Ford, Jon Thomas , 477 S.W.3d 321 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1396-14
JON THOMAS FORD, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
N EWELL, J., delivered the opinion of the Court, in which K ELLER, P.J.,
M EYERS, J OHNSON, K EASLER, H ERVEY, A LCALA and R ICHARDSON, JJ., joined.
Y EARY, J., not participating.
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
Ford-2
information 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 wanted to get married and have
kids; appellant was planning on going back to college to get a teaching certificate. Dana
Clair ended the relationship in September of 2008. Nevertheless, because appellant and
Dana Clair ran in the same Alamo Heights circles, they wanted to remain friends, and their
paths continued to cross.
On October 17, 2008, appellant held a 40th birthday party for himself, and he invited
Dana Clair. According to appellant’s lifelong friend, Alan Tarver, 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
1
W e granted review to consider whether 1) a warrantless search of involuntarily conveyed historical cell-
tower data is an illegal search, and 2) the court of appeals’s holding that cell-tower data , conveyed from a phone
involuntarily, is public information under the third-party record doctrine is contrary to Richardson v. State, 865
S.W .2d 944 (Tex. Crim. App. 1993). Because the court of appeals properly held that appellant did not raise a Texas
constitutional claim before the trial court, and Richardson is based on a provision of the Texas Constitution, we hold
that issue two was improvidently granted.
Ford-3
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 attend. 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 was
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
Ford-4
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,
sending him a text saying, “Yo. Yer beer is with us. Talk to you mañana.” The next
morning appellant had a light-hearted text exchange with Alan, at first asking about having
lunch at Neiman’s, and then telling Alan he was going to skip Neiman’s and head to
Rockport.
On New Year’s Day, Dana Clair’s parents 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.
Ford-5
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
2
The first homicide detective to get to the scene, Jesse Salame, said that he checked every door and window
he could, but he found no signs of forced entry. According to Detective Salame, he could “account for every one
being locked with the exception of the front door. The information that I had was that it was unknown whether or not
the front door had been locked or unlocked.” In processing the scene, the officers did not use booties, and some
things were not collected for days. They lost the first crime-scene sketch, as well as some surveillance tape and the
victim’s right-hand fingernail clippings. A report also indicted that a sample, Cutting Number 2, from the white
towel was inconclusive, when in fact it was “very conclusively not the DNA of Jon Thomas Ford and very
conclusively the DNA of [Bexar County forensic scientist] Robert Sailors.”
3
The Edwardses would eventually notice two things missing: a very heavy, antique three-hole punch that
had belonged to Elizabeth Edwards’s mother, and a power cord used to charge a cordless electric drill.
Ford-6
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 sidewalk. This
person wore light colored pants and a dark top, clothing consistent with what appellant had
worn out that evening. The person entered the complex at Gallery Court at 11:42 p.m. At
1:00 a.m., Dana Clair’s red Chevy Tahoe entered Gallery Court from the north. Though not
captured on the tape, Dana Clair’s neighbor, Jordan Christopher Hasslocher, said that around
that time he was out walking his dog and he saw Dana Clair walking her dogs–Grit (a Jack
Russell Terrier) and Toby (a Maltese/Terrier)–early that morning.
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.
Ford-7
No one could definitively say that the white SUV belonged to appellant, or that
appellant was the figure seen walking in the surveillance 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 Article 18.21 § 5(a) of the Texas Code of Criminal Procedure, and in accordance with
the Stored Communications Act,4 for four days worth of historical cell-site-location
information (CSLI) for appellant’s cell phone from AT&T Wireless.
Kenneth Doll, the director of radio network engineering for the AT&T Wireless
4
Section 5(a) states, “[a] court shall issue an order authorizing disclosure of contents, records, or other
information of a wire or electronic communication held in electronic storage if the court determines that there is
reasonable belief that the information sought is relevant to a legitimate law enforcement inquiry.” T EX . C O D E C RIM .
P RO C . art. 18.21, sec. 5(a). The Stored Communications Act requires that, when the government seeks such records
from a service provider, it must obtain a court order after submitting an application identifying “specific and
articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are relevant and material to an ongoing criminal
investigation.” 18 U.S.C. § 2703(d). The State makes the observation that its Article 18.21 application–though it
was not required to do so–established probable cause for a search for the specific records being sought. Though the
question of whether the information contained in the application is not before us, it is worth noting that the
application does contain three pages of exhaustive detail to establish the “reasonable belief that the information
sought is relevant to a legitimate law enforcement inquiry” that is necessary for an order under T EX . C O D E C RIM .
P RO C . art. 18.21, Sec. 5(a), as well as the “specific and articulable facts” showing required for a Stored
Communications Act order.
Ford-8
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 following chart:
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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 SX3114-2 at Roger Gragg’s
Tarver party [348 Funston
Place]
2 12/31/08 08:31 PM receives a text from 3X3155-1 in route to Mary
Tarver Minor’s party [158
Treasure W ay]
3 12/31/08 08:33 PM places a call to SX3134-3 at Mary Minor’s
Tarver party [158 Treasure
W ay]
4 12/31/08 11:31 PM receives a text from 3X0133-3 at appellant’s home
Tarver [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 3X3155-2 at Dana Clair’s
Tarver (call goes to condo [19 Gallery
voice mail) Court]
01/01/09 01:19 AM receives a text from
Tarver
6 01/01/09 01:32 AM GPRS data SX3114-3 at Olmos Dam
connection
(internet)
7 01/01/09 02:30 AM places a call to SX3109-2 at appellant’s home
voice mail [333 Rosemary]
8 01/01/09 09:15 AM sends a text to SX0133-3 at appellant’s home
Tarver [333 Rosemary]
01/01/09 09:21 AM receives a text from
Tarver
9 01/01/09 09:41 AM sends a text to SX3109-1 at appellant’s home
Tarver [333 Rosemary]
10 01/01/09 09:43 AM receives a text from SX0133-3 at appellant’s home
Tarver [333 Rosemary]
All of the “events” corresponded to witness testimony, and even to appellant’s
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statement to Det. Carrion, except for events five and six. This historical cell-phone location
data did not support appellant’s statement that he was home asleep before midnight. Event
five showed that, when Alan called appellant at 11:45 p.m. and sent a text to him at 1:19
a.m., appellant’s phone pinged off tower SX03155 sector 2–the “best server” for 19 Gallery
Court. Doll said it was simply not possible that appellant’s phone was at 333 Rosemary–his
home–at that time.
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 be
in that sector, because that’s where his phone pings?
Ford-11
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 (blood, 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 majority of the court of appeals
Ford-12
reviewed the issue de novo and held that the government’s procurement of the data at issue
in this case was not an unreasonable search. The court of appeals relied upon the third-party
record doctrine, explaining that appellant had voluntarily disclosed the location of his cell
phone through cell-site data to a third party when he obtained a cell phone, chose AT&T as
a service provider, and availed himself of the benefits of AT&T’s network. Ford v. State,
444 S.W.3d 171, 190 (Tex. App.—San Antonio 2014).
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 Amendment 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.” U.S.
C ONST. amend. IV. Searches conducted without a warrant are per se unreasonable, subject
to certain “jealously and carefully drawn” exceptions. Jones v. United States, 357 U.S. 493,
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499 (1958). A Fourth Amendment claim may be based on a trespass theory of search (one’s
own personal “effects” have been trespassed), or a privacy theory of search (one’s own
expectation of privacy was breached). See United States v. Jones, ___ U.S. ___, 132 S. Ct.
945 (2012) (attachment of GPS tracking device to vehicle, and subsequent use of that device
to monitor vehicle’s movements on public streets for 28 days, was search within meaning of
Fourth Amendment); Katz v. United States, 389 U.S. 347 (1967) (government’s monitoring
of Katz’s conversation violated the privacy upon which he justifiably relied while using the
telephone booth).
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 prepared 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
Ford-14
exclude.
Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978) (citations omitted). In Granville, we held
that a citizen does not lose his reasonable expectation 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, ___U.S. ___, 134 S. Ct. 2473,
2493–94 (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 (1979) (installation and use of a
pen register 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 (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 W AYNE R. L AF AVE,
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S EARCH AND S EIZURE: A T REATISE ON THE F OURTH A MENDMENT § 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 argument 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 historical cell-site information—that is, a
record that the “provider has already created”—is not subject to a reasonable expectation of
privacy that implicates the Fourth Amendment.6 Conversely, the Fourth Circuit has held that
the government violated the Fourth Amendment in seeking and inspecting the CSLI at issue
in that case without a warrant based on probable cause.7 That case though, is of indefinite
5
In re Application of the United States for an Order Directing a Provider of Elec. Commc’n Serv. to
Disclose Records to Gov’t, 620 F.3d 304, 313 (3d Cir. 2010) (cell-site-location information “is obtainable under a §
2703(d) order and does not require the traditional probable cause determination”; nevertheless disagreeing with the
factual premise that “cell phone customers are aware that their cell phone providers collect and store historical
location information”); In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)
(government can use Stored Communications Act orders to obtain cell-site information without implicating the
Fourth Amendment); United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc) (defendant had no
“objective reasonable expectation of privacy in ... business records showing the cell tower locations that wirelessly
connected his calls”), cert. denied, 84 U.S.L.W . 3081 (U.S. Nov. 9, 2015) (No. 15-146); See also State v. Perry, 776
S.E.2d 528, 540 (N.C. Ct. App. 2015) (“The facts at bar are consistent with the holdings in In re Application (Third
Circuit), In re Application (Fifth Circuit), and Davis. The officers investigating Defendant received historical cell
tower site location information, stored as a business record by AT & T, a third party, pursuant to a court order.
Defendant voluntarily conveyed this information to AT & T, his service provider.”); See also Eric Lode, Annotation,
Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or Historical Position of Possessor
of Phone Under Fourth Amendment, A.L.R. Fed. 2d 1, § 27 (2015) (collecting federal district-court cases in which
the courts determined that the third-party disclosure or business records doctrine applied to at least certain historical
cell-site information).
6
See United States v. Guerrero, 768 F.3d 351, 359 (5th Cir. 2014), cert. denied, 135 S. Ct. 1548 (2015).
7
United States v. Graham, 796 F.3d 332 (4th Cir. 2015), reh’g en banc granted, ____ Fed. Appx. ___,
2015 W L 6531272 (4th Cir. Oct. 28, 2015). Massachusetts, too, has set out a bright line rule, but it did so by relying
on its own constitution. Commonwealth v. Estabrook, 38 N.E.3d 231, 234 (Mass. 2015) (“[W ]e conclude that a
Ford-16
precedential value because rehearing en banc was granted by the Fourth Circuit on October
28, 2015.8
III.
We agree with the San Antonio Court of Appeals that the State’s receipt of four days
worth of historical cell-site-location 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 depends on that. We make engineering decisions
based off of that and we spend billions of dollars every year based on our records . . . [to
defendant’s reasonable expectation of privacy protected under art. 14 of the Massachusetts Declaration of Rights is
not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search
warrant. In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant
was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.”).
8
____ Fed. Appx. ___, 2015 W L 6531272 (4th Cir. Oct. 28, 2015).
9
Ford, 444 S.W .3d at 190. Accord Barfield v. State, 416 S.W .3d 743, 749 (Tex. App.— Houston [14th
Dist.] 2013, no pet.) (State’s obtaining of cell-tower records from the third-party provider did not violate reasonable
privacy expectations as defined by Katz and its progeny).
Ford-17
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 record and how long these
records are retained.11 “In the case of such historical cell site information, the Government
merely comes in after the fact and asks a provider to turn over records the provider has
already created.” Id. at 612.
“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 the
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).
10
47 C.F.R. § 20.18(d)(1) (“licensees subject to this section must provide the telephone number of the
originator of a 911 call and the location of the cell site or base station receiving a 911 call from any mobile handset
accessing their systems”).
11
AT&T apparently retains historical records of activity for all its subscribers for five years. Nathaniel
W ackman, Note, Historical Cellular Location Information and the Fourth Amendment, 2015 U. I LL . L. R EV . 263,
271 (2015). And AT&T “in its most recent annual report indicated that it received 37,973 location demands from
January to June 2015.” Mass. Constitution Requires Warrant For Phone Service Provider’s Tower Data, 98 Crim.
L. Rep. (BNA) No. 1, at 4 (Oct. 7, 2015).
Ford-18
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
12
See United States v. Skinner, 690 F.3d 772, 774 (6th Cir. 2012) (“The drug runners in this case used
pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country
shipment of drugs”); see also id. at 784 (Donald, J., concurring) (“Skinner’s use of the phone arguably manifests his
subjective expectation of privacy in his GPS location information. In fact, the majority aptly points out that the
phone was trackable in a way that Skinner most likely did not anticipate. Skinner’s erroneous belief that the phone
was untrackable, or even his general ignorance of the phone’s GPS capabilities, supports the conclusion that Skinner
had a subjective expectation of privacy in this information.”).
Ford-19
that cell phone companies make records of cell tower usage. Users are aware that cell phones
do not work when they are outside the range of the provider company’s cell tower network.”
Id.; See also In re Application (Fifth Circuit), 724 F.3d at 613–14.
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 of 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, 132 S. Ct. 945 (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
Ford-20
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
13
Accord State v. Jackson, 464 S.W .3d 724, 730 (Tex. Crim. App. 2015) (“Consistent with Jones, it
appears here that the installation of the GPS tracking device and its subsequent employment to monitor Appellee’s
whereabouts constituted a search for Fourth Amendment purposes.”).
14
See Graham, 796 F.3d at 347-48 (“Justice Sotomayor echoed the D.C. Circuit’s concerns about the
government’s ability to record an individual’s movements and aggregate the information ‘in a manner that enables
the Government to ascertain, more or less at will,’ private facts about the individual, such as her ‘political and
religious beliefs, sexual habits, and so on.’ Neither concurrence indicated how long location surveillance could occur
before triggering Fourth Amendment protection, but, considering the investigation challenged in Jones, Justice Alito
stated that ‘the line was surely crossed before the 4-week mark.’”).
Ford-21
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 Chapa had
used in her dissent in this case some eleven months before.
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
15
See Davis, 785 F.3d at 505 (“This case narrowly involves only (1) government access to the existing and
legitimate business records already created and maintained by a third-party telephone company and (2) historical
information about which cell tower locations connected Davis’s cell calls during the 67-day time frame spanning the
seven armed robberies.”) .
16
See State v. Perry, 776 S.E.2d at 540 (“Defendant has filed a Memorandum of Additional Authority
citing the United States Court of Appeals for the Fourth Circuit’s recent opinion, United States v. Graham. After
careful review, we find it clearly distinguishable from the facts at bar. The Fourth Circuit held ‘the government
conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell-site-
location information] for an extended period of time.’”).
Ford-22
note that it was only addressing long-term cell-site-location information.17
We acknowledge that Fourth Amendment concerns might be raised if long-term
location information were acquired, if real-time location information were used to track the
present movements of individuals in private locations,18 if the data involved came from a
GPS rather than cell-phone towers, or if the data acquired was content information rather
than location data.19 But in the circumstances specific to this case, we do not see a
jurisprudential reason to stray from the third-party doctrine as laid down by the Supreme
Court. We agree with the Fifth Circuit that:
cell phone users may reasonably want their location information to remain
private, just as they may want their trash, placed curbside in opaque bags, or
17
Graham, 796 F.3d at 344, 347, 348, 360 (“W e hold that the government conducts a search under the
Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time”;
“the private location information discovered in this case covered a remarkable 221 days, potentially placing each
Appellant at home on several dozen specific occasions, far more than the single instances discovered in Karo and
Kyllo”; “Much like long-term GPS monitoring, long-term location information disclosed in cell phone records can
reveal both a comprehensive view and specific details of the individual’s daily life.”; “For these reasons, we decline
to apply the third-party doctrine here and hold that Appellants have a reasonable expectation of privacy in their long-
term CSLI.”) (emphasis added).
18
The Sixth Circuit has held that a defendant did not have a reasonable expectation of privacy in the data
emanating from his pay-as-you-go cell phone that showed its location. Skinner, 690 F.3d at 774; See also United
States v. Forest, 355 F.3d 942, 947, 951 (6th Cir. 2004) (Fourth Amendment not implicated when “DEA agent
dialed Garner’s cellular phone (without allowing it to ring) several times that day and used Sprint’s computer data to
determine which cellular transmission towers were being ‘hit’ by Garner’s phone. This ‘cell-site data’ revealed the
general location of Garner. From this data, DEA agents determined that Garner had traveled to the Cleveland area
and then returned to the area of Youngstown/W arren.”), cert. granted, judgment vacated sub nom. Garner v. United
States, 543 U.S. 1100 (2005). But many federal courts that have considered the issue have concluded that
“real-time” location information may be obtained only pursuant to a warrant supported by probable cause. See In re
Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D.
Tex. 2005). Some states, too, require a warrant for real-time cell-site-location data–either under the Fourth
Amendment, a state constitution, or a state statute. See, e.g., In Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014)
(Fourth Amendment); State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (New Jersey Constitution); 725 I LL . C O M P . S TAT .
168/10; I N D . C O D E 35-33-5-12; M D . C O D E A N N . C RIM . P ROC . § 1-203.1(b); V A . C O D E A N N . § 19.2-70.3(C).
19
At oral argument, the parties clarified that the order in this case did permit disclosure of available content,
but that content–if it was indeed disclosed–was not the subject of appellant’s Fourth Amendment objection. That is
why, as alluded to above, Granville and Riley are not applicable.
Ford-23
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 point
does historical cell-site-location data become content?).21 Because five Justices in Jones
“gave their imprimatur” to the idea “‘that the aggregation of information might be covered
by a reasonable expectation of privacy even though each particular discrete bit of data on its
own would not,’”22 it is widely predicted that the Supreme Court is primed to take up the
issue of whether the warrantless seizure and search of historical cell-phone records revealing
the location and movements of a cell-phone user over at least an extended period of time is
permitted by the Fourth Amendment. Nevertheless, we are confident that the discrete four
days of location data at issue in this case–which did not reveal a comprehensive view of the
20
See also Guerrero, 768 F.3d at 361 (“The mere existence of that spirited academic debate . . . resolves
our limited inquiry. In determining the effect of Supreme Court developments on our precedents, we do not read tea
leaves to predict possible future Supreme Court rulings, but only decide whether an issued Supreme Court decision
has ‘unequivocally’ overruled our precedent. As discussed above and confirmed by the academic commentary, Riley
did not overrule our decision in Historical Cell Site, or the Court’s earlier Smith decision on which Historical Cell
Site was based.”). Some six states have legislated privacy protections for historical CSLI data: Colorado, Maine,
Minnesota, Montana, Tennessee and Utah. See 97 Crim. L. Rep. (BNA) No. 19, at 599 (Aug. 12, 2015).
21
See generally Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 M IC H . L. R EV . 31, 313
(2012) (“Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as
individual steps. Identifying Fourth Amendment searches requires analyzing police actions over time as a collective
‘mosaic’ of surveillance; the mosaic can count as a collective Fourth Amendment search even though the individual
steps taken in isolation do not.”).
22
1 L A F AVE , supra, § 2.6(f), at 1008.
Ford-24
specific details of appellant’s daily life–falls squarely inside the third-party-doctrine ball-
park. We agree with the San Antonio Court of Appeals that the government did not violate
appellant’s Fourth Amendment rights. We therefore affirm.
Delivered: December 16, 2015
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