CHRISTIAN VERNON SIMS, Appellant v. THE STATE OF TEXAS
NO. PD-0941-17
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
January 16, 2019
HERVEY, J., delivered the unanimous opinion of the Court.
ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS LAMAR COUNTY
OPINION
Christian Vernon Sims, Appellant, was charged with murder. He filed a pretrial motion to suppress evidence of real-time location information used to track his cell phone by “pinging” it without a warrant.1
grounds: (1) whether suppression is a remedy for a violation of the SCA or Article 18.21, and (2) whether a person is entitled to a reasonable expectation of privacy in real-time CSLI records stored in a cell phone‘s electronic storage.3
We conclude that suppression is not an available remedy under the Stored Communications
FACTS
On December 18, 2014, Annie Sims (Appellant‘s grandmother), was found dead on the porch of her home in Lamar County. She had been killed by a single gunshot to the back of her head. Mary Tucker, Annie‘s mother, discovered her daughter‘s body and called 911. Annie was lying face down on the back porch in a pool of blood. Detective Jonathan Smith of the Lamar County Sheriff‘s Office responded, and he contacted Tucker, who identified the body as that of her daughter. Lieutenants Joe Tuttle and Joel Chipman also spoke to Tucker, who told them that Annie‘s 2012 Silver Toyota Highlander was missing from the driveway and that Appellant (her great-grandson) and his girlfriend, Ashley Morrison, were possible suspects. Police searched the property and discovered that, in addition to the Highlander and Annie‘s purse, a Beretta 9mm handgun and a .38 Special revolver were also missing.
When Mike Sims (Annie‘s husband) arrived home, he spoke to police, who told him about the missing purse. Mike called Capitol One to report credit cards from Annie‘s purse as stolen, and a company representative told him that they had been used three times, including once at a Wal-Mart in McAlester, Oklahoma (about 80 miles north of Powderly, Lamar County, Texas). Police in Texas contacted the McAlester Police Department and asked them to go to the Wal-Mart to investigate. Officers discovered that a young man and woman, who used a credit card stolen from Annie‘s purse, bought some items and left in a 2012 Silver Toyota Highlander. McAlester police took pictures of the man and woman from security footage and texted them to Texas law enforcement.
Appellant‘s grandfather identified the two people as his grandson and Morrison.
Chief Deputy Jeff Springer from the Lamar County Sheriff‘s Office thought that there was probable cause to believe that Appellant committed the felony offenses of murder, burglary of a habitation, unauthorized use of a motor vehicle, and credit card abuse based on all the information he had. He also believed that Appellant and Morrison were a danger to the public because they were likely armed. Springer returned to the Lamar County Sheriff‘s Office to obtain a warrant to “ping” Appellant‘s and Morrison‘s cell phones.4 Back in the office, however, Springer discovered that another officer, Sergeant Steve Hill, had already begun the process to ping the cell phones. According to Springer, he could have obtained a warrant because it was during business hours and local judges were readily available, but he did not because he was told not to do so. Instead of seeking a warrant, Hill used an “EMERGENCY SITUATION DISCLOSURE” form provided by Verizon Wireless (Verizon), Appellant‘s service provider. Below the title of the document, the form states that, “Upon receipt of this completed form, Verizon[] may divulge records or other information to governmental entities in certain
question on the form asks whether the situation “potentially involve[s] the danger of death or serious bodily injury to a person, necessitating the immediate release of information relating to that emergency.” Hill checked the box labeled, “YES.” Under “Types of Records Being Requested,” Hill checked the box “Location Information.” The form also asked the “Time Frame for Which Information is Requested,” and he wrote “current.” Hill signed the document on December 18, 2014 and faxed it to Verizon.
According to Hill, there was a 20-minute delay from when Appellant‘s phone was “pinged” and when the police received real-time location information. The real-time CSLI from the first ping showed that the phone was a few miles north of the Wal-Mart where the Capitol One credit card was used. Because of the 20-minute delay, Hill used Google Maps to estimate where Appellant and Morrison probably were, assuming that they continued in the same direction.6 Hill called ahead to three different Oklahoma police departments to request that they look for Appellant and Morrison. The police found them based on information from a ping, which showed that Appellant‘s phone was at a truck stop off of the Indian Nation Turnpike. Police located Appellant and Morrison at a motel across the street from the truck stop.
Officers spoke to the motel manager and identified which room Appellant and Morrison were staying in. Both suspects were taken into custody without incident. Appellant told an officer that “[Morrison] had nothing to do with it. It was all me.” After searching the motel room, among other things, the police discovered several hundred .22-caliber bullets, six knives, a white towel with a blood stain, a Beretta 9mm, and two boxes of 9mm bullets. The Beretta 9mm was loaded, and there was a bullet in the chamber.
MOTION TO SUPPRESS
In defense counsel‘s motion to suppress, he alleged that accessing the real-time location records stored in Appellant‘s cell phone violated the Fourth Amendment, Article I, Section 9 of the Texas Constitution, and
The trial court denied Appellant‘s motion. In written findings of fact and conclusions
STANDARD OF REVIEW
We review a ruling on a motion to suppress using a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997). A trial court‘s findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor are afforded almost total deference if they are reasonably supported by the record. Id. We review a trial court‘s determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor de novo. Id. When a trial court denies a motion to suppress, we will uphold that ruling under any theory of the law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
STATUTORY CONSTRUCTION
Statutory construction is a question of law, which we review de novo. Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). When construing statutes, we “seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We first look to the statute to determine if its language is plain. We presume that the legislature intended for every word to have a purpose, and we should give effect if reasonably possible to each word, phrase, and clause of the statutory language. State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). We read “[w]ords and phrases . . . in context and constru[e] [them] according to the rules of grammar and usage.” Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). If the language of the statute is plain, we follow that language unless it leads to absurd results that the legislature could not have possibly intended. When the plain language leads to absurd results, or if the language of the statute is ambiguous, we consult extra-textual factors to discern the legislature‘s intent. Boykin, 818 S.W.2d at 785-86.
STATUTORY CLAIMS
A. The Stored Communications Act and Article 18.21
Appellant argues that real-time location data obtained at the behest of the State must be suppressed under
Appellant argues that those provisions are ambiguous because they do not specifically prohibit the invocation of a statutory remedy, such as
The next question is whether the plain language of the exclusivity provisions in the Stored Communications Act and
The “general versus the specific” canon of statutory construction stands for the proposition that “[i]f there is a conflict between a general provision and a specific provision, the specific provision prevails . . . .” as an exception to the general provision. Reading Law at 183. “The specific provision does not negate the general one entirely, but only in its application to the situation that the specific provisions cover.” Id.; see
FOURTH AMENDMENT CLAIM
In addition to statutory violations, Appellant claims that the State violated the Fourth Amendment when it searched his cell phone to obtain real-time tracking information and that the court of appeals erred when it held that he did not have an expectation of privacy in the real-time CSLI records. The court of appeals reasoned that, even though a person might have an expectation of privacy in such records if they showed that he was in a private place, when the records reveal that he is in a public place, he has no legitimate expectation of privacy in his physical movements or location. Sims, 526 S.W.3d at 644. The court of appeals further stated that “the real-time tracking data appears to have been used to track Appellant to exclusively public places . . . ,” and based on that, it reached the conclusion that Appellant did not have a legitimate expectation of privacy in “the location of his cell phone in those locations.” Id. at 644 (citing United States v. Knotts, 460 U.S. 276, 281 (1983); United States v. Forest, 355 F.3d 942, 951-52 (6th Cir. 2004)); see Ford v. State, 477 S.W.3d 321, 334 (Tex. Crim. App. 2015) (“Fourth Amendment concerns might be raised . . . if real-time location information were used to track the present movements of individuals in private locations . . . .“)).
a. Applicable Law
The threshold issue in every Fourth Amendment analysis is whether a particular government action constitutes a “search” or “seizure” within the meaning of the Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984). In its early jurisprudence, the Supreme Court determined whether a particular action was a “search” or “seizure” based on principles of property trespass.14 In Katz v. United States, 389 U.S. 347, 353 (1967), however, the Court recognized that the Fourth Amendment also protects certain expectations of privacy, not just physical intrusions on constitutionally protected areas. Id.; Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). Under Katz, to prove a Fourth Amendment violation, a defendant must show (1) that the person had a subjective expectation of privacy and (2) that the subjective expectation of privacy is one that society recognizes, or is prepared to recognize, as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). To resolve the expectation-of-privacy issue in this case, we must consider two different lines of Supreme Court jurisprudence and the Supreme Court‘s recent decision in Carpenter. We review that precedent now.
1. Physical Movements & Location
The first case we consider is Knotts, 460 U.S. at 276, which was decided in 1983. In that case, the police placed a “beeper” into a five-gallon container of chloroform, a chemical used as a precursor for methamphetamine production. Id. at 278. Through a
In Jones, a case decided three decades after Knotts, the Supreme court addressed the “sophisticated surveillance of the sort envisioned in Knotts,” when the FBI remotely monitored the movements of Jones‘s vehicle via an attached GPS tracking device for 28 days. Carpenter, 138 S. Ct. at 2216. Harkening back to Olmstead, the Court applied a physical-trespass theory instead of relying on the Katz expectation-of-privacy analysis. Id. at 426. Nonetheless, five justices agreed that “‘longer term GPS monitoring” could infringe a person‘s legitimate expectation of privacy “regardless [of] whether those movements were disclosed to the public at large.” Carpenter, 138 S. Ct. at 2215 (citing United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring), 415 (Sotomayor, J,, concurring)) (stating that CSLI records can “provide[] an intimate window into a person‘s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations‘” and that the content of the records “‘hold for many Americans the privacies of life.‘“). This approach has been referred to as the “mosaic” theory. 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.7(f) (5th ed. Supp. Oct. 2018).
2. Third Party Doctrine
In United States v. Miller, 425 U.S. 435, 436 (1976), the Government subpoenaed bank records as part of an on-going tax-evasion investigation, including canceled checks, deposit slips, and monthly statements. Miller argued that the search of his bank records violated his legitimate expectation of privacy. Id. The Supreme Court disagreed. Id. at 437, 442. It reasoned that the records were business records that Miller had no ownership or possessory interest in and that the nature of the documents was not confidential because the checks were negotiable instruments “to be used in commercial transactions,” and the statements contained information available to bank employees in the ordinary course of business. Id.
In Smith v. Maryland, police asked a telephone company for permission to install a pen register at its offices to record numbers dialed from a telephone at Smith‘s home. Smith, 442 U.S. at 735. The Supreme Court extended its holding in Miller to numbers dialed on a land-line telephone, concluding that the use of the pen register did not constitute a “search” because a person does not have a reasonable expectation of privacy in the phone numbers he dials since that information is voluntarily conveyed to third parties. Id. at 743.
In Carpenter, the Supreme Court considered whether a person has a legitimate expectation of privacy in historical CSLI records. Carpenter, 138 S. Ct. at 2214-15. It concluded that, under the facts of that case, Carpenter had an expectation of privacy. Id. at 2219. Knotts did not control, it explained, because Knotts dealt with a less sophisticated form of surveillance that did not address the realities of CSLI information, GPS trackers, and the like. Id. at 2218. It also reasoned that the third-party doctrine was inapplicable because historical CSLI information is not voluntarily turned over to a cell phone service provider in the common understanding of the term as it was explained in Miller and Smith. Id. at 2217. The Supreme Court ultimately held that Carpenter had a legitimate expectation of privacy in at least seven days of historical CSLI associated with his cell phone and that, as a result, the government violated the Fourth Amendment when it searched his phone without a warrant supported by probable cause. Id. at 2221.
b. Analysis
Even though Carpenter dealt with historical CSLI, not real-time location information, we believe that the Court‘s reasoning in Carpenter applies to both kinds of records.15 In these contexts, the Supreme Court has discredited the application of the third-party doctrine (Smith) as well as the public-thoroughfare rule (Knotts). In light of that, we now know that the court of appeals‘s reliance on Smith and Knotts was misplaced.16 Whether a particular government action constitutes
Here, Appellant did not have a legitimate expectation of privacy in his physical movements or his location as reflected in the less than three hours of real-time CSLI records accessed by police by pinging his phone less than five times.18 Five justices on the United States Supreme Court have supported the idea that longer-term surveillance might infringe on a person‘s legitimate expectation of privacy if the location records reveal the “privacies of [his] life,” but this is not that case. Carpenter, 138 S. Ct. at 2217.
CONCLUSION
Having overruled Appellant‘s grounds for review, we affirm the judgment of the court of appeals.
Delivered: January 16, 2019
Publish
Notes
In United States v. Riley, 858 F.3d 1012, 1014 (6th Cir. 2017), the court explained cell phone location tracking as follows:
Cell-phone location tracking refers to all methods of tracking a cell phone, including gathering cell-site location information (commonly referred to as CSL or CSLI) and tracking satellite-based Global Positioning System (GPS) data. CSL data [is] generated when a cell phone connects with a cell tower in order to make or receive a call; a phone may connect to and disconnect from multiple towers during the course of a phone call if, for example, the caller is in motion during the call. GPS data, on the other hand, do[es] not come from a cell tower. Rather, GPS data reveal[s] the latitude and longitude coordinates of the cell phone, regardless of whether a call is in progress, as identified by satellites orbiting the Earth that connect to the phone. A cell phone‘s GPS location can be identified so long as the phone has GPS functionality installed (as smartphones almost universally do), the phone is turned on, and the GPS functionality is not disabled. Finally, “pinging” is a word that may refer in some contexts to a cell phone‘s connecting to a cell tower (e.g., “the phone pinged the tower“), and in other contexts to a service provider‘s act of proactively identifying the real-time location of the cell phone when the cell phone would not ordinarily transmit its location on its own (e.g., “AT&T pinged the phone“).
Id. Like Riley, the issue in this case deals with a service provider proactively pinging a cell phone to identify the phone‘s location in “real time.”
Specifically, the grounds for review state that,
The Court of Appeals erred by ruling that under
Tex. Code Crim. Proc. Art. 38.23(a) , violations of the Federal Stored Communication Act (“SCA“) andTex. Code Crim. Proc. Art. 18.21 do not require suppression of evidence pertaining to the warrantless pinging of a cell phone because: (1) the plain-language ofTex. Code Crim. Proc. Art. 38.23(a) states that no evidence obtained by an officer or other person in violation of any provisions of Texas or federal law shall be admitted in evidence against the accused; (2)Tex. Code Crim. Proc. Art. 38.23(a) is intended to provide greater protection than the Fourth Amendment; and (3) it is irrelevant that the SCA andTex. Code Crim. Proc. Art. 18.21 do not provide that suppression is available since they are laws of Texas and the United States, and neither prohibits suppression of illegally obtained evidence underArt. 38.23(a) .The Court of Appeals erred by holding that Appellant was not entitled to a reasonable expectation of privacy in the real-time, tracking-data that was illegally seized because under the Fourth Amendment and
Tex. Code Crim. Proc. Art. 38.23(a) , a person has a legitimate expectation of privacy in real-time tracking-data regardless of whether he is in a private or public location.
See supra, note 10. Congress has enacted statutory suppression rules, such as in the federal wiretap act, but it did not include one in the SCA.
We also observe that the broad language of
Appellant also asserts that, because prosecutors may elect between general and specific statutes when choosing how to prosecute an offense, a defendant should be able to invoke
We have said that two criminal offenses that are not in para materia should not be read together; they apply independently of each other. Cheney, 755 S.W.2d at 130. Thus, the State can choose to prosecute a defendant under either criminal statute. Id. But when two criminal offenses are in para materia, and “the special statute provides for a lesser range of punishment than the general..., due process and due course of law dictate that an accused be prosecuted under the special provision, in keeping with presumed legislative intent.” Mills, 722 S.W.2d at 414. Here, a defendant‘s right to due process in that context is not at issue, and unlike the right to due process, which is a personal, constitutional right, the federal and Texas exclusionary rules are not personal, constitutional rights. United States v. Leon, 468 U.S. 897, 906 (1984); Wilson v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010).
We see no difference between the two for purposes of applying the third-party doctrine and for determining whether a person has a legitimate expectation of privacy in his physical movements and location. Carpenter, 138 S. Ct. at 2220. The application of the third-party doctrine turned on the nature of the records. Id. The nature of real-time CSLI records are not meaningfully different than in Carpenter: Real time CSLI records show location information, which is catalogued through no action of the subscriber. Id. at 2220 (“Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter‘s claim to Fourth Amendment protection.“). In fact, unlike historical CSLI, which is maintained by cell phone service providers for business purposes, but which are occasionally accessed by law enforcement, real-time CSLI records are generated solely at the behest of law enforcement. See id. at 2217 (“Although such records are generated for commercial purposes, that distinction does not negate Carpenter‘s anticipation of privacy in his physical location.“).
The expectation-of-privacy analysis is likewise no different. Whether a person has an expectation of privacy in the amount of historical CSLI records accessed or real-time CSLI records accessed turns on the significance of the invasion of a protected privacy interest. See id. at 2217. For example, in some cases, the police might track a person in real time for days or even weeks, but in another case, they might access only an hour or two of historical CSLI. On the other hand, the police might track a person in real time for a few hours or less, but in another they might access 127 days of historical CSLI, which was the issue in Carpenter. Id.