September 26, 2020

Texas Court Says State’s Constitution Protects Cell Site Location Info

The Texas Criminal Court of Appeals has looked at the Supreme Court’s Carpenter decision and decided it applies to cell site location info, even when that information was obtained by law enforcement years before the Supreme Court came to this conclusion. (via Courthouse News)

The location records obtained from AT&T without a warrant destroyed the accused murderer’s alibi. From the decision [PDF]:

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim’s house at the time of the murder.

Holder filed motions to suppress the CSLI, arguing the records were obtained without reaching the required “specific and articulable” suspicion standard set by the Stored Communications Act. He also argued it violated the Texas Constitution’s version of the Fourth Amendment, which reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Here’s where the investigator went wrong. There’s a defining line between “reasonable suspicion” and “probable cause.” The officer who approached AT&T apparently felt the terms were interchangeable and he could use whichever of those to obtain CSLI records.

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant’s cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause. After changing the phrase “reasonable suspicion” to “probable cause,” the petitioning officer took the new order to a judge, who signed it. According to the officer, “[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time . . . .”

The footnote attached to this paragraph notes the State admitted during oral arguments the request did not have “sufficient facts to establish probable cause.” Cutting corners isn’t acceptable when rights are on the line, no matter how heinous the crime.

The court says suppression is not the appropriate remedy for “non-Constitutional” violations of the Stored Communications Act. But it is likely the appropriate remedy when the Texas Constitution and the Supreme Court’s Carpenter decision are taken into consideration. The court undoes its own precedent to align the Texas Constitution with the US Constitution.

The question we must answer now is whether the Supreme Court’s analysis in Carpenter is persuasive, or whether we should take the position that Texas citizens have less privacy rights under the Texas Constitution than the United States Constitution based on a Supreme Court doctrine that even it has declined to apply to CSLI. We think that it makes more sense to adopt the Supreme Court’s reasoning in Carpenter and to no longer apply the third-party doctrine to CSLI records under Article I, Section 9.

Just because this court hasn’t examined a case directly on point with the Carpenter decision doesn’t mean Texans should have fewer rights just because they live in Texas.

The Supreme Court exhaustively analyzed the privacy issues implicated by CSLI, which we did not do in our original Hankston opinion, and we share the Court’s grave concerns about the Government’s ability to use a continuous, surreptitious, precise, and permeating form of surveillance to continually track its citizens’ every move retrospectively for up to five years. The same privacy concerns are implicated regardless of whether CSLI is accessed under the Fourth Amendment or Article I, Section 9. Further, we have reviewed the constitutional debates in Texas, which we did not previously do, and they show no intention on the part of our framers for Texas citizens to have less protection from unreasonable searches and seizure under the Texas Constitution than the United States Constitution.

Under the Texas Constitution, the search was unreasonable.

Generally, an Article I, Section 9 search is unreasonable absent probable cause, exigent circumstances, or some other recognized law-enforcement need. Here, because the State was acting in its traditional crime-fighting role, and it did not allege exigent circumstances or some other recognized law-enforcement need, the search had to be supported by probable cause to be reasonable. However, the State concedes that the petition does not support a probable cause finding. We agree.

This doesn’t automatically lead to suppression of the CSLI records. But it does overturn two previous decisions by the lower courts. It heads back to the county’s court of appeals for the judge to decide whether the illegally-obtained records gave the prosecution an unearned edge. Whatever the court decides, the rule is in place: the third-party doctrine does not apply to historical CSLI. Get a warrant.
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