PD1396-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
April 30, 2015 Transmitted 4/28/2015 8:43:26 PM
Accepted 4/30/2015 12:20:50 PM
ABEL ACOSTA
Cause No. PD-1396-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
JON THOMAS FORD, §
Petitioner/Appellant, § FROM THE FOURTH
§ COURT OF APPEALS
vs. § SAN ANTONIO, TEXAS
§ No. 04-12-00317-CR
THE STATE OF TEXAS, §
Respondent/Appellee. §
PETITIONER’S REPLY TO APPELLEE’S BRIEF
ON THE MERITS AFTER GRANTING
OF DISCRETIONARY REVIEW
On appeal from Cause No. 2010-CR-7741
IN THE 186th DISTRICT COURT
BEXAR COUNTY, TEXAS
CYNTHIA EVA HUJAR ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Mary’s St.
29th Floor Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
whitecollarlaw@gmail.com
ATTORNEY FOR PETITIONER/
APPELLANT - Jon Thomas Ford
TABLE OF CONTENTS
Table of Authorities ................................................................................................. iii
Issues Presented ........................................................................................................ 1
I. Whether a warrantless search of involuntarily conveyed historical cell
tower data is an illegal search
II. The Court of Appeal's holding, that cell tower data information conveyed
from a phone involuntarily, is public information under the third party
record doctrine; is contrary to Richardson v. State, 865 S.W.2d 844 (Tex.
Crim. App. 1993)
Reply ......................................................................................................................... 1
Certificate of Compliance ....................................................................................... 20
Certificate of Service .............................................................................................. 20
ii
TABLE OF AUTHORITIES
Cases:
Barfield v. State, 416 S.W.3d 743 (Tex. App. Houston [14th Dist.], no pet). ......... 17
In re Applications of the U.S.A. for Historical Cell-Site Data, 724 F.3d 600 (5th
Cir. 2013) .......................................................................................................... 15, 17
Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) .......... 1, 4, 12, 13, 14
Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ............ 2, 3, 12, 13, 14
Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) .................
................................................................................................................. 7, 13, 14, 15
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) ................. 11
State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) ................................. 19
Tracey v. Florida, 152 So.3d 504 (Florida 2014) ................................................... 17
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)..................... 2, 3, 14
United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)....... 5, 7
Rules, Statutes and Other:
18 U.S.C. § 2703(d) ................................................................................................. 9
47 U.S.C. § 1002(a)(2)(B) ...................................................................................... 10
Article 1, Section 9 of the Texas Constitution ................................................ 1, 4, 13
Art. 18.20 (5) of the Texas Code of Criminal Procedure.......................................... 6
Art. 18.20 (15) of the Texas Code of Criminal Procedure........................................ 9
Art. 18.21 Sec. 5 of the Texas Code of Criminal Procedure .............................. 9, 10
iii
Art. 18.21 Sec. 5(a) of the Texas Code of Criminal Procedure ................................ 9
Art. 38.23 of the Texas Code of Criminal Procedure ........................................... 3, 4
First Amendment of the United States Constitution ....................................... passim
Fourth Amendment of the United States Constitution .................................... passim
ABA Standards on Third-Party Records: Critical Perspectives From a
Technology-Centered Approach to Quantitative Privacy, 66 Okla L Rev 919
(2014) ...................................................................................................................... 15
ABA Standards on Third-Party Records................................................................. 15
ABA Journal, Kerr and Nojeim, The Data Question: Should the Third-Party
Records Doctrine Be Revisited? (August 2012) ..................................................... 15
Electronic Communications Privacy Act of 1986 .................................................... 5
Stored Communications Act ............................................................................ passim
A Supermajority of Californians Support Limits on Law Enforcement Access to
Cell Phone Location Information, 8–9 (2008) Jennifer King & Chris Jay
Hoofnagle [www.researchgate.net] ......................................................................... 2
Who Knows Where You’ve Been? Privacy Concerns Regarding the Use of
Cellular Phones as Personal Locators, 18 HARV. J.L. & TECH. 307, 313 (2004) .... 2
iv
IN THE
COURT OF CRIMINAL APPEALS
JON THOMAS FORD, §
Petitioner/Appellant, §
§
vs. § Cause No. PD-1396-14
§
THE STATE OF TEXAS, §
Respondent/Appellee. §
PETITIONER’S REPLY TO APPELLEE’S BRIEF
ON THE MERITS AFTER GRANTING
OF DISCRETIONARY REVIEW
Petitioner, Jon Thomas Ford (hereinafter “Ford”) raises the First and Fourth
Amendment to the United States Constitution, Article 1, Section 9 of the Texas
Constitution, and the third party record doctrine in his brief on the merits after the
grant of discretionary review).
Issues Presented
I. Whether a warrantless search of involuntarily conveyed historical cell
tower data is an illegal search
II. The Court of Appeal's holding, that cell tower data information conveyed
from a phone involuntarily, is public information under the third party
record doctrine; is contrary to Richardson v. State, 865 S.W.2d 944 (Tex.
Crim. App. 1993)
Reply
Ford complained about the intrusion on his associational conduct and cited
the First Amendment, explaining that his associational movements, ostensibly his
precise location at various times of the night, and what kinds of communications
he had with whom and using what applications, interfered with his First
Amendment right to association. He specifically cited Justice Sotomayor’s
opinion, in Riley, infra, stating that such surveillance chills one’s conduct. Here,
the State sought, by information obtained without a warrant, to prove where Ford
was; who he was communicating with; and the contents of his communications.
Ford complained that his text communications, unanswered calls or texts, and data
downloads were obtained. 4R12-14. He stated that this is specifically the situation
Justice Sotomayor warned of when she noted “the Government’s unrestrained
power to assemble data that reveal private aspects of identity is susceptible to
abuse.” United States v. Jones, 132 S.Ct. 945, 956 (2012) (Sotomayor, J.,
concurring). His brief cited articles: Who Knows Where You’ve Been? Privacy
Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 HARV.
J.L. & TECH. 307, 313 (2004); Jennifer King & Chris Jay Hoofnagle, A
Supermajority of Californians Support Limits on Law Enforcement Access to Cell
Phone Location Information, 8–9 (2008)[www.researchgate.net]. He complained
that the State converted his personal cell phone into a government tracking device
and used the information to tell where he had been during the course of the
evening. And he set out in his brief, “Now, what was obtained here? We’re not
talking about subscriber information. We’re not talking about number of calls.
What we’re talking about is the location.” 4R27. Ford complained about the
2
obtaining of his associational conduct. See Appeal brief at pages 31, 33, 34, and
38; Reply brief at pages 16-17.
Justice Chapa, in her dissenting opinion, quoting Riley v. California, 134
S.Ct. 2473, 2490 (2014), was aware of Ford’s briefed complaints when she wrote
“[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.” Although less precise than GPS
records, see Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring); see also id. at 963
(Alito, J., concurring in judgment), Ford also complained that the historic cell site
data compiled by cell phone providers can generate a “comprehensive record of a
person’s public movements that reflect a wealth of detail about their familial,
political, professional, religious, and sexual associations.” Ford adequately briefed
his First Amendment concerns.
Ford also raised his right to privacy, the warrant requirement, and argued
violation of “state law” in this context. After counsel pointed out the acquisition of
the data violated Texas law, the prosecutor argued, “[s]o any 38.23 argument that
they would be making, which is that we have violated a provision of Texas law,
totally aside and apart from the U.S. Constitution…” The prosecutor went on to
state, “if the Court looks they should be able to determine that this is being brought
3
under—this 38.23 allegation…” 4CR22–23. The warrant requirement under state
law means the requirement under Article 1, § 9.
Further, Ford raised Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App.
1993) and the fact that it demands a warrant for information from third-party
records. Richardson held that using a pen register constitutes a “search” under
Article I, § 9 of the Texas Constitution. Further, Richardson consisted of voluntary
activities while; here, there are passive activities.
Ford argued that the third-party record doctrine does not apply in Texas and
should not apply any longer in the context of acquisition of historic cell tower data
(HCD), particularly where, as here, that data was wholly involuntarily relayed data.
The dissent agreed, stating that “this application of the third party doctrine sweeps
intimate details of a person’s life outside the scope of the Fourth Amendment’s
protections… simply by [one] owning and using their cell phones.” Appendix to
Petitioner’s Amended Brief, Dissent at 3. The dissent held Ford’s Fourth
Amendment rights were violated since the State did not obtain a warrant before
searching through Ford’s Historical Cell Site Data. Justice Chapa stated, in her
dissent, that the majority created a harsh dichotomy, leaving a choice to either
refrain from using a cell phone, which is a part of our everyday lives or “forego the
protection of the Fourth Amendment.” Since Ford has a reasonable expectation of
4
privacy in his “physical movements and location,” the HCD should be suppressed
as he argued below.
Petitioner states his rejection of a Stored Communications Act (hereinafter
“SCA”) application for HCD as adequate, by arguing that a warrant is required
instead. Thus, the argument is that: the Act does not apply to this new information
that did not even exist at the time the legislation was passed. The SCA was
enacted to obtain much less. It was enacted as Title II of the Electronic
Communications Privacy Act of 1986, and reflects the technology of the 1980”s.
Internet service providers temporarily stored copies of emails that its clients sent
and then delivered them to their intended recipient and they also received batches
of data to store or perform number crunching for their clients. This is why the
SCA calls the information electronic communication service (emails) or remote
communication service (data batches for storage or number crunching). So, the
SCA has a very narrow scope that did not even include historic cell tower data,
texts, contents of any email, or data automatically conveyed by a cell phone. Such
information did not exist on the server. The statute’s language has remained static
and, more importantly, does not apply to the data here. It was intended to protect
what we stored on external computers through a third party network server in the
1980’s, out of concern that the Third Party record doctrine from United States v.
Miller, 425 U.S. 435, 443 (1976) would make the information non-private and hurt
5
the business of internet service providers.1 The Texas statute, TCCP art. 18.20 (5),
was intended to duplicate the federal Act.
Here, the information requested and obtained was much different and
broader. Texas law only allows acquisition of stored information of electronic
communications, not connection information.
Further, the technology did not even exist at the time for cell phones to
convey stored electronic data. Mobile phones, around for about three decades
now, have evolved from a means of simple communication to a personal assistant
that helps facilitate our every day lives. They now contain and access from remote
locations (clouds) mass amounts of private data and information. The early 1980’s
brought the first generation of mobile phones, the “Bag phone” weighed several
pounds, and “The Brick,” a phone that weighed about 7 oz., could only make calls.
1
“See H.R. REP. NO. 99-647, at 19 (1986) (commenting that the questionable privacy
protections available to users of computer networks ‘may unnecessarily discourage potential
customers [from] using such systems’); id. at 65–66 (‘This provision reflects the rapidly growing
importance of information storage and processing to the Nation’s commerce. Today, the subject
matter of commerce increasingly is information in electronic form and the processing of
information itself has become a major industry. The secure storage of electronic information has
thus become as important to the commercial system as the protection of paper records.’); S. REP.
NO. 99-541, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3559 (noting that the uncertain
privacy protections ‘may unnecessarily discourage potential customers from using innovative
communications systems’ or ‘discourage American businesses from developing new . . . forms of
telecommunications and computer technology’). “Free at What Cost?: Cloud Computing Privacy
Under the Stored Communications Acct, 98 Georgetown Law J 1195, n. 179 (2010).
6
As the years went by, in the late 1990’s cutting-edge features were added, like an
internal antenna, mobile games, and the introduction of SMS text messaging. It
wasn’t until 2007 that the first iPhone was launched, which was the device that
revolutionized the world by allowing users to surf the Internet, send emails, and
use applications, or apps. These were computer services that performed many
functions; find restaurants nearby, provide navigation to distant locations, modify
photos, organize frequent purchase cards or business cards etcetera. Furthermore,
cellphones started replacing cameras, calendars, and MP-3 music players. As
technology advances, it gets harder and harder to distinguish cell phones from
tablets or personal computers.
Thus, obtaining this information under the federal or Texas measures runs
afoul of the Fourth Amendment. This information is distinct. It is not numbers
dialed on a rotary dial phone, as in Smith v. Maryland, 442 U.S. 735, 99 S.Ct.
2577, 61 L.Ed.2d 220 (1979), or bank deposit slips and checks given to a bank, as
in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). It is
information about a person’s every location as each moves about throughout their
7
lives. It is information about who they contact and who contacts them. And it is
whether they have received a text message, answered a call, checked their
voicemails or received data updating an app.
The requests and orders, here, are not Fourth Amendment warrant
equivalents as the State has argued. The affidavits in support of the orders issued
did not state probable cause2 or ask for a probable cause determination from the
judges. The applications read: “[t]he release of said cellular phone records,
technical information, and technical assistance; are material and relevant to the
investigation of a criminal offense; supporting information/’specific and articulable
fact(s)’ follows.” The identical applications for the HCD, texts, emails and GPS
data, list facts that show the body of DE was found on January 2, 2009. No time
or date of death is indicated. They further state that DE attended a party on
December 31, 2008 with multiple friends, including Ford. They say that Ford left
the party before DE. DE left the party with two friends. Also they relay that the
two friends drove by Ford’s home and did not see his vehicle outside of his garage.
It could have been inside the garage. In addition, the applications say that Ford
claimed to have gone home before midnight and gone to sleep. The applications
state that video footage shows a vehicle similar to Ford’s entering and exiting
2
As this Court is aware, the good faith exception does not apply to warrants lacking probable
cause.
8
Gallery Court and a man wearing clothes similar to Ford’s walking into the
condos’ cul-de-sac. About an hour later, the person seen walking into the condo is
seen walking out, according to the applications. And they allege that person is
now carrying a white bag. Further, they describe that minutes later a vehicle
matching the description of Ford’s is seen driving by. At no time do the
applications mention a time at which the crime occurred. Nor do they allege it
happened from 12/31/2008 – 1/1/2009. There is no identification of Ford or his
vehicle as being present at the condos. These facts do not state probable cause or
even reasonable suspicion. SCR180–199. Nor do either application ask the court
to make a probable cause determination or state that there is probable cause to
believe that HCD, the texts, emails or GPS information will contain evidence of
any crime.
Further, the applications do not even comply with the statutes. They do not
state a “reasonable belief” or “that these are reasonable grounds to believe” that the
facts shown are relevant to a legitimate law enforcement inquiry as required. See
TCCP 18.21 Sec. 5(a) (“if the court determines that there is a reasonable belief”)
and 18 U.S.C. §2703(d) (“that there are reasonable grounds to believe”). Article
18.21 Sec. 5 of the TCCP only allows the issuance of an order for the “disclosure
of contents, records, or other information of a wire or electronic communication
held in electronic storage….” TCCP art. 18.21 Sec. 5 (emphasis added). An
9
electronic communication is “a transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo-electronic, or photo-optical system.” TCCP art. 18.20(15).
Here, the State asked for and obtained “cellular site information.” This
information is connection and location information, not information of transmitted
intelligence as authorized by TCCP art. 18.21 Sec. 5.
47 U.S.C. § 1002 (a)(2)(B) provides, “with regard to information required
solely pursuant to the authority for pen registers and trap and trace devices,” a
carrier need not allow the government to access “call-identifying information…
that may disclose the physical location of the subscriber (except to the extent that
the location may be determined from the telephone number)….” 47 U.S.C. §
1002(a)(2)(B).
Therefore, the applications for the records requesting: “cell site activate,
numbers dialed, incoming and outgoing phone calls, an engineering map; showing
all cell site tower locations, billing information, and alpha/numeric text messages,
emails and GPS data” [SCR180-199] should not have been granted. Nothing in the
statutory language of 18.20 of TCCP, authorized the release of cell site records.
Nevertheless, the granted orders authorized authorities to provide officers of
the Houston Police Department the records obtained from Ford’s cell phone, in
order for HPD “record for any number(s) which are derived from record(s)
10
pertaining to the initial number.” Those records were to include customer and
subscriber information, including customer service and credit scores, the name and
addresses of all subscribers to the telephone numbers revealed by the initial
cellular records. Now, not only has the state obtained records pertaining to Ford,
but also of his known associates located in the vicinity of HPD. (Order, pp. 21, 39-
45).
The SCA should be held inapplicable to the present case. The SCA was
enacted in 1986, nearly a decade before SMS messages, e-mails, HCD and
applications became a worldwide phenomenon. Since this information of daily
living and associational conduct is information regarding which Ford had a
reasonable expectation of privacy and because it was information that he did not
voluntarily convey to a third party, a search warrant should have been obtained.
Search warrants must be supported by probable cause that described the
things to be seized and in regard to First Amendment protected materials, it must
be described with scrupulous exactitude. Stanford v. Texas, 379 U.S. 476, 485, 85
S.Ct. 506, 13 L.Ed.2d 431 (1965).
The applications submitted by Det L. Carrion, contain a mischaracterization
of his own interviews with witnesses and a bank’s blurry motion activated or time
lapsed video. The application shows no indication of evidence found at the crime
scene, does not state what items were going to be seized, it did not indicate that
11
Ford was a suspect, nor what was the decedent’s cause or time of death. There is
no cause stated to believe that there is evidence in the items to be seized, that Ford
committed the murder of DE.
There are eleven States (California, Florida, Idaho, Montana, Pennsylvania,
Washington, Colorado, Hawaii, Illinois, New Jersey, and Utah) that rejected the
third-party record doctrine when it came out. Texas joined them in 1993, noting
the opinions from several states. The Court in Richardson v. State, 865 S.W.2d
944, 947-948 (Tex. Crim. App. 1993) held that a telephone is a necessity of
modern life and that an individual has no choice but divulge the number dialed to
the telephone company. It also discussed that persons who use a phone disclose
telephone numbers for the limited business purpose of obtaining telephone
communication services and not for release to the general public.
The same type of information that the State obtained via their applications
here, is the same type of information in which the Supreme Court expressed
persons have a privacy interest in Riley, infra, as well. For example, “[a]n internet
search and browsing history…can be found on an internet-enabled phone and
could reveal an individual’s private interest or concerns,” and “data on a cell phone
can also reveal where a person has been. Historic location information is a standard
feature on many smart phones and reconstruct someone’s specific movements
down to the minute, not only around town but also within a particular building.”
12
“Mobile application software on a cell phone, or ‘apps’ offer a range of tools for
managing detailed information about all aspects of person’s life.” Because this is
so the Supreme Court held that stronger protection is required for the contents of a
cell phone as it is closer to the contents of one’s home than to the contents of one’s
pocket. A search warrant is required. Riley v. California, 134 S.Ct. 2473, 2490,
189 L.Ed.2d 430 (2014). Further, Richardson v. State, demands stronger protection
for information obtained without a warrant from third-party providers. Richardson
held that using a pen register constitutes a “search” under Article I § 9 of the Texas
Constitution. On remand, the Court of Appeals, while acknowledging the Court of
Criminal Appeals’ holding that a pen register was a search requiring a warrant,
avoided deciding whether the pen register in Richardson violated Article 1, Section
9 of the Texas Constitution. It did so by finding that no pen register information
was used to obtain the search warrant complained of in the case, and that no call
originating from Richardson was caught on the pen register so he had no standing
to complain. Richardson v. State, 902 S.W.2d 689, 692.
Here, the Court of Appeals used the third-party record doctrine and held that
citizens’ information is public “once an individual voluntarily exposes information
to a third party.” Appendix to Petitioner’s Amended Brief at 22. It held that since
Mr. Ford utilized a cell phone and subscribed to AT&T’s phone service,
13
everything he did to use the phone was voluntarily disclosed to AT&T, whether he
knew it was occurring or not.
However, the Court of Appeals misapplied the ruling in Smith v. Maryland,
where the Supreme Court held there is no legitimate Fourth Amendment
expectation of privacy in the phone number one dials on a phone. The Smith case is
one that pre-dates cell phones, cell towers and the “cloud.” The State attempts to
equate HCD with a pen register. But it is much different. In Smith the pen register
noted the electronic impulses emanating from a rotary dial and reported those
numbers and those numbers alone. The pen register in Smith could not determine
if a call was connected, if there was a call or its duration, what type of information
was relayed or the location of the person dialing the rotary phone, through the
information conveyed in the pen register.
In United States v. Jones, 132 S.Ct. 945, Justice Sotomayor in her
concurrence addressed the issue, “even in the absence of a trespass, ‘a Fourth
Amendment search occurs when the government violates a subjective expectation
of privacy that society recognizes as reasonable.” Historic 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. 2471, 2490 (2014). Because a person uses
a third-party to provide a service, one does not necessarily give up their
14
expectation of privacy in the information provided voluntarily. Richardson rejected
the third-party record doctrine because voluntarily provided records for a limited
business purpose.
The National Association of Criminal Defense Lawyers has also taken a
stand against the warrantless acquisition of HCD. See Amicus brief in In re
Applications of the United States of America for Historical Cell-Site Data, 724
F.3d 600 (5th Cir. 2013). Commentators have noted Fourth Amendment concerns
regarding third-party records, signaling the demise of the doctrine. “In our view,
what is troubling about the data surveillance technologies that take advantage of
the third party doctrine is not what information they gather, but, rather, the broad,
indiscriminate, and continuous nature of the surveillance they facilitate, and the
effects of that surveillance on general security in our persons, houses, papers, and
effects. If we want to preserve reasonable expectations of privacy against these
technologies, then we should confront the threats that they pose directly.” The
ABA Standards for Criminal Law Enforcement Access to Third-Party Records:
Critical Perspectives From a Technology-Centered Approach to Quantitative
Privacy, 66 Okla L Rev 919 (2014). And, the ABA Criminal Justice Section has
issued standards to deal with third-party records that require issuance of a search
warrant. See ABA Standards on Third-Party Records. And academics have noted
the doctrine is dead. ABA Journal, Orin Kerr and Greg Nojeim, The Data
15
Question: Should the Third-Party Records Doctrine Be Revisited? (August 1,
2012)[arguing that the rule is an anachronism, from a time when there was no
email, no world wide web, and people communicated by phone, fax and letter].
There were holes created in the doctrine so that the contents of some records could
not be revealed, even if conveyed to a third party. So phone numbers could be
revealed, but not phone conversations; and that email was stored, but not what was
written in it. A world without third parties would be unworkable. If you wanted
to deliver a package, you would have to leave your house instead of sending it
through the mail. Orin Kerr, argued that the third party doctrine should not apply
when the third party is not a receiver of information, but a mere conduit through
which it passes. And Mr. Mojeim and Mr. Kerr agree that Smith v. Maryland
rests on shaky ground. Dialing a phone number to place a call is not done by
consent or really voluntary, it is required to use the necessity of life. We no longer
travel long distances to communicate in person.
The Court should note that the third-party record doctrine is an anachronism.
Almost everything we do depends on the involvement of third parties. As
consumers, our private lives are handled by third parties: cell phones, e-mails, bank
transactions, etc. Just because we ‘willingly’ decide to use those services we have
not as citizens relinquished our expectation of privacy. When we contract with
third parties to provide certain services and store or convey information through
16
calls, texts, apps and emails, we do not contract to convey our cell phones to the
government as surveillance or tracking devices. By converting Ford’s cell phone
to such a tracking device, here, the state, seized his effects, his cell phone and its
attributes, even if it did so virtually.
Federal and state courts have found that a warrant, based on probable cause,
is required for historic cell tower data, especially involuntary transmitted
information from our cell phones. See Tracey v. Florida, 152 So.3d 504, 515–16,
n.9 (2014). Others have held that sufficient articulable facts under the SCA. See
Tracey v. Florida, 152 So.3d 504, 515–16, n.8 (2014).
However, the Fifth Circuit and the 14th District Court of Appeals have held
that only voluntarily conveyed information could be obtained under the SCA. The
Government narrowed its request to only the phone numbers dialed into the phone
in In re Applications of the United States of America for Historical Cell-Site Data,
724 F.3d 600 (5th Cir. 2013). The case was also a one-party case so no one could
take the decision up to the United States Supreme Court. But still the government
voluntarily narrowed its request in that case. In Barfield v. State, 416 S.W.3d 743
(Tex. App. Houston [14th Dist.], no pet), Barfield followed the Fifth Circuit
opinion and involved a subpoena for post-indictment voluntarily conveyed
information with regard to which a stored communications act complaint was
raised.
17
The State’s attempt to apply anachronistic doctrines and cases to this
situation is not appropriate. This Court granted discretionary review not to decide
what the law already is. It granted the PDR to decide what the law should be in
today’s technology dense world. This is unique information that did not exist
when the cases came out and the store communications act was enacted. This
information is different in kind and quantity. There was no change in the law to
make it applicable to the changing data. The old cases do not address modern life,
digital data, modern phones (mini computers), and the “cloud.”
Physical intrusion is not the only way that person’s property or effects can
be illegally searched and seized. Here, the State repurposed information Ford
provided for a limited purpose, changing it into government surveillance use, “the
all seeing eye.” This is not information the authorities observed on the open streets,
they made his phone into their phone, his information was not his but theirs, to
follow everything he was doing, for how long, and what topics he discussed. All
this information was obtained by going through his private emails, SMS messages,
GPS geo-location, HCD and applications that had been downloaded to his phone.
The government essentially seized Ford’s personal effects through his cell phone to
observe inside and outside his home and at all times. His cell phone is not like a
pair of pants or a bag of groceries, nor is the information it automatically relays
through AT&T unbeknownst to him. Ford continued to have a reasonable
18
expectation of privacy in the contents of his phone despite the State’s ability to
seize it virtually. See State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App.
2014).
Respectfully Submitted:
____/s/Cynthia E. Orr_____________
Cynthia E. Orr
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Mary’s St.
29th Floor Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
whitecollarlaw@gmail.com
Attorney for Petitioner/Appellant,
JON THOMAS FORD
19
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements of
Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document does
comply with the word-count limitations of Tex. R. App. P. 9.4(i)(3) because it
contains 4,803 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
By:__/s/ Cynthia E. Orr______
CYNTHIA E. ORR
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above Petitioner’s Reply to
Appellee’s Brief on the Merits After Granting of Discretionary Review has been
sent via E-file.Texas.gov, as registered participants, on this the 28th day of April,
2015 to the following:
Nicolas LaHood
District Attorney
Jay Brandon
Assistant District Attorney
Paul Elizondo Tower
101 West Nueva, Fourth Floor
San Antonio, Texas 78205
E-mail: jay.brandon@bexar.org,
____/s/Cynthia E. Orr_____________
Cynthia E. Orr