Wiltz, Jerry ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0252-20 & PD-0253-20
JERRY WILTZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
WALKER, J., filed a dissenting opinion.
DISSENTING OPINION
In his petition for discretionary review, Appellant argues that the court of appeals erred in
holding that he abandoned his cell phone by fleeing the scene of a traffic stop and thus lacked
standing to challenge the warrantless search of his cell phone and its contents. This Court has yet
to determine the parameters in which a person’s actions constitute intentional abandonment of his
cell phone for purposes of the Fourth Amendment. Given the importance of this rapidly evolving
issue to Fourth Amendment jurisprudence, I believe this Court should grant review to decide
whether the evidence in this case establishes that Appellant intentionally abandoned his cell phone
and the contents within it. In the absence of full review, I cannot agree with the court of appeals
2
that Appellant evinced an intent to abandon his cell phone and its contents merely by fleeing the
scene. Therefore, I respectfully dissent from the Court’s denial of Appellant’s petition for
discretionary review.
I — Background
While on beat patrol at about 4 a.m. June 15, 2016, Harris County Sheriff’s Deputy Jose
Castellanos initiated a traffic stop of a Chevy Tahoe for failure to stop at a designated point.
Appellant, the driver, pulled into a public parking lot and stopped without parking in a parking
space. Castellanos approached the vehicle and detected the smell of marijuana, at which point he
asked Appellant to exit the vehicle so he could handcuff and detain him. Castellanos then attempted
to detain the passenger in Appellant’s vehicle but was instead led on a foot chase when the
passenger fled. As Castellanos took off after the passenger, Appellant—hands cuffed—ran from
the parking lot.
After a short pursuit, Castellanos apprehended the passenger, who had a gun. Castellanos
returned to the vehicle to discover Appellant was gone. After putting the passenger in his patrol
car, Castellanos began to inventory Appellant’s vehicle.
Castellanos recovered a gun, marijuana, and a cell phone located next to the driver’s seat.
Castellanos also recovered drug paraphernalia and sex toys, all of which were new and in the
original packaging. Castellanos proceeded to look through the contents of the cell phone. As he
did so, Castellanos opened text messages, emails, and the settings application. Searching the
phone, Castellanos found Appellant’s name along with the address of a sex shop that had recently
been robbed. Castellanos entered Appellant’s name into a reporting system, which led him to
positively identify Appellant.
3
Ultimately, police determined the unused, packaged items in Appellant’s vehicle were
stolen from one of two sex shops where employees had been robbed at gunpoint. Appellant—a
former employee of the adult store chain—was indicted for aggravated robbery of two retail stores.
Appellant filed a pre-trial motion to suppress all evidence from the cell phone. The trial
court agreed that the warrantless search of the cell phone could not be justified as a search incident
to arrest or an inventory search. However, the trial court determined that Appellant had abandoned
his cell phone and thus lacked standing to challenge the search. As trial neared, Appellant asked
the trial court to reconsider its suppression ruling and argued that the abandonment doctrine did
not apply because Appellant did not intentionally abandon his cell phone. 1 Following a hearing on
Appellant’s motion to reconsider, the trial court once again ruled that the abandonment doctrine
applied to the warrantless search of the cell phone and denied his motion. A jury found Appellant
guilty of aggravated robbery of both of the sex shops, and a judge sentenced him to ten years on
each count to be served concurrently.
On appeal, Appellant challenged the trial court’s denial of his motion to suppress. In
addition to arguing that he did not intentionally abandon his cell phone, Appellant contended that
the abandonment doctrine could not apply as an exception to a warrantless search of a cell phone
based on the United States Supreme Court decision in Riley v. California, 573 U.S. 373 (2014).
The court of appeals rejected Appellant’s arguments, determined that the abandonment doctrine
did apply to the cell phone, and affirmed Appellant’s convictions. Wiltz v. State, 595 S.W.3d 930,
936 (Tex. App.—Houston [14th Dist.] 2020).
1
At the time Appellant filed his motion to suppress in November 2017, the State had not yet obtained a
search warrant for the cell phone. In April 2018, about a month before the motion to suppress hearing, the State
obtained a search warrant to forensically examine the cell phone. Subsequently, in July 2018, Appellant filed a
motion to reconsider the motion to suppress.
4
II — Abandonment Doctrine
A person has no reasonable expectation of privacy in property he abandons. Matthews v.
State, 431 S.W.3d 596, 608 (Tex. Crim. App. 2014). Once a defendant voluntarily and
intentionally abandons property, he no longer has standing to challenge the reasonableness of the
search of the abandoned property. Id. at 608-09. Rather than being determined in the strict
property-right sense, the issue centers on whether the person relinquished his or her interest in the
property so that he or she could no longer retain a reasonable expectation of privacy with regard
to the property at the time of the search. State v. Martinez, 570 S.W.3d 278, 286 (Tex. Crim. App.
2019) (citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)).
Abandonment is primarily a question of intent to be inferred from words spoken, acts done,
and other objective facts and relevant circumstances. Id. “[A]bandonment consists of two
components: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide
to abandon the property.” 2 Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986) (op. on
reh’g). The abandonment “test does not begin with a presumption of abandonment which must be
rebutted by proof of an intent not to abandon.” Martinez, 570 S.W.3d at 286. Instead, affirmative
proof of abandonment is required. Id.
III — The evidence fails to show that Appellant intentionally abandoned his cell phone.
While this Court has recognized that the abandonment doctrine may apply as an exception
to the warrantless search of a cell phone, State v. Granville, 423 S.W.3d 399, 409 (Tex. Crim. App.
2014), we have not specified the parameters in which a person’s actions equate to intentional
abandonment of a cell phone for purposes of the Fourth Amendment.
2
A person does not voluntarily abandon his cell phone if his relinquishment is the result of police
misconduct. Comer, 754 S.W.2d at 658-59. Because there is no evidence of police misconduct in this case, the
abandonment inquiry is one of intent.
5
In concluding that Appellant intentionally abandoned his vehicle and cell phone, the court
of appeals noted that “[t]he video shows appellant fleeing from the vehicle on foot after having
been handcuffed, passing by the wide-open door, leaving behind his vehicle and everything in it,
including the cell phone.” Wiltz, 595 S.W.3d at 935. While I agree that Appellant abandoned his
vehicle when he fled, 3 the same evidence, without more, does not demonstrate that Appellant
intended to abandon his cell phone and the information within it.
It is apparent that when Appellant fled, he knew his vehicle would be left behind and chose
to run anyway. Appellant did not return to his vehicle. By intentionally leaving his unparked
vehicle in a public parking lot, Appellant abandoned the vehicle “in such a way ‘that he could no
longer retain a reasonable expectation of privacy with regard to it at the time of the search.’”
Matthews, 431 S.W.3d at 609 (quoting McDuff, 939 S.W.2d at 616). If the question was whether
Appellant had standing to challenge the search of his vehicle, I would hold that he did not.
But what is not apparent from the record is whether Appellant knew the cell phone was in
his vehicle when he ran or whether he made a conscious decision to leave it behind. Based on the
facts before us, it would be speculative to conclude that Appellant knew his phone was in his
vehicle and intentionally left it behind when he fled just as it would be speculative to conclude that
he believed it was in his pocket when he ran. The record also is silent as to whether Appellant was
in possession or control of his cell phone at the time of the stop. As the Appellant suggested to the
trial court, it is possible that the passenger was using the phone and had control over it when the
traffic stop occurred. Again, reaching that conclusion would be speculative just as concluding that
Appellant was in control of his phone at the time of the stop would be speculative. There is no
evidence that would lead to an inference that Appellant intentionally abandoned the phone.
3
See Matthews, 431 S.W.3d at 610 (concluding that the defendant intentionally abandoned a borrowed
vehicle when he fled from the police).
6
Both the trial court and the court of appeals found Edwards v. State, 497 S.W.3d 147 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) instructive on the issue of whether Appellant
abandoned his cell phone for purposes of the Fourth Amendment. Although the court of appeals
in Edwards did hold that the defendant in that case abandoned his cell phone, the case is
distinguishable in several respects.
In Edwards, the defendant left his phone out in the open on top of a stolen vehicle he and
his co-defendants used as transportation to a game room where they attempted an armed robbery.
Id. at 154. Based on the facts available, it appears that Edwards left his cell phone on top of the
stolen vehicle before he approached the game room and got into a confrontation with the security
guard, which led to a shootout between the defendants and the security guard. Id. at 151–54.
Eventually, Edwards took off running without going back for his cell phone. Id. at 152.
There was an abundance of evidence that Edwards intentionally abandoned his cell phone
when he left it on top of the stolen vehicle out in the open before he attempted an armed robbery
and fled from the scene without going back for his cell phone. Based on these facts, it is clear that
Edwards relinquished any reasonable expectation of privacy with regard to his cell phone.
The facts of Appellant’s case differ substantially. The one similarity is that both Edwards
and Appellant fled from the scene. But while in Edwards there is affirmative evidence 4 to infer
that he knew he would be leaving his cell phone behind when he fled, the same cannot be said in
Appellant’s case.
In Edwards, the appellant placed his cell phone on top of a stolen car and then walked away
to commit a crime. Edwards’s act of getting out of a stolen vehicle and proceeding to the game
room lobby without his cell phone provided some affirmative evidence that Edwards intended to
4
See Martinez, 570 S.W.3d at 286 (explaining that “the test for abandonment in the Fourth Amendment
context requires affirmative proof of abandonment”).
7
leave his cell phone behind. In Appellant’s case, there is no evidence that Appellant had the intent
to leave the cell phone behind. There is no evidence to even infer that Appellant thought about
whether he had the time or ability to retrieve the phone while having his hands cuffed behind his
back. Immediately after Castellanos took off after Appellant’s passenger, Appellant—who was
handcuffed and could not have accessed his cell phone even if he knew it was there—ran. Not only
is there no affirmative evidence that Appellant formed the intent to abandon his cell phone, the
record facts would lead to a logical conclusion that it was extremely unlikely that he did so.
Further, in Edwards police found a handprint located on the vehicle near the cell phone
that matched Edwards’s handprint. Edwards, 497 S.W.3d at 158, n. 14. Unlike in Appellant’s case,
this provided some evidence to infer that Edwards placed his phone on top of the car and therefore
knew he was leaving his cell phone behind. The fact that Edwards left his cell phone out in the
open and on top of a vehicle that did not belong to him or his co-defendants can also lead to an
inference that Edwards intended to abandon the cell phone at the time he placed it on top of the
car. See Martinez, 570 S.W.3d at 287 (explaining that “[n]ot only will privacy expectations vary
with the type of property involved ... but they will vary with the location of the property”) (quoting
United States v. Oswald, 783 F.2d 663, 666–67 (6th Cir. 1986)). Conversely, in Appellant’s case,
the cell phone was recovered from the inside of Appellant’s vehicle. For purposes of privacy
expectations, a person leaving his cell phone inside of his own vehicle is much different than a
person leaving his cell phone out in the open and on top of a stolen vehicle to go commit a robbery.
Unlike the present case, consideration of where Edwards left his cell phone is additional
affirmative evidence of his intent to abandon his cell phone.
Absent a showing of any affirmative evidence of Appellant’s intent to abandon his cell
phone, I cannot agree that Appellant did not have any reasonable expectation of privacy regarding
8
his cell phone and would hold that he did have standing to challenge the warrantless search of his
cell phone.
IV — The evidence fails to show that Appellant intentionally abandoned the contents of his
cell phone.
Even if evidence existed that could lead to an inference that Appellant had intentionally
abandoned his cell phone by fleeing, there is no evidence that he intentionally abandoned the
information contained in his cell phone. There is a distinction between the privacy interests of a
cell phone as a physical object and the digital contents stored on a cell phone. This Court
recognized as much in Granville when we concluded police were permitted to inspect the physical
aspects of appellant’s cell phone in police custody but were required to obtain a warrant to search
the contents of the phone. Granville, 423 S.W.3d at 416; Id. at 426 (Keller, P.J., concurring).
In Granville, the defendant challenged the search of his cell phone seized while being
booked in jail. Shortly after Granville, a high school student, was booked, a school resource officer
was told that Granville had taken an inappropriate picture of another student in the boys’ bathroom.
The officer went to the jail, retrieved Granville’s cell phone from the property room, and looked
through it until he found the photograph. Id. at 402. In rejecting the State’s argument that Granville
did not have a reasonable expectation of privacy in any property in the custody of jail officials,
this Court distinguished the expectation of privacy in physical objects such as clothing from the
expectation of privacy in cell phones:
[C]lothing does not contain private banking or medical information and records; it
does not contain highly personal emails, texts, photographs, videos, or access to a
wide variety of other data about the individual citizen, his friends and family.
Searching a person’s cell phone is like searching his home desk, computer, bank
vault, and medicine cabinet all at once.
Id. at 415. See also Riley, 573 U.S. at 396 (“Indeed, a cell phone search would typically expose to
the government far more than the most exhaustive search of a house[.]”).
9
In Riley, the Supreme Court held a warrant was required to search a cell phone seized
incident to an arrest given the “quantitative and qualitative” differences between a cell phone and
other objects. Id. at 393, 403. In so holding, the Court rejected the Government’s argument that
information stored by cell phones is “materially indistinguishable” from searches of other physical
items that police are authorized to search incident to an arrest such as wallets, purses, and other
containers. Id. at 393. In the Court’s view, the Government’s argument was “like saying a ride on
horseback is materially indistinguishable from a flight to the moon.” Id.
Nor was the Supreme Court persuaded by the Government’s proposed rule that police be
permitted to conduct a limited search of a cell phone seized incident to an arrest “where an officer
reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety
will be discovered.” Id. at 399. The Supreme Court declined to hold as much based on the plethora
of information that would be swept up by such a rule and the inability for police to “discern in
advance what information would be found where.” Id.
The Court also was unpersuaded by the Government’s suggestion that a search of a cell
phone call log always be authorized. Id. at 400. In refusing to adopt such a rule, the Supreme Court
explained that “call logs typically contain more than just phone numbers; they include any
identifying information that an individual might add, such as the label ‘my house’ in [this] case.”
Id.
Although Riley involved the search incident to arrest doctrine rather than the abandonment
doctrine, the same privacy interests and governmental intrusion concerns expressed by the
Supreme Court apply to the contents of the cell phone in this case. While Castellanos may not have
done an extensive search of Appellant’s cell phone, the Riley Court made clear that any warrantless
search of a defendant’s cell phone, however minimal, is unreasonable absent express exigent
circumstances such as a concern for the safety of officers or others. Id. at 388, 399-400.
10
Given the heightened privacy interests associated with the information within a cell phone
as distinct from the privacy interests associated with a cell phone as a physical object and the lack
of any evidence that Appellant intentionally abandoned the contents of his cell phone, I would
hold that Appellant maintained a reasonable expectation of privacy in the contents of the cell phone
and thus had standing to challenge Castellanos’s warrantless search of the cell phone.
V – Conclusion
Application of Fourth Amendment principles to cell phones is an evolving area of
constitutional law that warrants further development. Both this Court and the Supreme Court have
recognized a person’s distinct privacy interests in his cell phone. Granting review in this case
would give the Court an opportunity to address the abandonment doctrine’s application to cell
phones and the vast amount of information stored on them. Without review, I cannot conclude that
the evidence in this case establishes that Appellant abandoned either his cell phone or the contents
within it, thereby losing any reasonable expectation of privacy regarding his cell phone and its
contents. Therefore, I respectfully dissent from the Court’s refusal to grant review.
FILED: October 21, 2020
PUBLISH