Texas Court of Criminal Appeals
No. PD-0941-17 1/16/19
1) Is suppression a remedy for a violation of the Stored Communications Act or Code of Criminal Procedure Art. 18.21?
2) Is a warrant required to access a limited amount of real-time cell-site information from a defendant’s wireless carrier?
No. The Stored Communications Act and Art. 18.21 both contain exclusivity clauses that state the only available judicial remedies for a violation are those provided in the statutes, absent a violation of the federal or Texas constitution. These exclusivity provisions prevail as exceptions to Code of Criminal Procedure Art. 38.23(a), which provides a general remedy of suppression for nonconstitutional violations.
No. Under Carpenter v. United States, 138 S.Ct. 2206, accessing at least seven days of historical cell-site information without a warrant violates a defendant’s Fourth Amendment right against unreasonable searches. Although a defendant may have a similar reasonable expectation of privacy in current cell-site information, not all warrantless tracking of a cell phone constitutes a “search” under the Fourth Amendment. This turns on whether the State searched “enough” information to violate a legitimate expectation of privacy. Here, “pinging” a defendant’s cell phone fewer than five times over a three-hour period was not a search because the defendant did not have a legitimate expectation of privacy in the limited amount of cell-site information. Read opinion.
Both holdings are important to Texas criminal law practitioners. First, the Court’s holding on remedies is important because it is easy for officers and providers to run afoul of the various provisions in the SCA and Art. 18.21. This holding means that only constitutional violations can lead to suppression of evidence in cases covered by these statutes. Second, the Court holds that Carpenter—not other, more law-enforcement-friendly lines of authority—applies when the State pings a suspect’s phone. But the Court holds that Sims lacked an expectation of privacy under Carpenter because of the short duration of the pinging of his phone. The Court reaffirmed its prior holding in Ford that a suspect lacks an expectation of privacy in four days of location data, but we know from Carpenter that a suspect does have an expectation of privacy in seven days or more of location data. As noted by the Court, the meaning of the Supreme Court’s Carpenter discussion regarding seven days of data is unclear. There is a good chance that the Supreme Court might review this case. Stay tuned, but study well. This type of evidence is ubiquitous in prosecutions.
State Bar now taking scholarship applications for upcoming training
The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.
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