Gareic Jerard HANKSTON, Appellant v. The STATE of Texas
NO. PD-0887-15
Court of Criminal Appeals of Texas.
DELIVERED: April 12, 2017
Eric Kugler, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for the State.
OPINION
Richardson, J., delivered the opinion for a unanimous Court.
Following the denial of his motion to suppress, Appellant, Gareic Jerard Hankston, was convicted of murder and was sentenced to twenty years in prison. The Fourteenth Court of Appeals affirmed Appellant’s conviction, holding that the warrantless acquisition of Appellant’s cell phone records from Sprint (comprised of call logs and historical cell site location informatiоn (“CSLI”)) did not violate Appellant’s rights under the Fourth Amendment or under Article I, Section 9 of the Texas Constitution. In light of our recent
BACKGROUND
Appellant’s girlfriend, Crystal Jordan, had been stalked by Keith Brown for some time. Brown lived two houses down from Jordan’s mother’s house, and on several occasions he would stand outside the mother’s house and watch Jordan when she visited her mother. He would leave notes on her mother’s door. After Jordan moved to an apartment, Brown would still approach her. On the evening of May 19, 2011, Jordan was in her apartment when she heard a knock at the door. She lookеd out the window and saw someone who looked like Brown standing outside.
She also saw a van that looked like Brown’s, Jordan did not open her door, but instead called 911, her parents, and Appellant. The police came and went, and thereafter Jordan left her apartment to go to her mother’s house. Appellant had not shown up, and she did not know where he was. Jordan testified at trial that, while she was at her mother’s house, she heard gunshots. Some time thereafter, Appellant arrived at Jordan’s mother’s house.
Witnesses testified at trial that on that same evening Brown came home around 9:00 p.m. Shortly thereafter, someone started banging loudly on his front door. Brown started to open the door but tried to shut it again. The person on the other side of the door fired six gunshots through the door, striking and killing Brown with four of them.
In the course of investigating the murder, Appellant’s cell phone records were obtained by members of law enforcement without a warrant. The cell phone records were acquired from Sprint pursuant to a sealed application and court order. The application stated that the records were being requested because law enforcement believed the records would “assist [the] investigation by providing information as to who [Hankston] was in contact with on the date of the Complainant’s murder.... [and] will also aid in proving/disproving the defendant’s whereabouts before and after the murder.” Appellant was eventually charged with the murder of Keith Brown.
A. The Motion to Suppress
Appellant filed a motion to suppress his cell phone records. At the hearing on Appellant’s motion to suppress, the State agreed to stipulate that the records were obtained without a warrant. The State relied on Texas Code of Criminal Procedure Article 18.21 as authority to obtain records with only a court order.3 The court order
B. The Trial
At trial, the State presented Officer Michael Burrow as a witness. He was one of the investigating officers. Officer Burrow testified that, in the course of their investigation, they obtained Appellant’s cell phone records by court order, and the State introduced them into evidence as business records. Officer Burrows testified that cell site location and call information was obtained “to establish what [Appellant’s] pattern of behavior was the night of the incident. To see who he was in contact with, and to prove or disprove any statements that he made.”
The State also presented Officer Robert Brown as a witness, who testified that the cell phone records helped establish Appellant’s whereabouts during times relevant to when Brown was killed:
Q. What does the analysis of the cell phone records and cell tower locations indicate to you, regarding the location of the defendant at the time of the 911 call?
A. It indicates that he’s in the area. That the time of the call being placed, in regards to this incident, that he’s in that area and that he’s moving in and about that area. And he’s moving from that sector 3, of that tower, to the next sector and then south. In a very rapid succession or time wise.
* * *
Q. All right. But we do know that the murder is committed and then we have a 911 call made at 9:32 p.m.?
A. Correct.
Q. And at 9:32 p.m., we have the defendant—what—what is he doing?
A. He’s trans—well, the device is transitioning and it’s moving.
Q. Fleeing the area? Would that be consistent with someone fleeing the area? ... Would the activity on the defendant’s cell phone be consistent with him fleeing the area at that time?
A. Yes.
The jury found Aрpellant guilty of the murder of Keith Brown and assessed his punishment at twenty years in prison.
C. On Direct Appeal
Appellant urged on direct appeal that the State’s acquisition of his cell phone records violated the Fourth Amendment to the United States Constitution and Art. I,
Appellant cannot successfully claim that the State’s acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy. The cell site records acquired by the State are simply the business records memorializing appellant’s voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint’s network of cell towers. The fact that this data happens to reveal the general location of appellant’s cell phone, and presumably appellant himself, at given points in time is of no consequence to the legal analysis. The State’s actions did not violate appellant’s Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.4
The court of appeals also overruled Appellant’s challenge under the Texas Constitution. Following this Court’s holding in Johnson v. State,5 the court of appeals held “that ‘[a] plain reading and comparison of the language of the Fourth Amendment and Art. I, § 9 reveals no substantive difference’ and they both protect the same right.”6 Quoting from our decision in Crittenden v. State,7 the court of appeals emphasized:
Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an intеrpretation of Article I, § 9 any different from our preferred interpretation of the Fourth Amendment. We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can.8
The court of appeals noted that Appellant based his Texas Constitutional challenge on this Court’s 1993 case of Richardson v. State,9 which preceded Johnson and Crittenden. This Court held in Richardson that “the use of a pen register may well constitute a ‘search’ under Article I, § 9 of the Texas Constitution.”10 However, the court of appeals did not follow Richardson, but instead “utilize[d] Fourth Amendment precedent to conclude that the State’s acquisition of appellant’s cell phone records [did] not violate Article I, section 9 of the Texas Constitution.”11
D. Appellant’s Petition For Discretionary Review
Appellant argues that the State improperly used his cell phone records that it obtained without a warrant (but with a
The State counters this by arguing that thе Texas Constitution places no additional restrictions on the state’s ability to investigate crime above and beyond the restrictions already imposed by the U.S. Constitution. The State claims that “[i]t would be absurd to suggest that these general understandings and expectations of ‘the people’ change based on whether such people see themselves as Americans or as Texans .... [T]he reasonable expectations of the cell phone consumer are logically that of a national consumer of a nationwide product rather than the expectations оf a provincial consumer of a local product.” The State urges us to follow our reasoning in Ford v. State, disavow Richardson, and affirm the decision of the court of appeals because Appellant’s cell phone records were legitimate business records containing information that Appellant initially conveyed to a third party. We granted Appellant’s petition for discretionary review to address whether the State’s acquisition of Appellant’s cell phone records amounted to a search or seizure under Art. I, § 9 of the Texas Constitution.
ANALYSIS
A. Does Art. I, § 9 provide greater protection in this case than under the Fourth Amendment?
Both the Fourth Amendment to the U.S. Constitution and Art. I, § 9 of the Texas Constitution protect individuals against unreasonable searches and seizures by the government. Under the Fourth Amendment,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.12
In nearly identical language, Article I, § 9 provides,
The people shаll be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation.13
In 1991, in Heitman v. State,14 this Court decided that it did not have to automatically adopt and apply the Supreme Court’s interpretations of the
Two years later, in Richardson v. State,17 this Court addressed whether the installation and use of a pen register by law enforcement personnel required probable cause under the Texas Constitution. In Richardson, officers beliеved the appellant was controlling a cocaine and crack distribution organization using telephones located in the county jail, by placing calls to a private telephone. The officers sought court orders pursuant to Article 18.21 authorizing them to install a pen register to catalogue the telephone numbers dialed from the county jail telephone line and also the private telephone line they suspected the appellant was calling. This Court acknowledged that Art. I, § 9 and the Fourth Amendment provide the same basic protection18 and also recognized that the purpose of both provisions is to safeguard an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.19 This Court said that, “[t]he litmus [test] for determining the existence of a legitimate expectation of privacy as to a particular accused is twofold: first, did he exhibit by his conduct ‘an actual (subjective) expectation of privacy[;]’ and second, if he did, was that subjective expectation, ‘one that society is prepared to recognize as “reasonable.”’”20 In Richardson, the issue was framed as follows:
Ultimately, in the context of both the Fourth Amendment and Article I, § 9, whether the government’s installation and use of a pen register constitutes a search necessarily depends upon whether appellant has a “legitimate expectation of privacy” in the numbers he dialed on the telephone. In other words, in determining the legitimacy of appellant’s expectation of privacy, the appropriate inquiry is whether appellant expected that the numbers he dialed on the telephone would be free from governmental intrusion, and, if he did, is this expectation one that society is prepared to recognize as reasonable.21
Nevertheless, the Richardson Court rejected the reasoning of Smith and Miller, and instead chose to side with the states that have held that their state constitutions provide an individual with a protected privacy interest in the telephone numbers dialed from a telephone.27 This Court concluded in Richardson that the installation and use of a pen register was indeed a search:
The mere fact that a telephone caller has disclosed the number called to the telephone company for the limited purpose of obtaining the services does not invariably lead to the conclusion that thе caller has relinquished his expectation of privacy such that the telephone company is free to turn the information over to anyone, especially the police, absent legal process.28
This Court remanded the case to the court of appeals to determine whether the search was reasonable under Art. I, § 9.29
Only two other cases decided by this Court since Richardson have held that Art. I, § 9 provides greater protection than the Fourth Amendment. In 1994, in Autran v. State30 a three-judge plurality decided that the Texas Constitution provided greater protection than the Fourth Amendment in the context of inventory searches.31 In 1997, in State v. Ibarra,32 this Court held that, although the federal constitution requires the State to prove voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires proof by clear and convincing evidence.33
Twice in 1995 this Court addressed the issue of whether Art. I, § 9 provided more protection than the Fourth Amendment—first in Crittenden v. State;34 and again in Johnson v. State.35 In both cases this Court found that Art. I, § 9 and the Fourth Amendment provide the same protection against unreasonable searches and seizures. In Crittenden v. State, this Court addressed the legality of a “pretext stop” under our state constitution analog to the Fourth Amendment. Acknowledging Richardson, and then departing from it, this Court held that,
Having adoptеd the objective approach under the Fourth Amendment, not because of binding precedent, but because it “makes more sense” than the alternatives, we can hardly justify concluding otherwise for purposes of Article I, § 9. Indeed, we would abuse our prerogative to construe the like provisions of the state and federal constitutions differently, see Richardson v. State, 865 S.W.2d 944, 948 (Tex. Cr. App. 1993), and stretch judicial credibility to the breaking point, were we somehow to hold that what “makes more sense” for purposes of the Fourth Amendment does not also “make more sense” under our own state constitutional analog.36
In Johnson v. State, аnother plurality decision, this Court noted that “[t]he Fourth Amendment and Art. I, § 9 both protect the same right (freedom from unreasonable searches and seizures) to the same degree (persons, houses, papers, and effects/possessions).”37 Although acknowledging that “we are not bound” by Supreme Court precedent, this Court emphasized that we are not “obliged to be different.”38 “Because we can [grant defendants greater rights under the Texas Constitution than afforded under the United States Constitution], however, does not mean that we should do so.”39 The Court acknowledged the strong similarities between the state and federal provisions and insightfully noted that,
It is not unreasonable to conclude ... that the framers of the Texas Constitution chose to draft Art. I, § 9 to protect Texas citizens from unreasonable searches and seizures by the state in the same way they were protected from unreasonable searches and seizures by the federal government. If they had intended to grant to citizens greater protections from state actions than they enjoyed from federal actions, then they
could have drafted Art. I, § 9 at that time to reflect that intent.40
Neither Autran nor Johnson is binding on this Court. However, we agree with the reasoning of Johnson, which mirrors the logic of Crittenden. With regard to Ibarra, we find that holding to be confined to the context where the State must prove voluntariness of consent. We are therefore more persuaded by the cases deciding that, even though we are not bound by Supreme Court case law when it comes to interpreting our State Constitution, we are not precluded from following it either. This reasoning is particularly appropriate when the state constitutional provision we are interpreting and its federal constitutional counterpart are almost identically worded. We are thus free to adopt the Supreme Court’s interрretation of the Fourth Amendment, and apply it in this case, simply because it “makes more sense.”41 Therefore, as discussed below, if we are not going to find that the acquisition of cell phone records is a search under the Fourth Amendment,42 then we are not going to find that the acquisition of cell phone records is a search under Art. I, § 9.
B. Ford v. State and Love v. State
Recently, in Love v. State, we confirmed that “individuals do not have a privacy right in the numbers dialed on their phones.”43 We also reiterated in Love that cell site location information “obtained from the records of a service provider is not protected under the Fourth Amendment.”44 We concluded, thereforе, that “call logs and CSLI are not ... constitutionally protected.”45
In Ford v. State46 this Court unanimously decided that, under the Fourth Amendment, Jon Thomas Ford “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.”47 Like the Richardson Court, we looked at Smith v. Maryland48 and United States v. Miller.49 But, unlike the Richardson Court, we chose to follow those cases.50
In Ford we noted that, like the bank customer in Miller and the phone customer in Smith, an appellant neither owns nor possesses the records he seeks to suppress.51 “Rather, the cell-tower records are created by the cell-phone companies them-
As in Ford, Appellant “voluntarily availed himself of [Sprint’s] cellular service.”54 “[C]ell 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 convеying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell tower usage.”55 In Ford, we acknowledged, but declined to follow, the reasoning that “[p]eople cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones.”56 We were not persuaded by the argument that cell phone users must “forego the use of technology that has become a рervasive and insistent part of modern, everyday life or forego the protections of the Fourth Amendment.”57 We noted in Ford that, unlike in United States v. Jones,58 “there was no GPS device, no physical trespass, and no real-time or prospective cell cite location information in this case.”59 We concluded that the State’s warrantless acquisition of four days’ worth of historical cell site location information, recorded by Ford’s cell phone service provider, did not violate the Fourth Amendment.
C. The third-party doctrine applies under Art. I, § 9 of the Texas Constitution.
In this case, as in Ford, Appellant neither owned nor possessed the records he sought to suppress. Call logs and historical CSLI are created by the cell phone companies and are subject to their control.60 Cell phone records are clearly business records lawfully created by Sprint for legitimate business purposes. Appellant voluntarily provided his call information and historical cell site location information to Sprint so that it could perform the service for which it had contracted.
Since we have long held that the Fourth Amendment and Art. I, § 9 both protect the same right to the same degree,61 and since we have recently held we come to the logical conclusion that Art. I, § 9 does not restrict law enforcement from obtaining cell phone records revealed to a third party. Therefore, we decline to follow Richardson v. State. Other states have also held that their state constitutional counterparts to the Fourth Amendment should be similarly interpreted under this type of case.63 There was a voluntary conveyance of the cell phone records, and, under the third-party doctrine, that conveyance destroyed the reasonable expectation of privacy in the conveyed information. We concludе that the State’s acquisition of Appellant’s cell phone records did not violate Art. I, § 9 of the Texas Constitution. We affirm the judgment of the Fourteenth Court of Appeals.
CONCLUSION
Addressing Appellant’s claims within the framework of the Texas Constitution, Art. I, § 9, we hold that Appellant did not have a legitimate expectation of privacy in the numbers he dialed on his cell phone or the location information derived from the signals relayed by the cell towers of the 4th amendment and art. I sec 9 reveals no substantive difference.... [B]oth protect the same right (freedom from unreasonable searches and seizures) to the same degree (persons, houses, papers, and effects/possessions).”). See also Garza v. State, 137 S.W.3d at 884; State v. Oages, 227 S.W.3d 397, 400 (Tex. App.—Eastland, 2007, pet. ref’d) (relying on Crittenden to apply New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) as the “bright line rule” in Texas for automobile searches incident to arrest, and also citing to Johnson to note that “although Texas courts can hold that defendants have greater rights under the Texas constitution, this does not mean that Texas courts should do so”); Clark v. State, No. 06-03-00262-CR, 2004 WL 2290262, at *2 (Tex. App.—Texarkana 2004, pet. ref’d) (mem. op.) (not designated for publication) (citing to various sister courts of appeal that similarly reject the argument that the Texas Constitution provides grеater protection than the Fourth Amendment).
course of business for billing purposes and used it to provide the defendant with Internet service; having voluntarily provided this information in order to use Comcast‘s service, the defendant cannot now claim a privacy interest in it); State v. Perry, 776 S.E.2d 528 (N.C. App. 2015) (holding that the state constitution provision provides the same protections against unreasonable search and seizure as the Fourth Amendment, and expressly recognizing the third-party doctrine discussed in Miller and Smith).
We decline to follow Massachusetts’s lead in holding that its state constitution counterpart to the Fourth Amendment provides greater protection. Massachusetts has adopted the argument that the nature of cellular telephone technology and cell phone data and the character of cellular telephone use in our current society render the third party doctrine of Miller and Smith inapposite; and it recognizes that the cellular telephone is like a permanent attachment to the user’s body and thus has become an indispensable part of modem American life—necessary to social interactions as well as the conduct of business. See, e.g., Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846 (2014) (holding that the state constitution affords more protection to individuals than the United State’s constitution in relation to third party records).