Ford v. State

477 S.W.3d 321

Jon Thomas Ford, Appellant

v.The State of Texas

NO. PD–1396–14

Court of Criminal Appeals of Texas.

Delivered: December 16, 2015

Cynthia E. Orr, San Antonio, for Appellant.

Jay Brandon, Assistant District Attorney, San Antonio, Lisa C. McMinn, State's Attorney, Austin, for the State.

NEWELL, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, HERVEY, ALCALA and RICHARDSON, JJ., joined.

Did the State's warrantless acquisition of four days worth of historical cell-site-location information—recorded by Jon Thomas Ford's cell-phone service provider—violate the Fourth Amendment? No. We agree with the San Antonio Court of Appeals that, because a third-party, AT & T, gathered and maintained the information as business records of the service provided to Ford's phone, Ford did not have a reasonable expectation of privacy in the data. The State did not violate Ford's Fourth Amendment rights when it obtained that information by way of a court order under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure -an order available on a showing short of probable cause. We will affirm.¹

I.

Appellant, Jon Thomas Ford, and the murder victim in this case, Dana Clair Edwards, started dating in 2007. The couple did not live together, but both lived in Alamo Heights. By mid-summer 2008 they were drifting apart. Dana Clair wanted to get married and have kids; appellant was planning on going back to college to get a teaching certificate. Dana Clair ended the relationship in September of 2008. Nevertheless, because appellant and Dana Clair ran in the same Alamo Heights circles, they wanted to remain friends, and their paths continued to cross.

On October 17, 2008, appellant held a 40th birthday party for himself, and he invited Dana Clair. According to appellant's lifelong friend, Alan Tarver, it was "amazingly" civil. The pair saw one another again at a Halloween party at the dog-wash shop of Alan's girlfriend, Melissa Federspill. On Saturday, December 20th, Melissa, Alan, Dana Clair, appellant and a few others rented a limousine to go look at Christmas lights. Appellant accompanied Dana Clair home to her condominium at 19 Gallery Court that night. On December 23rd, Dana Clair came by appellant's house at 333 Rosemary to pick up a Christmas present. She later told Melissa that, when she visited appellant on December 23rd, she ended up staying over there for five hours because he was so emotional. As a result, Alan ended up calling appellant to let him know that Dana Clair was going to be at one of the New Year's Eve parties he, appellant, and Melissa were planning to attend. According to Alan, "[Appellant] was fine. He was fine. It didn't seem to faze him at all."

On New Year's Eve, Melissa dropped Alan off at Roger Gragg's party around 8:30 p.m., and when Alan did not see appellant, he sent him a text saying, "Dude. I am at Roge[r]'s ... Donde [esta]?" Appellant was, by that time, on his way to Mary Minor's party to drop off crab dip. He called Alan from Mary Minor's house, drove back to Roger Gragg's party, and, after a couple of hours, appellant drove himself and Alan back to Mary Minor's party. There, they played a game called "Apples to Apples," with a group that included Dana Clair and Melissa.

During the game, appellant became slightly irritated when Melissa made "a fuss" regarding appellant's relationship with Dana Clair. As Melissa described it:

There was an incident during the party in which I–I think one of the cards was marriage. Now, at this time Alan and I were cohabitating and we were not married. So it was a sticky, a little sticky, and that, of course, was one of the sticky spots for [appellant] and Dana Clair.... I got very involved and thought this is a perfect time for me to let y'all know how I feel about your lackadaisical marriage behavior. So I–I made a fuss.... I pointed my finger at [appellant] and Alan.... There was a lot of words flying around and so I–I took the spotlight in saying, This one is for y'all.... There was a lot of laughter. I think it rubbed [appellant] the wrong way.... [H]e called me over to sit next to him to mention to me how it rubbed him the wrong way.

This led to a break in the game, and appellant left before midnight. At 11:31 p.m., Alan sent a text asking appellant why he left. Appellant replied, "No longer fun." Appellant did not respond to Alan's next text asking whether he was headed back to Roger's party. Alan's phone call fifteen minutes later went to voice mail.

Alan, Melissa, and Dana Clair left the party around 12:45 a.m. Alan and Melissa had appellant's cooler of beer so they drove to appellant's house intending to drop it off. Neither he nor Melissa saw appellant's white Chevy Tahoe parked at either of the places he normally parked-at the end of his driveway, or in the church parking lot behind his house-so they did not stop.

Once home, shortly after 1:00 a.m., Alan tried to contact appellant one last time, sending him a text saying, "Yo. Yer beer is with us. Talk to you mañana." The next morning appellant had a light-hearted text exchange with Alan, at first asking about having lunch at Neiman's, and then telling Alan he was going to skip Neiman's and head to Rockport.

On New Year's Day, Dana Clair's parents expected her out at their Fredericksburg ranch. They called her throughout the day, but were never able to reach her. Sensing something was wrong, they drove from the ranch to Dana Clair's condo. They found their daughter dead lying half in the office bathroom, half out. A white towel with blood on it had been draped over her face.

There was no sign of forced entry,² and nothing—save Dana Clair's two dogs—appeared to be missing,³ but the police believed it was a homicide because there were visible lacerations and indications of blunt force trauma to the head. The medical examiner later determined that Dana Clair had died from asphyxiation due to ligature strangulation.

San Antonio Police Department Detective Leroy Carrion was assigned the case on January 2, 2009. Det. Carrion contacted appellant the next day, and appellant volunteered to give a statement. In that statement, appellant said that he left Mary Minor's party around 11:30 p.m., that it took him less than five minutes to get home, and that he changed, went to bed, and was asleep before midnight. He said his Blackberry phone, which was fairly new, had been in his possession the entire night. According to appellant, nobody had used his phone or driven his white Chevy Tahoe except him.

Det. Carrion obtained video footage that seemed to undermine appellant's assertions. The drive-through exit camera from the First National Bank across the street from Dana Clair's condominium complex, Gallery Court, covered the New Braunfels Avenue–Nacogdoches Road intersection as well as the entrance to the complex. The camera captured footage of a white SUV, similar to appellant's Chevy Tahoe, go in and out of Gallery Court moments after appellant had left the New Year's Eve party. At 11:24 p.m., a white SUV, traveling south on New Braunfels crossed Nacogdoches and turned into Gallery Court and exited two minutes later. Then, at 11:26 p.m., the white SUV passed by Gallery Court again, pulling into the complex at 11:27 p.m. before exiting again at 11:30 p.m. and heading north on New Braunfels toward Nacogdoches.

According to Det. Carrion, a few moments after the vehicle traveled north on New Braunfels and disappeared from view, the surveillance camera captured a person walking from the north of the intersection, traveling south on New Braunfels on the sidewalk. This person wore light colored pants and a dark top, clothing consistent with what appellant had worn out that evening. The person entered the complex at Gallery Court at 11:42 p.m. At 1:00 a.m., Dana Clair's red Chevy Tahoe entered Gallery Court from the north. Though not captured on the tape, Dana Clair's neighbor, Jordan Christopher Hasslocher, said that around that time he was out walking his dog and he saw Dana Clair walking her dogs-Grit (a Jack Russell Terrier) and Toby (a Maltese/Terrier)-early that morning.

A couple of minutes after 2:00 a.m., the figure seen entering Gallery Court at 11:42 p.m. walked out of the complex and headed north on New Braunfels. At 2:07 a.m, a white SUV was again seen heading south on New Braunfels. At 3:12 a.m., the SUV later appeared heading north on New Braunfels-this time with its lights off-and again pulled into Gallery Court. Then, it exited at 3:16 a.m.

No one could definitively say that the white SUV belonged to appellant, or that appellant was the figure seen walking in the surveillance video. And Det. Carrion acknowledged that there were "dozens of white Tahoes or at least vehicles that look very similar to white Tahoes that traveled down and up New Braunfels just in the six hours that [he] concentrated on." But he said "there was the same one that keeps going in and out of Gallery Court." Det. Carrion said he recognized appellant's Tahoe because of its characteristics: "no luggage rack, side railings, black trim around the side, black handles, black rear-view mirrors, black tailgate lift handle."

On January 14th, the San Antonio District Attorney's Office filed an application under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure, and in accordance with the Stored Communications Act,⁴ for four days worth of historical cell-site-location information (CSLI) for appellant's cell phone from AT & T Wireless.

Kenneth Doll, the director of radio network engineering for the AT & T Wireless Network in South Texas, testified about these records. Doll explained that he could tell, "generally speaking," where a cell phone is located based upon data gathered from cell towers-historical cell-tower data. According to Doll, each cell-phone tower has three coverage areas referred to as sectors. When a person sets up a call, receives a call, or sends a text, the person does so in communication...