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free to leave and wasnt under arrest. By contrast, the officers in Cavazos told the suspect the interview was
non-custodial, an ambiguous statement that may not indicate to a layperson that he is free to leave. Second,
the officers in Wright did not immediately single out the suspect and never handcuffed him. In Cavazos, the
officers immediately ran to the suspects bedroom and handcuffed him, although they uncuffed him before
beginning the interview.

This case falls neatly between Wright and Cavazos on both of these dimensions. Milligan and Smith told
Ortiz he was not under arrest, but they did not explicitly tell him he was free to leave. Unlike the non-custodial
statement in Cavazos, their statements would suggest to a reasonable person that he was free to leave, but they
are less clear than the statements in Wright, which answered the question directly.
The same is true of the extent to which the agents singled out and hand-cuffed Ortiz. Milligan
immediately singled out Ortiz, but the agents did not cuff him until later, when they decided to frisk him. Unlike
the immediate singling-out and handcuffing in Cavazos, that approach indicated that the purpose of the encounter
was to speak with Ortiz, not to arrest him, but the fact that the agents eventually handcuffed him would suggest
to a reasonable person that he was not free to leave.

Two other considerations distinguish this case from Wright and Cavazos and show that Ortiz was not in
custody. The first is the manner in which Ortiz was detained. Milligan and Phan initially stopped him at a gas
station, and except for the fact that they briefly displayed their guns, the circumstances were similar to those of
an ordinary traffic stop, a situation in which a suspect is not in custody.
Moreover, Ortiz was near his vehicle and had his keys, so he had a readily available means to leave, a
fact that is highly relevant to whether a reasonable person would have felt free to depart.

[T]he parallels between Ortizs detention and an ordinary traffic stop, and the shorter length of the
interview differentiate this case from both Wright and Cavazos. Consequently, no Miranda warnings were
required, and the district court did not err by declining to suppress the statements.

th
U.S. v. Ortiz, 5 Cir. March 18 , 2015. No. 13-20564
th

EVIDENCE LINKING CELL PHONE TEXTS TO PERSON

Appellant was convicted of the aggravated kidnapping of his girlfriend, Ashley Salas. On direct appeal,
he complained that the trial court admitted certain text messages into evidence that Appellant claimed were not
properly authenticated. The State introduced the text messages through Salas, who testified that she recognized
Appellants phone number displayed on the text messages, that the text messages were from Appellant, and that
Appellant even called her from that phone number at some point during the course of their text messaging back
and forth.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent claims. TEX. R.
EVID. 901(a). In a jury trial, it is the jurys role ultimately to determine whether an item of evidence is indeed
what its proponent claims; the trial court need only make the preliminary determination that the proponent of the
item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is
authentic. The trial courts determination of whether the proponent has met this threshold requirement is subject
to appellate review for an abuse of discretion and should not be countermanded so long as it is within the zone
of reasonable disagreement.

The association of a cell-phone number with a particular individual might suggest that the owner or user of
that number may be the sender of a text message. Indeed, the suggestion may be quite strong. Unlike so-called
land lines, commonly utilized by an entire household, cell phones tend to be personal and user-specific.

A Peace Officer’s Guide to Texas Law 89 2015 Edition