Jones, Ex Parte Kerry G.
PD-1373-15
| Tex. | Dec 11, 2015Background
- Kerry G. Jones pleaded guilty to three counts of possession of child pornography after ICE agents executed a warrant at his residence (Feb. 19, 2009) and forensic analysis found images on seized computers/hard drives.
- The search warrant affidavit was prepared by ICE agent Juanae Thompson and relied substantially on PayPal transactional logs and buyer-contact information linking an email (kgj01@hotmail.com) to Jones and addresses/phone numbers.
- PayPal voluntarily provided transaction logs and buyer contact information to ICE without a warrant; the transaction entries cited in the affidavit dated from 2006–2007 (one-month subscriptions), more than two years before the 2009 warrant.
- Jones later filed an Article 11.072 habeas application alleging ineffective assistance of counsel for failure to move to suppress: (a) PayPal-obtained content-based transaction logs were obtained without a warrant and were fruits of an illegal search, and (b) the affidavit lacked probable cause and was stale.
- The 14th Court of Appeals affirmed denial of relief, holding Jones lacked a reasonable expectation of privacy in subscriber information obtained from PayPal and that the affidavit provided a substantial basis for probable cause given collectors’ tendency to retain child pornography.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether gov’t violated Fourth Amendment by obtaining PayPal transaction logs without a warrant and using them to secure a search warrant | Jones: PayPal’s transaction logs contained content-based communications; obtaining them warrantlessly violated his Fourth Amendment and Texas Constitution rights and so the resulting search warrant was fruit of poisonous tree | State/COA: PayPal provided subscriber/contact info; there is no reasonable expectation of privacy in subscriber information provided to third parties | Held: COA addressed only non-content subscriber info, concluding no expectation of privacy in that info; it did not suppress on Jones’s content-based transaction-log theory and denied relief on ineffective-assistance claim |
| Whether content-based transaction logs held by a third-party intermediary (PayPal) are protected under the Fourth Amendment / Texas Const. art. I, §9 | Jones: Content of transactions is analogous to private communications (e.g., email) and warrants Fourth Amendment protection; SCA cannot authorize warrantless seizure of content | State/COA: Treats the material at issue as nonprotected subscriber/contact data that PayPal voluntarily provided | Held: COA did not reach or resolve the content-protection question; petitioner argues this unresolved issue warrants review by the Court of Criminal Appeals |
| Whether affidavit established probable cause to search Jones’s residence given dated one-month subscriptions and lack of evidence of downloading or ongoing possession | Jones: Four one-month purchases in 2006–2007 do not create a fair probability that child pornography was on his computers in 2009; facts were stale and no nexus to specific devices/location was shown | State/COA: Magistrate could reasonably infer collectors retain such material; given totality of circumstances, affidavit provided substantial basis for probable cause | Held: COA affirmed that affidavit was sufficient and not stale, so suppression motion likely would have failed; consequently no ineffective-assistance relief |
| Whether trial counsel’s failure to move to suppress was ineffective | Jones: Failure to pursue suppression of evidence obtained via allegedly illegal PayPal disclosure was deficient and prejudiced him | State/COA: To show ineffective assistance based on a failure to file suppression, defendant must show motion would have been granted and conviction would likely differ; suppression would not have succeeded on the grounds argued | Held: COA found Jones failed to prove the suppression would have been granted, so counsel was not ineffective |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (no reasonable expectation of privacy in information voluntarily conveyed to third parties)
- Katz v. United States, 389 U.S. 347 (Fourth Amendment protects people, not places; test for subjective and objectively reasonable expectation of privacy)
- Ornelas v. United States, 517 U.S. 690 (standard for reviewing probable cause determinations)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance test)
- Warshak v. United States, 631 F.3d 266 (emails warrant Fourth Amendment protection; Stored Communications Act cannot authorize warrantless access to content)
- Perrine v. United States, 518 F.3d 1196 (subscriber information provided to an ISP is not protected by the Fourth Amendment)
- Forrester v. United States, 512 F.3d 500 (distinguishes content from non-content data; service providers acting as passive conduits may not hold business-records claims to content)