PD-1269-16 10/23/2019
1. "The Court of Appeals erred in holding the State's petition to obtain the Appellant's cell phone records set forth the "specific and articulable facts" required by federal law under 18 U.S.C. section 2703(d)."
2. "The Court of Appeals erred in holding the State’s acquisition of Petitioner’s historical cell phone records under an order issued under the federal stored communications act without a showing of probable cause in the petition was reasonable under the guarantees of privacy in Article I section 9 of the Texas constitution."
A detective investigating Holder for murder petitioned the district court for a warrant to obtain Holder's cell-phone records for a designated twenty-day period. In it, he stated that he had reason to believe the records are relevant to an ongoing investigation because the phone was "used to communicate with unknown persons and obtaining the locations of the handset will allow investigators to identify if [Holder] was in the area at the time of the offense and will provide investigators with leads in this case." Holder moved to suppress the records, claiming that the petition violated 18 U.S.C. § 2703(d). Subsection (d) requires law enforcement to "offer specific and articulable facts" showing "reasonable grounds" that the records are "material and relevant." Holder also argued that the State’s acquisition of his cell phone records violated Art. I, § 9 of the Texas Constitution. The trial court denied his motion.
The court of appeals affirmed. Citing the detective's statement relating to the investigation of Holder, the court held that the petition satisfied (d)'s pleading requirements. Further, though the offense date was not provided, the request was limited to a twenty-day period, which suggested the offense occurred within that time. The court of appeals rejected Holder's Texas Constitutional claim in its decision issued before Carpenter v. United States, 138 S. Ct. 2206 (2018), and Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017). The court of appeals understood that, for Fourth Amendment purposes, Holder lacked a reasonable expectation of privacy in his records under the third-party doctrine, and held that the Texas Constitution did not provide any greater protection.
Holder points to a footnote in Ford v. State, which held that no warrant is needed to obtain historical cell-phone data. 477 S.W.3d 321 (Tex. Crim. App. 2015). The footnote observed that, even though compliance with 18 U.S.C. § 2703(d) was not an issue, the petition contained three pages of exhaustive factual information. Holder claims that the information supplied here is conclusory and thus does not provide "specific articulable facts."
Holder argues the release of his records violates Art. I, § 9’s prohibition on “unreasonable seizures or searches” because the district court’s order was not supported by probable cause. He argues Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993), acknowledged a right of privacy in phone records protected by Art. I, § 9. He suggests that mere compliance with the federal Stored Communications Act (SCA) and Texas’s version of that statute is not constitutionally adequate. He notes that the SCA lacks many of the procedural protections required for a warrant, including that an affidavit be verified, that it be filed as a public record, and that there be an inventory or return.
