Page 49 - Texas police Association Peace Officer Guide 2017

And indeed, empirical data seem to support the proposition that society recognizes the propriety
of assigning Fourth Amendment protection to the content of text messages: “Over 90%” of
respondents to a recent survey reported that they “felt that law enforcement should never have
access, or at least require a level commensurate with probable cause to obtain access to text,
multimedia, or voicemail messages on cell phones.”
All of this leads us to conclude that the content of appellant’s text messages could not be
obtained without a probable cause–based warrant. Text messages are analogous to regular mail
and email communications. Like regular mail and email, a text message has an “outside address
‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of
content that the sender presumes will be read only by the intended recipient.” Further, the State
presented no evidence that Metro PCS had any business purpose for keeping records of the
contents of its customers’ text messages. Therefore, we hold that appellant had a reasonable
expectation 7 of privacy in the contents of the text messages he sent. Consequently, the State
was prohibited from compelling Metro PCS to turn over appellant’s content-based
communications without first obtaining a warrant supported by probable cause.
After a review of the record as a whole, we find that the probable impact of the improperly-
admitted text messages was great. As we cannot determine beyond a reasonable doubt that the
text messages did not contribute to the jury’s verdict at the guilt phase, we hold that the error was
not harmless.
The judgment of the trial court is reversed, and the cause is remanded for a new trial.

th
Love, Jr. v. State, Ct. Crim. App., No. AP-77,024, Dec. 7 , 2016.
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REASONABLE SUSPICION – STOP & FRISK

The events leading to the arrest and conviction of Marcelo Monsivais occurred on the side of
Interstate 20 roughly midway between Abilene and Fort Worth, in Palo Pinto County, Texas. On
September 22, 2014, during daylight hours, Deputy John Baker of the Palo Pinto County
Sheriff’s Office and City Marshal Abel Saldana of Strawn, Texas, were on patrol in a marked
sheriff’s car traveling east on I-20 when they saw Monsivais walking east on the opposite side of
the Interstate away from an apparently disabled truck. Baker drove the squad car across the
median and headed back toward Monsivais to offer him roadside assistance, or as they put it, to
do a “welfare check.”
Baker stopped the squad car on the side of the highway facing Monsivais as he approached and
activated the car’s emergency lights as a traffic safety precaution. Monsivais, however, did not
stop but continued walking past the squad car in his eastbound direction (toward Fort Worth).
About the time Monsivais passed the back of the squad car, the officers exited and Baker began
asking Monsivais questions. Baker could not remember exactly what he said but thought his
questions were about where Monsivais was headed, where he had been, and if he needed any
help. The officers testified that Monsivais said he was heading to Fort Worth; that he appeared
nervous and jittery, but was polite in responding to the questions; and that he repeatedly put his
hands in his pockets, but took them out each time at Baker’s request.
Baker testified that after approximately four minutes, he told Monsivais that he was going to pat
Monsivais down for weapons “because of his behavior” and “for officer safety reasons.” After
being so informed, Monsivais told the officers that he had a firearm in his waistband. Saldana
grabbed Monsivais’s right hand, bent his arm behind him, and seized the firearm. Both officers

A Peace Officer’s Guide to Texas Law 44 2017 Edition