Jon Thomas FORD, Appellant v. The STATE of Texas
NO. PD-1396-14
Court of Criminal Appeals of Texas.
Delivered: December 16, 2015
477 S.W.3d 321
With these additional thoughts, I join the Court‘s opinion and judgment.
Jay Brandon, Assistant District Attorney, San Antonio, Lisa C. McMinn, State‘s Attorney, Austin, for the State.
NEWELL, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, HERVEY, ALCALA and RICHARDSON, JJ., joined.
Did the State‘s warrantless acquisition of four days worth of historical cell-site-location information—recorded by Jon Thomas Ford‘s cell-phone service provider—violate the Fourth Amendment? No. We agree with the San Antonio Court of Appeals that, because a third-party, AT & T, gathered and maintained the information as business records of the service provided to Ford‘s phone, Ford did not have a reasonable expectation of privacy in the data. The State did not violate Ford‘s Fourth Amendment rights when it obtained that informatiоn by way of a court order under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure—an order available on a showing short of probable cause. We will affirm.1
I.
Appellant, Jon Thomas Ford, and the murder victim in this case, Dana Clair Edwards, started dating in 2007. The couple did not live together, but both lived in Alamo Heights. By mid-summer 2008 they were drifting apart. Dana Clair
On October 17, 2008, appellant held a 40th birthday party for himself, and he invited Dana Clair. According to appellant‘s lifelong friend, Alan Tаrver, it was “amazingly” civil. The pair saw one another again at a Halloween party at the dog-wash shop of Alan‘s girlfriend, Melissa Federspill. On Saturday, December 20th, Melissa, Alan, Dana Clair, appellant and a few others rented a limousine to go look at Christmas lights. Appellant accompanied Dana Clair home to her condominium at 19 Gallery Court that night. On December 23rd, Dana Clair came by appellant‘s house at 333 Rosemary to pick up a Christmas present. She later told Melissa that, when she visited appellant on December 23rd, she ended up staying over there for five hours because he was so emotional. As a result, Alan ended up calling appellant to let him know that Dana Clair was going to be at one of the New Year‘s Eve parties he, appellant, and Melissa were planning to attеnd. According to Alan, “[Appellant] was fine. He was fine. It didn‘t seem to faze him at all.”
On New Year‘s Eve, Melissa dropped Alan off at Roger Gragg‘s party around 8:30 p.m., and when Alan did not see appellant, he sent him a text saying, “Dude. I am at Roge[r]‘s Donde [esta]?” Appellant was, by that time, on his way to Mary Minor‘s party to drop off crab dip. He called Alan from Mary Minor‘s house, drove back to Roger Gragg‘s party, and, after a couple of hours, appellant drove himself and Alan back to Mary Minor‘s party. There, they played a game called “Apples to Apples,” with a group that included Dana Clair and Melissa.
During the game, appellant became slightly irritated when Melissa made “a fuss” regarding appellant‘s relationship with Dana Clair. As Melissa described it:
There was an incident during the party in which I—I think one of the cards wаs marriage. Now, at this time Alan and I were cohabitating and we were not married. So it was a sticky, a little sticky, and that, of course, was one of the sticky spots for [appellant] and Dana Clair.... I got very involved and thought this is a perfect time for—me to let y‘all know how I feel about your lackadaisical, marriage behavior. So I—I made a fuss.... I pointed my finger at [appellant] and Alan.... There was a lot of words flying around and so I—I took the spotlight in saying, This one is for y‘all.... There was a lot of laughter. I think it rubbed [appellant] the wrong way..... [H]e called me over to sit next to him to mention to me how it rubbed him the wrong way.
This led to a break in the game, and appellant left before midnight. At 11:31 p.m., Alan sent a text asking appellant why he left. Appellant replied, “No longer fun.” Appellant did not respond to Alan‘s next text asking whether he was headed back to Roger‘s party. Alan‘s phone call fifteen minutes later went to voice mail.
Alan, Melissa, and Dana Clair left the party around 12:45 a.m. Alan and Melissa had appellant‘s cooler of beer so they drove to appellant‘s house intending to drop it off. Neither he nor Melissa saw appellant‘s white Chevy Tahoe parked at either of the places he normally parked—at the end of his driveway, or in the church parking lot behind his house—so they did not stop.
Once home, shortly after 1:00 a.m., Alan tried to contact appellant one last time,
On New Year‘s Day, Dana Clair‘s рarents expected her out at their Fredericksburg ranch. They called her throughout the day, but were never able to reach her. Sensing something was wrong, they drove from the ranch to Dana Clair‘s condo. They found their daughter dead lying half in the office bathroom, half out. A white towel with blood on it had been draped over her face.
There was no sign of forced entry,2 and nothing—save Dana Clair‘s two dogs—appeared to be missing,3 but the police believed it was a homicide because there were visible lacerations and indications of blunt force trauma to the head. The medical examiner later determined that Dana Clair had died from asphyxiation due to ligature strangulation.
San Antonio Police Department Detective Leroy Carrion was assigned the case on January 2, 2009. Det. Carrion contacted appellant the next day, and appellant volunteered to give a statement. In that statement, appellant said that he left Mary Minor‘s party around 11:30 p.m., that it took him less than five minutes to get home, and that he changed, went to bed, and was asleep before midnight. He said his Blackberry phone, which was fairly new, had been in his possession the entire night. According to appellant, nobody had used his phone or driven his white Chevy Tahoe except him.
Det. Carrion obtained video footage that seemed to undermine appellant‘s assertions. The drive-through exit camera from the First National Bank across the street from Dana Clair‘s condominium complex, Gallery Court, covered the New Braunfels Avenue-Nacogdoches Road intersection as well as the entrance to the complex. The camera captured footage of a white SUV, similar to appellant‘s Chevy Tahoe, go in and out of Gallery Court moments after appellant had left the New Year‘s Eve party. At 11:24 p.m., a white SUV, traveling south on New Braunfels crossed Nacogdoches and turned into Gallery Court and exited two minutes later. Then, at 11:26 p.m., the white SUV passed by Gallery Court again, pulling into the complex at 11:27 p.m. before exiting again at 11:30 p.m. and heading north on New Braunfels toward Nacogdoches.
According to Det. Carrion, a few moments after the vehicle traveled north on New Braunfels and disappeared from view, the surveillance camera captured a person walking from the north of the intersection, traveling south on New Braunfels on the
A couple of minutes after 2:00 a.m., the figure seen entering Gallery Court at 11:42 p.m. walked out of the complex and headed north on New Braunfels. At 2:07 a.m., a white SUV was again seen heading south on New Braunfels. At 3:12 a.m., the SUV later appeared heading north on New Braunfels—this time with its lights off—and again pulled into Gallery Court. Then, it exited at 3:16 a.m.
No one could definitively say that the white SUV belonged to appellant, or that appellant was the figure seen walking in the survеillance video. And Det. Carrion acknowledged that there were “dozens of white Tahoes or at least vehicles that look very similar to white Tahoes that traveled down and up New Braunfels just in the six hours that [he] concentrated on.” But he said “there was the same one that keeps going in and out of Gallery Court.” Det. Carrion said he recognized appellant‘s Tahoe because of its characteristics: “no luggage rack, side railings, black trim around the side, black handles, black rear-view mirrors, black tailgate lift handle.”
On January 14th, the San Antonio District Attorney‘s Office filed an application under
Kenneth Doll, the director of radio network engineеring for the AT & T Wireless Network in South Texas, testified about these records. Doll explained that he could tell, “generally speaking,” where a cell phone is located based upon data gathered from cell towers—historical cell-tower data. According to Doll, each cell-phone tower has three coverage areas referred to as sectors. When a person sets up a call, receives a call, or sends a text, the person does so in communication with one of those sectors in the cell-phone network. This enables the cell-phone service provider to look up the records for a particular phone number and determine a particular cell-phone‘s proximity to a cell-phone tower during a particular communication session.
Additionally, Doll explained that the network collects cell-phone data even when someone is not actively using his or her cell phone. Unanswered texts and calls, and automatic internet downloads (or uploads) cause the device to connect with, or “ping,” the network to alert the network that the cellular device is in a particular service area. According to Doll, the switching records in this case showed fourteen pings from appellant‘s cell phone during the time span of 8:10 p.m. on December 31, 2008, to 9:43 a.m. on January 1, 2009. Twelve of these were texts or phone calls to or from Alan Tarver, one was a passive-use data upload or download from the internet, and one was an active call to voice mail. Doll arranged these pings into ten “events.” His testimony is summarized by the fоllowing chart:
| Event | Date/Time of Ping | Activity | Cell Tower/Sector | Consistent with appellant‘s cell phone being |
|---|---|---|---|---|
| 1 | 12/31/08 08:10 PM | receives a call from Tarver | SX3114-2 | at Roger Gragg‘s party [348 Funston Place] |
| 2 | 12/31/08 08:31 PM | receives a text from Tarver | 3X3155-1 | in route to Mary Minor‘s party [158 Treasure Way] |
| 3 | 12/31/08 08:33 PM | places a call to Tarver | SX3134-3 | at Mary Minor‘s party [158 Treasure Way] |
| 4 | 12/31/08 11:31 PM | receives a text from Tarver | 3X0133-3 | at appellant‘s home [333 Rosemary] |
| 12/31/08 11:32 PM | sends a text to Tarver | |||
| 12/31/08 11:33 PM | receives a text from Tarver | |||
| 5 | 12/31/08 11:45 PM | receives a call from Tarver (call goes to voice mail) | 3X3155-2 | at Dana Clair‘s condo [19 Gallery Court] |
| 01/01/09 01:19 AM | receives a text from Tarver | |||
| 6 | 01/01/09 01:32 AM | GPRS data connection (internet) | SX3114-3 | at Olmos Dam |
| 7 | 01/01/09 02:30 AM | places a call to voice mail | SX3109-2 | at appellant‘s home [333 Rosemary] |
| 8 | 01/01/09 09:15 AM | sends a text to Tarver | SX0133-3 | at appellant‘s home [333 Rosemary] |
| 01/01/09 09:21 AM | receives a text from Tarver | |||
| 9 | 01/01/09 09:41 AM | sends a text to Tarver | SX3109-1 | at appellant‘s home [333 Rosemary] |
| 10 | 01/01/09 09:43 AM | receives a text from Tarver | SX0133-3 | at appellant‘s home [333 Rosemary] |
Doll based his opinion on the fact that appellant‘s address, 333 Rosemary, had three potential servers, SX3109-1, SX3109-2, and 3X133-3, because it sat on the border of towers SX3109 and 3X0133, but the Gallery Court complex had only one: SX3155-2. Moreover, the Gallery Court server did not have a line of site to the 333 Rosemary address because the “terrain drops off as you get toward his house from the north, which is what prevented the line of sight condition.” According to Doll, the only reasonable explanation for appellant‘s phone pinging at that SX3155 tower at 11:45 p.m. was that his “phone would have been near the site by Gallery Court. That‘s the only way that would happen.” Doll was equally emphatic about the 11:45 p.m. call, the 1:19 a.m. text, and the 1:32 a.m. data connection:
Q. I specifically asked you to hone in on two particular times; that being 11:45 on December 31st of 2008, and 1:19 in the morning, January 1st, 2009. Can you tell this jury with certainty, beyond a reasonable doubt, that is precisely where his phone was located in the sector [SX3155-2] that involves Gallery Court?
A. Yes, it would have been in that sector ...
Q. And it would be impossible for him to be anywhere else, except to bе in that sector, because that‘s where his phone pings?
A. Right.
* * *
Q. What would be the only reason it‘s pinging near the Olmos Dam?
A. That device would have had to have been near the Olmos Dam.
The 1:32 a.m. ping near the Olmos Dam was significant because that is where police recovered the body of Dana Clair‘s dog, Grit, on January 7th. Grit appeared to have been dropped from the Olmos Basin Overlook, because he was found directly below the pull-off parking for mechanics who work on the dam.
Other evidence also called into question appellant‘s accounts for his whereabouts after he had left Mary Minor‘s party. Appellant‘s Y chromosome profile was found on two cuttings from the bloody towel that had been draped over Dana Clair‘s face. The analyst could not tell what the source of the DNA was (blоod, saliva etc...), but he could say that the DNA was specific to appellant‘s paternal lineage. Although appellant had been in the condo on December 20th, testimony revealed that Dana Clair was fastidious about laundry, and that a wash and bleach of the towel would have removed any DNA left behind then.
Ultimately, the jury found appellant guilty of murder and sentenced him to forty years’ confinement. Among the issues raised and rejected on direct appeal was a Fourth Amendment argument that focused on admission of the historical cell-site-location information obtained from AT & T and used by the State to suggest appellant‘s proximity to Dana Clair‘s residence at the time of her murder. The
Justice Chapa filed a dissenting opinion and would have held that (1) “Ford retained an objectively reasonable expectation of privacy in his physical movements and location,” (2) “[Ford] did not voluntarily surrender his reasonable expectation of privacy in his physical location and movements simply by using his cell phone,” and (3) “[b]ecause the State did not secure a warrant before obtaining the historical cell site data from Ford‘s cell phone provider, Ford‘s Fourth Amendmеnt rights were violated, and the trial court should have granted his motion to suppress.” Ford v. State, 444. S.W.3d at 202-03 (Chapa, J., dissenting).
Recognizing that this is an important question of Fourth Amendment law on which the justices of the San Antonio Court of Appeals have disagreed, we granted review.
II.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Application of the Fourth Amendment under the latter, privacy theory depends on whether the person invoking its protection can claim a “reasonable,” or a “legitimate” expectation of privacy that has been invaded by government action. State v. Granville, 423 S.W.3d 399, 405 (Tex.Crim.App.2014). That is, a person has “standing” to contend that a search or seizure was unreasonable under the privacy theory if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society is prеpared to recognize that expectation as “reasonable” or “legitimate.” Id.
A “legitimate” expectation of privacy acknowledges the lawfulness of the person‘s “subjective” expectation of privacy. Id. at 406. As the Supreme Court has explained,
Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.
Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted). In Granville, we held that a citizen does not lose his reasonable expectatiоn of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room. 423 S.W.3d at 417. Likewise, the Supreme Court held, in Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 2493-94, 189 L.Ed.2d 430 (2014), that an individual indisputably has an expectation of privacy in the contents of his personal cell phone, such that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
But the Fourth Amendment does not prohibit the obtaining of information revealed to a third party, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. The third-party doctrine has its roots in two United States Supreme Court cases that predate cellular telephones: Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (installation and use of a pen rеgister by a telephone company does not constitute a “search” within the meaning of the Fourth Amendment), and United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (bank depositor has no legitimate expectation of privacy in financial information voluntarily conveyed to banks and exposed to their employees in the ordinary course of business). According to Professor LaFave, “the critical fact in both Miller and Smith was that the information was given to a third party for that party‘s use; in both cases, this information had to be disclosed for the telephone company or bank to provide the requested service.” 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.6(f), at 927 (5th ed. 2012) (internal quotation marks omitted).
Currently, federal circuit courts appear to be split on whether this third-party doctrine applies to historical cell-site-location information. The Third, Fifth and Eleventh Circuits have rejected the аrgument that a court order authorized by the Stored Communications Act, compelling the production of the CSLI at issue in those cases, was a search requiring probable cause.5 Those courts have held that
III.
We agree with the San Antonio Court of Appeals that the State‘s receipt of four days worth of historical cell-site-lоcation information under Article 18.21, § 5(a) did not violate the Fourth Amendment.9 Appellant had no legitimate expectation of privacy in records held by a third-party cell-phone company identifying which cell-phone towers communicated with his cell phone at particular points in the past.
First, like the bank customer in Miller and the phone customer in Smith, appellant neither owned nor possessed the records he sought to suppress. Davis, 785 F.3d at 511. Rather, the cell-tower records are created by the cell-phone companies themselves and are subject to their control. Id. AT & T collects and stores this historical cell-site-location data for its own business purposes, in part to optimize service on its network. See id. As Frank Doll testified, AT & T uses the records to make sure its Metro San Antonio cell towers function accurately; “our customer base dеpends on that. We make engineering decisions based off of that and we spend billions of dollars every year based on our records ... [to ensure customers] have a pleasant wireless experience.” Wireless providers are required, by the FCC, to locate cell phones from which a 911 call has been placed.10 But AT & T is not required by the government to record this information or store it. See In re Application (Fifth Circuit), 724 F.3d at 611-12. The providers control what they
“This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to [the defendant], even if it concerns him.” Davis, 785 F.3d at 511. This evidence is nothing like thе content-photographic and video-evidence at issue in Granville, and Riley. See In re Application (Fifth Circuit), 724 F.3d at 611 (recognizing the historical and statutory distinction between communications content and addressing information); see also Guerrero, 768 F.3d 351 at 359 (recognizing that, although Riley and In re Application (Fifth Circuit) implicate a broader theme concerning the application of the Fourth Amendment to modern technology, they each involve distinct doctrinal areas).
Second, like the bank customer in Miller and the phone customer in Smith, appellant cannot meet the reasonable-expectation-of-privacy test. Davis, 785 F.3d at 511. Appellant fairly manifested a subjective expectation of privacy: the incriminating evidence in this case was determined from records of passive activity on his cell phone.12 But we agree with the court of appeals that “this is a distinction without a functional difference,” as appellant “voluntarily availed himself of AT & T‘s cellular service, which includes the ability to receive data sent to a subscriber‘s phone, when he chose it as his provider.” Ford, 444 S.W.3d at 190. As noted by the Eleventh Circuit, the unreasonableness of any subjective expectation of privacy in society‘s eyes “dooms [defendant‘s] position under Katz.”
In Smith, the Supreme Court presumed that phone users knew of uncontroverted and publicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations. Cell towers and related records are used for all three of those purposes. We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage. Davis, 785 F.3d at 511 (citation omitted). Indeed, “cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower‘s range, and that cell
At the motion to suppress hearing, and in his briefing, appellant references Justice Sotomayor‘s concurring opinion in United States v. Jones, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation оf privacy in information voluntarily disclosed to third parties.” See Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring) (recognizing that this “approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks“). In Jones the government, without a warrant, installed a GPS device on a suspect‘s vehicle to track the movements of the vehicle over a 28-day period. Id. at 948. The D.C. Circuit had held that this practice was a search because people do not reasonably expect that their movements will be monitored and aggregated in a manner that enables the government to ascertain, without a probable cause showing, “all the places, people, amusements, and chores that make up that person‘s hitherto private routine.” United States v. Maynard, 615 F.3d 544, 560 (D.C.Cir.2010), aff‘d in part sub nom. United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).
The Jones majority skirted that issue and instead held, under a trespass theory of Fourth Amendment protection, that attaching a GPS tracking device to a vehicle without a warrant and using the device to record the vehicle‘s location was an impermissible search under the Fourth Amendment. Jones, 132 S.Ct. at 949 (“The Government physically occupied private property for the purpose of obtaining information.“).13
But in two concurring opinions, five Justices addressed the Katz question and agreed that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at 955 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring in the judgment).14 The Fourth Circuit—relying in part on these concurrences—broke with the Third, Fifth and Eleventh Circuits and held that a cell-phone user has a reasonable expectation of privacy in location information shown in “a remarkable 221 days” worth of historical cell-site-location-information records, such that its inspection by the government requires a warrant unless an established exception to the warrant requirement applies:
We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person. Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential to full cultural and economic participation. People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones.... Users’ understanding of how cellular networks generally function is beside the point. The more pertinent question is whether users are generally aware of what specific cell sites are utilized when their phones connect to a cellular network. After all, it is the specificity with which CSLI identifies cell sites that allows users’ location to be tracked and raises privacy concerns. We have no reason to suppose that users generally know what cell sites transmit their communications or where those cell sites are located. A cell phone user cannot be said to “voluntarily convey” to her service provider information that she never held but was instead generated by the service provider itself without the user‘s involvement.
Graham, 796 F.3d at 356 (citations omitted). This echoed the words that Justice
The majority‘s application of the third-party doctrine sweeps intimate details of a person‘s life outside the scope of the Fourth Amendment‘s protections because cell phone customers “voluntarily disclose” their location information simply by owning and using their cell phones. The majority thus confronts cell phone customers with a choice between Scylla and Charybdis: either forego the use of technology that has become a pervasive and insistent part of modern, everyday life or forego the protections of the Fourth Amendment. I cannot join such a sweeping and mechanical application of Smith and Miller. Ford, 444 S.W.3d at 202 (Chapa, J., dissenting).
This is persuasive logic. But we note that, unlike the facts before the Supreme Court in Jones, there is no GPS device, no physical trespass, and no real-time or prospective cell-site-location information in this case.15 And unlike the facts before the Fourth Circuit in Graham, only short-term CSLI was acquired.16 The Fourth Circuit took pains to repeatedly note that it was only addressing long-term cell-site-location information.17
cell phone users may reasonably want their locatiоn information to remain private, just as they may want their trash, placed curbside in opaque bags, or the view of their property from 400 feet above the ground, to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.
In re Application (Fifth Circuit), 724 F.3d at 615 (citations omitted).20
Courts are split on the right-to-privacy question because it is a close call (at what
YEARY, J., not participating.
Cody CARR, Appellant v. The STATE of Texas, Appellee
NO. 14-14-00085-CR, NO. 14-14-00087-CR
Court of Appeals of Texas, Houston (14th Dist.).
Opinion filed June 23, 2015
Discretionary Review Refused November 4, 2015