NUMBER 13-19-00504-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ANTONIO SALINAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 406th District Court

of Webb County, Texas.

OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina

Opinion by Chief Justice Contreras

Appellant Antonio Salinas appeals the denial of his motion to suppress following 

his convictions for two counts of possession of child pornography, a third-degree felony. 

See TEX. PENAL CODE ANN. § 43.26(a). By three issues, Salinas argues the trial court 

should have suppressed the evidence because (1) its admission violates the Texas 

exclusionary rule; (2) its admission violates the United States Constitution and the Texas 
2

Constitution; and (3) there were false or reckless statements included in a search warrant

affidavit. We affirm. 

I. BACKGROUND1

On August 26, 2017, Salinas was indicted on thirty-five counts of possession of 

child pornography. See id. He filed a motion to suppress the evidence underlying his 

offenses, arguing that: (1) the evidence was obtained by a private person in violation of 

the law; (2) law enforcement performed an illegal warrantless search; and (3) the search 

warrants were invalid because their supporting affidavits contained materially false 

information and omitted information in reckless disregard for the truth. 

After a hearing, the trial court denied the motion and issued findings of fact and 

conclusions of law. The trial court’s findings of fact provided: 

1. On June 12, 2017, Antonio Salinas, dropped off his Ford F150 pickup at 

Sames Motor Company to perform a diagnostic because the “check engine” 

light was on, the air conditioner was blowing hot air[,] and part of the glove 

compartment was detached. In the ordinary course of business, [the] 

Sames [car dealership] obtained Antonio Salinas’s authorization and 

signature on Sames’ “Service Drive Quick Write Up” form that included the 

following language: “DISCLAIMER: It is understood that this company 

assumes no responsibility [sic] for loss or damage to this vehicle or its 

contents. Permission is granted to operate this vehicle on any street or road

for the purpose of testing or inspection [emphasis added]. Authorization for 

labor and materials is granted and an express mechanic’s lien is hereby 

acknowledged to secure payment.” Signs inside the warehouse and 

elsewhere on the premises stated Sames was not responsible for lost or 

stolen items. 

2. Sames Motor Co. issues an “Employee Handbook” to all employees and 

obtains signatures attesting they will abide by the policies. Sames has 

employee policies including a requirement that employees follow all laws 

and regulations and should have the highest standards of conduct and 

personal integrity and further advises the employees to turn over valuable 

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant 

to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3

or dangerous property to the appropriate manager for safe keeping if the 

employee observes such property when caring for a customer’s vehicle. 

3. Alberto Luna, Octavio Limon[,] and Eden Salinas[2] were service 

mechanics employed by Sames Motor Co. and each signed 

acknowledgment of policies. 

4. Approximately two hours after dropping his truck off at Sames, [Salinas] 

returned to recover his laptop. [Salinas] personally retrieved his computer 

laptop from inside the truck. 

5. [Limon] was authorized to use his personal computer at Sames and was 

provided with the necessary licensed software to conduct any diagnostics.

On June 13, 2017, [Limon], while performing diagnostics on the truck from 

the truck’s driver seat, connected his computer to the truck’s port. [Eden], a 

technician whose dock neighbored Limon’s, approached the open driver’s 

side door to talk to Limon. [Salinas] noticed some Splenda packets located 

in the driver’s door open compartment. Salinas the[n] noticed a USB[

3]

device among the Splenda packets. The [thumb drive] was not connected 

or interconnected to any computer or device and was not marked with any 

identifying marks or names. Curious to find out if there was any music on it, 

[Eden] asked [Limon] to look into the [thumb drive]. 

6. Upon plugging in the [thumb drive], [Limon] was able to access images 

in a file entitled "ZZZZ"; the [thumb drive] did not have a password and was 

not encrypted. Limon, sitting directly in front of his laptop, saw thumbprints[

4]

of images depicting what he believed were minor girls in sexual poses with 

2 Eden Salinas is unrelated to appellant. We will refer to this technician by his first name to avoid 

confusion.

3 “USB” stands for “universal serial bus,” and it is a “standardized serial computer interface that 

allows simplified attachment of peripherals especially in a daisy chain.” MERRIAM-WEBSTER’S ONLINE 

DICTIONARY, https://www.merriam-webster.com/dictionary/USB (last visited Apr. 14, 2021); see Advanced 

Micro Devices, Inc. v. LG Electronics, Inc., No. 14-CV-01012-SI, 2017 WL 1383271, at *5 (N.D. Cal. Apr. 

18, 2017) (order) (noting that each USB device comprises a plurality of “independently operating endpoints” 

that transmit and receive data between the USB device and the USB host). The USB device here was a 

thumb drive. A thumb drive is an external portable storage device for computers. See MERRIAM-WEBSTER’S 

ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/flash-drive (last visited Apr. 14, 2021); 

MERRIAM-WEBSTER’S ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/thumb-drive (last 

visited Apr. 14, 2021); see also United States v. Capozzi, No. 3:16CR347, 2019 WL 1330440, at *2 (M.D. 

Pa. Mar. 25, 2019) (“A thumb drive is a portable, computer, storage device.”); United States v. LaPradd, 

No. 3:10-CR-00076-R, 2010 WL 3853140, at *1 (W.D. Ky. Sept. 28, 2010) (“A thumb drive is an external 

memory storage device for computers similar to a floppy disk, only smaller and with more memory-storage 

capability.”).

4 The trial court clearly meant “thumbnails.” See Thumbnail, WIKIPEDIA, 

https://en.wikipedia.org/wiki/thumbnail (last visited Apr. 19, 2021) (“Thumbnails are reduced-size versions 

of pictures or videos, used to help in recognizing and organizing them.”).
4

little to no clothing. [Eden], standing by the open driver’s door, also 

observed the images.

7. Shocked, [Eden] informed [Luna] that he and [Limon] had observed child 

pornography when looking into a [thumb drive] they obtained from a truck 

Limon was servicing, and asked Luna for help in deciding what action to 

take, if any. Luna contacted a friend, who recommended they report their 

discovery to the police right away. [Luna] called 911 and reported the 

discovery of child pornography because [Limon] and [Eden] were afraid of 

losing their jobs. Although [Luna] was not involved in servicing [Salinas’s]

truck and did not personally observe the child pornography, he injected 

himself into the story when he [falsely] told the 911 operator and the first 

arriving officer, Officer David Paz [that he saw the images of child 

pornography while using the [thumb drive] as part of the inspection and work 

on the vehicle].[

5]

8. Upon Officer Paz’[s] arrival at approximately 10:43 a.m., [Luna] informed 

Officer Paz that he and [Eden] were working on a truck and while checking 

to see if the truck’s USB port was properly working, they connected a [thumb 

drive] that was in the vehicle to determine whether it was the USB port or 

the USB device that was not working[, and] they plugged the USB device 

into Limon’s computer and discovered images of child pornography. Officer 

Paz was unaware of the employee policy and believed that Luna was being 

truthful about what was seen on the [thumb drive]. Officer Paz had no cause 

to believe that the testimony given by Luna, as to the reason for viewing the 

[thumb drive], was untrue. Officer Paz acted on the information obtained by 

the Sames’ employees with a good faith belief of its veracity. 

9. Alberto Luna identified the truck where the [thumb drive] was found and 

further handed the [thumb drive] to Officer Paz. Officer Paz held the [thumb 

drive] and asked Luna to show him what they had found. Luna, Limon[,] and 

[Eden] led Officer Paz to Limon’s computer and connected the [thumb drive]

to Limon’s computer and showed Officer Paz where the child pornographic 

images had been discovered by them.

10. Officer Paz observed the images and confirmed that the [thumb drive]

had approximately 7 images of young females without any clothing between 

5 All three men testified that the information they gave to 911 and the police concerning the reason 

they accessed the thumb drive was false. Limon and Eden explained at the hearing on the motion that they 

accessed the thumb drive out of curiosity and not because there were any issues related to any of the 

thumb drive connections in the truck. Both Limon and Eden stated that looking through Salinas’s thumb 

drive was not necessary for any reason related to the inspection or repair of the vehicle, and all three men 

testified that Luna did not work on the vehicle and was not present when Limon and Eden accessed the 

thumb drive. All three men testified that Limon and Eden reached out to Luna afterwards and that they 

fabricated the story told to police that they were working on the USB port on the vehicle when they accessed 

Salinas’s thumb drive. The men explained they fabricated the story because they were afraid of losing their 

jobs and because Eden and Limon were worried about talking to the police.
5

the ages of 11 and 14 exposing breasts and vaginal area. Officer Paz then 

removed the [thumb drive], contacted his sergeant and waited for his arrival.

11. When Sergeant Edgar Garza and Special Victim’s Sergeant Cordelia 

Perez arrived, Officer Paz again connected the [thumb drive] to Limon’s 

computer and showed them where the child pornography images were 

located. Thereafter, Detective Charlie Rosales arrived on the scene, where 

he spoke to [Limon] and obtained written consent from Limon to take 

Limon’s computer for forensic analysis, along with the [thumb drive]

containing child pornography. 

12. Based on the foregoing, on June 14, 2017, Laredo Police Department 

Special Investigations Unit (“SVU”) Detectives applied for a search warrant 

to conduct a forensic analysis on the [thumb drive] and Limon’s computer. 

SVU detectives then obtained two additional search warrants to search Dr. 

Salinas’[

6] office . . . and Dr. Salinas’ home . . . . 

13. On June 22, 2017, SVU attempted to execute the search warrant of Dr. 

Salinas’[s] home . . . . Dr. Salinas was not at home at that time. Investigator 

Rosales called Dr. Salinas on his mobile phone and Dr. Salinas agreed to 

meet with Investigator Rosales at Doctor’s Hospital. At the hospital, 

Investigator Rosales advised Dr. Salinas of the investigation and search 

warrants. More specifically, Investigator Rosales advised Dr. Salinas that 

they had found child pornography on his [thumb drive] taken from his 

vehicle. Investigator Rosales further advised Dr. Salinas that because of 

what was found on the [thumb drive], he had obtained search warrants for 

Dr. Salinas’[s] home, office, and electronic mobile devices. Investigator 

Rosales explained to Dr. Salinas that the device that downloaded the illicit 

images found on his [thumb drive] and his mobile phone were subject to the 

search warrants. Dr. Salinas led Investigator Rosales to a private room and 

unlocked the door so he and Rosales could speak. Dr. Salinas then 

tendered his Laptop computer and cell phone to SVU detectives. Dr. Salinas 

agreed to meet Investigator Rosales at LPD headquarters in his own 

vehicle. Before going to LPD headquarters, no law enforcement officers 

followed Dr. Salinas to LPD headquarters.

14. At LPD headquarters, after being advised of the warrants and details of 

the investigation, Dr. Salinas asked Investigator Rosales if he was going to 

be arrested. Investigator Rosales told Dr. Salinas that if he was compliant 

and answered all of Investigator Rosales’[s] questions, he would not be 

arrested and could go home. Investigator Rosales then read Dr. Salinas his 

Miranda warnings and Dr. Salinas answered Investigator Rosales’

questions in a recorded interview. During the interview, Dr. Salinas was 

equivocal about the [thumb drive], saying he did not remember it or that he 

forgot about any [thumb drive] containing child pornography. Dr. Salinas 

6 At the time of his arrest, Salinas was a licensed medical doctor.
6

further detailed how he became involved in viewing these images and 

videos of child pornography, the frequency of his viewing of child 

pornography[,] and that he possessed additional child pornography on his 

computers and other USB [devices]. After the interview, Dr. Salinas was 

allowed to go home but was advised that LPD would be seeking a warrant 

authorizing his arrest for possession of child pornography. On June 23, 

2017, Dr. Salinas was arrested pursuant to images found on the [thumb 

drive] for possession of child pornography.

15. The forensic analysis of [Limon’s] computer and the [thumb drive]

indicated that the [thumb drive] was initially accessed at 9:52 a.m. and last 

accessed at 12:10 p.m. on June 13,2017. Only two folders existed in the 

USB device-“iPhotos” and “ZZZZ” subfolders with no other images or 

documents in the root. Limon and [Eden] would have seen an image of 

seven thumb[nail] images of child pornography.

The trial court issued the following conclusions of law: 

1. [Salinas] failed to establish a violation of Texas Penal Code §32.02. The

USB [thumb drive] is not a “computer” device and was not connected or 

related to a computer device in which [Salinas] had an expectation of 

privacy. Tex. Penal Code Ann. § 33.01.

2. Officer Paz’[s] viewing of the [thumb drive’s] content was not a search 

under the Fourth Amendment of the United States Constitution because 

Paz’[s] viewing was confirmatory in nature, as it did not exceed the scope 

of the initial viewing by Sames’ employees. Us. Const. amend. IV. See 

United States v. Barth, 26 FSupp.2d 929 at 937.

3. The search by Officer Paz did not require a search warrant because 

[Limon] consented to the search of the [thumb drive] while attached to 

Limon’s computer. Limon’s consent was valid because Sames-and by 

extension its employees-had joint access and control over [Salinas’s] truck 

and its contents. See Welsh v. State, 93 SW3d 50 (2002), citing United 

States v. Matlock, 415 U.S. 164,94 S.Ct. 988, 39 L.Ed.2d 242 (1974). At the 

time that the Sames’ employees initially viewed the images on the [thumb 

drive,] they were not acting in concert with the police or for investigative 

purposes.

4. The confirmatory search of the [thumb drive] by Officer Paz allowed a 

valid warrantless seizure of the device because it contained contraband 

(i.e., child pornography), in plain view, and thus allowed for the [thumb 

drive’s] immediate seizure by Officer Paz. See Joseph v. State, 807 S.W.2d. 

303 (Tex.Crim.App.1991); State v. Hailey, 811 S.W.2d 597

(Tex.Crim.App.1991)
7

5. Any subsequent viewing by LPD Officers does not constitute a search 

under the Fourth Amendment because it was confirmatory in nature, as it 

did not exceed the scope of the initial viewing by Sames’ employees. See 

United States v. Runyan, 275 F.2d 449 (2001).

6. The search LPD conducted pursuant to a search warrant was valid 

because LPD had probable cause to believe the USB device contained child 

pornography via the statements made to Officer Paz by the Sames[’]

employees and the Officers’ subsequent confirmatory searches. See [U]s. 

Const. amend. IV and Texas Constitution Article 1, section 9. Officer Paz 

presented the information to the magistrate through his probable cause

affidavit in good faith.

7. The subsequent search warrants were valid because LPD developed 

probable cause by and through the forensic analysis of the [thumb drive]

confirmed that the child pornography within it did not originate from Limon’s 

computer and the [thumb drive] contained personal images of [Salinas]. See 

US Const. amend IV and Texas Constitution Article 1, section 9.

8. [Salinas] is not entitled to a hearing under Franks v. Delaware because

[Salinas] failed to make a substantial preliminary showing that the affiant, 

Investigator Charlie Rosales, knowingly or intentionally made false 

statements, or recklessly disregarded the truth, in his search warrant 

affidavit. Franks v. Delaware, 438 U.S. 154 (1978); Harris v. State, 227 

S.W.3d 83, 85 (Tex. Crim. App. 2007). 

9. If [Salinas] did establish a violation under Franks, the search warrant

affidavit still establishes sufficient probable cause because Limon saw what 

he believed to be pornographic images of underage girls. Franks, 438 U.S. 

at 155; Harris, 227 S.W.3d at 85.

Following the denial of his motion, Salinas entered into a plea agreement with the 

State, pursuant to which: he pleaded guilty to two counts of possession of child 

pornography; the State dismissed the remaining counts; and his punishment was

assessed at ten years’ imprisonment in the Texas Department of Criminal Justice 

Institutional Division for count one and two years’ imprisonment for count two, with the 

sentences running concurrently. The trial court accepted the agreement, and this appeal 

followed. 
8

II. STANDARD OF REVIEW

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated 

standard of review, giving almost total deference to a trial court’s determination of 

historical facts and mixed questions of law and fact that rely upon the credibility of a 

witness, but applying a de novo standard of review to pure questions of law and mixed 

questions that do not depend on credibility determinations. State v. Martinez, 570 S.W.3d 

278, 281 (Tex. Crim. App. 2019). When a trial judge makes written findings of fact, such

as here, we examine the record in the light most favorable to the ruling and uphold those 

fact findings so long as they are supported by the record. Baird v. State, 398 S.W.3d 220, 

226 (Tex. Crim. App. 2013). We then proceed to a de novo determination of the legal 

significance of the facts as found by the trial court. Id. We will uphold the trial court’s ruling 

if it is supported by the record and correct under any theory of law applicable to the case. 

Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

III. SEARCH OF THE THUMB DRIVE

By his first issue, Salinas argues that the trial court should have suppressed the 

evidence from his thumb drive under the Texas exclusionary rule because (1) he had an 

expectation of privacy in the thumb drive, and (2) Sames’s employees committed a crime 

when they accessed it. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (“No evidence 

obtained by an officer or other person in violation of any . . . laws of the State of 

Texas . . . shall be admitted in evidence against the accused on the trial of any criminal 

case.”); TEX. PENAL CODE ANN. § 33.02(a) (“A person commits an offense if the person 

knowingly accesses a computer, computer network, or computer system without the 

effective consent of the owner.”). The State contends that Salinas did not have an 
9

expectation of privacy in the truck and its contents because he turned it over to Sames, 

and that Sames’s employees did not commit a crime when they accessed the thumb drive

because the thumb drive is not a “computer” as defined under the relevant statute. See 

TEX. PENAL CODE ANN. § 33.02(a); see also id. § 33.01(4) (defining “computer”).

The relevant facts are undisputed: Salinas dropped off his truck for service at 

Sames “for the purpose of testing or inspection”; during service, the technicians working 

on his truck found a thumb drive in the door compartment; the thumb drive device was 

unrelated to any of the work performed on the truck by the technicians; the technicians 

discovered child pornography on the thumb drive and contacted police; and the police 

came to Sames, viewed the images, and seized the thumb drive. 

A. Expectation of Privacy

To prevail on an alleged violation of the Texas exclusionary rule; the Fourth 

Amendment of the United States Constitution; and article I, § 9 of the Texas Constitution, 

a defendant must first establish his standing to challenge the admission of the evidence 

obtained by proof that he had a legitimate expectation of privacy in the place invaded. 

See TEX. CODE CRIM. PROC. ANN. art. 38.23(a); Matthews v. State, 431 S.W.3d 596, 606 

(Tex. Crim. App. 2014); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); 

Kane v. State, 458 S.W.3d 180, 183–84 (Tex. App.—San Antonio 2015, pet. ref’d). 

Whether a legitimate expectation of privacy exists is a question of law. Villarreal, 935 

S.W.2d at 138 n.5. The defendant bears the burden of proving facts establishing a 

legitimate expectation of privacy. Id. at 138. “To carry this burden, the accused must 

normally prove: (1) that by his conduct, he exhibited an actual subjective expectation of 

privacy, i.e., a genuine intention to preserve something as private; and (2) that 
10

circumstances existed under which society was prepared to recognize his subjective 

expectation as reasonable.” Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). 

Here, the place invaded and the item searched was Salinas’s thumb drive. As 

such, we must determine whether he had an expectation of privacy in it and its contents. 

While we agree with the State that Salinas did not have an expectation of privacy in his 

truck generally, the question is whether he maintained an expectation of privacy in his 

thumb drive located in the vehicle. We conclude that Salinas did maintain such an 

expectation of privacy. 

1. Subjective Expectation of Privacy

The subjective prong requires us to determine whether Salinas, “by his conduct, 

has exhibited an actual expectation of privacy.” See Bond v. United States, 529 U.S. 334, 

338 (2000). 

Individuals have a reasonable expectation of privacy in the contents of closed 

containers and digital storage devices. See United States v. Ross, 456 U.S. 798, 822–23 

(1982) (“[T]he Fourth Amendment provides protection to the owner of every container that 

conceals its contents from plain view.”); United States v. Villarreal, 963 F.2d 770, 773 (5th 

Cir. 1992) (“The Supreme Court has concluded that ‘a constitutional distinction between 

worthy and unworthy containers would be inappropriate.’” (quoting Ross, 456 U.S. at 

822)); see also United States v. Barth, 26 F. Supp. 2d 929, 936–37 (W.D. Tex. 1998) 

(finding that the owner of a computer manifested a reasonable expectation of privacy in 

the contents of data files by storing them on a computer hard drive); United States v. 

Reyes, 922 F. Supp. 818, 832–33 (S.D.N.Y. 1996) (accepting the defendant’s assertion 

that he had a reasonable expectation of privacy in the contents of a pager’s memory); 
11

United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) 

(“[T]his court finds that an individual has the same expectation of privacy in a pager, 

computer[,] or other data storage and retrieval device as in a closed container . . . .”). 

By keeping files in an electronic storage unit—the thumb drive here—Salinas 

exhibited a subjective expectation of privacy because the thumb drive served as a 

container that hid its contents from the public. See Bond, 529 U.S. at 338; Ross, 456 U.S. 

at 822–23; Villarreal, 963 F.2d at 773. Contrary to the State’s argument, this subjective 

expectation of privacy was not diminished by Salinas’s leaving of the thumb drive in the 

truck while it was serviced because the thumb drive was unrelated to any actions needed 

to service the truck, the inside of the truck was not accessible to the general public or a 

common area, and Salinas turned the truck over to Sames and its employees solely for 

the purpose of “testing or inspection.” See United States v. Fultz, 146 F.3d 1102, 1105 

(9th Cir. 1998) (“A person does not forfeit [his] expectation of privacy merely because the 

container is located in a place that is not controlled by the container’s owner.”); Rogers v. 

State, 113 S.W.3d 452, 457–58 (Tex. App.—San Antonio 2003, no pet.) (concluding that 

the defendant had a subjective expectation of privacy in the JPEG files located in his 

computer’s hard drive); cf. Kane, 458 S.W.3d at 184–85 (concluding that defendant 

lacked a subjective expectation of privacy in his flash drive because he left it “in a public 

computer, in a classroom at Schreiner University[, which was at a minimum] open to other 

students, faculty, and staff of the University”); Miller v. State, 335 S.W.3d 847, 855 (Tex. 

App.—Austin 2011, no pet.) (concluding that the defendant lacked a subjective 

expectation of privacy because he “left the thumb drive unattended, unidentified, and 

unsecured in an area open to his co-workers and other individuals”); see also Barth, 26 
12

F. Supp. 2d at 936–37 (concluding that owner of a computer manifested a reasonable 

expectation of privacy in the contents of data files on the computer’s hard drive, despite 

turning over the computer to a technician for repairs, because he “gave the hard drive to 

[repairman] for the limited purpose of repairing a problem unrelated to [the] specific files”). 

We conclude that, under the facts of this case, Salinas had a subjective 

expectation of privacy in the thumb drive located in his truck.

2. Objectively Reasonable Expectation 

To sustain a challenge to the evidence, Salinas’s must also show an objectively 

reasonable expectation of privacy; in other words, it must be an expectation that society 

is willing to recognize as reasonable. See Villarreal, 935 S.W.2d at 138. In determining 

whether the expectation of privacy is objectively reasonable, courts consider the totality 

of the circumstances, including: (1) whether the accused had a property or possessory 

interest in the thing seized or the place invaded; (2) whether the accused was legitimately 

in the place invaded; (3) whether the accused had complete dominion or control and the 

right to exclude others; (4) whether, before the intrusion, the accused took normal 

precautions customarily taken by those seeking privacy; (5) whether the accused put the 

place to some private use; and (6) whether the accused’s claim of privacy is consistent 

with historical notions of privacy. Id. This list is not exhaustive, and no single factor is 

dispositive of a particular assertion of privacy. Granados v. State, 85 S.W.3d 217, 223 

(Tex. Crim. App. 2002). Furthermore, these factors are more applicable when discussing 

the expectation of privacy in a particular physical place rather than in a computer hard 

drive or even a closed container. Rogers, 113 S.W.3d at 457.
13

Here, Salinas had a property interest in his thumb drive because it belonged to 

him. Although Salinas was not present when the technicians servicing his vehicle located 

his thumb drive inside the truck and searched it, this did not diminish his expectation of 

privacy in the thumb drive to a degree that it became objectively unreasonable under the 

circumstances of this case. This is because, as testified by Sames’s employees, access 

to the thumb drive was in no way required to complete the tasks for which the truck was 

given to Sames. Cf. Lown v. State, 172 S.W.3d 753, 761 (Tex. App.—Houston [14th Dist.] 

2005, no pet.) (“[A]ctions requesting that the [computer] system be backed up and 

allowing [a third party] to keep copies of the backed up disks are not consistent with 

historical notions of privacy.”); Rogers, 113 S.W.3d at 458 (concluding that the defendant 

did not have a reasonable expectation of privacy in JPEG files on his computer’s hard 

drive because “he expressly directed the computer technician to back up the [JPEG]

files”); see also Barth, 26 F. Supp. 2d at 936–37 (suppressing evidence because the 

computer technician did not have authority to open the files unrelated to the repairs he 

was tasked with as to the computer left with him). In other words, Salinas turned over the 

truck to Sames for a limited purpose unrelated to the thumb drive, he never consented to 

the use of the thumb drive, and he did not leave the thumb drive in a place where private 

parties apart from Sames’s employees would come into contact with it. Cf. Kane, 458 

S.W.3d at 185 (concluding defendant did not have objectively reasonable expectation of 

privacy in a thumb drive left in a university classroom because “in order to return the drive 

to [defendant], others must have taken possession of the drive and possibly accessed it 

to ascertain whether it belonged to” Kane); Miller, 335 S.W.3d at 858 (noting that the 

record supported the denial of the defendant’s motion to suppress because, “by leaving 
14

his thumb drive in an area accessible to all of his co-workers, and by allowing them to put 

the drive in his box if it was found, [defendant] gave effective consent for his co-workers 

to access the drive in order to identify whether the drive belonged to him”). 

Furthermore, even though Salinas left the thumb drive in his truck where it was 

accessible to others during the vehicle’s service and did not encrypt its contents or secure 

them with a password, the limited purpose of the technicians’ access to the vehicle and 

the nature of a thumb drive makes Salinas’s claim of privacy consistent with historical 

notions of privacy. See United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) 

(rejecting the government’s position that because the cell phone belonged to the 

employer, the defendant did not have standing to challenge the search of the phone; the 

defendant had use of phone and took normal precautions to protect privacy of phone calls 

and records even though he did not have password protection). This is because of the 

large quantity and type of information that can be stored in a thumb drive, including highly 

sensitive personal, private, and privileged information. See United States v. Barber, 777 

F.3d 1303, 1305 (11th Cir. 2015) (“Barber had standing to challenge the search of his 

bag, even if he lacked standing to contest the search of his car.”); Brackens v. State, 312 

S.W.3d 831, 837 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“[W]e note that one 

does not necessarily lose one’s reasonable expectation of privacy in one’s closed 

computer files by handing one’s computer over to a computer technician.”); Wilson v. 

State, 99 S.W.3d 767, 770 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“A general 

expectation of privacy in a purse or backpack is reasonable because such baggage is 

intended as a repository of personal effects.”); see also Fultz, 146 F.3d at 1105 (noting 

that “certain types of containers—suitcases, valises, purses, and footlockers, for 
15

instance—do command high expectations of privacy”). Like a cell phone or a purse, a 

thumb drive is a personal device, and its owner is reasonably entitled to expect that the 

contents of the drive will remain private. See State v. Granville, 423 S.W.3d 399, 405–06 

(Tex. Crim. App. 2014) (holding that “(1) a person has a subjective expectation of privacy 

in the contents of his cell phone, and (2) this expectation of privacy is one that society 

recognizes as reasonable and legitimate.”); Kelso v. State, 562 S.W.3d 120, 135 (Tex. 

App.—Texarkana 2018, pet. ref’d) (“Searching a person’s cell phone is like searching his 

home desk, computer, bank vault, and medicine cabinet all at once.”).7

The State argues that Salinas did not have an objectively reasonable expectation 

of privacy because “this particular truck did have a USB-based sound system capable of 

playing music from [thumb] drives, and the technicians confirmed they expected the drive

to contain music.”8 We are not persuaded. As noted in the trial court’s findings of fact, 

Salinas gave permission to Sames “to operate this vehicle on any street or road for the 

purpose of testing or inspection,” but the thumb drive is not part of the vehicle and its use 

is not necessary for the vehicle’s operation. Furthermore, the issues Salinas reported with 

the car—the “check engine” light being on, the air conditioner blowing hot air, and part of 

the glove compartment being detached—had nothing to do with the thumb drive or the 

USB-based sound system. 

7 Although a person may have a reasonable and legitimate expectation of privacy in the contents 

of his thumb drive, he may lose that expectation under some circumstances, such as if he abandons it, 

lends it to others to use, or gives his consent to its search. See State v. Granville, 423 S.W.3d 399, 409, 

416 (Tex. Crim. App. 2014). There is no evidence that Salinas did any of this. 

8 Neither Eden nor Limon testified they “expected” to find music in Salinas’s thumb drive; rather, 

Eden stated he looked through the thumb drive out of “curiosity” and because he was “looking for music.”

Likewise, Limon stated that he and Eden looked through the thumb drive “to see if it had some music on 

it.”
16

The State also argues that Salinas mislaid or lost the thumb drive. The 

misplacement or loss of personal property may diminish an individual’s expectation of 

privacy because a party who finds the property may examine and search the property to 

determine its owner. See, e.g., Kane, 458 S.W.3d a 185. However, there are no such 

facts here undermining Salinas’s expectation of privacy because the thumb drive was in 

his truck, and no third party would have to look through its contents to determine who it 

belonged to and return it to Salinas. Cf. Oseguera-Viera v. State, 592 S.W.3d 960, 965 

(Tex. App.—Houston [1st Dist.] 2019, pet ref’d); Kane, 458 S.W.3d at 185; see also United 

States v. Nealis, 180 F. Supp. 3d 944, 950 (N.D. Okla. 2016) (“When an individual loses 

or mislays personal property, his or her ‘expectation of privacy is diminished to the extent 

that the finder may examine and search the lost property to determine its owner.” (quoting 

State v. Kealey, 907 P.2d 319, 326 (Wa. 1995))). Thus, even though Salinas told police 

that he did not “remember” the thumb drive, it was located in his vehicle, and we cannot 

conclude that this diminished his expectation of privacy. 

We conclude that Salinas had an objectively reasonable expectation of privacy in 

his thumb drive under the facts of this case. 

C. Commission of Crime by Mechanics

Because Salinas had both a subjectively and objectively reasonable expectation 

of privacy in the thumb drive, he had standing to challenge its admission, and we proceed 

to consider the specific grounds for suppression raised by Salinas. Salinas first argues 

the evidence from his thumb drive should have been suppressed because Sames’s 

employees committed a crime when they accessed it, and thus, admission of the 

evidence violates the Texas exclusionary rule. 
17

The Texas exclusionary rule provides that “[n]o evidence obtained by an officer or 

other person in violation of any . . . laws of the State of Texas . . . shall be admitted in 

evidence against the accused on the trial of any criminal case.” TEX. CODE CRIM. PROC.

ANN. art. 38.23(a); Miles v. State, 241 S.W.3d 28, 36 (Tex. Crim. App. 2007). In Texas, it 

is a crime to knowingly access “a computer, computer network, or computer system 

without the effective consent of the owner.” TEX. PENAL CODE ANN. § 33.02(a). A 

“computer” is defined as “an electronic, magnetic, optical, electrochemical, or other highspeed data processing device that performs logical, arithmetic, or memory functions by 

the manipulations of electronic or magnetic impulses and includes all input, output, 

processing, storage, or communication facilities that are connected or related to the 

device.” Id. § 33.01(4). 

Salinas argues that his thumb drive is a “computer” under the statutory definition; 

the State argues it is not. The trial court concluded that the thumb drive was not a 

“computer” for purposes of § 33.02 of the penal code. This is a legal conclusion we review 

de novo. See Baird, 398 S.W.3d at 226.

The penal code does not define “data processing.” When a statutory term is not 

defined, we attempt to give effect to its plain meaning or common understanding. See 

Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009); Boykin v. State, 818 

S.W.2d 782, 785 (Tex. Crim. App. 1991). In doing so, we may consult standard 

dictionaries. Ramos, 303 S.W.3d at 306. Webster’s dictionary defines “data processing” 

as “the converting of raw data to machine-readable form and its subsequent processing 

(such as storing, updating, rearranging, or printing out) by a computer.” MERRIAMWEBSTER’S ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/data-
18

processing (last visited Apr. 14, 2021); see Data Processing, ENCYCLOPEDIA BRITANNICA, 

https://www.britannica.com/technology/data-processing (last visited Apr. 22, 2021) 

(defining “Data Processing” as “Manipulation of data by a computer. It includes the 

conversion of raw data to machine-readable form, flow of data through the CPU and 

memory to output devices, and formatting or transformation of output”). A thumb drive 

stores data in memory cells, but it does not “convert[] raw data to machine-readable form”

or otherwise perform “data processing.” See SanDisk Corp. v. Kingston Tech. Co., 695 

F.3d 1348, 1351 (Fed. Cir. 2012) (“A typical flash memory device includes one or more 

flash memory integrated circuit chips and a controller. Each flash memory chip contains 

memory cells for storing data. The cells are arranged as ‘pages’ with multiple ‘pages’ 

comprising a ‘block’ of cells.”); flash drive, MERRIAM-WEBSTER’S ONLINE DICTIONARY, 

https://www.merriam-webster.com/dictionary/flash-drive (last visited Apr. 14, 2021) 

(defining “flash drive” or “thumb drive” as “a data storage device that uses flash memory[;] 

specifically: a small rectangular device that is designed to be plugged directly into a USB 

port on a computer and is often used for transferring files from one computer to another”); 

MERRIAM-WEBSTER’S ONLINE DICTIONARY, https://www.merriamwebster.com/dictionary/thumb-drive (last visited Apr. 14, 2021) (defining “thumb drive” or 

“flash drive” as “a small usually rectangular device used for storing and transferring 

computer data”).

Salinas argues that the thumb drive is a computer because the statute defines

“computer” as including “all input, output, processing, storage, or communication facilities 

that are connected or related to the device.” See TEX. PENAL CODE ANN. § 33.01(4). For 

Salinas’s thumb drive to have been a “computer,” however, it must have been “connected 
19

or related to” a device that qualified as an “electronic, magnetic, optical, electrochemical, 

or other high-speed data processing device that performs logical, arithmetic, or memory 

functions by the manipulations of electronic or magnetic impulses . . . .” See id. There 

was no additional device here meeting this definition, and Salinas does not argue that the 

thumb drive was related to any specific device.

We reject Salinas’s arguments and conclude that the thumb drive here is not a 

“computer” for purposes of § 33.02(a). See id. §§ 33.02(a), 33.01(4). As a result, Sames’s 

employees did not commit a crime when they accessed it, and the Texas exclusionary 

rule is not implicated. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

D. Unreasonable Search by Police

As the final argument under his first issue, Salinas argues that the evidence should 

be excluded because law enforcement conducted an unreasonable warrantless search 

of his thumb drive, violating the Fourth Amendment of the United States Constitution. See 

U.S. CONST. amend IV; TEX. CODE CRIM. PROC. ANN. art. 38.23(a). As a result, Salinas 

argues, the evidence should be excluded under the exclusionary rule. By his second 

issue, Salinas argues the trial court should have suppressed the evidence because the 

Fourth Amendment of the United States Constitution and the Texas Constitution were 

violated. 

The purpose of both the Fourth Amendment and Article I, § 9 of the Texas 

Constitution is to safeguard an individual’s legitimate expectation of privacy from 

unreasonable governmental intrusions. Rogers, 113 S.W.3d at 456–57; see U.S. CONST. 

amend. IV; TEX. CONST. art. I, § 9. A warrantless search is considered per se 

unreasonable subject to a few specifically defined and well-established exceptions. 
20

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). One such exception is the 

private search doctrine. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (noting 

that the Fourth Amendment “is wholly inapplicable to a search or seizure, even an 

unreasonable one, effected by a private individual not acting as the agent of the 

Government or with the participation or knowledge of any government official”); State v. 

Rodriguez, 521 S.W.3d 1, 10–11 (Tex. Crim. App. 2017). Under the private search 

doctrine, the government does not conduct a Fourth Amendment search when there is a 

“virtual certainty” that its search will disclose nothing more than what a private party’s 

earlier search has revealed. Jacobsen, 466 U.S. at 119; see Burdeau v. McDowell, 256 

U.S. 465, 475 (1921); United States v. Reddick, 900 F.3d 636, 637–39 (5th Cir. 2018)

(“Under the private search doctrine, ‘the critical inquiry under the Fourth Amendment is 

whether the authorities obtained information with respect to which the defendant’s 

expectation of privacy has not already been frustrated.” (quoting United States v. Runyan, 

275 F.3d 449, 461 (5th Cir. 2001))). In other words, once a private individual, acting of his 

own accord, conducts a search—even one that frustrates a defendant’s reasonable 

expectation of privacy—the Fourth Amendment does not forbid law enforcement from 

replicating the search to confirm its findings, as long as law enforcement officials constrain 

their search to the parameters of the search conducted by the private individual. See 

Jacobsen, 466 U.S. at 117–18, 126; Reddick, 900 F.3d at 637–39; Rodriguez, 521 

S.W.3d at 11 (“In [private search doctrine] cases the police make no search at all as the 

property is seized by a private party without any intrusion on an expectation of privacy by 

law enforcement.”); see also Illinois v. Andreas, 463 U.S. 765, 769 n.2 (1983) (“When 

common carriers discover contraband in packages entrusted to their care, it is routine for 
21

them to notify the appropriate authorities. The arrival of police on the scene to confirm the 

presence of contraband and to determine what to do with it does not convert the private 

search by the carrier into a government search subject to the Fourth Amendment.”);

United States v. Rivera-Morales, 961 F.3d 1, 4 (1st Cir. 2020) (“In general terms, [the 

private search] doctrine provides that law enforcement officers may, without a warrant, 

examine evidence that a private party has unearthed and made available to them, as long 

as their actions remain within the scope of the antecedent private search.”).

Here, the trial court found that the thumb drive had two folders, one of which was 

titled “ZZZZ.” The trial court further found that all seven images of child pornography were 

contained in the “ZZZZ” folder and that the thumbnail images would be visible when that 

folder was opened. These findings are supported by the testimony of the State’s forensic 

expert, Jeff Williams. The trial court also found that Limon accessed the “ZZZZ” folder 

and observed multiple images, which was supported by the testimony of multiple 

witnesses. Williams testified that his forensic analysis “indicate[d] that the thumbnail 

images were viewed [by Sames’s employees, because in] order for a thumbnail image to 

be on [Limon’s] computer, that means the image did need to appear in the File Explorer 

viewing” when they accessed the “ZZZZ” folder. As a result, Sames’s employees 

frustrated Salinas’s expectation of privacy in all of the illegal images in the thumb drive. 

Therefore, there was no Fourth Amendment violation when the officers later searched the 

thumb drive and viewed the images. See Jacobsen, 466 U.S. at 117 (“Once frustration of 

the original expectation of privacy occurs, the Fourth Amendment does not prohibit 

governmental use of the now-nonprivate information.”).
22

Salinas points to the testimony of his own forensic examiner that there was 

considerably more activity with regards to clicking through multiple files when the police 

searched the drive. Officer Paz testified that he clicked through the images in the “ZZZZ” 

folder, and the Sames employees testified that they did not. As noted above, Williams 

explained that Limon and Eden would have seen thumbnails of all seven images once 

the “ZZZZ” folder was opened. Even if they never clicked on the thumbnails or viewed the 

full-size images, the employees saw enough to know that what they were viewing was 

illegal and should be reported to police. Thus, Salinas’s expectation of privacy was 

already frustrated, regardless of whether law enforcement officers later clicked on each 

image to open them individually. See id. at 117–18, 126; Reddick, 900 F.3d at 637–39. 

We conclude that the private search doctrine applies here, and therefore, law 

enforcement did not violate the Fourth Amendment of the United States Constitution or 

Article I, § 9 of the Texas Constitution when they viewed the images, and the evidence 

does not violate the Texas exclusionary rule. See Jacobsen, 466 U.S. at 117; Walter v. 

United States, 447 U.S. 649, 657 (1980); Reddick, 900 F.3d at 639 (concluding there was 

no separate search triggering the Fourth Amendment when investigator opened files sent 

by Microsoft that Microsoft had identified as child pornography when they were uploaded 

by Reddick); see also United States v. Harling, 705 Fed. App’x 911, 916 (11th Cir. 2017) 

(per curiam) (“[L]aw enforcement’s subsequent search of the first and second USB drives, 

after listening to Nicole and Ada describe in detail what they had observed, was not 

violative of the Fourth Amendment [because] it did not meaningfully exceed the scope of 

Ada’s search.”); United States v. Tosti, 733 F.3d 816, 822 (9th Cir. 2013) (“Even assuming 

that Detective Shikore viewed enlarged versions of the thumbnails, he still did not exceed 
23

the scope of Suzuki’s prior search because Suzuki and both detectives both testified that 

they could tell from viewing the thumbnails that the images contained child 

pornography.”).9

E. Conclusion

Salinas’s first and second issues are overruled. 

IV. FRANKS HEARING

By his third issue, Salinas argues the trial court abused its discretion when it 

concluded that (1) he was not entitled to a Franks hearing, and (2) even if there had been 

a Franks violation in the affidavit supporting the search warrant, the other untainted facts 

in the affidavit would still be sufficient to support probable cause. 

[W]here the defendant makes a substantial preliminary showing that 

a false statement knowingly and intentionally, or with reckless disregard for 

the truth, was included by the affiant in the warrant affidavit, and if the 

alleged false statement is necessary to the finding of probable cause, the 

Fourth Amendment requires that a hearing be held at the defendant’s 

request. In the event that at that hearing the allegation of perjury or reckless 

disregard is established by the defendant by a preponderance of the 

evidence, and, with the affidavit’s false material set to one side, the 

affidavit’s remaining content is insufficient to establish probable cause, the 

search warrant must be voided and the fruits of the search excluded to the 

same extent as if probable cause was lacking on the face of the affidavit. 

Franks v. Delaware, 438 U.S. 154, 155–56 (1978); see Cates v. State, 120 S.W.3d 352, 

355 (Tex. Crim. App. 2003).

Salinas argues that the affidavit in support of the warrant here contained a false 

statement because it claimed that “Luna . . . and his co-workers accessed the [thumb 

9 Salinas also argues that Sames’s employees were not capable of consenting to the search of the 

thumb drive by police. Voluntary consent is another exception to the Fourth Amendment warrant 

requirement. See State v. Rodriguez, 521 S.W.3d 1, 11 (Tex. Crim. App. 2017); Valtierra v. State, 310 

S.W.3d 442, 448 (Tex. Crim. App. 2010). Having concluded that the private search doctrine exception to 

the warrant requirement applies here, we do not need to address this argument. See TEX. R. APP. P. 47.1.
24

drive] to check whether the USB port in Dr. Salinas’s vehicle was operating properly,” and 

thus, the affidavit “told the magistrate . . . that the initial accessing of the [thumb drive]

was done with Dr. Salinas’s consent.” As noted above, Sames’s employees lied when 

they told law enforcement that use of the thumb drive was part for any of the work they 

performed on Salinas’s truck. The search warrant affidavit contained this false 

information. However, for a violation of Franks, the false statements must be made by the 

affiant himself, not by a third party. Franks, 438 U.S. at 155–56, 164–65 (noting that the 

Fourth Amendment requires the probable cause affidavit to make a truthful showing “in 

the sense that the information put forth is believed or appropriately accepted by the affiant 

as true”); see Hackleman v. State, 919 S.W.2d 440, 448 (Tex. App.—Austin 1996, pet. 

ref’d untimely filed); see also McCray v. Illinois, 386 U.S. 300, 307 (1967) (explaining that 

when determining whether probable cause exists to support a search warrant, “the 

magistrate is concerned, not with whether the informant lied, but with whether the affiant 

is truthful in his recitation of what he was told”); United States v. Johnson, 580 F.3d 666, 

670 (7th Cir. 2009) (“It is not enough to show that an informant lied to the government 

officer, who then included those lies in the complaint. Instead, the evidence must show 

that the officer submitting the complaint perjured himself or acted recklessly because he 

seriously doubted or had obvious reasons to doubt the allegations.”). Thus, to qualify for 

a Franks hearing, Salinas needed to make a substantial showing that Investigator 

Rosales knew of the falsity of the statements, or recklessly disregarded the truth. Salinas 

failed to do so. And the trial court’s finding that Officer Paz had no cause to disbelieve the 

false report given by Luna is supported by the record. See Baird, 398 S.W.3d at 226.

Salinas’s third issue is overruled. 
25

V. CONCLUSION

The trial court’s judgments of conviction are affirmed.

DORI CONTRERAS

Chief Justice

Publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the 

13th day of May, 2021.