Hankston, Gareic Jerard
2017 Tex. Crim. App. LEXIS 379
| Tex. Crim. App. | 2017Background
- On May 19, 2011, Keith Brown was shot and killed; Gareic Jerard Hankston was later charged with murder.
- Law enforcement obtained Hankston’s Sprint call logs and historical cell-site location information (CSLI) by a sealed application and court order under Tex. Code Crim. Proc. art. 18.21; the State conceded no warrant was used.
- The records covered the prior 12 months and were used at trial to place Hankston in the vicinity of the victim and to characterize his movements after the shooting.
- Hankston moved to suppress the records as warrantless searches in violation of the Fourth Amendment and Art. I, § 9 of the Texas Constitution; the trial court denied the motion.
- The court of appeals affirmed, applying the third-party doctrine and holding Art. I, § 9 provides no broader protection than the Fourth Amendment.
- The Texas Court of Criminal Appeals granted discretionary review limited to whether Art. I, § 9 affords greater protection than the Fourth Amendment for third-party cell records; it affirmed the court of appeals.
Issues
| Issue | Plaintiff's Argument (Hankston) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Art. I, § 9 protects call logs and historical CSLI obtained from a provider | Richardson rejects the third-party doctrine under Texas law; cell-data is highly revealing and merits greater state-constitutional protection | The third-party doctrine applies; consumers voluntarily convey records to providers and Texas Art. I, § 9 should track the Fourth Amendment | Held: No. Art. I, § 9 affords the same protection as the Fourth Amendment for these records; third-party doctrine applies |
| Whether the State’s court-order acquisition (no warrant) violated Art. I, § 9 | Records were effectively a search requiring probable cause/warrant under Texas Constitution | The records are provider business records obtained by court order under statute and not protected | Held: Acquisition did not violate Art. I, § 9; defendant lacked a reasonable expectation of privacy |
| Whether Richardson remains controlling on third-party dialed-number/privacy | Dialed numbers and CSLI are private under Richardson and require greater protection | Ford, Crittenden, Johnson, and related precedent support following federal third-party doctrine | Held: Court declines to follow Richardson; adopts reasoning aligning Art. I, § 9 with federal third-party doctrine |
| Whether cell-site records are owned/controlled by the subscriber | Subscriber retains privacy interest because records reveal location and intimate details | Provider creates and controls business records; user voluntarily conveys data | Held: Records are provider business records; user does not own them for Fourth/Art. I, § 9 purposes |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (1979) (pen-register numbers not constitutionally protected; third-party doctrine)
- United States v. Miller, 425 U.S. 435 (1976) (bank records held by third party are not protected by Fourth Amendment)
- Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) (held pen register may be a search under Art. I, § 9; Court in Hankston declined to follow it)
- Ford v. State, 477 S.W.3d 321 (Tex. Crim. App. 2015) (historical CSLI held not protected under Fourth Amendment; influenced Art. I, § 9 analysis)
- Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) (recognized parity between Art. I, § 9 and Fourth Amendment in many contexts)
- Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995) (held Fourth Amendment and Art. I, § 9 protect the same right to the same degree)
- Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991) (state courts not bound to follow U.S. Supreme Court interpretations but may do so when appropriate)