Sims v. State

526 S.W.3d 638

Christian Vernon SIMS, Appellant

v.The STATE of Texas, Appellee

No. 06-16-00198-CR.

Court of Appeals of Texas, Texarkana.

Date Submitted: June 30, 2017

Date Decided: July 20, 2017

Don Biard, McLaughlin, Hutchison & Biard LLP, Paris, TX, for Appellant.

Gary D. Young, Lamar County & District Attorney, Paris, TX, for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Chief Justice Morriss

Early in the afternoon of December 18, 2014, the body of Annie Sims was discovered on the back porch of her Powderly, Texas, home with a bullet in her head. Missing were Annie's live-in grandson, Christian Vernon Sims (Sims), his girlfriend, Ashley Morrison, Annie's vehicle, and Annie's purse, its contents including credit cards and at least one handgun. Officers suspected that the missing couple caused Annie's death and had taken the missing items from Annie's house. The officers' investigation was assisted by Sims' grandfather and Annie's husband, Mike Sims, as well as Sims' father, Matt.

Sims and Morrison were identified as having charged on Annie's credit card in McAlester, Oklahoma, shortly before the discovery of Annie's body. Starting around 5:00 p.m. that evening and without a warrant, officers had Sims' mobile carrier "ping" or track Sims' cellular telephone¹ by using information from cell towers along a highway in Oklahoma, Sims' northerly path of travel. Using the tracking data, officers learned, first, that Sims' cell phone was somewhere on that northbound highway, north of McAlester, and, later, at a Sapulpa, Oklahoma, truck stop located further north along the same highway. Oklahoma officers soon located Annie's vehicle in the parking lot of a motel across the highway from the truck stop. Armed with the license number from the vehicle, officers learned from the motel desk clerk that Sims and Morrison had rented room 275 in that motel. From that room, both suspects were arrested peacefully at approximately 8:25 p.m. At the motel, without being questioned, Sims told officers, among other things, "[Morrison] had nothing to do with it. It was all me."

After the denial of Sims' various motions to suppress evidence, he and the State entered into a plea agreement, under which Sims pled guilty to Annie's murder and was sentenced to thirty-five years' imprisonment. Having retained the right to appeal the denial of his motions to suppress and urging that at least one of his motions was erroneously denied, making Sims' plea of guilty allegedly involuntary, Sims appeals in three points of error. In the first two points, Sims claims that evidence discovered as a result of the warrantless "pinging" of his cellular telephone should have been suppressed because it both constituted a constitutionally unreasonable search and violated state and federal statutes. In his third point, Sims argues that the trial court should have also suppressed evidence discovered from the later, warrant-based, searches of his cellular telephone and Facebook account because the warrant affidavits were insufficient. Sims posits that, because he pled guilty only after his various motions to suppress had been denied, his conviction and sentence should be reversed and the case remanded to the trial court for further proceedings.

We affirm the trial court's judgment because (1) violations of the Federal Stored Communication Act (SCA) and of Article 18.21 of the Texas Code of Criminal Procedure do not require suppression of the evidence discovered thereby, (2) there was no constitutional violation from this reasonable search in pinging Sims' cell phone, and (3) the affidavits for the search warrants for Sims' cellular telephone data and his Facebook account data support the trial court's findings of probable cause.

(1) Violations of the Federal Stored Communication Act and of Article 18.21 of the Texas Code of Criminal Procedure Do Not Require Suppression of the Evidence Discovered Thereby

Sims argues that the warrantless pinging of his cellular telephone to locate him, as he and Morrison travelled north through Oklahoma, violated both the Federal SCA and its counterpart Texas statute, requiring suppression of all evidence discovered as a result of the pinging. See 18 U.S.C. § 2702 (2015), § 2703 (2009) ; TEX. CODE CRIM. PROC. ANN. art. 18.21 (West Supp. 2016).

We "review the trial court's legal rulings [on motions to suppress] de novo." State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) ; see Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The State argues that suppression of evidence is not a remedy available to Sims under either the state or the federal statute and directs us to the very recent case United States v. Wallace , 857 F.3d 685 (5th Cir. 2017). We agree that suppression is not a remedy for a non-constitutional violation of either statute.

The federal statute at issue here is the SCA, which is Title II of the Electronic Communications Privacy Act of 1986, as amended. See 18 U.S.C. §§ 2701 – 12 (SCA) ; see also Pub. L. No. 99–508, 100 Stat. 1848 (1986) (ECPA).² The SCA sets out terms under which government entities, including law enforcement agencies, may obtain disclosure of information from providers of electronic communications services, including mobile telephone carriers. See 18 U.S.C. § 2703.³ Without providing any exclusionary rule, the SCA provides for civil actions for violations of its terms and makes the "remedies and sanctions described in this chapter" exclusive. See 18 U.S.C. §§ 2707 (civil actions), 2708 (exclusivity of remedies).⁴

Parallel to the SCA is Article 18.21 of the Texas Code of Criminal Procedure, which sets out its terms for disclosure, provides for civil actions, but no exclusion of evidence, for its violation, and states that "[t]he remedies and sanctions described in this article are the exclusive judicial remedies and sanctions for a violation of this article other than a violation that infringes on a right of a party guaranteed by a state or federal constitution." See TEX. CODE CRIM. PROC. art. 18.21, §§ 4 – 5B (terms for disclosure), § 12 (cause of action), § 13 (exclusivity of remedies).

Therefore, suppression is not available to criminal defendants based on a violation of the SCA or of Article 18.21, so long as the violation is not also a violation of a constitutional right. Wallace , 857 F.3d at 689 ; United States v. Guerrero , 768 F.3d 351, 358 (5th Cir. 2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1548, 191 L.Ed.2d 643 (2015) ; United States v. German , 486 F.3d 849, 854 (5th Cir. 2007) ; see Love v. State , No. AP-77, –––S.W.3d ––––, –––– n.8, 2016 WL 7131259, at *7 n.8 (Tex. Crim. App. Dec. 7, 2016) (to suppress evidence for violation of SCA or Article 18.21, court must find constitutional violation).

Sims argues that, by its explicit terms, Article 38.23 of the Texas Code of Criminal Procedure requires suppression in this case:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

TEX. CRIM. PROC. CODE ANN. art. 38.23(a) (West 2005). Understandably, Sims reasons that a violation of either the federal or the state statute requires, under Article 38.23(a), exclusion of the evidence. We disagree, because of the rule of statutory construction that the specific should control the general in case of an irreconcilable conflict. While Article 38.23 clearly requires exclusion in the general case of a statutory or constitutional violation, the federal and state statutes specifically applicable to the pinging of Sims' cell phone say that suppression is not available. Here, the specific exclusivity of remedies in the two statutes control the general terms of Article 38.23. See Burke v. State , 28 S.W.3d 545, 547 (Tex. Crim. App. 2000) ; Mills v. State , 722 S.W.2d 411, 413–14 (Tex. Crim. App. 1986) ; Davidson v. State , 249 S.W.3d 709, 721 (Tex. App.—Austin 2008, pet. ref'd) ; see also Love , ––– S.W.3d at –––– n.8, 2016 WL 7131259, at *7 n.8.

We therefore overrule this point of error. Only if there was a constitutional violation should the trial court have suppressed the evidence found from pinging Sims' cell phone.

(2) There Was No Constitutional Violation from this Reasonable Search in Pinging Sims' Cell Phone

Sims also asserts that the State's warrantless use of the third-party data pertaining to the location of his cellphone was an unreasonable search in violation of the federal and state Constitutions. See U.S. CONST. amend IV ; TEX. CONST. art. 1, § 9. We disagree.⁵

Only in certain circumstances might an individual have a legitimate expectation of privacy in third-party information concerning the location of that individual's cell phone. In discussing the subject, courts have considered that location information can be of three basic types, (a) real-time tracking information, (b) intermediate-term information, and (c) long-term location information. They suggest that the safest, least controversial type of data is the intermediate-term information. For example, Texas precedent is that there is no legitimate expectation of privacy in four days' cell phone location information obtained from the carrier. Ford v. State , 477 S.W.3d 321, 334–35 (Tex. Crim. App. 2015).

Longer term, pattern data showing places an individual visits over an extended period of time is suspect, in that individuals may very well have legitimate expectations of privacy in such data, which maps out the patterns of their daily lives. Five Justices of the United States Supreme Court have agreed that "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." See United States v. Jones , 565 U.S. 400, 414, 132 S.Ct. 945, 181 L.Ed.2d 911 (Sotomayor, J., concurring), 431 (Alito, J., concurring in the judgment) (2012); see Ford , 477...