PD-0941-17 02/14/2018
1. “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”) and Tex. Code Crim. Proc. Art. 18.21 do not require suppression of evidence pertaining to the warrantless pinging of a cellphone because: (1) the plain-language of Tex. 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 and Tex. 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 under Art. 38.23(a).”
2. “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.”
Sims was charged with murdering his grandmother. During the investigation, police obtained real-time cell phone location data from Sims’ cell phone company without a warrant. It showed Sims’ phone traveling on an Oklahoma highway and later at a truck stop. He moved to suppress this evidence on constitutional and statutory grounds. The trial court denied his motion. Sims pled guilty, conditioned on his ability to challenge the suppression ruling on appeal.
On appeal, the court of appeals held that non-constitutional violations of the federal Stored Communications Act (SCA) and Article 18.21 do not require suppression of evidence because those statutes specifically provide for other “exclusive” remedies and sanctions and that these specific provisions control over a general statute like Article 38.23(a). It held there was no constitutional violation because Sims had no legitimate expectation of privacy in the location of his cell phone while it was on the public highway and in a public parking lot.
Sims argues that the plain language of Article 38.23(a) applies to violations of “any . . . laws of the State of Texas . . . or laws of the United States of America.” It does not require suppression only if the Texas or federal law violated specifically allows for suppression. He posits that the exclusive remedy provisions mean that the named remedies are the only remedies allowed under the SCA or Article 18.21. It does not prevent Texas from providing an exclusionary rule remedy under Article 32.23(a). Prohibiting such a remedy (except for constitutional violations) would be contrary to the legislative intent of Article 38.23(a) to provide greater protection than the Fourth Amendment. Also, as a matter of statutory construction, general and special provisions should be construed to give effect to both provisions, if possible. The exclusive remedy provisions do not mention Article 38.23(a) expressly or state that suppression is unavailable under a state-suppression statute. Sims also argues that it makes no sense for a person to lose a legitimate expectation of privacy in his location merely by leaving his home. Because cell-site data is not voluntarily conveyed to the cell phone company but is instead transmitted automatically and without the cell user’s input, control, or knowledge, the comparison to a person traveling in a car on public thoroughfares is not apt.
