prefer not to dispose of their dross, typically
retaining obscene materials for years”). Here, the affiant stated that “[p]eople who
have a sexual interest in children or minors rarely, if ever, dispose of their sexually
explicit materials.” See Steele v. State, 355 S.W.3d 746, 751 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (concluding that magistrate could have reasonably
concluded defendant continued to be in possession of child pornography because
affidavit proved “expert testimony that persons sexually attracted to children tend
to collect sexually explicit photographs of children, treating the photographs as
prized possessions, of which they rarely dispose”); see also Morris v. State, 62
S.W.3d 817, 823−24 (Tex. App.—Waco 2001, no pet.) (providing that where
affidavit indicates activity of continuous nature, magistrate could have reasonably
inferred that defendant had possession of pornography for substantial period of
time, i.e., one-and-a-half years).
Thus, the affidavit contained sufficient information from which the
magistrate had a substantial basis under the totality of the circumstances for
concluding that probable cause existed that the computer and hard drives at
9
appellant’s apartment contained child pornography. See Sanders v. State, 191
S.W.3d 272, 279−80 (Tex. App.—Waco 2006, pet. ref’d) (holding that information
obtained two years before warrant executed was not stale); Burke v. State, 27
S.W.3d 651, 655 (Tex. App.—Waco 2000, pet. ref’d) (providing that information
obtained one year before warrant executed was not stale).
We conclude that the facts and circumstances submitted to the magistrate
within the “four corners” of the affidavit provide a substantial basis for the
magistrate’s conclusion that child pornography would probably be found at
appellant’s apartment at the time the warrant was issued. Thus, the affidavit was
sufficient to establish probable cause. Because appellant cannot show that a motion
to suppress alleging these grounds would have been granted, appellant has failed to
show that he received ineffective assistance of counsel. See Jackson, 973 S.W.2d
at 957. Accordingly, the trial court did not abuse its discretion by denying
appellant’s post-conviction writ of habeas corpus.
CONCLUSION
We overrule appellant’s issues and affirm the trial court’s judgment denying
relief.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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EXHIBIT B. COA JUDGMENT
August 18, 2015
JUDGMENT
The Fourteenth Court of Appeals
EX PARTE KERRY G. JONES, Appellant
NO. 14-14-00488-CR
NO. 14-14-00489-CR
NO. 14-14-00490-CR
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.