Ford, Jon Thomas
2015 Tex. Crim. App. LEXIS 1412
| Tex. Crim. App. | 2015Background
- Jon Thomas Ford was convicted of murdering his ex-girlfriend; prosecution relied in part on four days of historical cell-site-location information (CSLI) obtained from AT&T showing his phone pinging near the victim’s complex.
- AT&T’s records (created and maintained as business records) showed multiple "pings" across Dec. 31, 2008–Jan. 1, 2009, including times inconsistent with Ford’s statements.
- The State obtained the four days of CSLI via a court order under Tex. Code Crim. Proc. art. 18.21 §5(a) (an order available on a showing short of probable cause and consistent with the SCA §2703(d) standard).
- Ford moved to suppress the CSLI as a warrantless Fourth Amendment search; the court of appeals applied the third-party/business-records doctrine and denied suppression.
- The Texas Court of Criminal Appeals granted review to resolve whether warrantless acquisition of historical CSLI violates the Fourth Amendment and whether Texas constitutional protection (Richardson) applied; it affirmed the court of appeals on the federal Fourth Amendment issue and declined the state-constitutional question as improvidently granted.
Issues
| Issue | Plaintiff's Argument (Ford) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the warrantless acquisition of historical CSLI from a provider violated the Fourth Amendment | Ford: CSLI reveals movements/location; he retained a reasonable expectation of privacy and the State needed a warrant supported by probable cause | State: CSLI are third-party business records created/maintained by AT&T; production under an Art. 18.21 / SCA order does not require probable cause and does not implicate a reasonable expectation of privacy | Court: No Fourth Amendment violation for the four days of historical CSLI; third-party/business-records doctrine applies and order under Art. 18.21 §5(a) was permissible |
| Whether Richardson / Texas constitutional protection required a different result | Ford: (argued on appeal) Texas constitution should provide broader privacy protection | State: Issue not preserved at trial; court of appeals correctly declined to apply Richardson | Court: Declined to decide state-constitutional claim as the issue was not raised below; disposition on federal Fourth Amendment affirmed |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (telephone-company pen-register information given to third party is not a Fourth Amendment search)
- United States v. Miller, 425 U.S. 435 (bank records voluntarily conveyed to bank are not protected by reasonable expectation of privacy)
- United States v. Jones, 565 U.S. 400 (GPS device affixed to vehicle and used to monitor movements is a Fourth Amendment search; concurrences discuss long-term location privacy)
- Riley v. California, 573 U.S. 373 (contents of a cell phone are subject to strong Fourth Amendment privacy protections; warrants generally required to search phone contents)
- In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir.) (historical CSLI obtainable under §2703(d) order without probable-cause warrant)
- United States v. Graham, 796 F.3d 332 (4th Cir.) (long-term historical CSLI can implicate reasonable expectation of privacy; warrant required for extended periods)
- United States v. Davis, 785 F.3d 498 (11th Cir.) (defendant had no objective reasonable expectation of privacy in historical cell-tower records maintained by provider)