On April 12, 2017, the Texas Court of Criminal Appeals ruled that Article I, Section 9 of the Texas Constitution does not provide broader privacy rights than the Fourth Amendment to the U.S. Constitution.
The case involves G. Jerard Hankston who was convicted of the murder of a man that had been stalking his girlfriend for several months. The conviction led to a 20-year prison sentence.
Cell Phone Records and Location Data Help Secure Conviction
During the investigation of the stalker’s murder, law enforcement authorities secured Hankston’s cell phone records—call logs and cell site location information—from his carrier, Sprint. The officers did not have a warrant. They proceeded under Article 18.21 of the Texas Court of Criminal Procedure which allows law enforcement to request, and upon proper showing, secure a court order requiring a cell phone provider to disclose electronic customer data.
Through a sealed application for the § 18.21 court order, law enforcement said it believed that Hankston’s cell phone records would “assist [the] investigation by providing information as to who [Hankston] was in contact with on the date of the Complainant’s murder … [and] will also aid in proving/disproving the defendant’s whereabouts before and after the murder.”
Sprint surrendered the records which eventually led to Hankston’s arrest and subsequent conviction for murder.
Motion to Suppress Cell Phone Records
Prior to trial, Hankston’s attorney filed a motion to suppress the cell phone records. The State stipulated that the records had indeed been obtained without a warrant. The State, however, argued that§ 18.21 permitted law enforcement authorities to obtain those records with only a court order—and in this case the court had ordered Sprint to disclose Hankston’s cell phone records for the previous twelve months.
Hankston’s attorney, on the other hand, argued that the records were obtained in violation of the Fourth Amendment and Article I, Section 9 of the Texas Constitution. He also argued in the context of cell phone records as those sought and secured by law enforcement involving Hankston, the Texas Constitution provides “greater protection than the Fourth Amendment under these facts.”
The trial court denied the motion, finding no constitutional or statutory violation under either federal or state law or constitutions had occurred.
No Reasonable Expectation of Privacy for Location Data
Hankston’s attorney appealed to the Fourteenth Court of Appeals following his client’s conviction. That court on June 16, 2015 held:
“Appellant cannot successfully claim that the State’s acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy. The cell site records acquired by the State are simply business records memorializing appellant’s voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint’s network of cell towers. The fact that this data happens to reveal the general location of appellant’s cell phone, and presumably appellant himself, at given points in time is of no consequence to the legal analysis. The State’s action did not violate appellant’s Fourth Amendment right because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.”
No Reasonable Expectation of Privacy in Cell Phone Records
The Texas Court of Criminal Appeals agreed; specifically, that the Fourth Amendment does not provide a reasonable expectation of privacy in an individual’s cell phone records maintained by a service provider. The only question remaining was whether such a reasonable expectation of privacy could be found under Article I, Section 9 of the Texas Constitution. In rejecting Hankston’s claim, the appeals court cited two of its recent decisions involving cell phone-related searches: Love v. State and Ford v. State.
In Love, the court held that an individual does not have a “privacy right” to numbers dialed on their cell phones and that cell phone records, such as call logs and cell site locations, are not “constitutionally protected” under the Fourth Amendment. In Ford, the court held that an individual has “no legitimate expectation of privacy in records held by a third-party cell-phone company identifying which cell-phone towers communicated with his cell phone at particular points in the past.”
Essentially, the court held that cell phone records maintained by a service provider are “business records” that do not enjoy constitutional protection; that their disclosure is governed by statutory provisions and procedures. The court then concluded:
“Since we have long held that the Fourth Amendment and Art. I, § 9 both protect the same right to the same degree, and since we have recently held that the Fourth Amendment does not restrict law enforcement from obtaining cell phone records revealed to a third party, we come to the logical conclusion that Art. I, § 9 does not restrict law enforcement from obtaining cell phone records revealed to a third party.”
So much for privacy in the great state of Texas.