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

CLERK2 TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES 3

STATEMENT OF THE CASE 4

STATE MENT 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 S ERVICE 163 I NDEX 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 (5 th 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) 64 STATEMENT OF THE CASE

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

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

STATEMENT OF PROCEDURAL HISTORY

On August 20 , 201 4 , the Fourth Court of Appeals handed down a n 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 201 4 , 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 INVOLUNT ARILY

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. State 1 , on which Appellant attempts to rely now, is

based on a provision of the Texas Constit ution.

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

informat ion. 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 mak es in passing a First Am endment 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 su ch information

might chill his First Amendment rights, so this issue was inadequat ely 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 th e 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 m erit.

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. Jones 6 , 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 s upport 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 se arches, 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 t his 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 lo ngstanding 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 o f 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 (5 th Cir. 2013)9

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

For d also argues, attempting to compare his case to State v. Granville 11 , 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 in formation. 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 ph otos, 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 po rtions 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 fr om 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 h ave 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 distin guishes 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 i s 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

scen e. 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 traditiona l 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 fr om 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 a ttacks 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 content s, 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 onl y 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 recor ds 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 h ad 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

pa rty 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 matching13

Ford‟s whi te 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 cl aimed 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 recor ds 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, 19914 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 proba ble 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 sanct ions 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 its15

contents.

So the court orders issued in this case were the equiva lents 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

.

Res pectfully submitted,

NICHOLAS “NICO” LaHOOD

Criminal District Attorney

Bexar County, Texas

______________________________ JAY BRANDON

Assistant Criminal District Attorney

Bexar County, Texas

101 West Nueva, 3 rd Floor

San Antonio, Texas 78204

(210) 335

- 2418

State Bar No. 02880500

jay.brandon@bexar.org

Attorneys for the State16 CERTIFICATE OF COMPLIANCE

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

t hat this document contains 3 ,0 1 4 wor ds.

_____________________________ 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 , 201 4

.

___________________________ JAY BRANDON