NO. PD-1396-14

JON THOMAS FORD, 

 Appellant 

v.

THE STATE OF TEXAS,

 Appellee 

 

APPELLEE‟S BRIEF ON THE MERITS 

AFTER GRANTING OF 

DISCRETIONARY REVIEW 

In the Court of Appeals for the 

Fourth Court of Appeals District of Texas 

at San Antonio 

_____________________________________________________________ 

On appeal from the Fourth Court of Appeals, 

No. 04-12-00317-CR, and the 186th District Court of 

Bexar County, Trial Court No. 2010-CR-7741, 

Honorable Maria Teresa Herr, Judge Presiding 

_______________________________________________________________ 

 NICHOLAS “NICO” LaHOOD 

 Criminal District Attorney 

 Bexar County, Texas 

 CATHERINE BABBITT 

 KIRSTA MELTON 

 KATHERINE CUNNINGHAM 

 Assistant District Attorneys 

 JAY BRANDON 

 Assistant District Attorney 

 SBN 02880500 

 101 W. Nueva 

 San Antonio TX 78205 

 (210) 335-2418 

 jay.brandon@bexar.org 

PD-1396-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/7/2015 9:43:23 AM

Accepted 4/8/2015 8:25:15 AM

ABEL ACOSTA

CLERK
2

TABLE OF CONTENTS

 Page

INDEX OF AUTHORITIES 3

STATEMENT OF THE CASE 4

STATEMENT OF PROCEDURAL HISTORY 4

GRANTED GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE

WHETHER A WARRANTLESS

SEARCH OF INVOLUNTARILY

CONVEYED HISTORICAL CELL

TOWER DATA IS AN ILLEGAL SEARCH 4

GROUND FOR REVIEW TWO

THE COURT OF APPEALS’ HOLDING,

THAT CELL TOWER DATA INFORMATION

CONVEYED FROM A PHONE INVOLUNTARILY,

IS PUBLIC INFORMATION UNDER THE

THIRD PARTY RECORD DOCTRINE; [sic]

IS CONTRARY TO RICHARDSON V. STATE. 4

STATE’S RESPONSE

THE COURT OF APPEALS CORRECTLY 

HELD THAT FORD COULD NOT COMPLAIN

OF RECORDS PROPERLY ACQUIRED BY

COURT ORDER FROM A THIRD PARTY. 5

(A third ground for review was not granted.)

PRAYER FOR RELIEF 15

CERTIFICATE OF COMPLIANCE 16

CERTIFICATE OF SERVICE 16
3

INDEX OF AUTHORITIES

 Page

Ford v. State, 444 S.W.3d 171 (Tex.App. –San Antonio 2014, 

pet. granted) passim

In re Application of the U.S. for Historical Cell Site Data, 

724 F.3d 600 (5th Cir. 2013) 8

Richardson v. State, 865 S.W.2d 844 (Tex.Crim.App. 1993) 5

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 

61 L.Ed. 220 (1979) 8

State v. Granville, 423 S.W.3d 399 (Tex.Crim.App. 2014) 9

United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) 7

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081,

75 L.Ed.2d 55 (1983) 6
4

STATEMENT OF THE CASE

This was a murder trial, in which Appellant Jon Thomas Ford was found

guilty by a jury. The jury assessed punishment at imprisonment for forty years. 

STATEMENT OF PROCEDURAL HISTORY

On August 20, 2014, the Fourth Court of Appeals handed down an opinion 

overruling Appellant‟s eighteen points of error and affirming his conviction. The 

majority opinion by Justice Marialyn Barnard was joined by Chief Justice Stone. 

Ford v. State, 444 S.W.3d 171 (Tex.App. –San Antonio 2014, pet. granted). 

Justice Chapa wrote a dissent, on the issue now before this Court.

On February 4, 2014, this Court granted review of Appellant‟s first two 

grounds for review, including oral argument. A third ground was not granted. This 

brief follows the filing of Appellant‟s brief on the merits on March 24, 2015.

GRANTED GROUND FOR REVIEW ONE

WHETHER A WARRANTLESS

SEARCH OF INVOLUNTARILY

CONVEYED HISTORICAL CELL

TOWER DATA IS AN ILLEGAL SEARCH

GRANTED GROUND FOR REVIEW TWO

THE COURT OF APPEALS’ HOLDING,

THAT CELL TOWER DATA INFORMATION

CONVEYED FROM A PHONE INVOLUNTARILY,

IS PUBLIC INFORMATION UNDER THE

THIRD PARTY RECORD DOCTRINE; [sic]

IS CONTRARY TO RICHARDSON V. STATE.
5

STATE’S RESPONSE

THE COURT OF APPEALS CORRECTLY

HELD THAT FORD COULD NOT COMPLAIN

OF RECORDS PROPERLY ACQUIRED BY

COURT ORDER FROM A THIRD PARTY.

TO THE HONORABLE JUDGES OF SAID COURT:

What is Not Preserved for Review

The court of appeals held that Appellant did not raise a Texas constitutional 

claim before the trial court. Ford, supra, 444 S.W.3d at 191. Ford has not attacked 

this holding. Richardson v. State1, on which Appellant attempts to rely now, is 

based on a provision of the Texas Constitution.

Furthermore, Richardson has no clear holding and is inapplicable to this 

case. Richardson concerned the use of a pen register, which like the GPS device in 

United States v. Jones required a physical intrusion by police to obtain the phone 

information.2 The Richardson opinion concludes, “It follows that the use of a pen 

register may well constitute a „search‟ under Article I, §9 of the Texas 

Constitution. The question remaining is whether such a search would be 

„unreasonable‟ in the absence of probable cause.”3 But the opinion remands the 

case to the court of appeals to answer that question.

This claim based on the Texas Constitution was not raised in the trial court 

 

1

865 S.W.2d 844 (Tex.Crim.App. 1993)

2

Id. at 846.

3

Id. at 953-54.
6

and does not apply to this case.

Appellant also makes in passing a First Amendment claim, that collecting 

cell phone data might chill his freedom to associate. Appellant‟s brief at 7-8. 

However, the court of appeals also held that this claim was not preserved. The 

court of appeals held that Ford did not explain how gathering such information 

might chill his First Amendment rights, so this issue was inadequately briefed for 

review.4

The court also held that this claim fails on the merits, as it does. The State 

used the cell tower data to show Ford‟s locations on the night of the murder, not 

the people with whom he associated. Furthermore, Ford‟s friend Alan Tarver 

testified without objection to the same information, that he was the one calling and 

texting Ford that night.

The First Amendment claim is not preserved and has no merit.

The Preserved Argument: Jones and the Fourth Amendment

“A person traveling in an automobile on public thoroughfares has no 

reasonable expectation of privacy in his movements from one place to another.” 5

What Ford did present to the trial court in both his motion to suppress and 

orally, was a Fourth Amendment claim based on United States v. Jones6, which 

was handed down from the Supreme Court very shortly before Ford‟s trial. Jones, 

 

4

444 S.W.3d at 192

5 United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)

6

132 S.Ct. 945, 181 L.Ed.2d 911 (2012)
7

however, by its terms is inapplicable to this case and does not support Ford‟s 

argument.

The Fourth Court ruled against Ford on this claim, finding Jones

inapplicable. In Jones law enforcement officers attached a GPS device to the 

suspect‟s car, without obtaining a warrant, and monitored the suspect‟s movements 

for nearly a month. The Supreme Court held this violated the suspect‟s Fourth 

Amendment rights against unreasonable searches, because officers physically 

intruded into Jones‟ personal property, his car, to place the tracking device. Justice 

Scalia‟s majority opinion relied explicitly on a trespass theory. Agents had no 

right to touch Jones‟ car without a warrant.7

In this case, police never touched Ford‟s phone, nor made any other physical 

contact with him or his personal property.

But the Fourth Court relied primarily on the fact that the cell tower data was 

not collected by police. It was collected by AT&T, the carrier from whom Ford 

obtained a phone and cell phone coverage. “Essentially, once an individual 

voluntarily exposes information to a third party, it can be used for any purpose, 

such as conveying it to law enforcement authorities.”8

This is a longstanding rule of law, that information someone voluntarily 

 

7

444 S.W.3d at 187-88; Jones, 132 S.Ct. at 249.

8

Id. at 188.
8

conveys to a third party is not subject to Fourth Amendment protection.9 It has 

been upheld in this same context by the Fifth Circuit Court of Appeals.

10

Ford attacks this holding in a variety of ways, none of them persuasive. 

First Ford claims the quantity of the data somehow changes its status from 

unprotected to private: “...obtaining a great deal of location information implicates 

the Fourth Amendment because tracking an individual‟s movements over a long 

period exceeds what law enforcement would be able to do.” Appellant‟s brief at 6. 

This conclusion is drawn from the facts of Jones, where agents tracked the 

suspect‟s movement for 28 days. Here, though, the information covered a very 

limited amount of time, a few hours on the night of the murder. Furthermore, 

Jones was decided based not on the time spent but on the physical intrusion. There 

was none here.

It is also worth noting that the tracking information in Jones was collected 

by the government specifically for law enforcement purposes. In the instant case 

AT&T collected the information in the course of its normal business dealings with 

Ford, not as an agent of the state. The information did not become relevant for 

police until Ford became the prime, indeed only, suspect in the murder case. The 

information had all been innocently collected from him by that time. The records 

 

9

Smith v. Maryland, 442 U.S. 735, 745, 99 S.Ct. 2577, 61 L.Ed. 220 (1979); cited in Ford, 

supra, 444 S.W.3d at 189.

10 In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013)
9

existed in the care of the third party, with no intrusion by police.

Ford also argues, attempting to compare his case to State v. Granville11, that 

a cell phone contains a great deal of personal information. Appellant‟s brief at 8. 

While that may be true, it is irrelevant to this case, because the State did not obtain 

any of that personal information. In Granville police searched the defendant‟s cell 

phone without a warrant, as a search incident to arrest. This Court held that 

probable cause and a warrant are required for such a search, because a cell phone is 

a mini-computer, containing photos, personal messages, and other information held 

privately in the phone.

But the Court also held that officers “could have reasonably inspected the 

outside of appellant‟s cell phone; they could have tested it for fingerprints or DNA 

material because portions of the cell phone are routinely exposed to the public.”12

Location data is similar to the outside of the cell phone, routinely exposed to the 

public. Police in this case never possessed Ford‟s phone, never intruded into it. 

They obtained records from a third party, to whom Ford had willingly given them.

This is the primary holding by the court of appeals, and Ford does not 

explain why it is wrong. He claims his case is distinguishable from, e.g., 

Application, supra, because information was “involuntarily” conveyed from his 

phone when he received phone calls and texts while busy murdering his former 

 

11 423 S.W.3d 399 (Tex.Crim.App. 2014)

12 423 S.W.3d at 415-16.
10

girlfriend and her dog. Therefore, he argues, he didn‟t voluntarily convey his 

location information to AT&T.

But that is not what the Fourth Court held. “Ultimately, Ford voluntarily 

decided to obtain a cell phone, chose AT&T as a service provider, and availed 

himself of the benefits of its network of cell towers.”13 Ford‟s voluntarily acts, 

which exposed his locations to a third party and ultimately to police, were 

obtaining a cell phone and carrying it with him that night. In essence, Ford 

attached a GPS device to himself. The only intrusion into his private sphere was 

by himself. The argument Ford makes now would have legal force only if 

government agents had Superglued his phone to his hand, leaving him unable to 

travel without it.

Ford has not responded to this holding by the court of appeals. It is based on 

longstanding precedent and nothing in this case distinguishes it from that

precedent. Ford argues that the search of his records without a warrant was 

unconstitutional, but that mistakes what happened in his case. This was not a 

search. It was the acquisition of records held by a third party. It was done 

according to the applicable statute, which did not violate the Fourth Amendment. 

See below.

 

13 444 S.W.3d at 190.
11

No Expectation of Privacy in One’s Whereabouts

In his motion to suppress the cell tower records, Ford claimed, “All 

individuals have a reasonable expectation of privacy as to their whereabouts and as 

to electronic records that would disclose their whereabouts...”14 This is the 

premise for all of Ford‟s arguments, and it is simply untrue. No one has a 

reasonable expectation of privacy as to his whereabouts when he is travelling on 

public roads and skulking through a condominium complex.15 If Ford‟s argument 

were correct, he could have moved to suppress the images of his car and himself 

captured by the security camera of the bank across the street from the murder 

scene. Any suspect could successfully move to suppress eyewitness testimony 

placing him at the scene of a crime. Ford could have suppressed the DNA 

testimony, because it placed him inside the victim‟s home. If one‟s whereabouts 

were private, most traditional evidence would not be admissible.

This is of course not the case. Police seized nothing from Ford. They did 

not intrude into his home, car, or other personal space in which he had a legitimate 

expectation of privacy. Instead they requested records from AT&T by way of two 

court orders signed by two different district judges, as the statute requires. By the 

time the records were obtained, Ford had no privacy interest in them. Essentially, 

he had no standing to complain.

 

14

 (Supp.CR 177)

15 See quote from U.S. v. Knotts, supra, at the beginning of this argument.
12

The Statute

Ford continually attacks the acquisition of the cell tower records as a 

warrantless search. However, the records were obtained pursuant to the applicable 

statute, Art. 18.21, Sec. 5, V.A.C.C.P., which says:

(a) A court shall issue an order authorizing disclosure of contents, 

records, or other information of a wire or electronic communication 

held in electronic storage if the court determines that there is a 

reasonable belief that the information sought is relevant to a legitimate 

law enforcement inquiry.

The State not only complied with this statute, it went far beyond it. The 

applications for the court orders established not just that the information was 

“relevant to a legitimate law enforcement inquiry.” It established probable cause 

for a search for the specific records being sought. The information was conveyed 

by an assistant district attorney, but had been obtained by Det. Leroy Carrion of the 

San Antonio Police Department, the lead detective on the case.

The application informed the judges that: the complainant had been found 

dead in her condominium, with no sign of forced entry and nothing missing except 

her dog; her death had been ruled a homicide; she had been at a New Year‟s Eve 

party the night before with others including Jon Thomas Ford; Ford had left the 

party before the others; two witnesses drove by Ford‟s house a few blocks from the 

victim‟s condo and did not see his car parked there; Ford told the detective he had 

been home asleep before midnight; a surveillance video showed a vehicle matching 
13

Ford‟s white Tahoe entering and exiting the condo complex twice; it also showed a 

person dressed similarly to the way Ford had been that night entering the complex 

on foot; an hour later the same person left the complex; five minutes later the car 

resembling Ford‟s drove past; the detective had obtained Ford‟s cell phone records 

with a subpoena, which showed he had checked his voicemail at 2:30 a.m., about 

twenty minutes after the white Tahoe had driven away from the victim‟s complex, 

and also a time when Ford had claimed to be asleep.16

This is the same information conveyed to a different judge in an affidavit by 

Detective Carrion to obtain a search warrant of Ford‟s home and car. 17 In another 

part of the majority opinion, the Fourth Court specifically found that this affidavit 

established probable cause for a search.18 Two different district judges reviewed 

the applications and signed orders for AT&T to provide the cell tower records to 

police.19

So while the acquisition of these records may technically have been done 

without a warrant, the State used the equivalent, an order signed by a district judge 

based on probable cause to search. Any rights Ford may have had affected by this

acquisition were protected as fully as they would have been by a search warrant.

 

16 Supp.CR 180-83

17 CR 101-04

18 444 S.W.3d at 193

19 Supp.CR 189, 199
14

The Acquisition Did Not Violate the Fourth Amendment

As set out above, the State not only followed the applicable statute, but did 

more than it required, establishing probable cause for a search to the satisfaction of 

two district judges. To prevail in this appeal, Ford would have to argue that the 

statute violates the Fourth Amendment, which he has not done. Nor could he 

successfully do so.

First, the statute doesn‟t authorize a search, it authorizes the acquisition of 

records from a third party, as set out above. The Fourth Amendment does not 

apply to this procedure.

More importantly, the process used in this case did not violate the Fourth 

Amendment. The Fourth Amendment says, in relevant part, “...no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation...” A warrant is 

an order signed by a judge after a finding of probable cause. That was what 

happened in this case. The finding of probable cause was based on the sworn 

affidavit of a police officer. The information was conveyed to the court by a 

written pleading signed by an assistant district attorney, an attorney and an officer 

of the court.

Attorneys are subject to disciplinary sanctions for signing false pleadings. 

Texas Rules of Professional Conduct 3.01 and 3.03. An application filed by a 

lawyer acts as an affirmation, assuring the magistrate of the accuracy of its 
15

contents.

So the court orders issued in this case were the equivalents of search 

warrants. If this had been a search, they would have fully protected Ford‟s Fourth 

Amendment rights.

But this wasn‟t a search.

PRAYER FOR RELIEF

The State prays that this Court will affirm the judgment of the court of 

appeals.

Respectfully submitted,

 NICHOLAS “NICO” LaHOOD

 Criminal District Attorney

 Bexar County, Texas

 

 ______________________________

 JAY BRANDON

 Assistant Criminal District Attorney

 Bexar County, Texas

101 West Nueva, 3rd Floor

 San Antonio, Texas 78204

 (210) 335-2418

 State Bar No. 02880500

 jay.brandon@bexar.org

 Attorneys for the State

 Jay Brandon
16

CERTIFICATE OF COMPLIANCE

I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure 

that this document contains 3,014 words.

_____________________________

JAY BRANDON

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing brief was sent by electronic mail to

Cynthia E. Orr, Attorney for Appellant, on the 7th day of April, 2014.

___________________________

JAY BRANDON

 Jay Brandon Jay Brandon