PD-0887-15 02/03/2016
"Did the Court of Appeals err when it 'utilize[d] Fourth Amendment precedent' in determining Art. 1 Section 9 of the Texas Constitution was not violated when the State obtained Appellant's cell phone records without a warrant in light of Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993)?"
Hankston was convicted of murder. The State offered business records from his cellular service provider to show his whereabouts and calls made and received. The trial court admitted them over Hankston's objection that obtaining them without a warrant violated both the federal and state constitutions.
The court of appeals rejected both claims. In addressing Hankston's state ground, it determined that there is no reason to interpret art. 1 § 9 any differently from the Fourth Amendment. The court found that the statement in Richardson v. State—"the use of a pen register may well constitute a 'search' under Article I, § 9 of the Texas Constitution"—was insufficient to show it provides more protection than the Fourth Amendment.
Hankston argues that Richardson provides enough support for his claim of greater protection because it broke with the Supreme Court's cases on third-party business records and held that a suspect does not invariably lack any reasonable expectation of privacy in the numbers he dials.
