Jones, Ex Parte Kerry G.

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PD-1373&1374&1375-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/9/2015 4:13:53 PM Accepted 12/11/2015 11:54:51 AM ABEL ACOSTA CLERK PD-1373 & 1374 & 1375-15 _____________________________________________ IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS _____________________________________________ EX PARTE: KERRY G. JONES Petitioner /Appellant. ______________________________________________________________________ FROM THE 230TH DISTRICT COURT OF HARRIS COUNTY, TEXAS TRIAL COURT NO. 1283328-A & 1283329-A & 1283330-A COURT OF APPEALS NO. 14-14-00488-CR & 14-14-00489-CR & 14-14-00490-CR ______________________________________________________________________ PETITION FOR DISCRETIONARY REVIEW _______________________________________________ JAMES D. LUCAS 2316 Montana Avenue El Paso, Texas 79903 Tel: (915) 532-8811 Fax: (915) 532-8807 SBN 12658300 jlucas2@elp.rr.com Attorney for Petitioner/Appellant KERRY G. JONES December 11, 2015 TABLE OF CONTENTS TABLE OF CONTENTS..................................................................................................i, ii IDENTITY OF THE PARTIES...........................................................................................iii INDEX OF AUTHORITIES............................................................................................iv, v STATEMENT REGARDING ORAL ARGUMENT...........................................................1 STATEMENT OF THE CASE.............................................................................................2 STATEMENT OF PROCEDURAL HISTORY...................................................................2 GROUNDS PRESENTED....................................................................................................3 ARGUMENT.........................................................................................................................4 1. By failing to address whether the Government violated Jones’ Fourth Amendment right to be free of unreasonable searches and seizures by relying on facts alleged in a search warrant affidavit to obtain a search warrant which the Government acquired these facts from customer-based electronic transaction logs PayPal voluntarily turned over without a warrant or court order, the court of appeals has so far departed from the accepted and usual course of judicial proceeding as to call for an exercise of the Court of Criminal Appeals’ power of supervision ........................................................................4 A. The Relevant Facts.................................................................................4 B. Legal Analysis........................................................................................9 2. Whether content-based electronic information maintained by a third party intermediary’s transaction logs is protected from a warrantless search under the Fourth Amendment and by Article 1, Section 9 of the Texas Constitution is an issue of both state and federal law which has not, but should be, settled by the Texas Court of Criminal Appeals ..................................................................13 3. By ruling that probable cause exists to issue a search warrant for child pornography when the supporting facts alleged in the affidavit failed to i establish a fair probability that child pornography would be found and were based on events which occurred years earlier, the court of appeals has decided an important question of state law in a way which conflicts with applicable decisions of the United States Supreme Court .............................................16 PRAYER.............................................................................................................................19 CERTIFICATE OF COMPLIANCE..................................................................................20 CERTIFICATE OF SERVICE............................................................................................20 APPENDIX.........................................................................................................................21 ii IDENTITY OF THE PARTIES For Petitioner Kerry G. Jones: James D. Lucas Writ and Appellate Attorney 2316 Montana Avenue El Paso, Texas 79903 Sergio A. Saldivar Writ Co-counsel 2301 Montana Avenue El Paso, Texas 79903 For the State of Texas: Alan Curry, Trial Counsel Assistant District Attorney 1201 Franklin, Suite 600 Houston, Texas 77002 Devon Anderson District Attorney Appellate Counsel 1201 Franklin, Suite 600 Houston, Texas 77002 Lisa McMinn Appellate Counsel JUDGE: Hon. Brad Hart 230th District Court of Harris County, Texas iii INDEX OF AUTHORITIES FEDERAL CASES PAGES Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 991 (C.D.Cal.2010).........15 Ornelas v. United States, 517 U.S. 690, 696 (1996)................................................17 Sgro v. United States, 287 U.S. 206, 211 (1932)......................................................17 United States v. D'Andrea, 497 F.Supp.2d 117, 120 (D.Mass.2007).......................11 United States v. Forrester, 512 F.3d 500, at 511 (9th Cir. 2007)...........................14, 15 United States v. Hambrick, 225 F.3d 656 (4th Cir.2000) (unpublished)..................11 United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012)........................................14 United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008)...........................9, 10 United States v. Perez, 247 F. Supp. 2d 459, 483-484(S.D.N.Y. 2003)..................18 United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)..................................13, 14 United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008)..................................14, 15 CASE Russo v. State, 228 S.W3d 779, 802 (Tex.App.–Austin 2007, pet. ref’d)...............11 STATUTE TEX . CODE CRIM . PROC . art. 11.072...................................................................2, 7, 8, 11 18 U.S.C. § 2703........................................................................................................14 iv CONSTITUTIONS U.S. CONST. amend. IV..............................................................................13, 14, 15 TEX. CONST. art. I, § 9.................................................................................1, 13, 15 v STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument in this case and believes oral argument would be helpful. The application of the Fourth Amendment law in the area of electronically stored and transmitted information is relatively novel and its contours have not been directly addressed by the Texas Court of Criminal Appeals. This case offers this Court a meaningful opportunity to address how the Fourth Amendment and Article 1, Section 9 of the Texas Constitution should be applied to searches of electronic date supplied to internet companies by its customers, to include content-based information held by internet service providers. Page -1- STATEMENT OF THE CASE AND STATEMENT OF PROCEDURAL HISTORY This petition for discretionary review concerns the trial court’s decision to deny the Petitioner, Kerry Jones, relief on an article 11.072 writ application he filed. CR 2. Jones filed his writ application on July 9, 2012. Id. On May 1, 2014, an evidentiary hearing was held on Jones’ writ application. RR 1,1. At the conclusion of the hearing, the trial court denied Jones’ relief on his writ application. RR 1, 209. After the evidentiary hearing, the trial court made written findings of fact and conclusions of law, which were filed on May 12, 2014. CR 85-89. Jones filed his notice of appeal as to all three causes of action on May 30, 2014. CR 91. Jones thereafter filed his appellate briefs on all three indicted causes with the Fourteenth Court of Appeals. The State did not file any response briefs. On August 18, 2015, the Fourteenth Court of Appeals handed down a written opinion affirming the trial court’s denial of writ relief on all three indicted cases. On September 17, 2015, Jones filed a motion for rehearing and a motion to extend time to file this motion for rehearing with the Fourteenth Court of Appeals on the indicted causes. The motion to extend time to file motion for rehearing was granted on September 24, 2015. However, the motion for rehearing on these cases was overruled on September 29, 2015. Page -2- GROUNDS FOR REVIEW 1. The Government violated Jones’ Fourth Amendment right to be free of unreasonable searches and seizures by relying on facts alleged in a search warrant affidavit to obtain a search warrant which the Government acquired these facts from customer-based electronic transaction logs PayPal voluntarily turned over without a warrant or court order. 2. The court of appeals erred by failing to address whether content-based electronic data maintained in a third party intermediary’s transaction logs is protected from warrantless searches under the Fourth Amendment and by Article 1, Section 9 of the Texas Constitution. 3. By ruling that probable cause exists to issue a search warrant for child pornography when the supporting facts alleged in the affidavit failed to establish a fair probability that child pornography would be found and were based on events which transpired years earlier, the court of appeals has decided an important question of state law in a way which conflicts with applicable decisions of the United States Supreme Court Page -3- ARGUMENT 1. By failing to address whether the Government violated Jones’ Fourth Amendment right to be free of unreasonable searches and seizures by relying on facts alleged in a search warrant affidavit to obtain a search warrant which the Government acquired these facts from customer-based electronic transaction logs PayPal voluntarily turned over without a warrant or court order, the court of appeals has so far departed from the accepted and usual course of judicial proceeding as to call for an exercise of the Court of Criminal Appeals’ power of supervision A. The Relevant Facts Petitioner Jones was convicted of unlawful possession of child pornography after the search of his residence on February 19, 2009 resulted in the seizure of a computer and hard drives on which child pornography was found. The child pornography seized from Petitioner’s residence was based on a state search warrant which was issued pursuant to an affidavit signed by Juanae S. Thompson, a law enforcement officer of the Department of Homeland Security assigned to ICE. CR 1,9. Pages 14 through 20 of Ms. Thompson’s affidavit stated in relevant part: Your Affiant received this case for investigation as a result of a joint investigation between the ICE RAC/Birmingham office, the ICE Cyber-Crimes Center (C3) Child Exploitation Section (CES), the U.S. Postal Inspection Service (USPIS), the U.S. Department of Justice (DOJ) Child Exploitation and Obscenity Section (CEOS), and the U.S. Attorney’s Office for the Northern District of Alabama into a criminal organization operating a commercial child pornography web sites [sic] on the internet identified as “Home Collection.” ICE agents determined that the organization was operating in excess of 18 commercial child pornography web sites and in addition, the organization was determined to be utilizing multiple PayPal accounts to process the payments Page -4- made by individuals purchasing memberships to the child pornography web sites. Approximately 5000 United States targets have been identified as being members of these child pornography sites. RR 1, Defendant’s Exh. 2, pp. 14- 15. Reports indicate that on October 12, 2006 at approximately 21:37:06 PDT an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Lust Collections” (aka Angel Collection 1007) for $79.95 payable, via PayPal, to Belfastltd@juno.com. Belfastltd@juno.com was determined by ICE/C#/CES to be associated with one of the multiple PayPal accounts operated by the criminal organization to facilitate the processing of membership payments to the commercial child pornography web sites. Id., at 15.... ICE agents were able to purchase undercover memberships to “Angel Collection 1007" (aka Lust Collection) and were able to verify the web site as a commercial child pornography site Id.... Reports indicate that on November 1, 2006 at approximately 20:58:52 PST an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Hot Girls Photos” (aka Angel Collection 1010) for $79.95 payable, via PayPal, to Belfstltd@juno.com was determined by ICE/C3/CE3 to be associated with one of the multiple PayPal accounts operated by the criminal organization to facilitate the processing of membership payments to the commercial child pornography web sites Id., at 17.... Reports indicate that on January 21, 2007 at approximately 20:41:35 PST an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Real Lola Issue #2" for $79.95 payable, via PayPal, to Bsofteawh@yahoo.com. Bsofteawh@yahoo.com was determined by ICE/C3/CES to be associated with one of the multiple PayPal accounts operated by the criminal organization to facilitate the processing of membership payments to the commercial child pornography web sites. ICE agents were able to obtain screen captures of “Real Lolas #2" advertising web page. The screen captures verify the web site as a commercial child pornography web site Id., at 19. .... Page -5- Reports indicate that on January 25, 2007 at approximately 20:51:12 PST an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Plazma Girls” for $79.95 payable, via PayPal, to Bsofteawh@yahoo.com. Bsofteawh@yahoo.com was determined by ICE/C3/CES to be associated with one of the multiple PayPal accounts operated by the criminal organization to facilitate the processing of membership payments to the commercial child pornography web sites. ICE agents were unable to obtain membership to the “Plazma Girls” website nor were they able to obtain screen captures of the advertising web page. Id, at 19- 20. ICE Special Agents were able to obtain all PayPal buyer and seller transactional logs for all transactions associated with the criminal organization and the commercial child pornography web sites and the subscribers. ICE agents obtained buyer contact information by extracting every buyer e-mail address from the seller’ PayPal transactional logs and submitting those e-mail addresses to PayPal. PayPal then pulled buyer contact information for each buyer and provided said information to ICE Agents. Id., at 20. In addition to the above-referenced e-mail transaction logs linking Petitioner to the one month membership purchases, PayPal also provided ICE agents with buyer-contact information which identified kgj01@hotmail.com as Kerry Jones, 901 Country Place Dr #192, Houston, Texas 77079; listed Jones’ associated day phone number as 281-293-5018, and listed Jones’ night phone number as 281-493-9826. PayPal also linked Jones to a mailing address of 800 Country Place Dr #1001, Houston, Texas 77079. CR 18-19. None of the child pornography seized during the search of Jones’ residence came from any of the websites identified in the search warrant affidavit. CR 20. Page -6- At no point prior to the date Jones entered guilty pleas to the three child pornography indictments pending against him did his trial counsel file and pursue a motion to suppress illegally-seized evidence based on: (a) the theory that the facts alleged in the search warrant affidavit were insufficient to establish probable cause that an offense had been committed; or (b) the theory that the facts alleged in the search warrant affidavit were themselves a product of illegally-seized evidence. RR 1, 52. Jones accordingly asserted in his article 11.072 writ application that his trial counsel rendered ineffective assistance of counsel by not filing and pursuing a motion to suppress the child pornography seized from his residence. However, the trial court rejected this argument and determined that Jones had failed to prove that his trial counsel rendered ineffective assistance. On appeal, Jones asserted as the first point for review of his principal brief that the trial court erred in denying relief on his complaint that his trial counsel rendered ineffective assistance by not filing and pursuing a motion to suppress the child pornography seized from his residence pursuant to the search warrant. Jones asserted on page 18 of his brief the following factual basis for his claim that his trial counsel rendered a deficient performance by failing to move to suppress the digital images of child pornography stored on a computer and/or hard drive(s) ICE agents removed from his residence: Page -7- The inability of Jones’ trial counsel to recognize during Jones’ article 11.072 evidentiary hearing that the email transactional logs and other confidential information PayPal voluntarily turned over to ICE agents without being forced by a search warrant to turn [these items] over demonstrates the deficient performance Jones’ trial counsel rendered. PayPal was no more than an intermediary between Jones and the owners of the “Home Collection” website operating from a location in Europe. Jones’ trial counsel should have recognized that PayPal was not even a party. PayPal did nothing more than facilitate Jones’ purchase of three one-month subscriptions between Jones and this commercial website. The information PayPal voluntarily turned over to these ICE agents thus went beyond any non-content information Jones divulged. PayPal divulged information protected by the Fourth Amendment. Through its transactional email logs and records, PayPal identified for these ICE agents Jones’ online activities, his purchasing activities, and his personal contact information– information in which Jones possessed a reasonable expectation of privacy. In rejecting this argument and denying Jones relief on point for review one, the court of appeals ruled: Here, ICE agents obtained appellant's subscription information from PayPal, which allowed them to discover appellant's name and address. Appellant did not have a reasonable expectation of privacy in this information. See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.”); see also United States v. Hambrick, 225 F.3d 656 (4th Cir.2000) (per curiam) (unpublished), affirming United States v. Hambrick, 55 F.Supp.2d 504, 508–09 (W.D.Va.1999) (holding that there was no legitimate expectation of privacy in noncontent customer information provided to an internet service provider by one of its customers); Russo v. State, 228 S.W.3d 779, 802 (Tex.App.–Austin 2007, pet. ref d) (stating that there is no Fourth Amendment protection against the disclosure of subscriber information by internet service providers). This is because “[i]ndividuals generally lose a reasonable expectation of privacy in their information once they reveal it to third parties.” Guest v. Leis, 255 F.3d 325, 335 (6th Cir.2001); see also Page -8- Barfield v. State, 416 S.W.3d 743, 748–49 (Tex.App.–Houston [14th Dist.] 2013, no pet.) (holding that defendant does not have a reasonable expectation of privacy in cell-site location data because a defendant voluntarily conveys information to third-party provider). B. Legal analysis The court of appeals failed to address the primary argument asserted by Jones’ in his first point for review.1 It confined its analysis to the issue of whether the Government was entitled to retrieve subscriber information from an internet service provider without first obtaining a warrant. Although this was the situation in United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008), it was not the primary contention made by Jones in asserting that his trial counsel rendered ineffective assistance of counsel in failing to pursue a suppression remedy. Jones’ primary contention on appeal was that the Government did not have the right to obtain from PayPal all transaction logs for transactions associated with the criminal organization and commercial child pornography web sites to which he subscribed without first obtaining a search warrant. It was the information the Government obtained from these transaction logs which enabled ICE Agent 1 Petitioner will assume, for purposes of this review point, that Pay-Pal is an internet service provider even though PayPal does not appear to be an “internet service provider” within the meaning of this term as used in United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) or in case law which addresses the right of the Government to access non-content subscriber information without a search warrant. Page -9- Thompson to prepare a search warrant affidavit which connected Jones to child pornography and to child pornography websites. Without this information, Agent Thompson would not have possessed sufficient facts in her search warrant affidavit to enable a neutral and detached magistrate to make a probable cause determination that Jones possessed child pornography on a home computers or a hard drive. Even if the court of appeals correctly cites to Perrine as authority that the Government was authorized to obtain Jones’ name, address and phone number and internet service provider subscriber-related information without a search warrant, it failed to address Jones’ primary Fourth Amendment contention – which was that the Government violated his Fourth Amendment to be free from unreasonable searches by obtaining from PayPal all transaction logs between Jones and the criminal organization and the commercial child pornography web sites without a search warrant. All of this information was content-based and not mere subscriber information. Thus, Jones contends that the court of appeals erred by addressing only whether the subscriber information obtained from Pay-Pal was illegally-obtained and ignoring his complaint that the content-based transaction logs the Government obtained were also illegally obtained, in violation of the Fourth Amendment. All of the cases cited in United States v. Perrine, supra, basically draw a distinction between the Government’s right to obtain internet service provider non- Page -10- content subscriber information and its right to obtain content-related subscriber information. The case of United States v. Hambrick, 225 F.3d 656 (4th Cir.2000) (unpublished), affirming United States v. Hambrick, 55 F.Supp.2d 504, 508-09 (W.D.Va.1999) illustrates this point. There, the Fourth Circuit held there was no legitimate expectation of privacy in non-content customer information provided to an internet service provider by one of its customers. Similarly, in United States v. D'Andrea, 497 F.Supp.2d 117, 120 (D.Mass.2007), the federal court addressing the search and seizure issue presented ruled: “The Smith line of cases has led federal courts to uniformly conclude that internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access.”) (emph. added). See also Russo v. State, 228 S.W3d 779, 802 (Tex.App.–Austin 2007, pet. ref’d) (recognizing that there is no Fourth Amendment protection against the disclosure of subscriber information by internet service providers). This ruling expressly failed to address whether content-based data was protected by the Fourth Amendment. In Jones’ case, the primary evidence relied on by the Government to obtain the issuance of a search warrant against Jones consisted of content data extracted from transaction logs Pay-Pal voluntarily turned over to the Government. Jones contended in his article 11.072 writ application and on appeal that these transaction logs should Page -11- have been obtained through a search warrant before they could be used by the Government to obtain a search warrant for Jones’ residence and any computers and hard drives he possessed. In other words, Jones demonstrated that the only link to him and child pornography was through these transaction logs which he asserted had been illegally obtained by the Government, in violation of his right under the Fourth Amendment and Texas Constitution to be free from illegal searches and seizures. The court of appeals failed to address Jones’ contention that the Government violated his right to be free from unreasonable searches and seizures under the Fourth Amendment and Texas Constitution by securing a search warrant on the basis of content-based transaction logs the Government obtained without a search warrant. In addressing only whether the Government was authorized to obtain from Pay-Pal subscriber information from Jones, the court of appeals failed to grant Petitioner Jones a meaningful review of the first point for review. It should not have ignored this argument. Even though Jones’ name, address, and phone number constituted “subscriber information”, this non-content information was not the primary legal contention upon which Jones based his suppression remedy argument. Jones’ primary suppression theory was that the link drawn to Jones and child pornography resulted from PayPal’s decision to voluntarily turn over the content-based transaction logs to the Page -12- Government. It was this evidence which Jones contended was illegally obtained by the Government and warranted suppressing the child pornography seized from his residence, computer(s) and/or hard drives. Given the court of appeals’ total and complete failure to address whether these content-based transaction logs should have been suppressed under the fruit of the poisonous tree doctrine, the Court of Criminal Appeals should grant review of this point and order briefing. 2. Whether content-based electronic information maintained by a third party intermediary’s transaction logs is protected from a warrantless search under the Fourth Amendment and by Article 1, Section 9 of the Texas Constitution is an issue of both state and federal law which has not, but should be, settled by the Texas Court of Criminal Appeals The United States Supreme Court has not squarely addressed the issue of whether content-based electronic information which one person provides to another through a third party intermediary is protected under the Fourth Amendment to the United States Constitution. To-date, the Texas Court of Criminal Appeals has not addressed the issue. In contrast, several courts of appeals have written opinions which only partially address the issue. With the exception of subscriber information a person voluntarily provides to an internet service provider, several federal court have recognized that a Fourth Amendment privacy interest is generally implicated where electronic communications between two persons are not intended to be viewed by the public at large. In United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), Page -13- for example, the Sixth Circuit observed that the content of “email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it had long been recognized to serve.” Id., 286. It further held that a subscriber enjoys a reasonable expectation of privacy in the contents of emails "that are stored with, or sent or received through, a commercial [Internet service provider (ISP)]” and further held that “to the extent that [the Stored Communications Act (SCA), 18 U.S.C. Section 2703] purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” Warshak, at 288. In United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012), the Fourth Circuit similarly concluded: "[E]mail has become the modern stenographer. . . . [E]mails today, `in common experience,' are confidential." Id. at 408 (citation omitted). The Fifth and Ninth Circuits have likely recognized that a defendant has a reasonable expectation of privacy with respect to "private information, including emails." See United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008); and United States v. Forrester, 512 F.3d 500, at 511 (9th Cir. 2007) (holding that "The privacy interests in these two forms of communication [email and traditional mail] are identical."). One court, comparing private facebook messages to email, has stated that both are "inherently private" because such messages "are not readily accessible to the general Page -14- public." Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 991 (C.D.Cal.2010). And where the service provider is no more than a conduit or third-party intermediary which “passively convey[s]” that information to an end-user, the court of appeals for the Ninth Circuit has concluded that the material is generally not subject to any claim that the information constitutes business records of the internet service provider. United States v. Forrester, supra at 510. The transaction logs at issue involved content-based confidential communications between Jones and the internet websites through which he ordered subscriptions. PayPal’s only role in its dealings with Jones was to serve as a third party intermediary by facilitating the buy-sell transactions between Jones and the websites through which he purchased digital images. According to the above-cited federal cases, Jones had a reasonable expectation that the content of his communications with these websites would be protected by PayPal, much like the federal courts recognize that email communications are protected under the Fourth Amendment. See e.g. United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008). But the issue of whether Jones had a privacy interest in these content-based transaction logs possessed by PayPal, a third-party intermediary, under the Fourth Amendment and Article 1, Section 9 of the Texas Constitution is an issue which has not been, but should be, settled by the Texas Court of Criminal Appeals. Page -15- 3. By ruling that probable cause exists to issue a search warrant for child pornography when the supporting facts alleged in the affidavit failed to establish a fair probability that child pornography would be found and were based on events which occurred years earlier, the court of appeals has decided an important question of state law in a way which conflicts with applicable decisions of the United States Supreme Court The ICE agents executing the search warrant on Jones’ residence did not examine or search the content of the computers and storage devices (hard drives) they seized. CR 13. Instead, they took these items to a forensic expert to be examined. CR 13; RR 1, 168. The three computers and two disc drives seized from Jones’ residence were not returned to Jones until approximately 18 months after they were seized by these ICE agents in February of 2009, more than two years after the January 2007 date Jones paid for his last subscription. CR 14. Jones was not arrested until on or about October 28, 2010 and was not indicted until December 16, 2010. CR 14. The subscriptions Jones purchased from the Home Collection web sites in connection with this case were of a one month duration only. CR 14. Further, there was no allegation in the search warrant affidavit that Jones or any one else accessed these websites or downloaded any of the images from the pornographic websites referenced in Juana Thompson’s search warrant affidavit. RR 1, Defendant’s Exh. 2, pp. 14-20. There was also no link drawn between any specific computer or address where child pornography might be found. In fact, the information set forth in Thompson’s search Page -16- warrant affidavit requested the issuance of a search warrant for a residence address different from the address listed in Pay-Pal’s customer account records. Id. The U.S. Supreme Court has held that probable cause to search “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found” in the location to be searched. Ornelas v. United States, 517 U.S. 690, 696 (1996). It also recognized in Sgro v. United States, 287 U.S. 206, 211 (1932) that in order for a search warrant to be valid, “the time within which proof of probable cause must be taken by the judge or commissioner...must be of facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time.” In Jones’ case, the facts alleged in the search warrant affidavit did not allege sufficient facts to establish probable cause that a specific offense had been committed. The only evidence the State possessed was that on November 1, 2006 an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Hot Girls Photos” (aka Angel Collection 1010) for $79.95 payable, via PayPal; that on January 21, 2007 an individual using the e-mail address of kgj01@hotmail.com purchased a one-month on-line membership to “Real Lola Issue #2" for $79.95 payable, via PayPal; and that on January 25, 2007 an individual using the e-mail address of kgj01@hotmail.com purchased a membership to “Plazma Girls” Page -17- for $79.95 payable, via PayPal. These one-month subscription purchases were made more than two years before the February 19, 2009 affidavit Thompson executed for the issuance of the search warrant for Jones’ residence. Her affidavit also failed to allege facts which established whether Jones ever downloaded images of child pornography from these websites. Without evidence demonstrating that Jones had transmitted digital images onto a computer from any of the Home Collection websites he had subscribed to, there was no basis for making a probable cause finding that the felony offense of child pornography or some other specific offense had been committed by Jones. See United States v. Perez, 247 F. Supp. 2d 459, 483-484(S.D.N.Y. 2003) (refusing to make a probable cause finding by holding that subscription to known child pornography website created a “chance, but not a fair probability that child pornography would be found.”). Moreover, the fact that Jones’ last Home Collection subscription had been made roughly 24 months before the date the search warrant affidavit was executed rendered the information contained in the affidavit stale. In other words, the court of appeals disregarded the probable cause proof standard the Supreme Court requires for issuance of a search warrant, especially the requirement that the facts alleged in a search warrant affidavit must be so closely related to the time of the issuance of the warrant. In this regard, it further erred in Page -18- determining that a search warrant affidavit for child pornography can almost never become stale by adopting Affiant Thompson’s statement that “[p]eople who have a sexual interest in children or minors rarely, if ever, dispose of their sexually explicit materials.” The Court of Criminal Appeals should accordingly grant review and correct the misguided “probable cause” analysis of the court of appeals below. PRAYER Wherefore, Petitioner Kerry Jones prays the Texas Court of Criminal Appeals will grant his petition for discretionary review on all three points for review presented, order briefing, and remand this case to the court of appeals below for reconsideration of the merits of his appeal. Respectfully Submitted, /s/ James D. Lucas JAMES D. LUCAS Counsel for Kerry Jones 2316 Montana Avenue El Paso, Texas 79903 Tel. (915) 532-8811 Fax (915) 532-8807 SBN 12658300 jlucas2@elp.rr.com Page -19- CERTIFICATE OF COMPLIANCE WITH RULE 9.4 This brief filed in support of thereof comply with the type-volume limitations of 9.4. The brief contain 4,032 words, excluding the parts of the brief exempted by 9.4(1); and this brief complies with the typeface requirements of 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Corel Word Perfect in Times New Roman, 14-point. /s/ James D. Lucas JAMES D. LUCAS CERTIFICATE OF SERVICE I, James D. Lucas, hereby certify that on the 9th day of November, 2015, a true and correct copy of the foregoing petition for discretionary review filed by Petitioner, Kerry G. Jones, was served on the Office of the District Attorney for Harris County, Texas and the State Prosecuting Attorney, by electronic means. /s/ James D. Lucas JAMES D. LUCAS Page -20- APPENDIX EXHIBIT A. COA OPINION EXHIBIT B. COA JUDGMENT Page -21- EXHIBIT A. COA OPINION Affirmed and Opinion filed August 18, 2015. In The Fourteenth Court of Appeals NO. 14-14-00488-CR NO. 14-14-00489-CR NO. 14-14-00490-CR EX PARTE KERRY G. JONES On Appeal from the 230th District Court Harris County, Texas Trial Court Cause Nos. 1283328-A, 1283329-A & 1283330-A OPINION Appellant Kerry G. Jones appeals the denial of his post-conviction application for writ of habeas corpus, arguing that he was denied effective assistance of counsel on the grounds that his trial counsel failed to file a motion to suppress. We affirm. BACKGROUND In April 2006, the child exploitation section of the United States Immigration and Customs Enforcement Agency (ICE) initiated an investigation into a criminal organization operating a commercial child pornography website known as “The Home Collection.” The investigation lasted three years and subscribers to the website were identified through purchaser transactions obtained from bank account records. The bank records revealed that a person using a PayPal account registered to appellant purchased subscriptions to the website. Using the bank records, the police were able to obtain appellant’s name and physical address. On February 19, 2009, the police executed a search warrant to seize three computers and two hard drives from appellant’s home. A forensic analysis of the computers and hard drives disclosed over 433 digital images of child pornography on appellant’s computer. Appellant was indicted for three counts of the third degree felony offense of possession of child pornography. Appellant pleaded guilty to all three counts. The trial court deferred an adjudication of appellant’s guilt and placed him on community supervision for five years. On July 9, 2012, appellant filed an application for post-conviction writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. He alleged that he was denied his claim of ineffective assistance of counsel, among several other claims. The trial court conducted a hearing and entered an order denying relief. STANDARD OF REVIEW We review a trial court’s determination on an application for writ of habeas corpus for abuse of discretion. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.— 2 Houston [14th Dist.] 2012, no pet.). An applicant seeking post-conviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts entitle him to relief. Id. The trial court is the sole finder of fact in a habeas proceeding. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). In reviewing the trial court’s decision to grant or deny relief, we view the facts in the light most favorable to the trial court’s ruling. Ex parte Fassi, 388 S.W.3d at 886. We afford almost total deference to the trial court’s findings, especially when those findings are based on an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We will uphold the trial court’s judgment as long as it is correct on any theory of law applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam). ANALYSIS OF APPELLANT’S ISSUE Appellant contends that the trial court erred by denying him relief on his claim of ineffective assistance of counsel because his trial counsel failed to file a motion to suppress the child pornography seized from the computers and hard drives at his apartment. Appellant argues that his trial counsel should have filed a motion to suppress because (1) the information set forth in the search warrant affidavit was obtained from PayPal without a warrant; and (2) the search warrant affidavit failed to set forth sufficient facts to establish probable cause. To prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test by a preponderance of the evidence showing that: (1) his attorney’s performance was deficient; and (2) his attorney’s deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Under the first prong, appellant must show that counsel’s performance was deficient to 3 the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Under the second prong, appellant must establish that counsel’s deficient performance prejudiced the defense. Id. Prejudice is established by a showing that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A trial counsel’s failure to file a motion to suppress is not per se ineffective assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 447 U.S. 365, 384 (1986)). Counsel is not required to engage in the filing of futile motions. Id. (citing Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). To prevail on an ineffective assistance claim based on counsel’s failure to file a motion to suppress, appellant must show by a preponderance of the evidence that the result of the proceeding would have been different—i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that appellant is required to prove motion to suppress would have been granted to prove ineffective assistance of counsel). No Expectation of Privacy in Subscription Information Appellant first complains that a motion to suppress should have been filed because the information contained in the search warrant affidavit was obtained without a warrant. Appellant argues that a warrant was required to obtain his subscription information from PayPal. The purpose of the Fourth Amendment is to safeguard an individual’s legitimate expectation of privacy from unreasonable government intrusions. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A defendant has 4 standing to challenge the admission of evidence obtained by an intrusion by the government only if he had a legitimate expectation of privacy in the place invaded. Id. The accused, as the party asserting the privacy expectation, has the burden of proving facts to establish that such an expectation exists. Id. To establish a constitutionally protected privacy interest in a possession, an accused must show that (1) he had an actual, subjective expectation of privacy in the invaded possession, and (2) his expectation of privacy was one that society accepts as objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740 (1979). Here, ICE agents obtained appellant’s subscription information from PayPal, which allowed them to discover appellant’s name and address. Appellant did not have a reasonable expectation of privacy in this information. See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”); see also United States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (per curiam) (unpublished), affirming United States v. Hambrick, 55 F. Supp. 2d 504, 508−09 (W.D. Va. 1999) (holding that there was no legitimate expectation of privacy in noncontent customer information provided to an internet service provider by one of its customers); Russo v. State, 228 S.W.3d 779, 802 (Tex. App.—Austin 2007, pet. ref’d) (stating that there is no Fourth Amendment protection against the disclosure of subscriber information by internet service providers). This is because “[i]ndividuals generally lose a reasonable expectation of privacy in their information once they reveal it to third parties.” Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); see also Barfield v. State, 416 S.W.3d 743, 748−49 (Tex. App.— Houston [14th Dist.] 2013, no pet.) (holding that defendant does not have a reasonable expectation of privacy in cell-site location data because defendant 5 voluntarily conveys information to third-party provider). “What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, the Supreme Court has consistently held that a “person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743−44. Because appellant did not have a reasonable expectation of privacy in his subscription information, ICE agents were not required to secure a warrant in order to obtain it. Appellant has failed to show that a motion to suppress would have been granted on this ground. See Jackson, 973 S.W.2d at 957. Search Warrant Affidavit Appellant also asserts that a motion to suppress should have been filed because the search warrant affidavit failed to set forth sufficient facts which could establish probable cause for possession of child pornography. Specifically, appellant contends that (1) his subscriptions to the websites did not establish probable cause for possession of child pornography, and (2) the information in the search warrant affidavit was stale. When reviewing the magistrate’s decision to issue a warrant, the court applies a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). A court does not analyze the affidavit in a hyper-technical manner. Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007). Instead, it interprets the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. Id. at 61. When in doubt, we defer to all reasonable inferences that the magistrate could have made. Id. If the magistrate had a 6 substantial basis for concluding that probable cause existed, a court will uphold the magistrate’s probable cause determination. McLain, 337 S.W.3d at 271. A search warrant must be accompanied by a sworn affidavit that sets forth substantial facts establishing probable cause. See Tex. Code Crim. Proc. art. 18.01(b). In addition, the affidavit must set forth sufficient facts to establish probable cause, showing that (1) a specific offense has been committed; (2) the specifically described item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense; and (3) the item is located at or on the person, place, or thing to be searched. Tex. Code Crim. Proc. art. 18.01(c). An affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. See State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). We look at the four corners of the affidavit in determining whether there is probable cause to search the identified locations. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). Appellant contends that the mere fact that he made four one-month purchases for child pornography websites fails to establish probable cause that he committed the offense of possession of child pornography. The affidavit alleged that a child pornography website known as “Home Collection” offered individuals monthly access to websites that provided images of child pornography for a specific fee. The affidavit provided that an individual using the email address of kgj01@hotmail.com purchased several one-month memberships to “Lust Collections,” “Hot Girl Photos,” “Real Lola Issue #2,” and “Plazmas Girls.” The memberships were $79.95 each, payable, via PayPal, to email addresses determined to be associated with a criminal organization that facilitated the processing of membership payments to commercial child pornography websites. 7 The affidavit further stated that PayPal provided the ICE agents with buyer contact information, which identified kgj01@hotmail.com as appellant. Considering the totality of the circumstances, the magistrate could have reasonably inferred from the facts set forth in the affidavit that appellant possessed child pornography. The magistrate could have reasonably concluded a probability existed that child pornography would be found at appellant’s residence. See State v. Cotter, 360 S.W.3d 647, 653 (Tex. App.—Amarillo 2012, no pet.) Appellant also argues that the information in the affidavit is stale because the affidavit was made two years after he purchased the subscriptions to the websites. To justify a magistrate’s finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become stale when a magistrate issues the search warrant. State v. Dugas, 296 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. Id. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant. Jones v. State, 364 S.W.3d 854, 861 (Tex. Crim. App. 2012). The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant is issued. Dugas, 296 S.W.3d at 116. The challenged affidavit was created on February 19, 2009. The affiant stated that she received the case as a result of a joint investigation into a criminal organization operating over eighteen commercial child pornography websites. The organization utilized PayPal accounts to process payments made by individuals 8 purchasing memberships to the child pornography websites. The affiant stated that records indicated that a PayPal account registered to appellant purchased four one- month memberships to the websites. The purchases were made on October 12, 2006, November 1, 2006, January 21, 2007, and January 25, 2007. The magistrate could have reasonably concluded that the pornographic images were still on appellant’s computer at his apartment at the time the warrant was issued. Federal courts have repeatedly recognized that in child pornography cases, collectors of child pornography tend to retain this material. See United States v. Cox, 190 F. Supp. 2d 330, 333 (N.D. N.Y. 2002); see also United States v. Ricciardelli, 998 F.2d 8, 12 n.4 (1st Cir. 1993) (noting that “[h]istory teaches that collectors [of child pornography] prefer not to dispose of their dross, typically retaining obscene materials for years”). Here, the affiant stated that “[p]eople who have a sexual interest in children or minors rarely, if ever, dispose of their sexually explicit materials.” See Steele v. State, 355 S.W.3d 746, 751 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (concluding that magistrate could have reasonably concluded defendant continued to be in possession of child pornography because affidavit proved “expert testimony that persons sexually attracted to children tend to collect sexually explicit photographs of children, treating the photographs as prized possessions, of which they rarely dispose”); see also Morris v. State, 62 S.W.3d 817, 823−24 (Tex. App.—Waco 2001, no pet.) (providing that where affidavit indicates activity of continuous nature, magistrate could have reasonably inferred that defendant had possession of pornography for substantial period of time, i.e., one-and-a-half years). Thus, the affidavit contained sufficient information from which the magistrate had a substantial basis under the totality of the circumstances for concluding that probable cause existed that the computer and hard drives at 9 appellant’s apartment contained child pornography. See Sanders v. State, 191 S.W.3d 272, 279−80 (Tex. App.—Waco 2006, pet. ref’d) (holding that information obtained two years before warrant executed was not stale); Burke v. State, 27 S.W.3d 651, 655 (Tex. App.—Waco 2000, pet. ref’d) (providing that information obtained one year before warrant executed was not stale). We conclude that the facts and circumstances submitted to the magistrate within the “four corners” of the affidavit provide a substantial basis for the magistrate’s conclusion that child pornography would probably be found at appellant’s apartment at the time the warrant was issued. Thus, the affidavit was sufficient to establish probable cause. Because appellant cannot show that a motion to suppress alleging these grounds would have been granted, appellant has failed to show that he received ineffective assistance of counsel. See Jackson, 973 S.W.2d at 957. Accordingly, the trial court did not abuse its discretion by denying appellant’s post-conviction writ of habeas corpus. CONCLUSION We overrule appellant’s issues and affirm the trial court’s judgment denying relief. /s/ Ken Wise Justice Panel consists of Justices Christopher, Donovan, and Wise. Publish — TEX. R. APP. P. 47.2(b). 10 EXHIBIT B. COA JUDGMENT August 18, 2015 JUDGMENT The Fourteenth Court of Appeals EX PARTE KERRY G. JONES, Appellant NO. 14-14-00488-CR NO. 14-14-00489-CR NO. 14-14-00490-CR ________________________________ This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order this decision certified below for observance.