LAURO EDUARDO RUIZ, Appellee v. THE STATE OF TEXAS
NO. PD-1348-17
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
July 3, 2019
ON APPELLEE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY
KEEL,
ΟΡΙΝΙON
This case is about the application of our statutory exclusionary rule to private individuals.
Appellee was charged with attempted production of sexual performance by a child for pictures found on his cell phone.
Facts
Appellee was a substitute tеacher at a private high school. Students reported that he was using his cell phone to take pictures up the skirts of female students. The dean and vice principal summoned Appellee to the officе and questioned him about the allegations. He became nervous and began fidgeting with his phone. Concerned that he might delete incriminating information from his phone, the dean asked Appellee to place thе phone on the desk, and he did.
When Principal Gilbert Saenz joined the meeting, Appellee admitted that he “had a problem.” Saenz scrolled through the photos on Appellee‘s phone and saw images of thе legs of girls who were dressed in the school uniform. Saenz allowed Appellee to retrieve some information from his phone and then placed the phone in an envelope and turned it over to the pоlice. Police obtained a series of search warrants for the phone and found incriminating images taken from underneath students’ skirts.
Appellee moved to suppress the evidence from his phone becausе Saenz did not have either his consent or a warrant to search the phone. Appellee argued that Saenz‘s warrantless search of the phone violated the Fourth Amendment and that the evidence should be suppressed under
Court of Appeals
The court of appeals held that the Fourth Amendment does not apply to the aсtions of private individuals who are not acting as government agents. Ruiz, 535 S.W.3d at 594. It considered whether Appellee met his burden to prove that Saenz otherwise violated the law in obtaining the evidence. Id. The court noted thаt Appellee‘s motion to suppress did not allege that Saenz violated the law, the trial court did not make a finding related to the violation of any laws, and “the record does not support that Saenz violatеd any state or federal law that would require suppression in this case.” Id. at 597. Concluding that Appellee did not meet his burden of proving that Saenz violated the law in searching and seizing the phone, the court of appeals reversed the trial court‘s order. Id. at 598.
Standard of Review
We review a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total deference to the trial court‘s findings of fact and review de novo the application of the law to the facts. Id. We view the record in the light most favorable to the trial court‘s ruling and uphold the ruling if it is supported by the record and is correct under any theory of the law applicable to the case. Id. at 447-48.
Analysis
Appellee аrgues that the evidence in this case must be suppressed because a police officer in Saenz‘s shoes could not have
Appellee argues in the alternative that the evidence had to be suppressed because Saenz committеd breach of computer security when he scrolled through the phone‘s photos.
Fourth Amendment
The Fourth Amendment “was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.” Burdeau v. McDowell, 256 U.S. 465, 475 (1921). “It has, of course, been settled since Burdeau v. McDowell, that a wrongful search or seizure conduсted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully.” Walter v. U. S., 447 U.S. 649, 656 (1980) (citation omitted). “The exclusionаry rule under the Fourth Amendment applies only to governmental action.” Gillett v. State, 588 S.W.2d 361, 363 (Tex. Crim. App. 1979) (en banc). The Constitution is a restraint on government. Other laws restrain individuals.
Article 38.23
Article 38.23 reads in pertinent part as follows:
No evidence obtained by an officer or other рerson in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
For example, in State v. Johnson, 939 S.W.2d 586, 587 (Tex. Crim. App. 1996), we upheld the trial court‘s suppressiоn of evidence obtained by private parties via a series of burglaries. We reasoned that Article 38.23 means “only what it says: that evidence illegally obtained by an ‘officer or other person’ ought [to] be supрressed.” Id. at 588. We cited the burglary statute,
Johnson observed that an exclusionary “statute that solely proscribed the use of evidence at trial obtained by a private person in viоlation of the United States Constitution would be logically absurd because, under our law, actions of private persons do not fall under the purview of the United State Constitution.” Id. at 588. We agree and add that a private person cannot comply with the Fourth Amendment, either, to the extent that he cannot get a search warrant. See
[I]f an officer violates a person‘s privacy rights by his illegal conduct making the fruits of his search or seizure inadmissible in a criminal proceeding under Article 38.23, that same illegal conduct undertaken by an “other person” is also subject to the Texas exclusionary rule. If the police cannot search or seize, then neither can the private citizen.
241 S.W.3d at 36. That implication was unnecessary to Miles‘s holding because the case did not raise the possibility of a constitutional violation by a private individual. Rather, Miles addressed whether evidence obtained by a tow truck driver had to be suppressed because he committed traffic violations in order to get the evidence. 241 S.W.2d at 29.
Miles held that if evidence is obtained in violation of a criminal law, it may not be suppressed if the private citizen‘s actions mirrored proper, reasonable police action such as traffic violations during a pursuit. Id. at 45. “Only those acts which violate a person‘s privacy rights or property interests are subject to the state or federal exclusionary rule.” Id. at 35 n.33. Bеcause the tow truck driver‘s traffic violations did not infringe Miles‘s property or privacy rights, they did not trigger Article 38.23. Id. The Miles “rule” – that a private person cannot do what a police officer cannot do – arose in the context of alleged violations of criminal laws rather than alleged violations of the Constitution, and it should be limited to that context.
Such a limitation is supported by Miles‘s use of its rule to explain the outcome of four other cases, all of which, like Miles, dealt with alleged criminal law violations by private individuals. Miles, 241 S.W.3d at 39. See Stone v. State, 574 S.W.2d 85 (Tex. Crim. App. 1978) (Stone challenged the admissibility of photos on grounds that they had been stolen by his babysitter); Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002) (Cobb challenged the admissibility of knives on grounds that his father stole them); Johnson, 939 S.W.2d 586 (Johnson successfully suppressed evidence acquired by his stepsons who committed burglary to get it); and Jenschke v. State, 147 S.W.3d 398 (Tex. Crim. App. 2004) (Jenschke succeeded in suppressing evidence obtained by private individuals who burglarized his truck).
Appellee claims that the Miles rule also explains the outcome in Baird v. State, 398 S.W.3d 220 (Tex. Crim. App. 2013). Like the foregoing cases, however, the issue in Baird was whether evidence obtained by a рrivate individual had to be suppressed because of criminal law violations; the issue was not whether the private individual violated the Fourth Amendment. Id. at 222. Appellee cites no case – and we have found none – in which evidence was suppressed under Article 38.23 for a Fourth Amendment violation by a private individual acting in a private capacity.
We disavow the idea that Article 38.23 extends the Fourth Amendment to private citizens acting in a private capacity. We reaffirm that the Fourth Amendment is a restraint on government and that it does not apply to private individuals who are acting as such. The court of appeals correctly held that Sаenz‘s search of Appellee‘s phone was not a violation of the Fourth Amendment because Saenz was acting as a private individual when he looked at the pictures.
Breach of Computer Security
Appellee argues in the altеrnative that Saenz‘s search of the phone was a breach of computer security. Appellee had the burden of showing a statutory violation
“A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”
The trial court found that Saenz accessed the phone without Appellee‘s consent. The trial court made no findings about Saenz‘s intent in accessing the рhone, and the undisputed evidence showed that Saenz took the phone and looked through it for the purpose of giving it to the police for investigation. The record thus would not support a finding against the statutory defense of intent to facilitate a lawful search for a legitimate law enforcement purpose, and Appellee failed in his burden of showing a statutory violation.
Conclusion
We affirm the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Delivered: July 3, 2019
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