Jones, Ex Parte Kerry G.
PD-1374-15
| Tex. | Dec 1, 2015Background
- Kerry G. Jones was investigated after ICE linked PayPal transactions to commercial child‑pornography websites; PayPal provided transaction logs and buyer contact info tying the email kgj01@hotmail.com to Jones.
- On February 19, 2009, officers executed a warrant at Jones’s residence and seized three computers and two hard drives; forensic analysis later disclosed hundreds of child‑pornography images.
- Jones pleaded guilty to three possession counts and received deferred adjudication; he later filed an Article 11.072 habeas application alleging ineffective assistance for trial counsel’s failure to move to suppress.
- Jones’s suppression theory: PayPal’s transaction logs contained content‑based information that the government obtained without a warrant and that those logs were the fruit leading to the search warrant for his home and computers.
- The Fourteenth Court of Appeals affirmed denial of relief, holding Jones lacked a reasonable expectation of privacy in the PayPal subscriber information and that the affidavit provided sufficient, non‑stale probable cause; Jones petitioned the Texas Court of Criminal Appeals for discretionary review.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (State / COA) | Held (Court of Appeals) |
|---|---|---|---|
| Whether content‑based PayPal transaction logs required a warrant before government acquisition | PayPal’s logs contained content (transaction details linking Jones to child‑porn sites) and were illegally obtained without a warrant; evidence derived from them should be suppressed | Subscriber/customer info provided to a third party is not protected; agents lawfully obtained identifying info from PayPal without a warrant | COA: No reasonable expectation of privacy in the subscriber/contact information obtained from PayPal; suppression would not have succeeded |
| Whether trial counsel’s failure to move to suppress constituted ineffective assistance | Counsel was deficient for not challenging the warrant affidavit as based on unlawfully obtained PayPal content; this prejudiced Jones | Failure to file a futile motion is not ineffective; suppression would have been denied because the affidavit supplied probable cause and information was not protected | COA: No ineffective assistance; appellant failed to show a motion to suppress would have been granted or affected outcome |
| Whether the warrant affidavit established probable cause where purchases occurred ~2 years earlier (staleness) | Purchases were one‑month subscriptions and occurred ~24 months before the warrant; no allegation downloads occurred or that contraband remained, so facts were stale and no specific offense was established | In child‑pornography cases collectors usually retain material; affidavit permitted reasonable inference that images remained, so passage of time was not dispositive | COA: Affidavit, read in totality, afforded a substantial basis for probable cause; information was not stale |
| Whether the case raises unsettled state/federal constitutional question about third‑party control of content‑based electronic records | Jones urges Texas CCA should resolve whether content in intermediary transaction logs is protected from warrantless search under U.S. and Texas Constitutions | State relied on federal precedent distinguishing non‑content subscriber data from content communications; COA applied existing third‑party doctrine | COA did not adopt a broad rule protecting such content; CCA review sought to resolve open constitutional issue |
Key Cases Cited
- United States v. Perrine, 518 F.3d 1196 (10th Cir.) (courts treat subscriber information provided to ISPs as not Fourth Amendment protected)
- United States v. Warshak, 631 F.3d 266 (6th Cir.) (subscribers have reasonable expectation of privacy in email contents stored with ISP)
- United States v. Zavala, 541 F.3d 562 (5th Cir.) (recognizes privacy interest in private electronic communications)
- United States v. Forrester, 512 F.3d 500 (9th Cir.) (equates privacy interests in email and traditional mail; distinguishes intermediary’s business records)
- Ornelas v. United States, 517 U.S. 690 (probable cause standard and magistrate deference principles)
- Sgro v. United States, 287 U.S. 206 (staleness doctrine: facts must be closely related in time to warrant issuance)
- Smith v. Maryland, 442 U.S. 735 (third‑party doctrine: no expectation of privacy in numbers voluntarily conveyed to phone company)
- Russo v. State, 228 S.W.3d 779 (Tex. App.—Austin) (no Fourth Amendment protection for ISP subscriber information)