*1 Hеre, 00770-CV, parties do not dis and remand with an instruction to grant the existence of a valid arbitration the trial court to pute motion. We agreement. Energy Corp., petition See Valero dismiss the for writ of mandamus Kelly at 581. contends cause number S.W.3d 01-09-00769-CV as moot. that the issues she raises her motion to scope agree
enforce fall outside the of the divorce, they
ment because antedate the rendering it unenforceable.
thus Id. Mark
disagrees. agreement Because the does power
not confer arbitrator
determine whether
issues fall within its
scope, the courts decide this issue. See
Raymond
BRACKENS,
Dominic
1924;
Kaplan, 514
at
U.S.
S.Ct.
Appellant,
Homes, L.P.,
Weekley
In re
Here, agreement “Any states that disputes arising drаfting from the of the Dec. decree ... ... interpretation and/or Discretionary Review Refused performance ... shall be decided bind- April Kelly’s arbitration.” motion to enforce asserts that Mark failed partition has property
marital in violation of stipula- agreement.
tions of the Specifically, Kelly
contends that Mark has failed to record an
inventory of his assets and has failed to Kelly’s
surrender assets that are in his
possession. and, performance She seeks necessitated, interpretation extent agreement. agreement
under
plainly contemplates post-divorce disputes,
itas includes matters related the “per-
formance” of agreement. Accordingly, Kelly’s
we hold that claims in her motion fall enforce within the
agreement. See Energy Corp., Valero
S.W.3d at 581.
Conclusion
We hold that the trial court erred in
refusing to compel arbitration of this dis-
pute. Accordingly, we reverse the trial
court’s order in cause number 01-09-
OPINION JENNINGS, TERRY Justice. *3 After the trial court denied his motion to evidence, suppress appellant, Raymond Brackens, pleaded Dominic guilty to the offense of possession pornogra- of child phy.1 appellant’s plea agree- Pursuant ment with the the trial court de- adjudication ferred appellant’s guilt, placed community him on supervision for years, imposed five and a fine of In $500. issues, four appellant contends that in concluding trial court erred that he had “failed to manifest a expecta- reasonable files,” tion of in his computer “warrantless search law enforcement agents beyond private of a unreasonable,” per search was not se “computer authority technician had the consent to the search of com- puter,” and article 38.23 of the Texas Code “inapplicable.”2 of Criminal Procedure was We affirm. Background
Factual and Procedural evidence, suppress ap- his motion to that, pellant he asserted took laptop computer City a Circuit for data “simple migration” pro- store and vided an external hard drive to effectuate Appellant request. instructed Circuit this music, videos, City all “backup pho- and Davis, Jacquelyn Eric J. Raeehelle Car- profile tos” under his “as well as folder Associates, PLLC, penter, Davis & Hous- desktop desktop” files located on the ton, TX, Appellant. for explained that he did not need repairs because the was under Rosenthal, Jr., A. District At- Charles He that he “was warranty. asserted torney-Harris County, Rogers Donald W. open- informed and did not consent to the Jr., Houston, Attorney, Assistant District any files in order to effectuate the TX, Appellee. from the hard
transfer data JENNINGS, drive,” and, Panel consists of Justices drive to the external “with a KEYES, transfer, HIGLEY. data there is no need to (Vernon (Vernon 1. See Tex. Penal § Ann 43.26 Proc. Ann. Code 2. Tex.Code Crim. art. 38.23 2003). 2005). maintained loading pornography. Legg al- Appellant the transfer.” make files to that, City’s out the customer’s carry in violation of Circuit order leged music, videos, Legg, City com- Mark to back policies, instructions technician, opened ap- and viewed puter open up My he had to photos, pellant’s Folder. Shared then notified law en- Legg further testified that because Cir- authorities, who came to the forcement employees policy prohibited cuit store and seized the City and examined “anything might be backing up from contended that computer. Appellant . “14-year he old” or illegal,” *4 illegal resulting Legg’s from evidence file to confirm that it was not ille- “Pedo” computer security appellant’s breach of file, gal. Legg double clicked on the When suppressed. should be or password protected which was not sup- motion to hearing on the At the locked, image he saw an of an adult male evidence, July testified that on press Legg having underage intercourse with an fe- to received work order he Legg male child. Once verified that this migration” appellant’s on perform a “data data, he what illegal stopped file contained The work order con- laptop computer. doing manager, and informed his he was music, up to “back all tained instructions multiple noted that Legg Israel Bautista. video, from desktop and files photos” and My Shared Folder had other files an hard laptop to external indicating they likely that also con- titles personally spo- who had not Legg, drive. pornography. child tained that, explained per- to appellant, ken with requested migration, data he form the Legg agreed City’s that it was Circuit “normally hooked the exter- would have operating procedure open standard laptop just cop- to the and nal hard drive if during migration only a data a file is of However, because “the it over.” USB ied questionable content or “could have some- non-functional,” ports laptop on the and, generally, in it” files are thing illegal ultimately it to a DVD” to copy he “had to if opened process. this When asked “into the store load the files City explained policy Circuit this to cus- the external hard drive connect- which had work, before it accepted Legg tomers their performing the data mi- ed to it.” While City’s that own work orders noted “regular” job, Legg gration part as agreed that the customer to “all stated “My “came across the folder” entitled that policies.” Legg opined although onto the Shared Folder” download specific policy described above was not on Legg explained that because the DVD. order, it re- the work was customers’ “My large Shared Folder” was itself “too sponsibility to make themselves aware of DVD,” open to fit on he had to the folder policies. Legg agreed further every “individually.” file As he copy appellant’s signature appear in the did not “selecting My the files” from the space signature for the customer’s on the “dragging them to the Shared Folder work order form. DVD, across” a file or files came with [he] After Legg manager informed his of his a “14 a title that contained references to ” “Pedo,” discovery, City someone at the Cirсuit year-old’ which Legg under- Depart- store notified the Houston Police or pedophile pedophilia. stood be short (“HPD”), patrol ment and a HPD officer Legg’s were also based on the concerns fact that file or files were came to the store. The officer first questionable Legg program Legg linked to a well known for down- asked file had case, Legg “go signed prepared and then asked he viewed a search war- rant, stated, every video on the which through Legg underage could be children.” esti- On defendant brought his he nine additional mated that City. to Circuit This was a containing pornography child for the police laptop computer described аs Compaq officer. V203US; Computer Model No: Serial No: City CNF4461126. Circuit has the Legg Bautista testified that after had Defendant, computer. Raymond Brack- informed him that he discovered a file ens, brought in for Circuit appel- City to be fixed. found he laptop, lant’s contacted his service man- numerous videos labeled “PEDO.” The ager notify and was instructed to law en- technician, [sic], Mark Leg stated quarantine forcement authorities and what he saw was at least 10 videos HPD laptop. When the officer female ages children ranging from 9-11 arrived, Bautista showed the years old performing oral and vaginal *5 located, patrol officer where the files were sex with adult males. The file name patrol and then the officer them asked to where the images were ob- play one of the video files. Bautista re- served were under the defendant’s seeing called an additional “two to three” name. The technician immediately of the video files containing pornog- child called HPD to come view the computer. raphy in the presence. officer’s Bautista A patrol officer came to City Circuit he, explained Legg, patrol that and the pornographic images. viewed the After “quite officer saw a few” other file names viewing images, the the officer indicating they that also contained child custody took of the computer put pornography, they only but viewed “the in the HPD property few first of them.” currently room. The is in cus- City’s When asked about Circuit tody of HPD. policies, City Bautista stated that Circuit warrant, obtaining After Barnes employees are open not allowed to a file or appellant’s laptop took from the HPD specifically
folder unless instructed officer, property room to another a com- explained customer. Bautista puter specialist, digital who conducted fo- Legg had not the policy violated be- analysis rensic laptop. analysis of the City policy prohib- cause Circuit also had a laptop revealed that the contained thirteen iting employees its backing up any- from photo containing video files and two thing illegal and a would have technician pornography. Eight child of the files con- open a file suspect to confirm that it was taining pornography child accessed illegal. If Legg copied suspect 30, 2006, July on the date the HPD first confirming file without it was not City officer visited the store. Circuit illegal, Legg would have been in violation containing An additional five files child City policy. of Circuit pornography had not been accessed on or
HPD Officer Barnes testified that he analysis, after that date. Based this assigned investigate that, the case on July Barnes concluded on day after the HPD pa- HPD officer who was first cаlled to the City trol officer had visited the only store had viewed some of that, upon being store. Barnes stated as- the files of Review Standard laptop.3 appellant’s
were contained sup a on a motion to ruling We review Jordan, ana- forensic Kevin Shepherd abuse of discretion. press for an witness, testi- expert lyst and (Tex.Crim. State, 681, 684 v. 273 S.W.3d has never had that he fied total deference giveWe almost App.2008). migrations. He also stat- data performing of historical court’s determination to a trial testimony regarding Barnes’s ed that facts, especially if those determinations question had been the files dates that demeanor, credibility or turn on witness “assuming accuratе could be accessed appli review de novo the trial court’s time can be trusted and system’s file State, the law to facts. Neal v. cation of modify nothing been done there is (Tex.Crim.App.2008). 256 S.W.3d purposefully.” times hearing, the trial court suppression At the sup of the motion At the conclusion trier of fact and is the sole and exclusive hearing, the trial court con press evidence credibility. Max of the witnesses’ judge an of law agent “was not (Tex. cluded that 278, 281 well v. 73 S.W.3d enforcement, viewing and that his trial Accordingly, Crim.App.2002). part regular to was file he testified to disbe may court choose to believe or regard to the data copying the data with testi any part lieve all оr of the witnesses’ con appellant It found that migration.” Ross, 853, 855 mony. State “the data mi Legg performing sented to the trial (Tex.Crim.App.2000). Unless open the files to Legg had to gration” by making court abuses its discretion *6 request. record, work perform appellant’s by the we de finding unsupported motion to denied findings trial court trial court’s of fact and fer to the ground evidence on v. suppress appeal. will not them on Flores disturb 8, Penal sec State, violated “Texas Code (Tex.App. 177 S.W.3d 13-14 ref'd). 2005, opening file.” pet. tion 33.02[4] Dist.] Houston [1st explicit whether the trial to make appellant asked When the trial court fails After suppress fact, findings motion to denying findings imply his of we fact court was ruling long trial sо as “on the basis of the warrantless court’s support evidence court, search,” supports implied these findi citing Rogers the trial v. evidence State, 680, 221 State, v. S.W.3d (Tex.App.-San ngs.5 452 Anto Gutierrez (Tex.Crim.App.2007). responded, “I do.” The pet.), nio provide any further oral trial court did not Suppress Evidence Motion to conclusions, and the findings or or written issues, argues that the parties any appellant not ask for additional find In four did denying his motion to trial court erred ings or conclusions. (5) Rape”; ampersand "R Y Testimony Lolita 3. revealed that the files accessed nese (1) gold 2006 included those titled preteen suck.” word, slut, reelkiddy, prn one kid- “16Y (2) (3) “kiddy-baby, "Izzy2.mp”; dy.mgpe”; (Vernon Supp. § 33.02 Penal Code Ann. Tex. (4) "Kiddy yеars, mpeg”; Vanessa 12 36.- 2008). (6) (5) mpeg”; pussy.mpg”; "Pedo 10-YO (7) “Pedo-Vicky-doudu.mpeg”; "Pedo Mff— directly Appellant do ad- and the State bikini, (8) "vicky string p suck.mpg”; and findings whether the trial court’s oral dress the., year-old mpg.” The additional video explicit findings. Both should be considered (1) 0002 little files were titled "Lolita sex appear the trial court’s to ask us to consider Camille”; (3) (2) preteen”; Network "Lolita findings. implied (4) Japa- "pedo underage 12.mpeg”; "Porn— he “mani- expectation evidence because vidual’s reasonable suppress expectation priva- a reasonable if activity fest[ed] the individual’s conduct or or the files,” the “warrantless cy in his significantly circumstances of the situatiоn agents” law enforcement went lessen the expecta- defendant’s reasonable beyond scope private of a search and privacy by tion of creating reasonably unreasonable,” Legg did not “per se foreseeable risk of by private intrusion authority have to consent to “the search of parties. situation, any Id. such a subse- appellant’s computer,” Legg, by open- quent law enforcement search must lim- be file, committed ing appellant’s computer ited in to the private party’s legiti- computer security. the offense of breach of mate search. Id. (Vernon § See Tex. Penal Code Ann. 33.02 2003). Here, appellant took laptop his
The Fourth Amendment of the
to a Circuit
store to have a
I,
article
United States Constitution and
up
technician back
his
photo
video and
protect
section 9 of the Texas Constitution
graphic
onto
files
an external hard drive.
against unreasonable searches and sei Appellant
place any
did not
limitation on
IV;
zures.
amend.
U.S. Const.
Tex.
Const.
files,
to back
request
these
and the
I,
19;
§
art.
Villarreal
S.W.2d
ports
USB
on the laptop did not function.
(Tex.Crim.App.1996).
The well- Legg. testified that in order to fulfill appel
rule, subject
specifi
a few
established
request migrate
lant’s
the data onto an
cally
excep
established and delineated
drive,
external hard
copy
he had to
tions, is that “searches conducted outside
in appellant’s My
Shared Folder onto
judicial process,
prior approval
without
ultimately
a DVD to
load the
“into
by judge magistrate,
per
or
are
se unrea
store
which had the external
sonable under the Fourth Amendment.”
hard drive connected to it.” Once he saw
Ross,
798, 825,
United States v.
456 U.S.
suspect
name “Pedo” on one
(1982)
102 S.Ct.
838 warrant is admissible appellant’s seized under the regard issue, clearly Amendment and if could have been only the Fourth the warrant
second I, Texas 9 of the Constitu of the untainted infor article section issued on the basis HPD patrol when the implicated Pitonyak tion were v. mation in the affidavit.” arrived 834, offiсer first State, (Tex.App.-Aus 848 warrant, and, asked without a search ref'd) store State, 2008, pet. (citing Brown v. tin through further Legg to search 572, (Tex.Crim.App.1980)). 605 577 S.W.2d images, him show other computer files and clearly “If information was un the tainted scope Legg’s conduct that exceeded for necessary probable to establish cause Id. at 937 private-party initial search. warrant, then the defendant search search must subsequent police (noting inclu not have been harmed could private party’s to the “limited in be in the affi sion of the tainted information search”). that, testimony reveals Legg’s State, v. 818 (citing davit.” Id. Castillo located and the first although he 803, (Tex.Crim.App.1991), 805 S.W.2d image performing while pornographic grounds, ovemtled on other Torres using City’s stan migration data (Tex.Crim. State, 899, S.W.3d 901-02 immediately he operating procedures, dard App.2005)); Bridges, also State v. see migration upon confirming ceased data (Tex.App.-Houston [14th S.W.2d pornogra laptop that the contained (stating “relevant pet.) Dist.] subsequent viewing of the phy. Legg’s based inquiry probable into cause was at the instruc images videos and done put aside the tainted tainted affidavit is HPD officer. This war- tion of the whether the in allegations and determine per was se unreasonable rantless search acquired and lawful informa dependently Amendment and under under the Fourth clearly probable tion established cause” I, thе Texas article section 9 of Constitut the search could warrant “[i]f Id.; Brimage v. ion.7 see also have been issued based on the untainted (Tex.Crim.App.1994). S.W.2d affidavit, information in the then the Nevertheless, though pa even valid”). search warrant is of the additional trol officer’s search Here, appellant agreed even unreasonable, Officer Barnes subse proba trial court that Officer Barnes had warrant based quently obtained ble cause to obtain a search warrant based primarily upon Legg’s prior observations upon Legg’s initial observations of his officer’s instructions to search Setting files.8 aside the infor on the additional *8 in the affidavit to the HPD mation related а search warrant is issued laptop. “When search, we un officer’s warrantless hold containing on the of an affidavit basis information, portion the evidence that the of the lawfully remaining obtained affidavit State, citing Rogers 7. there conducted a warrantless search that ex- The pet.), (Tex.App.-San Antonio ar- the ceeded the of the conduct of com- gues the officer's search did not that puter Rogers, In in our technician. Id. as implicate Amendment and article the Fourth case, police officers obtained a search I, section 9 of the Texas Constitution because prior conducting analy- warrant a forensic expecta- appellant did not have a reasonable computer. sis of the Id. privacy his files. Howev- tion of er, in sequence police when the factual as to viewing Appellant challenges Legg’s actual Rogers officer in obtained a search warrant is original separate of the video on state Moreover, nothing id. at 455. clear. See grounds that we below. address Rogers indicates that officer cause for independently provided probable plied finding appellant’s computer that appellant’s laptop files were in the subsequent carry- accessed course of during which all the video and computer, appellant’s out work order. Accord- photographic pornog- ingly, files we hold that the trial court did not located.9 See id. raphy concluding err in Legg did not violate section 33.02. appellant’s overrule second issue. We appellant’s We overrule fourth issue. issue, appellant specifically
In his fourth Legg argues that because violated Texas We hold that the trial court did not err 33.02 in opening Penal Code section in denying appellant’s motion suppress file, should be “Pedo” all ex- evidence. cluded from evidence. See Tex.Code Crim. 38.32(a). 38.23(a) art. Article Proc. Ann. Conclusion provides obtained evidence “[n]o We affirm the judgment of the trial an person officer or other violаtion of court. any provisions of the Constitution or laws Texas, of the State of or of the Constitu- KEYES, Justice concurring. tion or laws of the United States of Amer- ica, against shall be admitted evidence KEYES, Justice, EVELYN V. any
the accused on the trial of criminal concurring. added). (emphasis case.” Id. Section join majority’s opinion I except to prohibits 33.02 of the Texas Penal Code majority the extent the Legg’s holds that person knowingly accessing from a com- opening, police, at the direction of files he puter without the “effective consent” of the previously “My had uncovered in the owner. See Tex. Penal Code Ann. Shared Documents” folder on 33.02(a) 2003). (Vernon § Appеllant as- “per se unreasonable under Legg serts that was not authorized to view Fourth Amendment and under article any laptop. files on his I, section 9 of the Texas Constitution” above, appellant Op. as noted therefore constitutional error. See place any did not limitations on I request agree majority Legg his with to back acting files. order to was not as a state actor and did not request, fulfill appellant’s Legg appellant’s expectation had to violate copy appellant’s files onto a DVD to ulti under the Fourth Amendment when he mately initially “into opened “My load the store com Shared Docu- puter performing which had the external hard drivе ments” folder in the course connected to it.” Once he the suspect appellant’s requested computer saw data trans- file, fer, Legg “Pedo” it to la- confirm discovered a number of files with illegal. testimony indicating they por- it was not bels contained child from im- supports nography, and Bautista an one of them.1 I also *9 held, Having appel- suppres- we need so not address Documents” folder at the time of the issue, argues lant's in which he third that the hearing year sion over a later. The files he finding trial court abused its discretion in that during discovered that initial search and was "computer authority the technician had the open by police the asked to before sеarch appellant's comput- the consent to search of slut, (1) warrant was included ”16Y obtained er.” word, (2) reelkiddy, prn kiddy.mgpe;” one (3) (4) “Izzy2.mp;” "kiddy-baby.mpeg;” "Kid- Legg did not recall the exact name of the (5) initially opened “My dy years, 36.mpeg;” file he in the Shared Vanessa 12 "Pedo 10- (3) (4) acting “Izzy2.mp”; “kiddy-baby.mpeg”; under the di- that he was
agree (5) the police when he “Kiddy years, 36.mpeg”; rection of Vanessa origi- (6) files he had pornographic additional 10-YO “Pedo- pussy.mpg”; “Pedo suck, plain in view in his initial nally (7) discovered Vieky-doudu.mpeg”; “Pedo Mff— “My Shared Documents” search of the (8) the., bikini, mpg”; “vicky string p and agree “subsequent that a folder. I further year-old mpg.” Legg then left in police scope must be ‘limited and Bautista and the officer viewed room ” private party’s Op. search.’ at 838. eight images. of the nine additional however, with the disagree, majority’s I police computer officer seized the and search at the di- Legg’s conclusion in placed property it the HPD room. with police pornographic rection of assigned HPD officer John Barnes was “My in the Shared Documents” fold- titles investigation July 2006. He plain Legg view after er initially opened magistrate the folder exceeded the made out an affidavit to private of the initial search and vio- judge as follows: right pri- lated constitutional brought On defendant vacy. computer City. to Circuit This was a Legg opened “14-year the file labeled laptop computer Compaq described as a por- old” to confirm that it contained child V203US; Computer Model No: Serial nography because the file was “linked to a Circuity City No: CNF4461126. [sic ] very program that is well known for down- Defendant, the computer. Raymond has loading pornographic material.” He dis- Brackens, brought image covered the of an adult male in Circuity City to be fixed. [sic ] congress underage sexual with an female. City found numerous videos labeled Legg immediately the image closed and technician, Leg “PEDO.” The Mark supervisor, alerted his Israel Bautista. [sic], stated that what he saw was at supervisor, Bautista contacted his who in- ages least 10 videos of female children structed Bautista to contact the Houston ranging years performing from 9-11 old (“HPD”). Department Police Bautista vaginal oral and sex with adult males. police quarantined called the and the com- pornographic The file names where the puter in the store’s cash office. An HPD images were observed were under the police City officer came within defendant’s name. The technician im- twenty minutes of Bautista’s call. After mediately called HPD to come view the scene, arriving requested on the the officer A computer. officer came to Cir- Legg open retrieve the cuit and viewed the the file images. viewing images, After previously opened. he had After the custody officer took of the com- original image, officer viewed the he puter in the HPD put Legg asked additional files in the (1) slut, property room. The is cur- same folder with the titles “16Y word, (2) reelkiddy, prn kiddy.mgpe”; rently custody one of HPD. [the] Camille;” (6) (3) "pedo underage pussy.mpg;” "Pedo-Vicky-dou- YO 12.- work (7) (8) du.mpeg;” suck.mpg;” (4) "Pedo mpeg;” "Porn-Japanese Rape;” Lolita Mff— bikini, the., "vicky string p year-old mpg.” (5) ampersand gold preteen "R Y I suck.” opened by police Additional video files after year-old” use the title "14 for the file (1) obtaining a search warrant included "Loli- *10 initially viewed. (2) preteen;" ta sex 0002 little Nel- "Lolita
841
However,
judge
private
issued the seаrch
even if a
magistrate
party
The
does
1,
August
governmental agent,
2006. After receiv-
act as a
warrant
a defendant
warrant, Barnes took the
has
standing
complain
the search
that evidence was
property
by
HPD
governmental
from the
room obtained
unreasonable
in
and transferred the
the HPD trusion
violation of the Fourth amend
forensic lab. Barnes testified that ment and the Texas
digital
Constitution and is
illegal pornographic
only
thirteen
files were dis-
therefore inadmissible
if he has a
legitimate expectation
privacy
covered.
of
in the
1017;
place
Paige,
invaded.
136 F.3d at
States and
Both
United
Texas Con
Barth,
Villarreal,
936;
F.Supp.2d
26
at
protect
legitimate
an individual’s
stitutions
138;
State,
Rogers
935 S.W.2d at
v.
113
expectation
privacy
of
in the individual’s
452,
(Tex.App.-San
S.W.3d
457
Antonio
personal
home and
effects from unreason
2003, no
“If
pet.).
inspection by
government
able
intrusion. U.S. Const.
not
legitimate
does
intrude
a
IV;
I,
9;§
amend.
Tex. Const. art.
see
expectation
privacy,
of
there
is
‘search’
State,
134,
v.
935 S.W.2d
also Villarreal
subject to the [Fourth
Illi
Amendment].”
(Tex.Crim.App.1996) (citing Richard
138
Andreas,
765, 771,
nois v.
463
103
U.S.
(Tex.
State,
944,
son v.
865
948
S.W.2d
3319, 3324,
(1983).
S.Ct.
842 the were alerted with- opened, police the container believe that cause to ble id., delay. at 102 103 at 3324. See id. out See S.Ct. contraband. contains in (expectation privacy of that the contents of S.Ct. at There is no indication automobile). case, scope a the of a In such changed the the folder were between time “is no narrower and no search warrantless Legg discovered the contraband and scope of search author broader than and directed police time the called were by by supported probable a warrant ized of the contents of other inspection prior Only magistrate’s Id. cause.” names, with similar and the evidence is otherwise, waived; the search approval is 772-73, contrary. See id. at 103 S.Ct. Id. magistrate “as the could authorize.” is the folder Legg reopened at 3325. When Andreas, Supreme States the United the di- “My labeled Shared Folder” at a container has been held that once Court in rection of the video files police, certainty and found to a lawfully opened indicating they with names con- folder being, container contain contraband —the again material were in pornographic tained case, shipping in container sealed plain view. See id. drugs illicit contra found to contain —the police that once the had I would hold physically with objects band becomes like “My labeled Shared Legg open folder the claim to plain police in view of the “14-year-old” file Documents” and the in the contents of the container is privacy 771-72, Andreas, with in- at 103 and saw the additional files titles lost. U.S. subsequent reopening at 3324. The in in plain S.Ct. dicative of view lawfully folder, of a that has been container opened they probable had opened and found to contain contraband is “My cause to believe folder labeled meaning within the thus a “search” Shared Folder” contained the Fourteenth absent a sub Amendment they and that did not exceed the material of the stantial likelihood that the contents by original of the lawful search di- 772-73, at changed. container have been Id. recting Legg the six additional S.Ct. at 3325. opened files in the folder without a search Thus, therefore, here, po- warrant. I would hold that the question The is whether appellant expectation had a reasonable lice-directed warrantless search of the privacy against a governmental search in “My the folder labeled “My the contents of the folder labeled in Shared Folder” was not a search of files Shared Documents” once had lawful- legitimate expecta- which appellant had ly opened during the folder the course of privacy illegal tion of was not an migration the data requested appellant “search” under the Fourth Amendment or and discovered a of files with number Andreas, 463 counterpart. its Texas See names indicative of I pornography. (once at at 3324 con- U.S. S.Ct. would hold that he did not. tainer has been and found to a contraband, certainty to contain contra- opening
The
folder resulted
objects
plain
band becomes like
view of
Legg’s discovery of
illegal pornography
Ross,
lost);
privacy
is
police
claim
plain view in
form
of numerous video
“PEDO,”
at 2172 (expecta-
six additional I would that the hold inspected
their warrantless search of subject were not to exclusion
under the Fourth Amendment of the Unit- I,
ed States or article Constitution section Therefore,
9 of the Texas Constitution.
the trial admitting court did not err in
them. majority,
Like the I would affirm the
judgment of the trial court. LTD.,
INEOS GROUP Ineos Technolo
gies, LLC, Ineos Americas Ineos Man NV,
ufacturing Belgium LLC, Ineos Europe Limited, Polyeth
Ineos Ineos
ylene America, LLC, North Ineos USA Olefins, LP, Appellants,
and Ineos
CHEVRON PHILLIPS CHEMICAL
COMPANY, LP, Appellee.
No. 01-09-00504-CV. Texas, Appeals
Court of (1st Dist.).
Houston
Dec. Legg's plain based on initial observations ative of view in the opening "My Shared Documents" folder. same folder because this search exceeded the majority scope Legg’s positions also holds that it was I search. find these per disagree- se unreasonable for the officers ask inconsistent. That is the crux of our additional flies with titles indic- ment.