Page 35 - TPA Journal September- October 2017
P. 35
SEARCH & SEIZURE – PINTRAP, CELL SITE prospective cell site data. A state district court
DATA. judge granted the requested Ping Order for a
period of sixty days going forward. As a result,
Wallace is a confirmed member of Tango Blast, DPS discovered that Wallace’s phone had been
a Texas crime syndicate. As of 2015, Wallace turned off. Hallett reached out to his
had been convicted of five violent felonies. confidential informant and received a new
Wallace violated his probation and a warrant telephone number for Wallace within a few
was issued for his arrest. In two separate cases, days. Rodriguez then applied for and was
Wallace was charged with and pleaded guilty granted a second Ping Order for this new cell
to: (1) being a felon in possession of a firearm phone number. With this Ping Order, DPS
and (2) aiding and abetting retaliation against a obtained the approximate, real-time GPS
witness in a criminal investigation. In this location of Wallace’s cell phone from AT&T.
consolidated appeal, we are called on to Using this information, Hallett located Wallace
decide whether the district court erred in near a pond on private property off U.S.
denying Wallace’s motion to suppress. Because Highway 87 north of Victoria, Texas. Officers
we conclude that it did not, we AFFIRM in part arrested Wallace, discovering a Winchester
and DISMISS in part as MOOT. In doing so, we Super X .22 magnum caliber round of
expressly overrule a line of cases coming out of ammunition in his pocket, a black Bersa
the Southern District of Texas. In re Order Thunder .380 semi-automatic pistol at the edge
Authorizing Prospective and Continuous of the pond, and a box of ammunition for that
Release of Cell Site Location, 31 F. Supp. 3d pistol along with an empty holster in Wallace’s
889, 891-900 (S.D. Tex. 2014); In re App. for truck. Wallace was charged with being a felon
Pen Register & Trap/Trace Device with Cell Site in possession of a firearm.
Location Auth., 396 F. Supp. 2d 747, 756-65
(S.D. Tex. 2005). Once charged, Wallace moved to suppress the
evidence obtained during the execution of the
A confidential informant approached Shawn arrest warrant, including the pistol,
Hallett, a Special Agent with the Texas ammunition, and relevant testimony. He
Department of Safety (“DPS”). The informant argued that the Ping Order used to locate him
gave Wallace’s phone number to Hallett and was invalid because “1) the information
informed him that Wallace was a gang member provided to the State District Judge was
and a wanted fugitive living in Austin. When ambiguous, overbroad and conclusory and 2)
Hallett verified this information, he discovered law enforcement was not engaged in an
an outstanding arrest warrant. He then passed ‘ongoing criminal investigation’ of the
this information to DPS’s gang unit in Austin. Defendant.” He also argued that the statutes
DPS Agent Jose Rodriguez (with the help of an authorizing the Ping Order were
assistant district attorney) then sought a Ping unconstitutional. The district court denied
Order for authorization under both federal and Wallace’s motion, finding that suppression was
state law to (among other things) obtain the not a cognizable statutory remedy under Fifth
“locations of cell site towers being accessed Circuit precedent. The district court also
by” the cellular device linked to the number upheld the statutes as constitutional. Wallace
given by the confidential informant. This timely appealed.
information is referred to as “E911” or
Sept./Oct. 2017 www.texaspoliceassociation.com • 866-997-8282 29
