Sims, Christian Vernon
Sims, Christian Vernon
Opinion
Christian Vernon Sims, Appellant, was charged with murder. He filed a pretrial motion to suppress evidence of real-time location information used to track his cell phone by "pinging" it without a warrant. 1
*637 Using that information, police found and arrested Appellant. In his motion to suppress, Appellant argued that the police violated the Fourth Amendment when they searched his phone for real-time location information. He also contended that the search violated the Stored Communications Act (the SCA), a federal law, and articles 18.21 and 38.23(a) of the Texas Code of Criminal Procedure. 2 The trial court denied Appellant's motion, and Appellant pled guilty pursuant to a plea bargain. The judge sentenced him to 35 years' confinement. As part of the agreement, he reserved the right to appeal the trial court's ruling. The court of appeals affirmed the ruling of the trial court. Appellant filed a petition for discretionary review, which we granted on two grounds: (1) whether suppression is a remedy for a violation of the SCA or Article 18.21, and (2) whether a person is entitled to a reasonable expectation of privacy in real-time CSLI records stored in a cell phone's electronic storage. 3
We conclude that suppression is not an available remedy under the Stored Communications *638 Act unless the violation also violates the United States Constitution. And suppression is not an available remedy for a violation of Article 18.21 unless the violation infringes on the United States or Texas constitutions. We further conclude that, under the facts of this case, Appellant did not have an expectation of privacy in the real-time location information stored in his phone. We affirm the judgment of the court of appeals.
FACTS
On December 18, 2014, Annie Sims (Appellant's grandmother), was found dead on the porch of her home in Lamar County. She had been killed by a single gunshot to the back of her head. Mary Tucker, Annie's mother, discovered her daughter's body and called 911. Annie was lying face down on the back porch in a pool of blood. Detective Jonathan Smith of the Lamar County Sheriff's Office responded, and he contacted Tucker, who identified the body as that of her daughter. Lieutenants Joe Tuttle and Joel Chipman also spoke to Tucker, who told them that Annie's 2012 Silver Toyota Highlander was missing from the driveway and that Appellant (her great-grandson) and his girlfriend, Ashley Morrison, were possible suspects. Police searched the property and discovered that, in addition to the Highlander and Annie's purse, a Beretta 9mm handgun and a .38 Special revolver were also missing.
When Mike Sims (Annie's husband) arrived home, he spoke to police, who told him about the missing purse. Mike called Capitol One to report credit cards from Annie's purse as stolen, and a company representative told him that they had been used three times, including once at a Wal-Mart in McAlester, Oklahoma (about 80 miles north of Powderly, Lamar County, Texas). Police in Texas contacted the McAlester Police Department and asked them to go to the Wal-Mart to investigate. Officers discovered that a young man and woman, who used a credit card stolen from Annie's purse, bought some items and left in a 2012 Silver Toyota Highlander. McAlester police took pictures of the man and woman from security footage and texted them to Texas law enforcement. Appellant's grandfather identified the two people as his grandson and Morrison.
Chief Deputy Jeff Springer from the Lamar County Sheriff's Office thought that there was probable cause to believe that Appellant committed the felony offenses of murder, burglary of a habitation, unauthorized use of a motor vehicle, and credit card abuse based on all the information he had. He also believed that Appellant and Morrison were a danger to the public because they were likely armed. Springer returned to the Lamar County Sheriff's Office to obtain a warrant to "ping" Appellant's and Morrison's cell phones.
4
Back in the office, however, Springer discovered that another officer, Sergeant Steve Hill, had already begun the process to ping the cell phones. According to Springer, he could have obtained a warrant because it was during business hours and local judges were readily available, but he did not because he was told not to do so. Instead of seeking a warrant, Hill used an "EMERGENCY SITUATION DISCLOSURE" form provided by Verizon Wireless (Verizon), Appellant's service provider. Below the title of the document, the form states that, "Upon receipt of this completed form, Verizon[ ] may divulge records or other information to governmental entities in certain
*639
emergencies, pursuant to
According to Hill, there was a 20-minute delay from when Appellant's phone was "pinged" and when the police received real-time location information. The real-time CSLI from the first ping showed that the phone was a few miles north of the Wal-Mart where the Capitol One credit card was used. Because of the 20-minute delay, Hill used Google Maps to estimate where Appellant and Morrison probably were, assuming that they continued in the same direction. 6 Hill called ahead to three different Oklahoma police departments to request that they look for Appellant and Morrison. The police found them based on information from a ping, which showed that Appellant's phone was at a truck stop off of the Indian Nation Turnpike. Police located Appellant and Morrison at a motel across the street from the truck stop.
Officers spoke to the motel manager and identified which room Appellant and Morrison were staying in. Both suspects were taken into custody without incident. Appellant told an officer that "[Morrison] had nothing to do with it. It was all me." After searching the motel room, among other things, the police discovered several hundred .22-caliber bullets, six knives, a white towel with a blood stain, a Beretta 9mm, and two boxes of 9mm bullets. The Beretta 9mm was loaded, and there was a bullet in the chamber.
MOTION TO SUPPRESS
In defense counsel's motion to suppress, he alleged that accessing the real-time location records stored in Appellant's cell phone violated the Fourth Amendment, Article I, Section 9 of the Texas Constitution, and Article 38.23 of the Code of Criminal Procedure. At the hearing on the motion, defense counsel added that the evidence should have been suppressed because the police violated the Stored Communications Act and Article 18.21, both of which deal with accessing electronically stored data. The State responded that, even if Appellant did have an expectation of privacy in the data stored on his phone, law enforcement had exigent circumstances to ping Appellant's cell phone to determine his whereabouts. 7
The trial court denied Appellant's motion. In written findings of fact and conclusions *640 of law, the court found that police had exigent circumstances to ping Appellant's cell phone pursuant to Article 18.21 of the Texas Code of Criminal Procedure. 8 It did not address his Fourth Amendment or Stored Communications Act claims.
STANDARD OF REVIEW
We review a ruling on a motion to suppress using a bifurcated standard of review.
Guzman v. State
,
STATUTORY CONSTRUCTION
Statutory construction is a question of law, which we review
de novo
.
Ramos v. State
,
STATUTORY CLAIMS
A. The Stored Communications Act and Article 18.21
Appellant argues that real-time location data obtained at the behest of the State must be suppressed under Article 38.23(a) if it is obtained in violation of the Stored Communications Act or Article 18.21 of the Code of Criminal Procedure, the state-law corollary of the SCA. TEX. CODE CRIM. PROC . art. 38.23(a) ("[n]o evidence obtained by an officer or other person in violation of any ... laws of the State of Texas, or of the ... laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.").
Article 38.23(a) is a general statutory suppression remedy. Unlike Article 38.23(a), the Stored Communications Act and Article 18.21 are detailed statutes that
*641
address the collection of cell phone subscriber records, like the real-time location information at issue here. Both the SCA and Article 18.21 also contain exclusivity clauses. That is, both statutes contain provisions stating that, absent a federal constitutional violation (the SCA) or a federal or state constitutional violation ( Article 18.21 ), the only available judicial remedies are those provided for in the statutes.
9
Appellant argues that those provisions are ambiguous because they do not specifically prohibit the invocation of a statutory remedy, such as Article 38.23(a). We disagree. A statute need not be that specific. There is no requirement for Congress or the legislature to individually exclude each possible federal and state remedy in lieu of including an exclusivity provision. 10 At any rate, we think such a comprehensive requirement would be ill-conceived and difficult, if not impossible, to comply with. We conclude that the language of the provisions is plain and that effectuating that language does not lead to absurd results. 11
*642 B. Can the Exclusivity Language of the Stored Communications Act and Article 18.21 Be Reconciled with the Language of Article 38.23(a) ?
The next question is whether the plain language of the exclusivity provisions in the Stored Communications Act and Article 18.21 control or whether Article 38.23(a) controls in this situation. Appellant contends that Article 38.23(a) should prevail, relying on the expansive language of the statute. But we conclude that the statutes can be harmonized and each given effect by applying the "general versus the specific" canon of statutory construction. See TEX. GOV'T CODE § 311.026 (a) ("If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both."); ANTONIN SCALIA & BRYAN GARNER , READING LAW at 183 (2012) [hereinafter Reading Law].
The "general versus the specific" canon of statutory construction stands for the proposition that "[i]f there is a conflict between a general provision and a specific provision, the specific provision prevails ...." as an exception to the general provision. Reading Law at 183. "The specific provision does not negate the general one entirely, but only in its application to the situation that the specific provisions cover."
*643 FOURTH AMENDMENT CLAIM
In addition to statutory violations, Appellant claims that the State violated the Fourth Amendment when it searched his cell phone to obtain real-time tracking information and that the court of appeals erred when it held that he did not have an expectation of privacy in the real-time CSLI records. The court of appeals reasoned that, even though a person might have an expectation of privacy in such records if they showed that he was in a private place, when the records reveal that he is in a public place, he has no legitimate expectation of privacy in his physical movements or location.
Sims
, 526 S.W.3d at 644. The court of appeals further stated that "the real-time tracking data appears to have been used to track Appellant to exclusively public places ...," and based on that, it reached the conclusion that Appellant did not have a legitimate expectation of privacy in "the location of his cell phone in those locations."
Id.
at 644 (citing
United States v. Knotts
,
a. Applicable Law
The threshold issue in every Fourth Amendment analysis is whether a particular government action constitutes a "search" or "seizure" within the meaning of the Amendment.
United States v. Jacobsen
,
1. Physical Movements & Location
The first case we consider is
Knotts
,
In
Jones
, a case decided three decades after
Knotts
, the Supreme court addressed the "sophisticated surveillance of the sort envisioned in
Knotts
," when the FBI remotely monitored the movements of Jones's vehicle via an attached GPS tracking device for 28 days.
Carpenter
,
2. Third Party Doctrine
In
United States v. Miller
,
In
Smith v. Maryland
, police asked a telephone company for permission to install a pen register at its offices to record numbers dialed from a telephone at Smith's home.
Smith
,
In
Carpenter
, the Supreme Court considered whether a person has a legitimate expectation of privacy in historical CSLI records.
Carpenter
,
b. Analysis
Even though Carpenter dealt with historical CSLI, not real-time location information, we believe that the Court's reasoning in Carpenter applies to both kinds of records. 15 In these contexts, the Supreme Court has discredited the application of the third-party doctrine ( Smith ) as well as the public-thoroughfare rule ( Knotts ). In light of that, we now know that the court of appeals's reliance on Smith and Knotts was misplaced. 16 Whether a particular government action constitutes *646 a "search" or "seizure" does not turn on the content of the CSLI records; it turns on whether the government searched or seized "enough" information that it violated a legitimate expectation of privacy. There is no bright-line rule for determining how long police must track a person's cell phone in real time before it violates a person's legitimate expectation of privacy in those records. Whether a person has a recognized expectation of privacy in real-time CSLI records 17 must be decided on a case-by-case basis.
Here, Appellant did not have a legitimate expectation of privacy in his physical movements or his location as reflected in the less than three hours of real-time CSLI records accessed by police by pinging his phone less than five times.
18
Five justices on the United States Supreme Court have supported the idea that longer-term surveillance might infringe on a person's legitimate expectation of privacy if the location records reveal the " 'privacies of [his] life,' " but this is not that case.
Carpenter
,
CONCLUSION
Having overruled Appellant's grounds for review, we affirm the judgment of the court of appeals.
In
United States v. Riley
,
Cell-phone location tracking refers to all methods of tracking a cell phone, including gathering cell-site location information (commonly referred to as CSL or CSLI) and tracking satellite-based Global Positioning System (GPS) data. CSL data [is] generated when a cell phone connects with a cell tower in order to make or receive a call; a phone may connect to and disconnect from multiple towers during the course of a phone call if, for example, the caller is in motion during the call. GPS data, on the other hand, do[es] not come from a cell tower. Rather, GPS data reveal[s] the latitude and longitude coordinates of the cell phone, regardless of whether a call is in progress, as identified by satellites orbiting the Earth that connect to the phone. A cell phone's GPS location can be identified so long as the phone has GPS functionality installed (as smartphones almost universally do), the phone is turned on, and the GPS functionality is not disabled. Finally, "pinging" is a word that may refer in some contexts to a cell phone's connecting to a cell tower (e.g., "the phone pinged the tower"), and in other contexts to a service provider's act of proactively identifying the real-time location of the cell phone when the cell phone would not ordinarily transmit its location on its own (e.g., "AT & T pinged the phone").
The SCA and Article 18.21 govern when a cell phone service provider can ping a person's cell phone on behalf of the government to determine the location of a phone.
Specifically, the grounds for review state that,
The Court of Appeals erred by ruling that under Tex. Code Crim. Proc. Art. 38.23(a), violations of the Federal Stored Communication Act ("SCA") and Tex. Code Crim. Proc. Art. 18.21 do not require suppression of evidence pertaining to the warrantless pinging of a cell phone because: (1) the plain-language of Tex. Code Crim. Proc. Art. 38.23(a) states that no evidence obtained by an officer or other person in violation of any provisions of Texas or federal law shall be admitted in evidence against the accused; (2) Tex. Code Crim. Proc. Art. 38.23(a) is intended to provide greater protection than the Fourth Amendment; and (3) it is irrelevant that the SCA and Tex. Code Crim. Proc. Art. 18.21 do not provide that suppression is available since they are laws of Texas and the United States, and neither prohibits suppression of illegally obtained evidence under Art. 38.23(a).
The Court of Appeals erred by holding that Appellant was not entitled to a reasonable expectation of privacy in the real-time, tracking-data that was illegally seized because under the Fourth Amendment and Tex. Code Crim. Proc. Art. 38.23(a), a person has a legitimate expectation of privacy in real-time tracking-data regardless of whether he is in a private or public location.
Police "pinged" both phones, but they determined that the locations reported by Morrison's phone were inaccurate because the phone "was jumping f[a]rther than it could be [ ] in the light of time, so they kind of ruled it as a false ping."
Section 2702(b) is inapplicable because it deals with the voluntary disclosure of
the contents
of electronic communications.
Appellant's phone appeared to be headed north on the Indian Nation Turnpike in Sapulpa, Oklahoma.
Whether Appellant had standing was also litigated at the hearing. In its findings of fact and conclusions of law, the court determined that Appellant had standing even though his father was the named subscriber on the Verizon account. We did not grant review of this issue, and the State does not argue to this Court that Appellant does not have standing, so we do not address the issue.
The phrase "exigent circumstances" does not appear in Article 18.21. The provision to which the trial court apparently referred was Article 18.21 § 5(a). That provision states that "[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 reasonable belief that the information sought is relevant to a legitimate law enforcement inquiry." Tex. Code Crim. Proc . art. 18.21 § 5(a).
Remedies for violations of the Stored Communications Act include civil actions and sometimes administrative discipline against federal employees.
See, e.g.
,
United States v. Wallace
,
See supra
, note 10. Congress has enacted statutory suppression rules, such as in the federal wiretap act, but it did not include one in the SCA.
We also observe that the broad language of Article 38.23(a) already appears to apply to violations of the SCA and Article 18.21 because "[n]o evidence obtained by an officer or other person in violation of ... [the] laws of the State of Texas, or of the ... laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."). Yet, the legislature included a statutory suppression rule within Article 18.21, although it is not applicable here. Tex. Code Crim. Proc . art. 18.21 § 3(d) (suppression rule for emergency installation and use of pen registers and trap and trace devices). There would be no need for the legislature to include a statutory suppression rule if it intended for Article 38.23(a) to control because suppression would be a remedy for all violations of the SCA and Article 18.21. The only way to reasonably interpret the statutes, then, and to give effect to each of them, is to conclude that Article 38.23(a) is a general suppression remedy, Article 18.21's exclusivity provision prevails as an exception to Article 38.23(a), and Article 18.21's statutory suppression rule dealing with the emergency installation and use of pen registers and trap and trace devices is an "exception" to the exclusivity clause because it is a remedy provided for by the statute.
Appellant also asserts that, because prosecutors may elect between general and specific statutes when choosing how to prosecute an offense, a defendant should be able to invoke Article 38.23(a) because "it is more general and broad than many statutes or provisions that provide relief." It is true that we have often applied the "general versus specific" statutory-construction canon when dealing with criminal offenses that are
in para materia
, as Appellant alludes to, but those cases are not applicable here.
See, e.g.
,
Azeez v. State
,
We have said that two criminal offenses that are not
in para materia
should not be read together; they apply independently of each other.
Cheney
,
If this Court reached the conclusion that Article 38.23(a) prevails, we would also necessarily have to conclude that Congress and the legislature had no intent for the exclusivity statutory provisions to be effective. That runs counter to the presumption-against-ineffectiveness canon of statutory construction. Reading Law at 63-65. There would be no need to include provisions in a statute that Congress or the legislature intended to have no effect.
Olmstead v. United States
,
We see no difference between the two for purposes of applying the third-party doctrine and for determining whether a person has a legitimate expectation of privacy in his physical movements and location.
Carpenter
,
The expectation-of-privacy analysis is likewise no different. Whether a person has an expectation of privacy in the amount of historical CSLI records accessed or real-time CSLI records accessed turns on the significance of the invasion of a protected privacy interest.
See
In
Ford
, we held that the warrantless search of four days of historical CSLI did not violate the Fourth Amendment. We reasoned that Ford did not have an expectation of privacy in the records because he agreed to voluntarily turn them over to the cell phone service provider when he subscribed to the service.
Ford
,
For example, the Supreme Court noted in
Carpenter
that the police violated a recognized expectation of privacy when they accessed
at least
seven days of Carpenter's CSLI. What it meant by that statement is not totally clear. The Court might have meant that accessing less than seven days of historical CSLI
could
also violate a legitimate expectation of privacy, but that it did not need to address the issue because seven days was sufficient to decide the issue, or it might have meant that a person has a recognized expectation of privacy in seven days or more of CSLI, but no less.
Carpenter
,
It is not clear from the record exactly how many times Appellant's phone was pinged, but it was less than five. Verizon first pinged Appellant's phone between 5:00 p.m. and 5:30 p.m., and Appellant was taken into custody at 8:25 p.m.
Reference
- Full Case Name
- Christian Vernon SIMS, Appellant v. the STATE of Texas
- Cited By
- 82 cases
- Status
- Published