                                                                                              PD-1396-14
                                                                           COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
                                                                           Transmitted 9/1/2015 9:07:02 AM
                                                                             Accepted 9/1/2015 9:35:05 AM
                                                                                            ABEL ACOSTA
                                                                                                    CLERK


                        NICHOLAS “NICO” LaHOOD
                              Criminal District Attorney
                                   Bexar County, Texas
                                                                             September 1, 2015
                                           September 1, 2015

Mr. Abel Acosta, Clerk
Court of Criminal Appeals
P.O. Box 12308
Austin TX 78711

       Re:    Ford v. State, No. PD-1396-14; additional authority

Dear Mr. Acosta:

       Yesterday I became aware through the Court’s website that opposing counsel
Cynthia Orr filed a letter with this Court suggesting additional authorities on August
11th. I was not previously aware of this letter because Ms. Orr did not provide me with a
copy of it or with notice she had filed it.

        In brief response, neither case cited by Appellant is binding on this Court or even
persuasive. In United States v. Graham, 2015 U.S. App. LEXIS 13653 (4th Cir. delivered
August 5, 2015), the Fourth Circuit held that the government’s acquisition of 221 days’
of cell site location information from the defendant’s service provider constituted a
search. The Court emphasized that it was the lengthy duration of the information that
rendered it a search that violated the defendant’s privacy interests: “We hold that the
government conducts a search under the Fourth Amendment when it obtains and inspects
a cell phone user's historical CSLI for an extended period of time.” Graham at 19. The
court went on to hold that the search also intruded on the Defendant’s privacy interests
because it showed his movements within his own home.

        By contrast, in Ford’s case the State only obtained records covering a few hours of
the relevant time. It did not show Ford’s movements within his home, it showed his
movements on public streets at a time when he had falsely claimed to be in his home.
Even the court in Graham held that a person’s movements on public streets is not
protected by the Fourth Amendment. Id. at 22, 28.

        Furthermore, the 4th Circuit held that even though the records were obtained from
a third party provider, that provider’s policy only informed consumers it would collect

    Paul Elizondo Tower  101 W. Nueva Street, 4th Floor  San Antonio, Texas 78205-3030
                                     (210) 335-2311
                             For Victim Assistance call (210) 335-2105
the data, not that it would provide it to the government. There is no evidence in Ford’s
case of what Appellant’s provider’s policy showed. Since Appellant had the burden of
proof at the hearing on his motion to suppress this data, he did not carry that burden by
providing that information.

       Finally, the court in Graham affirmed the conviction, holding that even though the
records were improperly obtained without a search warrant, the government relied in
good faith on court orders signed by a judge – just as in Ford’s case. Id. at 67.
Appellant’s argument in the trial court relied entirely on the Fourth Amendment, as does
the Graham opinion. So the same good faith exception would apply in Ford’s case as in
Graham’s.

       Please provide this information to the Court. Thank you for your help. If I need
to provide any more information, please give me a call.

                                             Very truly yours,

                                             /s/ Jay Brandon




copy: Cynthia Orr, attorney for appellant




    Paul Elizondo Tower  101 W. Nueva Street, 4th Floor  San Antonio, Texas 78205-3030
                                     (210) 335-2311
                             For Victim Assistance call (210) 335-2105
