Page 45 - May June 2019 TPA Journal

stain, a Beretta 9mm, and two boxes of 9mm that “the real-time tracking data appears to have
bullets. The Beretta 9mm was loaded, and there been used to track Appellant to exclusively public
was a bullet in the chamber. places . . . ,” and based on that, it reached the
conclusion that Appellant did not have a
In defense counsel’s motion to suppress, he legitimate expectation of privacy in “the location
alleged that accessing the real-time location of his cell phone in those locations.”
records stored in Appellant’s cell phone violated
the Fourth Amendment, Article I, Section 9 of the [the Supreme Court] recognized that the Fourth
Texas Constitution, and Article 38.23 of the Code Amendment also protects certain expectations of
of Criminal Procedure. At the hearing on the privacy, not just physical intrusions on
motion, defense counsel added that the evidence constitutionally protected areas. Under Katz, to
should have been suppressed because the police prove a Fourth Amendment violation, a defendant
violated the Stored Communications Act and must show (1) that the person had a subjective
Article 18.21, both of which deal with accessing expectation of privacy and (2) that the subjective
electronically stored data. The State responded expectation of privacy is one that society
that, even if Appellant did have an expectation of recognizes, or is prepared to recognize, as
privacy in the data stored on his phone, law reasonable. To resolve the expectation-of-privacy
enforcement had exigent circumstances to ping issue in this case, we must consider two different
Appellant’s cell phone to determine his lines of Supreme Court jurisprudence and the
whereabouts. Supreme Court’s recent decision in Carpenter.
We review that precedent now.
The trial court denied Appellant’s motion. In
written findings of fact and conclusions of law, the The first case we consider is Knottswhich was
court found that police had exigent circumstances decided in 1983. In that case, the police placed a
to ping Appellant’s cell phone pursuant to Article “beeper” into a five-gallon container of
18.21 of the Texas Code of Criminal Procedure. It chloroform, a chemical used as a precursor for
did not address his Fourth Amendment or Stored methamphetamine production. Through a
Communications Act claims. combination of visual surveillance and
information gathered from the “beeper,” police
(ed. note: discussion of the Federal Statute and tracked the container until it was delivered to
whether it provides a remedy of excluding Knott’s secluded cabin in Wisconsin. The
evidence is omitted. The Court held the Statute Supreme Court held that there was no Fourth
does not provide such a remedy.) Amendment search because “[a] person traveling
in an automobile on public thoroughfares has no
In addition to statutory violations, Appellant reasonable expectation of privacy in his
claims that the State violated the Fourth movements.” The Court reasoned that, “[s]ince
Amendment when it searched his cell phone to the movements of the vehicle and its final
obtain real-time tracking information and that the destination had been voluntarily conveyed to anyone
court of appeals erred when it held that he did not who wanted to look, Knotts could not assert a privacy
have an expectation of privacy in the real-time interest in the information obtained.” However,
CSLI records. The court of appeals reasoned that, although the Court said that use of the limited
even though a person might have an expectation of “beeper” information was not a Fourth Amendment
privacy in such records if they showed that he was search, it “reserved the question whether ‘different
in a private place, when the records reveal that he constitutional principles may be applicable’ if
is in a public place, he has no legitimate ‘twenty-four hour surveillance of any citizen of this
expectation of privacy in his physical movements country were possible.’”
or location. The court of appeals further stated

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