Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-12-00317-CR
Jon Thomas FORD,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR7741
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 20, 2014
“[A] Fourth Amendment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27,
33 (2001); see Katz v. United States, 389 U.S. 347, 360–62 (1967) (Harlan, J., concurring). Ford’s
cell phone provider tracked, collected, and recorded information about Ford’s physical movements
and location whenever he received or placed a call or text message. This “historical cell site data”
was based on the cell phone towers through which his calls and texts were routed. Because I would
hold that Ford retained an objectively reasonable expectation of privacy in his physical movements
and location, I respectfully dissent from the court’s judgment affirming Ford’s conviction.
Dissenting Opinion 04-12-00317-CR
The amount of detailed information that a cell phone provider has the means to track,
collect, and record about its customers as they conduct their everyday lives is staggering. See
United States v. Jones, 132 S.Ct. 945, 963 (2012) (Alito, J., concurring in judgment). For instance,
“[h]istoric location information is a standard feature on many smart phones and can reconstruct
someone’s specific movements down to the minute, not only around town but also within a
particular building.” Riley v. California, 134 S.Ct. 2473, 2490 (2014). Although less precise than
GPS records, the historic cell site data compiled by cell phone providers can generate a
“comprehensive record of a person’s public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual associations.” See Jones, 132 S.Ct. at 955
(Sotomayor, J., concurring); see also id. at 963 (Alito, J., concurring in judgment).
The majority holds that the third-party doctrine precludes Ford from having a reasonable
expectation of privacy in this “historical cell site data” because he “voluntarily disclosed” it to his
cell phone provider in the course of using his cell phone. To achieve this result, the majority relies
on Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976). 1
These cases predate the advent of the earliest commercially available handheld cell phones. 2
But the Supreme Court has recently recognized that modern cell phones—now a “pervasive
and insistent” part of modern life—present privacy concerns far beyond the founding principles of
the Fourth Amendment and the circumstances of the founding era. See Riley, 134 S.Ct. at 2484. In
Riley, the Court held that the search-incident-to-an-arrest doctrine did not allow arresting officers
to search the digital contents of cell phones seized in connection with an arrest. Id. at 2493–94.
1
Although the majority primarily cites to opinions from the Fifth Circuit and the Fourteenth Court of Appeals, the
underpinnings of its reasoning flow directly from the also-cited Smith and Miller.
2
The first commercial cell phone system was introduced in 1983. Mobile Telephone, ENCYCLOPEDIA BRITANNICA
ONLINE, http://www.britannica.com/EBchecked/topic/1482373/mobile-telephone/279851/Development-of-cellular-
systems (last updated Sept. 5, 2013).
-2-
Dissenting Opinion 04-12-00317-CR
The Court recognized that “[m]odern cell phones, as a category, implicate privacy concerns far
beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and that “[c]ell
phones differ in both a quantitative and a qualitative sense from other objects that might be kept
on an arrestee’s person.” Id. at 2488–89. Thus, the Court eschewed a “mechanical application” of
its prior precedent that might well have supported a warrantless search of the appellant’s cell
phone. Id. at 2484. Similar to the way that the search-incident-to-arrest doctrine was ill suited to
the digital data contained on cell phones seized during an arrest, the third-party doctrine is “ill
suited to the digital age, in which people reveal a great deal of information about themselves to
third parties in the course of carrying out mundane tasks.” Jones, 132 S.Ct. at 957 (Sotomayor, J.,
concurring).
The majority’s application of the third-party doctrine sweeps intimate details of a person’s
life outside the scope of the Fourth Amendment’s protections because cell phone customers
“voluntarily disclose” their location information simply by owning and using their cell phones.
The majority thus confronts cell phone customers with a choice between Scylla and Charybdis:
either forego the use of technology that has become a pervasive and insistent part of modern,
everyday life or forego the protections of the Fourth Amendment. I cannot join such a sweeping
and mechanical application of Smith and Miller.
Instead, I agree with the Third and Eleventh Circuits and conclude that “a cell phone
customer has not ‘voluntarily’ shared his location information with a cellular provider in any
meaningful way.” In re Application of U.S. for an Order Directing a Provider of Elec. Commc’ns
Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3rd Cir. 2010); United States v. Davis, 754
F.3d 1205, 1216–17 (11th Cir. 2014). I would therefore hold that Ford did not voluntarily surrender
his reasonable expectation of privacy in his physical location and movements simply by using his
-3-
Dissenting Opinion 04-12-00317-CR
cell phone. Because the State did not secure a warrant before obtaining the historical cell site data
from Ford’s cell phone provider, Ford’s Fourth Amendment rights were violated, and the trial
court should have granted his motion to suppress.
Because the Fourth Amendment required suppression of the historical cell site data, the
denial of Ford’s motion to suppress was constitutional error. When an appellate court determines
there was constitutional error at trial, it must “reverse a judgment of conviction . . . unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction . . . . TEX.
R. APP. P. 44.2(a). The evidence against Ford was largely circumstantial, and I am unable to
conclude beyond a reasonable doubt the erroneous admission of the historical cell site data did not
contribute to Ford’s conviction. I would therefore reverse Ford’s conviction and remand this case
to the trial court for further proceedings. Because the majority does not do so, I dissent.
Luz Elena D. Chapa, Justice
Publish
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