PD-1396-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/7/2015 9:43:23 AM
Accepted 4/8/2015 8:25:15 AM
April 8, 2015
ABEL ACOSTA
NO. PD-1396-14 CLERK
JON THOMAS FORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLEE‟S BRIEF ON THE MERITS
AFTER GRANTING OF
DISCRETIONARY REVIEW
In the Court of Appeals for the
Fourth Court of Appeals District of Texas
at San Antonio
_____________________________________________________________
On appeal from the Fourth Court of Appeals,
No. 04-12-00317-CR, and the 186th District Court of
Bexar County, Trial Court No. 2010-CR-7741,
Honorable Maria Teresa Herr, Judge Presiding
_______________________________________________________________
NICHOLAS “NICO” LaHOOD
Criminal District Attorney
Bexar County, Texas
CATHERINE BABBITT
KIRSTA MELTON
KATHERINE CUNNINGHAM
Assistant District Attorneys
JAY BRANDON
Assistant District Attorney
SBN 02880500
101 W. Nueva
San Antonio TX 78205
(210) 335-2418
jay.brandon@bexar.org
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES 3
STATEMENT OF THE CASE 4
STATEMENT OF PROCEDURAL HISTORY 4
GRANTED GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
WHETHER A WARRANTLESS
SEARCH OF INVOLUNTARILY
CONVEYED HISTORICAL CELL
TOWER DATA IS AN ILLEGAL SEARCH 4
GROUND FOR REVIEW TWO
THE COURT OF APPEALS’ HOLDING,
THAT CELL TOWER DATA INFORMATION
CONVEYED FROM A PHONE INVOLUNTARILY,
IS PUBLIC INFORMATION UNDER THE
THIRD PARTY RECORD DOCTRINE; [sic]
IS CONTRARY TO RICHARDSON V. STATE. 4
STATE’S RESPONSE
THE COURT OF APPEALS CORRECTLY
HELD THAT FORD COULD NOT COMPLAIN
OF RECORDS PROPERLY ACQUIRED BY
COURT ORDER FROM A THIRD PARTY. 5
(A third ground for review was not granted.)
PRAYER FOR RELIEF 15
CERTIFICATE OF COMPLIANCE 16
CERTIFICATE OF SERVICE 16
2
INDEX OF AUTHORITIES
Page
Ford v. State, 444 S.W.3d 171 (Tex.App. –San Antonio 2014,
pet. granted) passim
In re Application of the U.S. for Historical Cell Site Data,
724 F.3d 600 (5th Cir. 2013) 8
Richardson v. State, 865 S.W.2d 844 (Tex.Crim.App. 1993) 5
Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577,
61 L.Ed. 220 (1979) 8
State v. Granville, 423 S.W.3d 399 (Tex.Crim.App. 2014) 9
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) 7
United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081,
75 L.Ed.2d 55 (1983) 6
3
STATEMENT OF THE CASE
This was a murder trial, in which Appellant Jon Thomas Ford was found
guilty by a jury. The jury assessed punishment at imprisonment for forty years.
STATEMENT OF PROCEDURAL HISTORY
On August 20, 2014, the Fourth Court of Appeals handed down an opinion
overruling Appellant‟s eighteen points of error and affirming his conviction. The
majority opinion by Justice Marialyn Barnard was joined by Chief Justice Stone.
Ford v. State, 444 S.W.3d 171 (Tex.App. –San Antonio 2014, pet. granted).
Justice Chapa wrote a dissent, on the issue now before this Court.
On February 4, 2014, this Court granted review of Appellant‟s first two
grounds for review, including oral argument. A third ground was not granted. This
brief follows the filing of Appellant‟s brief on the merits on March 24, 2015.
GRANTED GROUND FOR REVIEW ONE
WHETHER A WARRANTLESS
SEARCH OF INVOLUNTARILY
CONVEYED HISTORICAL CELL
TOWER DATA IS AN ILLEGAL SEARCH
GRANTED GROUND FOR REVIEW TWO
THE COURT OF APPEALS’ HOLDING,
THAT CELL TOWER DATA INFORMATION
CONVEYED FROM A PHONE INVOLUNTARILY,
IS PUBLIC INFORMATION UNDER THE
THIRD PARTY RECORD DOCTRINE; [sic]
IS CONTRARY TO RICHARDSON V. STATE.
4
STATE’S RESPONSE
THE COURT OF APPEALS CORRECTLY
HELD THAT FORD COULD NOT COMPLAIN
OF RECORDS PROPERLY ACQUIRED BY
COURT ORDER FROM A THIRD PARTY.
TO THE HONORABLE JUDGES OF SAID COURT:
What is Not Preserved for Review
The court of appeals held that Appellant did not raise a Texas constitutional
claim before the trial court. Ford, supra, 444 S.W.3d at 191. Ford has not attacked
this holding. Richardson v. State1, on which Appellant attempts to rely now, is
based on a provision of the Texas Constitution.
Furthermore, Richardson has no clear holding and is inapplicable to this
case. Richardson concerned the use of a pen register, which like the GPS device in
United States v. Jones required a physical intrusion by police to obtain the phone
information.2 The Richardson opinion concludes, “It follows that the use of a pen
register may well constitute a „search‟ under Article I, §9 of the Texas
Constitution. The question remaining is whether such a search would be
„unreasonable‟ in the absence of probable cause.”3 But the opinion remands the
case to the court of appeals to answer that question.
This claim based on the Texas Constitution was not raised in the trial court
1
865 S.W.2d 844 (Tex.Crim.App. 1993)
2
Id. at 846.
3
Id. at 953-54.
5
and does not apply to this case.
Appellant also makes in passing a First Amendment claim, that collecting
cell phone data might chill his freedom to associate. Appellant‟s brief at 7-8.
However, the court of appeals also held that this claim was not preserved. The
court of appeals held that Ford did not explain how gathering such information
might chill his First Amendment rights, so this issue was inadequately briefed for
review.4
The court also held that this claim fails on the merits, as it does. The State
used the cell tower data to show Ford‟s locations on the night of the murder, not
the people with whom he associated. Furthermore, Ford‟s friend Alan Tarver
testified without objection to the same information, that he was the one calling and
texting Ford that night.
The First Amendment claim is not preserved and has no merit.
The Preserved Argument: Jones and the Fourth Amendment
“A person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” 5
What Ford did present to the trial court in both his motion to suppress and
orally, was a Fourth Amendment claim based on United States v. Jones6, which
was handed down from the Supreme Court very shortly before Ford‟s trial. Jones,
4
444 S.W.3d at 192
5
United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)
6
132 S.Ct. 945, 181 L.Ed.2d 911 (2012)
6
however, by its terms is inapplicable to this case and does not support Ford‟s
argument.
The Fourth Court ruled against Ford on this claim, finding Jones
inapplicable. In Jones law enforcement officers attached a GPS device to the
suspect‟s car, without obtaining a warrant, and monitored the suspect‟s movements
for nearly a month. The Supreme Court held this violated the suspect‟s Fourth
Amendment rights against unreasonable searches, because officers physically
intruded into Jones‟ personal property, his car, to place the tracking device. Justice
Scalia‟s majority opinion relied explicitly on a trespass theory. Agents had no
right to touch Jones‟ car without a warrant.7
In this case, police never touched Ford‟s phone, nor made any other physical
contact with him or his personal property.
But the Fourth Court relied primarily on the fact that the cell tower data was
not collected by police. It was collected by AT&T, the carrier from whom Ford
obtained a phone and cell phone coverage. “Essentially, once an individual
voluntarily exposes information to a third party, it can be used for any purpose,
such as conveying it to law enforcement authorities.”8
This is a longstanding rule of law, that information someone voluntarily
7
444 S.W.3d at 187-88; Jones, 132 S.Ct. at 249.
8
Id. at 188.
7
conveys to a third party is not subject to Fourth Amendment protection.9 It has
been upheld in this same context by the Fifth Circuit Court of Appeals.10
Ford attacks this holding in a variety of ways, none of them persuasive.
First Ford claims the quantity of the data somehow changes its status from
unprotected to private: “…obtaining a great deal of location information implicates
the Fourth Amendment because tracking an individual‟s movements over a long
period exceeds what law enforcement would be able to do.” Appellant‟s brief at 6.
This conclusion is drawn from the facts of Jones, where agents tracked the
suspect‟s movement for 28 days. Here, though, the information covered a very
limited amount of time, a few hours on the night of the murder. Furthermore,
Jones was decided based not on the time spent but on the physical intrusion. There
was none here.
It is also worth noting that the tracking information in Jones was collected
by the government specifically for law enforcement purposes. In the instant case
AT&T collected the information in the course of its normal business dealings with
Ford, not as an agent of the state. The information did not become relevant for
police until Ford became the prime, indeed only, suspect in the murder case. The
information had all been innocently collected from him by that time. The records
9
Smith v. Maryland, 442 U.S. 735, 745, 99 S.Ct. 2577, 61 L.Ed. 220 (1979); cited in Ford,
supra, 444 S.W.3d at 189.
10
In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013)
8
existed in the care of the third party, with no intrusion by police.
Ford also argues, attempting to compare his case to State v. Granville11, that
a cell phone contains a great deal of personal information. Appellant‟s brief at 8.
While that may be true, it is irrelevant to this case, because the State did not obtain
any of that personal information. In Granville police searched the defendant‟s cell
phone without a warrant, as a search incident to arrest. This Court held that
probable cause and a warrant are required for such a search, because a cell phone is
a mini-computer, containing photos, personal messages, and other information held
privately in the phone.
But the Court also held that officers “could have reasonably inspected the
outside of appellant‟s cell phone; they could have tested it for fingerprints or DNA
material because portions of the cell phone are routinely exposed to the public.”12
Location data is similar to the outside of the cell phone, routinely exposed to the
public. Police in this case never possessed Ford‟s phone, never intruded into it.
They obtained records from a third party, to whom Ford had willingly given them.
This is the primary holding by the court of appeals, and Ford does not
explain why it is wrong. He claims his case is distinguishable from, e.g.,
Application, supra, because information was “involuntarily” conveyed from his
phone when he received phone calls and texts while busy murdering his former
11
423 S.W.3d 399 (Tex.Crim.App. 2014)
12
423 S.W.3d at 415-16.
9
girlfriend and her dog. Therefore, he argues, he didn‟t voluntarily convey his
location information to AT&T.
But that is not what the Fourth Court held. “Ultimately, Ford voluntarily
decided to obtain a cell phone, chose AT&T as a service provider, and availed
himself of the benefits of its network of cell towers.”13 Ford‟s voluntarily acts,
which exposed his locations to a third party and ultimately to police, were
obtaining a cell phone and carrying it with him that night. In essence, Ford
attached a GPS device to himself. The only intrusion into his private sphere was
by himself. The argument Ford makes now would have legal force only if
government agents had Superglued his phone to his hand, leaving him unable to
travel without it.
Ford has not responded to this holding by the court of appeals. It is based on
longstanding precedent and nothing in this case distinguishes it from that
precedent. Ford argues that the search of his records without a warrant was
unconstitutional, but that mistakes what happened in his case. This was not a
search. It was the acquisition of records held by a third party. It was done
according to the applicable statute, which did not violate the Fourth Amendment.
See below.
13
444 S.W.3d at 190.
10
No Expectation of Privacy in One’s Whereabouts
In his motion to suppress the cell tower records, Ford claimed, “All
individuals have a reasonable expectation of privacy as to their whereabouts and as
to electronic records that would disclose their whereabouts…”14 This is the
premise for all of Ford‟s arguments, and it is simply untrue. No one has a
reasonable expectation of privacy as to his whereabouts when he is travelling on
public roads and skulking through a condominium complex.15 If Ford‟s argument
were correct, he could have moved to suppress the images of his car and himself
captured by the security camera of the bank across the street from the murder
scene. Any suspect could successfully move to suppress eyewitness testimony
placing him at the scene of a crime. Ford could have suppressed the DNA
testimony, because it placed him inside the victim‟s home. If one‟s whereabouts
were private, most traditional evidence would not be admissible.
This is of course not the case. Police seized nothing from Ford. They did
not intrude into his home, car, or other personal space in which he had a legitimate
expectation of privacy. Instead they requested records from AT&T by way of two
court orders signed by two different district judges, as the statute requires. By the
time the records were obtained, Ford had no privacy interest in them. Essentially,
he had no standing to complain.
14
(Supp.CR 177)
15
See quote from U.S. v. Knotts, supra, at the beginning of this argument.
11
The Statute
Ford continually attacks the acquisition of the cell tower records as a
warrantless search. However, the records were obtained pursuant to the applicable
statute, Art. 18.21, Sec. 5, V.A.C.C.P., which says:
(a) A court shall issue an order authorizing disclosure of contents,
records, or other information of a wire or electronic communication
held in electronic storage if the court determines that there is a
reasonable belief that the information sought is relevant to a legitimate
law enforcement inquiry.
The State not only complied with this statute, it went far beyond it. The
applications for the court orders established not just that the information was
“relevant to a legitimate law enforcement inquiry.” It established probable cause
for a search for the specific records being sought. The information was conveyed
by an assistant district attorney, but had been obtained by Det. Leroy Carrion of the
San Antonio Police Department, the lead detective on the case.
The application informed the judges that: the complainant had been found
dead in her condominium, with no sign of forced entry and nothing missing except
her dog; her death had been ruled a homicide; she had been at a New Year‟s Eve
party the night before with others including Jon Thomas Ford; Ford had left the
party before the others; two witnesses drove by Ford‟s house a few blocks from the
victim‟s condo and did not see his car parked there; Ford told the detective he had
been home asleep before midnight; a surveillance video showed a vehicle matching
12
Ford‟s white Tahoe entering and exiting the condo complex twice; it also showed a
person dressed similarly to the way Ford had been that night entering the complex
on foot; an hour later the same person left the complex; five minutes later the car
resembling Ford‟s drove past; the detective had obtained Ford‟s cell phone records
with a subpoena, which showed he had checked his voicemail at 2:30 a.m., about
twenty minutes after the white Tahoe had driven away from the victim‟s complex,
and also a time when Ford had claimed to be asleep.16
This is the same information conveyed to a different judge in an affidavit by
Detective Carrion to obtain a search warrant of Ford‟s home and car. 17 In another
part of the majority opinion, the Fourth Court specifically found that this affidavit
established probable cause for a search.18 Two different district judges reviewed
the applications and signed orders for AT&T to provide the cell tower records to
police.19
So while the acquisition of these records may technically have been done
without a warrant, the State used the equivalent, an order signed by a district judge
based on probable cause to search. Any rights Ford may have had affected by this
acquisition were protected as fully as they would have been by a search warrant.
16
Supp.CR 180-83
17
CR 101-04
18
444 S.W.3d at 193
19
Supp.CR 189, 199
13
The Acquisition Did Not Violate the Fourth Amendment
As set out above, the State not only followed the applicable statute, but did
more than it required, establishing probable cause for a search to the satisfaction of
two district judges. To prevail in this appeal, Ford would have to argue that the
statute violates the Fourth Amendment, which he has not done. Nor could he
successfully do so.
First, the statute doesn‟t authorize a search, it authorizes the acquisition of
records from a third party, as set out above. The Fourth Amendment does not
apply to this procedure.
More importantly, the process used in this case did not violate the Fourth
Amendment. The Fourth Amendment says, in relevant part, “…no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation…” A warrant is
an order signed by a judge after a finding of probable cause. That was what
happened in this case. The finding of probable cause was based on the sworn
affidavit of a police officer. The information was conveyed to the court by a
written pleading signed by an assistant district attorney, an attorney and an officer
of the court.
Attorneys are subject to disciplinary sanctions for signing false pleadings.
Texas Rules of Professional Conduct 3.01 and 3.03. An application filed by a
lawyer acts as an affirmation, assuring the magistrate of the accuracy of its
14
contents.
So the court orders issued in this case were the equivalents of search
warrants. If this had been a search, they would have fully protected Ford‟s Fourth
Amendment rights.
But this wasn‟t a search.
PRAYER FOR RELIEF
The State prays that this Court will affirm the judgment of the court of
appeals.
Respectfully submitted,
NICHOLAS “NICO” LaHOOD
Criminal District Attorney
Bexar County, Texas
Jay Brandon
______________________________
JAY BRANDON
Assistant Criminal District Attorney
Bexar County, Texas
101 West Nueva, 3rd Floor
San Antonio, Texas 78204
(210) 335-2418
State Bar No. 02880500
jay.brandon@bexar.org
Attorneys for the State
15
CERTIFICATE OF COMPLIANCE
I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure
that this document contains 3,014 words.
Jay Brandon
_____________________________
JAY BRANDON
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing brief was sent by electronic mail to
Cynthia E. Orr, Attorney for Appellant, on the 7th day of April, 2014.
Jay Brandon
___________________________
JAY BRANDON
16