State v. Lauro Eduardo Ruiz

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-16-00226-CR
The STATE of Texas,
Appellant
v.
Lauro Eduardo RUIZ,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4068
Honorable Andrew Carruthers, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 26, 2017
I dissent from the majority opinion because the high school principal’s conduct in scrolling
through the photograph and video images on Ruiz’s cell phone, without his consent or any exigent
circumstances, constituted an illegal search, and therefore the evidence obtained as a result of such
conduct must be excluded under article 38.23 of the Texas Code of Criminal Procedure. TEX.
CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
In its brief, the State agrees that, “the pertinent facts are not in dispute — the school
administrator, Mr. Saenz, picked up Ruiz’s phone, scrolled briefly through the phone, and turned
the phone over to police.” Thus, the State does not dispute that, instead of merely holding the cell
Dissenting Opinion 04-16-00226-CR
phone in a safe place and waiting for police, Saenz himself conducted a search on Ruiz’s cell phone
before calling the police. It is similarly undisputed that no search warrant existed at the time Saenz
searched the cell phone. Indeed, the trial court expressly found that Saenz conducted a search of
Ruiz’s cell phone without a warrant and gave the information he obtained to law enforcement
authorities. As framed by the State and the majority opinion, the ultimate issue on appeal is the
legal question of whether Saenz’s conduct as a private citizen triggered the article 38.23
exclusionary rule.
The majority opinion adopts the State’s argument that Saenz could not violate the Fourth
Amendment’s protection against unreasonable search and seizure because he is a private citizen,
and that Saenz did not obtain the cell phone evidence through any other violation of the law;
therefore, article 38.23 does not apply. I disagree. As the Court of Criminal Appeals explained in
Miles v. State,
[T]he plain language and history of Article 38.23 lead to an inescapable conclusion:
if an officer violates a person’s privacy rights by his illegal conduct making the
fruits of his search or seizure inadmissible in a criminal proceeding under Article
38.23, that same illegal conduct undertaken by an ‘other person’ is also subject to
the Texas exclusionary rule. If the police cannot search or seize, then neither can
the private citizen.
Miles v. State, 241 S.W.3d 28, 36 (Tex. Crim. App. 2007) (also stating the converse is equally
true). The court in Miles discussed many of the cases relied on in the majority opinion in the
context of this “shoes of the police officer” interpretation. See id. at 37-39 (discussing Stone v.
State, 574 S.W.2d 85 (Tex. Crim. App. 1978) (panel op.), 1 Cobb v. State, 85 S.W.3d 258 (Tex.
Crim. App. 2002), State v. Johnson, 939 S.W.2d 586 (Tex. Crim. App. 1996), and Jenschke v.
State, 147 S.W.3d 398 (Tex. Crim. App. 2004)). The court conceded that these cases were not
1
The majority’s heavy reliance on Stone v. State is misplaced, particularly since it is factually distinguishable and
legally inapposite.
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Dissenting Opinion 04-16-00226-CR
explained on that basis, but stated, “this rule—that a private person can do what a police officer
standing in his shoes can legitimately do, but cannot do what a police officer cannot do—would
explain the outcome in each case and is consistent with the purpose of Article 38.23.” Miles, 241
S.W.3d at 39. Finally, the court stated, “[w]e conclude that the historical rationale for including
unlawful conduct by an ‘other person’ under the Texas exclusionary rule is best explained and
implemented by this rule.” Id. 2
Using the Miles rule as guidance, absent a warrant, consent, or exigent circumstances, a
police officer standing in the shoes of the school principal, Mr. Saenz, could not have picked up
and searched through Ruiz’s cell phone after it was secured on top of the desk under the
supervision of two administrators. Ruiz had a legitimate expectation of privacy in the contents of
his cell phone, and it is just such interest that the Texas exclusionary rule protects. See Riley v.
California, 573 U.S. ___, 134 S.Ct. 2473, 2488-91, 189 L.Ed.2d 430 (2014) (discussing the scope
of privacy interests at stake in a cell phone search); see Miles, 241 S.W.3d at 36 n.33 (only those
acts which violate a person’s privacy rights or property rights are subject to the state or federal
exclusionary rule). With respect to whether Saenz reasonably believed he had Ruiz’s consent to
look through the cell phone, as the State argues in its brief, the trial court expressly found that Ruiz
did not give consent to the search of his cell phone and the record supports that finding. See Baird
v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013) (appellate court reviews the record in the
light most favorable to the trial court’s resolution of disputed facts, and affords almost total
deference to the court’s findings of facts supported by the record).
2
The most recent Court of Criminal Appeals case addressing a private citizen search in the context of article 38.23,
Baird v. State, was resolved on the distinguishable fact that the dog sitter had access to “everything” in the house, and
thus had apparent consent to access the home’s computer and did not commit the offense of breach of computer
security. Baird v. State, 398 S.W.3d 220, 228-30 (Tex. Crim. App. 2013).
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Dissenting Opinion 04-16-00226-CR
Further, based on the record, there were no exigent circumstances to justify an immediate
search of the phone as there was no danger that Ruiz would delete any of the information or images
on the phone after it was securely placed on the desk and being monitored by school administrators.
See Riley, 134 S.Ct. at 2486-88 (discussing exigent circumstance of “imminent destruction of
evidence” in context of cell phone data). In addition, as it was later, the phone could have easily
been further secured inside an envelope until a search warrant was obtained by police. The
Supreme Court has recognized the unique characteristics of modern cell phones as different “in
both a quantitative and a qualitative sense” from other objects, acknowledging that they “implicate
privacy concerns far beyond . . . the search of . . . a wallet, or a purse.” Id. at 2488-89 (discussed
in the context of the search-incident-to-arrest exception to a warrant). The Court noted that modern
cell phones are “in fact minicomputers” with an immense storage capacity, containing many
distinct types of information such as photos, addresses, bank information, internet search history,
etc. that amount to “the sum of an individual’s private life.” Id. at 2489. In rejecting government
suggestions for guidelines permitting warrantless cell phone searches incident to arrest, the Court
emphasized the importance of the warrant requirement and the increased ease and efficiency in
obtaining a warrant due to recent technological advances. Id. at 2493. The Court held that a search
warrant is required for a cell phone search, and that the search-incident-to-arrest exception does
not apply. Id. In so holding, the Court also recognized that “other case-specific exceptions may
still justify a warrantless search of a particular phone,” such as when exigent circumstances make
the needs of law enforcement so compelling that a warrantless search is objectively reasonable
under the Fourth Amendment. Id. at 2494 (citing as examples the need to prevent imminent
destruction of evidence, to pursue a fleeing suspect, and to assist a seriously injured person). As
noted, none of those exigencies were present in Ruiz’s case. By scrolling through the images on
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Dissenting Opinion 04-16-00226-CR
Ruiz’s cell phone, Saenz did what a police officer in the same shoes could not have legally done
without a warrant or an exception to the warrant requirement. See Miles, 241 S.W.3d at 39; see
also Melendez v. State, 467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no pet.) (applying
the Miles rule). Therefore, for this reason I would affirm the trial court’s ruling granting Ruiz’s
motion to suppress.
Rebeca C. Martinez, Justice
PUBLISH
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