Texas court addresses cellphone tracking in digital age privacy case

Dealing once again with privacy rights in the digital age, the state’s highest criminal court has upheld the murder conviction of a Lamar County man who argued that police violated his rights when they “pinged” his cellphone to find his real-time location without a search warrant.

It was the Texas Court of Criminal Appeals’ first in-depth foray into a developing area of law since the U.S. Supreme Court ruled last summer that privacy rights extend to cellphone information that shows a person’s location and movement.

The Texas case involves Christian Sims, who is serving a 35-year prison term for the December 2014 shooting death of his grandmother, Annie Sims, on the porch of her home.

Now 20, Sims was arrested in Oklahoma after cellphone data provided by Verizon Wireless placed him at a motel off the Indian Nation Turnpike. Lamar County sheriff’s officials, fearing Sims was armed and a danger to the public, had faxed a Verizon-provided “Emergency situation disclosure” to the company, which responded by divulging the location of Sims’ cellphone several times while Oklahoma police closed in.

The controversy arose after a sheriff’s official acknowledged that there had been time to seek a search warrant from a judge, but officers went directly to Verizon instead.

Defense lawyers moved to have evidence related to the cellphone search withheld from Sims’ trial. When the district judge refused, Sims pleaded guilty in a deal with prosecutors that included a 35-year sentence and preserved his right to appeal issues related to the cellphone evidence.

Expectation of privacy?

Sims, however, lost the next round when a state appeals court declined to order a new trial with the search evidence suppressed, so he appealed again.

Last year, the Court of Criminal Appeals agreed to hear Sims’ case to determine if suspects have a reasonable expectation of privacy when it comes to real-time cellphone location records.

Sims’ lawyers argued that the Supreme Court, in June’s ruling in Carpenter v. U.S., acknowledged that cellphone owners have a Fourth Amendment right that protects their location information from unreasonable searches and seizures by the government.

In a 5-4 ruling, the high court said investigators should have obtained a search warrant before accessing at least seven days of cellphone data that placed Timothy Carpenter near the scene of armed robberies in Michigan and Ohio.

Although the ruling applied to cellphone data that tracked Carpenter’s past movements in history, lawyers for Sims argued that the same principles should apply to the Texas case, even though police tracked Sims using real-time location information.

“A cell phone — almost a feature of human anatomy — tracks nearly exactly the movements of its owner,” defense lawyers told the Court of Criminal Appeals in a legal brief, adding that phones follow their owners into homes, doctor’s offices, political headquarters “and other potentially revealing locales.”

Whether police are seeking historic or real-time data, the records are obtained the same way and reveal the same private information, the lawyers argued.

Armed and dangerous

Lamar County prosecutors acknowledged that under the Carpenter ruling, Sims had a reasonable expectation that his phone records were private.

That, however, did not mean investigators acted improperly when they gained access to his phone records without a warrant, they added.

Officers, told that two handguns were missing from Annie Sims’ house, reasonably believed that Christian Sims — identified as a credible suspect in her shooting death — was armed and dangerous. An alert that a man matching Sims’ description had used a credit card owned by Annie Sims in an Oklahoma Walmart indicated that he was fleeing, they told the Texas court.

“The exigencies of the situation made the needs of law enforcement in Lamar County so compelling that a warrantless search of (cellphone data) was objectively reasonable under the Fourth Amendment,” prosecutors argued.

Writing for the unanimous Court of Criminal Appeals in a ruling delivered Wednesday, Judge Barbara Hervey acknowledged that the Carpenter ruling applies to real-time phone location data as well as historical records.

The important distinction, however, isn’t the type of information sought, it’s how much, she wrote.

“Whether a particular government action constitutes a ‘search’ or ‘seizure’ does not turn on the content of the (cellphone) records; it turns on whether the government searched or seized ‘enough’ information that it violated a legitimate expectation of privacy,” Hervey wrote.

No clear standard set

The ruling declined to provide Texas courts and law enforcement with a bright-line rule on when search warrants are required to track a cellphone, saying the question must be answered on a case-by-case basis.

In the Carpenter ruling, the Supreme Court determined that the police violated a recognized expectation of privacy when they accessed at least seven days of Carpenter’s cellphone data, Hervey said.

“What it meant by that statement is not totally clear,” Hervey added, noting that the Supreme Court did not specifically say that accessing less than seven days of historical data also could violate privacy rights.

In Sims’ case, however, the Texas court said no warrant was needed because the suspect had no expectation of privacy because law enforcement accessed less than three hours of real-time cellphone records.

“Five justices on the United States Supreme Court have supported the idea that longer-term surveillance might infringe on a person’s legitimate expectation of privacy if the location records reveal the ‘privacies of his life,’ but this is not that case,” Hervey wrote.

The ruling followed several other Court of Criminal Appeals decisions since cellphones became an integral part of life, including:

• Texas v. Granville, 2014, which found that police improperly searched a Huntsville student’s cellphone without a warrant, even though the device was in a jail property room, because the devices frequently contain the most intimate details of a person’s life, including texts, emails, bank records, medical information, photos and videos.

• Ford v. Texas, 2015, which found no expectation of privacy when police accessed four days of cellphone location data without a warrant because the information was owned by the phone company, not the customer. The Supreme Court ruling in Carpenter, however, rejected that line of reasoning, known as the third-party doctrine, and it no longer applies, the Texas court has acknowledged.

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