Hankston, Gareic Jerard , 2017 Tex. Crim. App. LEXIS 379 ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0887-15
GAREIC JERARD HANKSTON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
R ICHARDSON, J., delivered the opinion for a unanimous Court.
OPINION
Following the denial of his motion to suppress, Appellant, Gareic Jerard Hankston,
was convicted of murder and was sentenced to twenty years in prison. The Fourteenth Court
of Appeals affirmed Appellant’s conviction, holding that the warrantless acquisition of
Appellant’s cell phone records from Sprint (comprised of call logs and historical cell site
location information (“CSLI”)) did not violate Appellant’s rights under the Fourth
Amendment or under Article I, Section 9 of the Texas Constitution. In light of our recent
Gareic Jerard Hankston — 2
decision in Ford v. State,1 we did not grant review of Appellant’s Fourth Amendment claim.2
We did, however, agree to address an issue that was unresolved by Ford—whether Art. I, § 9
of the Texas Constitution affords broader protection under these facts than the Fourth
Amendment provides. We hold that Appellant’s rights pertaining to call logs and cell site
location information possessed by a third party are the same under both the Fourth
Amendment and under Art. I, § 9. We hold that the State’s acquisition of Appellant’s cell
phone records pursuant to a court order did not violate Art. I, § 9 of the Texas Constitution.
We affirm the decision of the Fourteenth Court of Appeals.
BACKGROUND
Appellant’s girlfriend, Crystal Jordan, had been stalked by Keith Brown for some
time. Brown lived two houses down from Jordan’s mother’s house, and on several occasions
he would stand outside the mother’s house and watch Jordan when she visited her mother.
He would leave notes on her mother’s door. After Jordan moved to an apartment, Brown
would still approach her. On the evening of May 19, 2011, Jordan was in her apartment
when she heard a knock at the door. She looked out the window and saw someone who
looked like Brown standing outside.
1
477 S.W.3d 321 (Tex. Crim. App. 2015).
2
See also Love v. State, No. AP-77,024, 2016 WL 7131259, at *3 (Tex. Crim. App. December
7, 2016)(holding that “call logs and CSLI are not . . . constitutionally protected” under the Fourth
Amendment).
Gareic Jerard Hankston — 3
She also saw a van that looked like Brown’s. Jordan did not open her door, but
instead called 911, her parents, and Appellant. The police came and went, and thereafter
Jordan left her apartment to go to her mother’s house. Appellant had not shown up, and she
did not know where he was. Jordan testified at trial that, while she was at her mother’s
house, she heard gunshots. Some time thereafter, Appellant arrived at Jordan’s mother’s
house.
Witnesses testified at trial that on that same evening Brown came home around
9:00 p.m. Shortly thereafter, someone started banging loudly on his front door. Brown
started to open the door but tried to shut it again. The person on the other side of the door
fired six gunshots through the door, striking and killing Brown with four of them.
In the course of investigating the murder, Appellant’s cell phone records were
obtained by members of law enforcement without a warrant. The cell phone records were
acquired from Sprint pursuant to a sealed application and court order. The application stated
that the records were being requested because law enforcement believed the records would
“assist [the] investigation by providing information as to who [Hankston] was in contact with
on the date of the Complainant’s murder. . . . [and] will also aid in proving/disproving the
defendant’s whereabouts before and after the murder.” Appellant was eventually charged
with the murder of Keith Brown.
Gareic Jerard Hankston — 4
A. The Motion to Suppress
Appellant filed a motion to suppress his cell phone records. At the hearing on
Appellant’s motion to suppress, the State agreed to stipulate that the records were obtained
without a warrant. The State relied on Texas Code of Criminal Procedure Article 18.21 as
authority to obtain records with only a court order.3 The court order allowed the State to
obtain cell phone records for the twelve months preceding the issuance of the order. No
witnesses testified at the motion-to-suppress hearing, during which the trial court judge
inspected the court order. Appellant’s trial counsel argued at the hearing that the records
were obtained in violation of the Fourth Amendment and in violation of Art. I, § 9 of the
Texas Constitution. He also argued that the Texas Constitution provides greater protection
than the Fourth Amendment under these facts. The trial court denied Appellant’s motion to
suppress, finding that the court order was issued in compliance with state and federal law,
and finding that the disclosure did not violate the Fourth Amendment to the U.S. Constitution
or Article I, Section 9 of the Texas Constitution.
3
The cell phone records at issue in this case were obtained by the State using a court order
issued under a prior version of article 18.21 § 5(a) of the Texas Code of Criminal Procedure. See Act
of May 29, 1989, 71st Leg., R.S., ch. 958, § 1, 1989 Tex. Gen. Laws 4026, 4030 (amended 2013)
(current version at T EX. C ODE C RIM. P ROC. art. 18.21 § 5(a)). Under the prior version, a showing of
probable cause was not required to obtain a court order requiring a cell phone service provider to
disclose electronic customer data. See id. The statute required only a “reasonable belief that the
information sought is relevant to a legitimate law enforcement inquiry.” Id.
Gareic Jerard Hankston — 5
B. The Trial
At trial, the State presented Officer Michael Burrow as a witness. He was one of the
investigating officers. Officer Burrow testified that, in the course of their investigation, they
obtained Appellant’s cell phone records by court order, and the State introduced them into
evidence as business records. Officer Burrows testified that cell site location and call
information was obtained “to establish what [Appellant’s] pattern of behavior was the night
of the incident. To see who he was in contact with, and to prove or disprove any statements
that he made.”
The State also presented Officer Robert Brown as a witness, who testified that the cell
phone records helped establish Appellant’s whereabouts during times relevant to when
Brown was killed:
Q. What does the analysis of the cell phone records and cell tower
locations indicate to you, regarding the location of the defendant at the
time of the 911 call?
A. It indicates that he’s in the area. That the time of the call being placed,
in regards to this incident, that he’s in that area and that he’s moving in
and about that area. And he’s moving from that sector 3, of that tower,
to the next sector and then south. In a very rapid succession or time
wise.
***
Q. All right. But we do know that the murder is committed and then we
have a 911 call made at 9:32 p.m.?
A. Correct.
Gareic Jerard Hankston — 6
Q. And at 9:32 p.m., we have the defendant – what – what is he doing?
A. He’s trans – well, the device is transitioning and it’s moving.
Q. Fleeing the area? Would that be consistent with someone fleeing the
area? . . . Would the activity on the defendant’s cell phone be consistent
with him fleeing the area at that time?
A. Yes.
The jury found Appellant guilty of the murder of Keith Brown and assessed his punishment
at twenty years in prison.
C. On Direct Appeal
Appellant urged on direct appeal that the State’s acquisition of his cell phone records
violated the Fourth Amendment to the United States Constitution and Art. I, § 9 of the Texas
Constitution. As to the Fourth Amendment challenge, the Fourteenth Court of Appeals held:
Appellant cannot successfully claim that the State’s acquisition of his cell
tower records from Sprint violated his reasonable expectation of privacy. The
cell site records acquired by the State are simply the business records
memorializing appellant’s voluntary subscriber transaction with Sprint for the
service he wanted from his cellular provider, i.e. the ability to transmit and
receive data on Sprint’s network of cell towers. The fact that this data happens
to reveal the general location of appellant’s cell phone, and presumably
appellant himself, at given points in time is of no consequence to the legal
analysis. The State’s actions did not violate appellant’s Fourth Amendment
rights because he could not have a reasonable expectation of privacy in
information he voluntarily conveyed to a third party.4
4
Hankston v. State, No. 14-13-00923-CR, 2015 WL 3751551, at *5 (Tex. App.—Houston
[14th Dist.] 2015) (internal citations omitted) (not designated for publication). At the time the
Fourteenth Court of Appeals decided Hankston, we had not issued our opinion in Ford v. State. The
appellate court did, however, cite to the Fourth Court of Appeals opinion in Ford v. State, 444 S.W.3d
Gareic Jerard Hankston — 7
The court of appeals also overruled Appellant’s challenge under the Texas
Constitution. Following this Court’s holding in Johnson v. State,5 the court of appeals held
“that ‘[a] plain reading and comparison of the language of the Fourth Amendment and Art.
I, § 9 reveals no substantive difference’ and they both protect the same right.” 6 Quoting from
our decision in Crittenden v. State,7 the court of appeals emphasized:
Absent some significant difference in the text of the two provisions, or some
historically documented difference in attitude between the respective drafters,
there would be no apparent reason to prefer an interpretation of Article I, § 9
any different from our preferred interpretation of the Fourth Amendment. We
will not read Article I, § 9 differently than the Fourth Amendment in a
particular context simply because we can.8
The court of appeals noted that Appellant based his Texas Constitutional challenge
on this Court’s 1993 case of Richardson v. State,9 which preceded Johnson and Crittenden.
This Court held in Richardson that “the use of a pen register may well constitute a ‘search’
under Article I, § 9 of the Texas Constitution.”10 However, the court of appeals did not
171, 188 (Tex. App.—San Antonio 2014), affirmed, 477 S.W.3d 321 (Tex. Crim. App. 2015), along
with several other cases that we cited as authority to support our holding in Ford.
5
912 S.W.2d 227 (Tex. Crim. App. 1995).
6
Hankston, 2015 WL 3751551, at *6 (quoting Johnson, 912 S.W.2d at 232).
7
899 S.W.2d 668 (Tex. Crim. App. 1995).
8
Hankston, 2015 WL 3751551, at *6 (citing Crittenden, 899 S.W.2d at 673 n.8 (emphasis in
original)).
9
865 S.W.2d 944 (Tex. Crim. App. 1993).
10
Id. at 953.
 Gareic Jerard Hankston — 8
follow Richardson, but instead “utilize[d] Fourth Amendment precedent to conclude that the
State’s acquisition of appellant’s cell phone records [did] not violate Article I, section 9 of
the Texas Constitution.” 11
D. Appellant’s Petition For Discretionary Review
Appellant argues that the State improperly used his cell phone records that it obtained
without a warrant (but with a court order) to establish that, close to the time of the murder
Appellant was near the complainant’s home and that immediately thereafter his phone usage
was more than any other comparable time frame in the preceding 206 days (between May 1,
2011 and November 22, 2011). Appellant claims that the Texas Constitution provides
greater protection in regards to records from third parties than does the U.S. Constitution, and
that, under Richardson v. State, this Court rejected the third party doctrine, finding that under
the Texas Constitution, Art. I, § 9, a person has an expectation of privacy in the numbers they
dial. According to Appellant, this same expectation of privacy applies even more to cell
phones because in today’s society cell phones never leave our sides, and allowing data points
to be created in numerous public and private locations enables the State to virtually
reconstruct one’s past actions and deduce a tremendous amount of private information.
The State counters this by arguing that the Texas Constitution places no additional
restrictions on the state’s ability to investigate crime above and beyond the restrictions
11
Hankston, 2015 WL 3751551, at *6.
Gareic Jerard Hankston — 9
already imposed by the U.S. Constitution. The State claims that “[i]t would be absurd to
suggest that these general understandings and expectations of ‘the people’ change based on
whether such people see themselves as Americans or as Texans. . . . [T]he reasonable
expectations of the cell phone consumer are logically that of a national consumer of a
nationwide product rather than the expectations of a provincial consumer of a local product.”
The State urges us to follow our reasoning in Ford v. State, disavow Richardson, and affirm
the decision of the court of appeals because Appellant’s cell phone records were legitimate
business records containing information that Appellant initially conveyed to a third party.
We granted Appellant’s petition for discretionary review to address whether the State’s
acquisition of Appellant’s cell phone records amounted to a search or seizure under Art. I,
§ 9 of the Texas Constitution.
ANALYSIS
A. Does Art. I, § 9 provide greater protection in this case than under the Fourth
Amendment?
Both the Fourth Amendment to the U.S. Constitution and Art. I, § 9 of the Texas
Constitution protect individuals against unreasonable searches and seizures by the
government. Under the Fourth Amendment,
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
Gareic Jerard Hankston — 10
persons or things to be seized.12
In nearly identical language, Article I, § 9 provides,
The people shall be secure in their persons, houses, papers and possessions,
from all unreasonable seizures or searches, and no warrant to search any place,
or to seize any person or thing, shall issue without describing them as near as
may be, nor without probable cause supported by oath or affirmation.13
In 1991, in Heitman v. State,14 this Court decided that it did not have to automatically
adopt and apply the Supreme Court’s interpretations of the Fourth Amendment to Art. I, § 9,
of the Texas Constitution, even though Art. I, § 9 and the Fourth Amendment contain
essentially the same wording. We held in Heitman that “the states are free to reject federal
holdings as long as state action does not fall below the minimum standards provided by
federal constitutional protections.”15 In reaching the conclusion that we are not bound by
Supreme Court decisions addressing the comparable Fourth Amendment issue, we
recognized “that state constitutions cannot subtract from the rights guaranteed by the United
States Constitution, but they can provide additional rights to their citizens.” 16
12
U.S. C ONST. amend. IV.
13
T EX. C ONST. Art. I, § 9.
14
815 S.W.2d 681 (Tex. Crim. App. 1991).
15
Heitman, at 682 (citing Cooper v. California, 386 U.S. 58 (1967)).
16
Id. at 690.
 Gareic Jerard Hankston — 11
Two years later, in Richardson v. State,17 this Court addressed whether the installation
and use of a pen register by law enforcement personnel required probable cause under the
Texas Constitution. In Richardson, officers believed the appellant was controlling a cocaine
and crack distribution organization using telephones located in the county jail, by placing
calls to a private telephone. The officers sought court orders pursuant to Article 18.21
authorizing them to install a pen register to catalogue the telephone numbers dialed from the
county jail telephone line and also the private telephone line they suspected the appellant was
calling. This Court acknowledged that Art. I, § 9 and the Fourth Amendment provide the
same basic protection18 and also recognized that the purpose of both provisions is to
safeguard an individual’s legitimate expectation of privacy from unreasonable governmental
intrusions.19 This Court said that, “[t]he litmus [test] for determining the existence of a
legitimate expectation of privacy as to a particular accused is twofold: first, did he exhibit
by his conduct ‘an actual (subjective) expectation of privacy[;]’ and second, if he did, was
that subjective expectation, ‘one that society is prepared to recognize as “reasonable.”’” 20
In Richardson, the issue was framed as follows:
Ultimately, in the context of both the Fourth Amendment and Article I, § 9,
17
865 S.W.2d 944 (Tex. Crim. App. 1993).
18
Id. at 948.
19
Id.
20
Id. at 948-49 (quoting Chapa v. State, 729 S.W.2d 723, 727 (Tex. Crim. App. 1987)).
Gareic Jerard Hankston — 12
whether the government’s installation and use of a pen register constitutes a
search necessarily depends upon whether appellant has a “legitimate
expectation of privacy” in the numbers he dialed on the telephone. In other
words, in determining the legitimacy of appellant’s expectation of privacy, the
appropriate inquiry is whether appellant expected that the numbers he dialed
on the telephone would be free from governmental intrusion, and, if he did, is
this expectation one that society is prepared to recognize as reasonable.21
The Richardson Court discussed at length the Supreme Court case of Smith v.
Maryland,22 acknowledging its holding that the installation and use of a pen register is not
a search because an individual “entertains no actual expectation of privacy in the phone
numbers he dials, and, even if he did, such an expectation is not ‘legitimate.’”23 This Court
repeated the explanation given by the Supreme Court in Smith that telephone users “typically
know that they must convey numerical information to the phone company; that the phone
company has facilities for recording this information; and that the phone company does in
fact record this information for a variety of legitimate business purposes.” 24 The Richardson
Court also discussed the Supreme Court opinion in United States v. Miller25 holding that the
Fourth Amendment does not prohibit obtaining information revealed to a third party.26
21
Id. at 949.
22
442 U.S. 735 (1979).
23
Richardson, 865 S.W.2d at 949 (quoting Smith, 442 U.S. at 743).
24
Id. (quoting Smith, 442 U.S. at 743).
25
425 U.S. 435 (1976).
26
Richardson, 865 S.W.2d at 949 (citing Miller, 425 U.S. at 443).
Gareic Jerard Hankston — 13
Nevertheless, the Richardson Court rejected the reasoning of Smith and Miller, and
instead chose to side with the states that have held that their state constitutions provide an
individual with a protected privacy interest in the telephone numbers dialed from a
telephone.27 This Court concluded in Richardson that the installation and use of a pen
register was indeed a search:
The mere fact that a telephone caller has disclosed the number called to the
telephone company for the limited purpose of obtaining the services does not
invariably lead to the conclusion that the caller has relinquished his
expectation of privacy such that the telephone company is free to turn the
information over to anyone, especially the police, absent legal process.28
This Court remanded the case to the court of appeals to determine whether the search was
reasonable under Art. I, § 9.29
Only two other cases decided by this Court since Richardson have held that Art. I, § 9
provides greater protection than the Fourth Amendment. In 1994, in Autran v. State 30 a
27
Id. at 950 (first citing State v. Hunt, 45 A.2d 952 (N.J. 1992); then citing People v. Blair, 602
P.2d 738 (Cal. 1979); then citing Commonwealth v. Beauford, 475 A.2d 783 (Pa. 1984); then citing
People v. Sporleder,666 P.2d 135 (Colo. 1983); then citing State v. Gunwall, 720 P.2d 808 (Wash.
1986); then citing State v. Thompson, 760 P.2d 1162 (Idaho 1988); and then citing Rothman v. State,
779 P.2d 1 (Haw. 1989)).
28
865 S.W.2d at 951.
29
On remand, the Court of Appeals overruled the appellant’s constitutional complaint on a
different ground. It held that the appellant lacked a reasonable expectation of privacy in a number that
he called from a county jail telephone, and therefore he lacked standing to challenge the installation
of a pen register on a line that he called. Richardson v. State, 902 S.W.2d 689 (Tex. App.—Amarillo
1995). No further appeals ensued.
30
887 S.W.2d 31 (Tex. Crim. App. 1994).
Gareic Jerard Hankston — 14
three-judge plurality decided that the Texas Constitution provided greater protection than the
Fourth Amendment in the context of inventory searches.31 In 1997, in State v. Ibarra,32 this
Court held that, although the federal constitution requires the State to prove voluntariness of
consent by a preponderance of the evidence, the Texas Constitution requires proof by clear
and convincing evidence.33
Twice in 1995 this Court addressed the issue of whether Art. I, § 9 provided more
protection than the Fourth Amendment—first in Crittenden v. State,34 and again in Johnson
v. State.35 In both cases this Court found that Art. I, § 9 and the Fourth Amendment provide
the same protection against unreasonable searches and seizures. In Crittenden v. State, this
31
Since Autran was a plurality decision, it is not binding precedent. See Hatcher v. State, 916
S.W.2d 643, 645 (Tex. App.–Texarkana 1996, pet. ref’d) (“We decline . . . to follow the plurality
opinion in Autran because we do not believe that Autran constitutes either binding precedent or sound
law.”); Garza v. State, 137 S.W.3d 878, 884 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)
(declining to follow Autran and instead following Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App.
1995), holding that the Fourth Amendment decisions of the Supreme Court should be viewed as
providing guidance in interpretations of Art. I, § 9); Trujillo v. State, 952 S.W.2d 879, 881 (Tex. App.
—Dallas 1997, no pet.) (“Autran, a three-judge plurality opinion, is not binding precedent.”);
Rothenberg v. State, 176 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“[T]he high
court has never followed Autran’s specific holding concerning the validity of inventories of closed
containers under the Texas Constitution.”); Uballe v. State, 439 S.W.3d 380, 385 (Tex.
App.—Amarillo, 2014, pet. ref’d) (rejecting the argument that the Texas Constitution provides greater
protection against unreasonable searches and seizures than the United States Constitution and declining
to apply the Autran plurality opinion).
32
953 S.W.2d 242 (Tex. Crim. App. 1997).
33
Id. at 245.
34
899 S.W.2d 668 (Tex. Crim. App. 1995).
35
912 S.W.2d 227 (Tex. Crim. App. 1995).
Gareic Jerard Hankston — 15
Court addressed the legality of a “pretext stop” under our state constitution analog to the
Fourth Amendment. Acknowledging Richardson, and then departing from it, this Court held
that,
Having adopted the objective approach under the Fourth Amendment, not
because of binding precedent, but because it “makes more sense” than the
alternatives, we can hardly justify concluding otherwise for purposes of
Article I, § 9. Indeed, we would abuse our prerogative to construe even like
provisions of the state and federal constitutions differently, see Richardson v.
State, 865 S.W.2d 944, 948 (Tex. Cr. App. 1993), and stretch judicial
credibility to the breaking point, were we somehow to hold that what “makes
more sense” for purposes of the Fourth Amendment does not also “make more
sense” under our own state constitutional analog.36
In Johnson v. State, another plurality decision, this Court noted that “[t]he Fourth
Amendment and Art. I, § 9 both protect the same right (freedom from unreasonable searches
and seizures) to the same degree (persons, houses, papers, and effects/possessions).” 37
Although acknowledging that “we are not bound” by Supreme Court precedent, this Court
emphasized that we are not “obliged to be different.” 38 “Because we can [grant defendants
greater rights under the Texas Constitution than afforded under the United States
Constitution], however, does not mean that we should do so.”39 The Court acknowledged
the strong similarities between the state and federal provisions and insightfully noted that,
36
Crittenden, 899 S.W.2d at 673.
37
Johnson, 912 S.W.2d at 232.
38
Id. at 233.
39
Id. (citing Johnson v. State, 864 S.W.2d 708, 718 (Tex. App.—Dallas 1993).
Gareic Jerard Hankston — 16
It is not unreasonable to conclude . . . that the framers of the Texas
Constitution chose to draft Art. I, § 9 to protect Texas citizens from
unreasonable searches and seizures by the state in the same way they were
protected from unreasonable searches and seizures by the federal government.
If they had intended to grant to citizens greater protections from state actions
than they enjoyed from federal actions, then they could have drafted Art. I, §
9 at that time to reflect that intent.40
Neither Autran nor Johnson is binding on this Court. However, we agree with the reasoning
of Johnson, which mirrors the logic of Crittenden. With regard to Ibarra, we find that
holding to be confined to the context where the State must prove voluntariness of consent.
We are therefore more persuaded by the cases deciding that, even though we are not bound
by Supreme Court case law when it comes to interpreting our State Constitution, we are not
precluded from following it either. This reasoning is particularly appropriate when the state
constitutional provision we are interpreting and its federal constitutional counterpart are
almost identically worded. We are thus free to adopt the Supreme Court’s interpretation of
the Fourth Amendment, and apply it in this case, simply because it “makes more sense.” 41
Therefore, as discussed below, if we are not going to find that the acquisition of cell phone
records is a search under the Fourth Amendment,42 then we are not going to find that the
acquisition of cell phone records is a search under Art. I, § 9.
40
Id. at 233-34.
41
Crittenden, 899 S.W.2d at 673.
42
See Ford v. State and Love v. State, infra at nn. 44, 45, and 62.
Gareic Jerard Hankston — 17
B. Ford v. State and Love v. State
Recently, in Love v. State, we confirmed that “individuals do not have a privacy right
in the numbers dialed on their phones.”43 We also reiterated in Love that cell site location
information “obtained from the records of a service provider is not protected under the
Fourth Amendment.”44 We concluded, therefore, that “call logs and CSLI are not . . .
constitutionally protected.” 45
In Ford v. State this Court unanimously46 decided that, under the Fourth Amendment,
Jon Thomas Ford “had no legitimate expectation of privacy in records held by a third-party
cell-phone company identifying which cell-phone towers communicated with his cell phone
at particular points in the past.”47 Like the Richardson Court, we looked at Smith v.
Maryland48 and United States v. Miller.49 But, unlike the Richardson Court, we chose to
follow those cases.50
43
2016 WL 7131259, at *3 (citing United States v. Miller, 425 U.S. at 443, and Smith v.
Maryland, 442 U.S. at 743-45).
44
Id. (citing Ford v. State, 477 S.W.3d at 329-30, nn. 5-7).
45
Id.
46
Eight judges agreed with the decision. Judge Yeary did not participate.
47
Ford, 477 S.W.3d at 330.
48
442 U.S. 735 (1979).
49
425 U.S. 435 (1976).
50
Ford, 477 S.W.3d at 329-330. See also In re Application of the United States for an Order
Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313 (3d Cir.
Gareic Jerard Hankston — 18
In Ford we noted that, like the bank customer in Miller and the phone customer in
Smith, an appellant neither owns nor possesses the records he seeks to suppress.51 “Rather,
the cell-tower records are created by the cell-phone companies themselves and are subject
to their control.”52 The cell-phone company “collects and stores this historical cell-site-
location data for its own business purposes, in part to optimize service on its
network[,] . . . and [t]his type of non-content evidence, lawfully created by a third-party
telephone company for legitimate business purposes, does not belong to [the defendant], even
if it concerns him.” 53
As in Ford, Appellant “voluntarily availed himself of [Sprint’s] cellular service.” 54
“[C]ell users know that they must transmit signals to cell towers within range, that the cell
tower functions as the equipment that connects the calls, that users when making or receiving
calls are necessarily conveying or exposing to their service provider their general location
within that cell tower’s range, and that cell phone companies make records of cell tower
usage.”55 In Ford, we acknowledged, but declined to follow, the reasoning that “[p]eople
2010); In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5 th Cir. 2013);
United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc).
51
Id. at 330.
52
Id.
53
Id. at 330-331 (quoting Davis, 785 F.3d at 511).
54
Id. at 331.
55
Id. at 331-32 (quoting Davis, 785 F.3d at 511).
Gareic Jerard Hankston — 19
cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking
active participation in society through use of their cell phones.”56 We were not persuaded
by the argument that cell phone users must “forego the use of technology that has become
a pervasive and insistent part of modern, everyday life or forego the protections of the Fourth
Amendment.57 We noted in Ford that, unlike in United States v. Jones,58 “there was no GPS
device, no physical trespass, and no real-time or prospective cell cite location information
in this case.”59 We concluded that the State’s warrantless acquisition of four days’ worth of
historical cell site location information, recorded by Ford’s cell phone service provider, did
not violate the Fourth Amendment.
C. The third-party doctrine applies under Art. I, § 9 of the Texas Constitution.
In this case, as in Ford, Appellant neither owned nor possessed the records he sought
to suppress. Call logs and historical CSLI are created by the cell phone companies and are
subject to their control.60 Cell phone records are clearly business records lawfully created
by Sprint for legitimate business purposes. Appellant voluntarily provided his call
56
Id. (quoting United States v. Graham, 796 F3d 332, 356 (4th Cir. 2015), overruled by 824
F.3d 421 (4th Cir. 2016) (en banc)).
57
Id. (quoting Ford v. State, 444 S.W.3d 171, 202 (Tex. App.—San Antonio 2014) (Chapa,
J., dissenting)).
58
565 U.S. 400 (2012).
59
Ford, 477 S.W.3d at 333.
60
Id. at 331 (citing In re Application (Fifth Circuit), 724 F.3d at 611-12) (concluding that cell
phone companies are not required by the government to record or store CSLI).
Gareic Jerard Hankston — 20
information and historical cell site location information to Sprint so that it could perform the
service for which it had contracted.
Since we have long held that the Fourth Amendment and Art. I, § 9 both protect the
same right to the same degree,61 and since we have recently held that the Fourth Amendment
does not restrict law enforcement from obtaining cell phone records revealed to a third
party,62 we come to the logical conclusion that Art. I, § 9 does not restrict law enforcement
from obtaining cell phone records revealed to a third party. Therefore, we decline to follow
Richardson v. State. Other states have also held that their state constitutional counterparts
to the Fourth Amendment should be similarly interpreted under this type of case.63
61
See Crittenden, 899 S.W.2d at 673 (“Having adopted the objective approach under the
Fourth Amendment, not because of binding precedent, but because it ‘makes more sense’ than the
alternatives, we can hardly justify concluding otherwise for purposes of Article I, § 9.”); Johnson, 912
S.W.2d at 232 (“A plain reading and comparison of the language of the 4th amendment and art. I sec
9 reveals no substantive difference. . . . [B]oth protect the same right (freedom from unreasonable
searches and seizures) to the same degree (persons, houses, papers, and effects/possessions).”). See
also Garza v. State, 137 S.W.3d at 884; State v. Oages, 227 S.W.3d 397, 400 (Tex. App.—Eastland,
2007, pet. ref’d) (relying on Crittenden to apply New York v. Belton, 453 U.S. 454 (1981) as the
“bright line rule” in Texas for automobile searches incident to arrest, and also citing to Johnson to note
that “although Texas courts can hold that defendants have greater rights under the Texas constitution,
this does not mean that Texas courts should do so”); Clark v. State, No. 06-03-00262-CR, 2004 WL
2290262, at *2 (Tex. App.—Texarkana 2004, pet. ref’d) (mem. op.) (not designated for publication)
(citing to various sister courts of appeal that similarly reject the argument that the Texas Constitution
provides greater protection than the Fourth Amendment).
62
See Ford, 477 S.W.3d at 329.
63
See State v. Mello, 27 A.3d 771, 774 (N.H. 2011) (holding that the defendant voluntarily
provided the information to Comcast, which recorded it in the ordinary course of business for billing
purposes and used it to provide the defendant with Internet service; having voluntarily provided this
information in order to use Comcast’s service, the defendant cannot now claim a privacy interest in
it); State v. Perry, 776 S.E.2d 528 (N.C. App. 2015) (holding that the state constitution provision
provides the same protections against unreasonable search and seizure as the Fourth Amendment, and
Gareic Jerard Hankston — 21
CONCLUSION
Addressing Appellant’s claims within the framework of the Texas Constitution, Art.
I, § 9, we hold that Appellant did not have a legitimate expectation of privacy in the numbers
he dialed on his cell phone or the location information derived from the signals relayed by
the cell towers transmitting his calls. There was a voluntary conveyance of the cell phone
records, and, under the third-party doctrine, that conveyance destroyed the reasonable
expectation of privacy in the conveyed information. We conclude that the State’s acquisition
of Appellant’s cell phone records did not violate Art. I, § 9 of the Texas Constitution. We
affirm the judgment of the Fourteenth Court of Appeals.
DELIVERED: April 12, 2017
PUBLISH
expressly recognizing the third-party doctrine discussed in Miller and Smith).
We decline to follow Massachusetts’s lead in holding that its state constitution counterpart to
the Fourth Amendment provides greater protection. Massachusetts has adopted the argument that the
nature of cellular telephone technology and cell phone data and the character of cellular telephone use
in our current society render the third party doctrine of Miller and Smith inapposite; and it recognizes
that the cellular telephone is like a permanent attachment to the user’s body and thus has become an
indispensable part of modern American life—necessary to social interactions as well as the conduct
of business. See, e.g., Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014) (holding that the state
constitution affords more protection to individuals than the United State’s constitution in relation to
third party records).