                                                                                  PD1396-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
      April 30, 2015                                           Transmitted 4/28/2015 8:43:26 PM
                                                                Accepted 4/30/2015 12:20:50 PM
                                                                                 ABEL ACOSTA
                               Cause No. PD-1396-14                                      CLERK

                IN THE TEXAS COURT OF CRIMINAL APPEALS


JON THOMAS FORD,                      §
    Petitioner/Appellant,             §     FROM THE FOURTH
                                      §     COURT OF APPEALS
vs.                                   §     SAN ANTONIO, TEXAS
                                      §     No. 04-12-00317-CR
THE STATE OF TEXAS,                   §
    Respondent/Appellee.              §


                 PETITIONER’S REPLY TO APPELLEE’S BRIEF
                     ON THE MERITS AFTER GRANTING
                        OF DISCRETIONARY REVIEW


                       On appeal from Cause No. 2010-CR-7741
                          IN THE 186th DISTRICT COURT
                             BEXAR COUNTY, TEXAS




                                      CYNTHIA EVA HUJAR ORR
                                      Bar No. 15313350
                                      GOLDSTEIN, GOLDSTEIN & HILLEY
                                      310 S. St. Mary’s St.
                                      29th Floor Tower Life Bldg.
                                      San Antonio, Texas 78205
                                      210-226-1463
                                      210-226-8367 facsimile
                                      whitecollarlaw@gmail.com

                                      ATTORNEY FOR PETITIONER/
                                      APPELLANT - Jon Thomas Ford
                                           TABLE OF CONTENTS


Table of Authorities ................................................................................................. iii

Issues Presented ........................................................................................................ 1

       I.     Whether a warrantless search of involuntarily conveyed historical cell
              tower data is an illegal search
       II.    The Court of Appeal's holding, that cell tower data information conveyed
              from a phone involuntarily, is public information under the third party
              record doctrine; is contrary to Richardson v. State, 865 S.W.2d 844 (Tex.
              Crim. App. 1993)

Reply ......................................................................................................................... 1

Certificate of Compliance ....................................................................................... 20

Certificate of Service .............................................................................................. 20




	                                                             ii	  
	  


                                        TABLE OF AUTHORITIES

Cases:

Barfield v. State, 416 S.W.3d 743 (Tex. App. Houston [14th Dist.], no pet). ......... 17

In re Applications of the U.S.A. for Historical Cell-Site Data, 724 F.3d 600 (5th
Cir. 2013) .......................................................................................................... 15, 17

Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) .......... 1, 4, 12, 13, 14

Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ............ 2, 3, 12, 13, 14

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) .................
................................................................................................................. 7, 13, 14, 15

Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) ................. 11

State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) ................................. 19

Tracey v. Florida, 152 So.3d 504 (Florida 2014) ................................................... 17

United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)..................... 2, 3, 14

United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)....... 5, 7

Rules, Statutes and Other:

18 U.S.C. § 2703(d) ................................................................................................. 9

47 U.S.C. § 1002(a)(2)(B) ...................................................................................... 10

Article 1, Section 9 of the Texas Constitution ................................................ 1, 4, 13

Art. 18.20 (5) of the Texas Code of Criminal Procedure.......................................... 6

Art. 18.20 (15) of the Texas Code of Criminal Procedure........................................ 9

Art. 18.21 Sec. 5 of the Texas Code of Criminal Procedure .............................. 9, 10



	                                                            iii	  
Art. 18.21 Sec. 5(a) of the Texas Code of Criminal Procedure ................................ 9

Art. 38.23 of the Texas Code of Criminal Procedure ........................................... 3, 4

First Amendment of the United States Constitution ....................................... passim

Fourth Amendment of the United States Constitution .................................... passim

ABA Standards on Third-Party Records:                                        Critical Perspectives From a
Technology-Centered Approach to Quantitative Privacy, 66 Okla L Rev 919
(2014) ...................................................................................................................... 15

ABA Standards on Third-Party Records................................................................. 15

ABA Journal, Kerr and Nojeim, The Data Question: Should the Third-Party
Records Doctrine Be Revisited? (August 2012) ..................................................... 15

Electronic Communications Privacy Act of 1986 .................................................... 5

Stored Communications Act ............................................................................ passim

A Supermajority of Californians Support Limits on Law Enforcement Access to
Cell Phone Location Information, 8–9 (2008) Jennifer King & Chris Jay
Hoofnagle [www.researchgate.net] ......................................................................... 2

Who Knows Where You’ve Been? Privacy Concerns Regarding the Use of
Cellular Phones as Personal Locators, 18 HARV. J.L. & TECH. 307, 313 (2004) .... 2




	                                                            iv	  
                                     IN THE
                           COURT OF CRIMINAL APPEALS

JON THOMAS FORD,                           §
    Petitioner/Appellant,                  §
                                           §
vs.                                        §       Cause No. PD-1396-14
                                           §
THE STATE OF TEXAS,                        §
    Respondent/Appellee.                   §

                   PETITIONER’S REPLY TO APPELLEE’S BRIEF
                       ON THE MERITS AFTER GRANTING
                          OF DISCRETIONARY REVIEW

            Petitioner, Jon Thomas Ford (hereinafter “Ford”) raises the First and Fourth

Amendment to the United States Constitution, Article 1, Section 9 of the Texas

Constitution, and the third party record doctrine in his brief on the merits after the

grant of discretionary review).

                                      Issues Presented

      I.       Whether a warrantless search of involuntarily conveyed historical cell
               tower data is an illegal search
      II.      The Court of Appeal's holding, that cell tower data information conveyed
               from a phone involuntarily, is public information under the third party
               record doctrine; is contrary to Richardson v. State, 865 S.W.2d 944 (Tex.
               Crim. App. 1993)


                                           Reply

            Ford complained about the intrusion on his associational conduct and cited

the First Amendment, explaining that his associational movements, ostensibly his

precise location at various times of the night, and what kinds of communications
he had with whom and using what applications, interfered with his First

Amendment right to association.       He specifically cited Justice Sotomayor’s

opinion, in Riley, infra, stating that such surveillance chills one’s conduct. Here,

the State sought, by information obtained without a warrant, to prove where Ford

was; who he was communicating with; and the contents of his communications.

Ford complained that his text communications, unanswered calls or texts, and data

downloads were obtained. 4R12-14. He stated that this is specifically the situation

Justice Sotomayor warned of when she noted “the Government’s unrestrained

power to assemble data that reveal private aspects of identity is susceptible to

abuse.”   United States v. Jones, 132 S.Ct. 945, 956 (2012) (Sotomayor, J.,

concurring). His brief cited articles: Who Knows Where You’ve Been? Privacy

Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 HARV.

J.L. & TECH. 307, 313 (2004); Jennifer King & Chris Jay Hoofnagle, A

Supermajority of Californians Support Limits on Law Enforcement Access to Cell

Phone Location Information, 8–9 (2008)[www.researchgate.net]. He complained

that the State converted his personal cell phone into a government tracking device

and used the information to tell where he had been during the course of the

evening. And he set out in his brief, “Now, what was obtained here? We’re not

talking about subscriber information. We’re not talking about number of calls.

What we’re talking about is the location.” 4R27. Ford complained about the



	                                       2	  
	  


obtaining of his associational conduct. See Appeal brief at pages 31, 33, 34, and

38; Reply brief at pages 16-17.

       Justice Chapa, in her dissenting opinion, quoting Riley v. California, 134

S.Ct. 2473, 2490 (2014), was aware of Ford’s briefed complaints when she wrote

“[h]istoric location information is a standard feature on many smart phones and

can reconstruct someone’s specific movements down to the minute, not only

around town but also within a particular building.” Although less precise than GPS

records, see Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring); see also id. at 963

(Alito, J., concurring in judgment), Ford also complained that the historic cell site

data compiled by cell phone providers can generate a “comprehensive record of a

person’s public movements that reflect a wealth of detail about their familial,

political, professional, religious, and sexual associations.” Ford adequately briefed

his First Amendment concerns.

       Ford also raised his right to privacy, the warrant requirement, and argued

violation of “state law” in this context. After counsel pointed out the acquisition of

the data violated Texas law, the prosecutor argued, “[s]o any 38.23 argument that

they would be making, which is that we have violated a provision of Texas law,

totally aside and apart from the U.S. Constitution…” The prosecutor went on to

state, “if the Court looks they should be able to determine that this is being brought




	                                        3	  
under—this 38.23 allegation…” 4CR22–23. The warrant requirement under state

law means the requirement under Article 1, § 9.

       Further, Ford raised Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App.

1993) and the fact that it demands a warrant for information from third-party

records. Richardson held that using a pen register constitutes a “search” under

Article I, § 9 of the Texas Constitution. Further, Richardson consisted of voluntary

activities while; here, there are passive activities.

       Ford argued that the third-party record doctrine does not apply in Texas and

should not apply any longer in the context of acquisition of historic cell tower data

(HCD), particularly where, as here, that data was wholly involuntarily relayed data.

The dissent agreed, stating that “this application of the third party doctrine sweeps

intimate details of a person’s life outside the scope of the Fourth Amendment’s

protections… simply by [one] owning and using their cell phones.” Appendix to

Petitioner’s Amended Brief, Dissent at 3. The dissent held Ford’s Fourth

Amendment rights were violated since the State did not obtain a warrant before

searching through Ford’s Historical Cell Site Data. Justice Chapa stated, in her

dissent, that the majority created a harsh dichotomy, leaving a choice to either

refrain from using a cell phone, which is a part of our everyday lives or “forego the

protection of the Fourth Amendment.” Since Ford has a reasonable expectation of




	                                          4	  
	  


privacy in his “physical movements and location,” the HCD should be suppressed

as he argued below.

       Petitioner states his rejection of a Stored Communications Act (hereinafter

“SCA”) application for HCD as adequate, by arguing that a warrant is required

instead. Thus, the argument is that: the Act does not apply to this new information

that did not even exist at the time the legislation was passed. The SCA was

enacted to obtain much less.      It was enacted as Title II of the Electronic

Communications Privacy Act of 1986, and reflects the technology of the 1980”s.

Internet service providers temporarily stored copies of emails that its clients sent

and then delivered them to their intended recipient and they also received batches

of data to store or perform number crunching for their clients. This is why the

SCA calls the information electronic communication service (emails) or remote

communication service (data batches for storage or number crunching). So, the

SCA has a very narrow scope that did not even include historic cell tower data,

texts, contents of any email, or data automatically conveyed by a cell phone. Such

information did not exist on the server. The statute’s language has remained static

and, more importantly, does not apply to the data here. It was intended to protect

what we stored on external computers through a third party network server in the

1980’s, out of concern that the Third Party record doctrine from United States v.

Miller, 425 U.S. 435, 443 (1976) would make the information non-private and hurt



	                                       5	  
the business of internet service providers.1 The Texas statute, TCCP art. 18.20 (5),

was intended to duplicate the federal Act.

                 Here, the information requested and obtained was much different and

broader. Texas law only allows acquisition of stored information of electronic

communications, not connection information.

                 Further, the technology did not even exist at the time for cell phones to

convey stored electronic data. Mobile phones, around for about three decades

now, have evolved from a means of simple communication to a personal assistant

that helps facilitate our every day lives. They now contain and access from remote

locations (clouds) mass amounts of private data and information. The early 1980’s

brought the first generation of mobile phones, the “Bag phone” weighed several

pounds, and “The Brick,” a phone that weighed about 7 oz., could only make calls.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	   “See H.R. REP. NO. 99-647, at 19 (1986) (commenting that the questionable privacy

protections available to users of computer networks ‘may unnecessarily discourage potential
customers [from] using such systems’); id. at 65–66 (‘This provision reflects the rapidly growing
importance of information storage and processing to the Nation’s commerce. Today, the subject
matter of commerce increasingly is information in electronic form and the processing of
information itself has become a major industry. The secure storage of electronic information has
thus become as important to the commercial system as the protection of paper records.’); S. REP.
NO. 99-541, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3559 (noting that the uncertain
privacy protections ‘may unnecessarily discourage potential customers from using innovative
communications systems’ or ‘discourage American businesses from developing new . . . forms of
telecommunications and computer technology’). “Free at What Cost?: Cloud Computing Privacy
Under the Stored Communications Acct, 98 Georgetown Law J 1195, n. 179 (2010).



	                                                                                                            6	  
	  




As the years went by, in the late 1990’s cutting-edge features were added, like an

internal antenna, mobile games, and the introduction of SMS text messaging. It

wasn’t until 2007 that the first iPhone was launched, which was the device that

revolutionized the world by allowing users to surf the Internet, send emails, and

use applications, or apps. These were computer services that performed many

functions; find restaurants nearby, provide navigation to distant locations, modify

photos, organize frequent purchase cards or business cards etcetera. Furthermore,

cellphones started replacing cameras, calendars, and MP-3 music players. As

technology advances, it gets harder and harder to distinguish cell phones from

tablets or personal computers.

       Thus, obtaining this information under the federal or Texas measures runs

afoul of the Fourth Amendment. This information is distinct.      It is not numbers

dialed on a rotary dial phone, as in Smith v. Maryland, 442 U.S. 735, 99 S.Ct.

2577, 61 L.Ed.2d 220 (1979), or bank deposit slips and checks given to a bank, as

in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). It is

information about a person’s every location as each moves about throughout their



	                                       7	  
lives. It is information about who they contact and who contacts them. And it is

whether they have received a text message, answered a call, checked their

voicemails or received data updating an app.

                 The requests and orders, here, are not Fourth Amendment warrant

equivalents as the State has argued. The affidavits in support of the orders issued

did not state probable cause2 or ask for a probable cause determination from the

judges.                    The applications read: “[t]he release of said cellular phone records,

technical information, and technical assistance; are material and relevant to the

investigation of a criminal offense; supporting information/’specific and articulable

fact(s)’ follows.” The identical applications for the HCD, texts, emails and GPS

data, list facts that show the body of DE was found on January 2, 2009. No time

or date of death is indicated. They further state that DE attended a party on

December 31, 2008 with multiple friends, including Ford. They say that Ford left

the party before DE. DE left the party with two friends. Also they relay that the

two friends drove by Ford’s home and did not see his vehicle outside of his garage.

It could have been inside the garage. In addition, the applications say that Ford

claimed to have gone home before midnight and gone to sleep. The applications

state that video footage shows a vehicle similar to Ford’s entering and exiting


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2	  As this Court is aware, the good faith exception does not apply to warrants lacking probable

cause. 	  



	                                                                                                                 8	  
	  


Gallery Court and a man wearing clothes similar to Ford’s walking into the

condos’ cul-de-sac. About an hour later, the person seen walking into the condo is

seen walking out, according to the applications. And they allege that person is

now carrying a white bag. Further, they describe that minutes later a vehicle

matching the description of Ford’s is seen driving by.          At no time do the

applications mention a time at which the crime occurred. Nor do they allege it

happened from 12/31/2008 – 1/1/2009. There is no identification of Ford or his

vehicle as being present at the condos. These facts do not state probable cause or

even reasonable suspicion. SCR180–199. Nor do either application ask the court

to make a probable cause determination or state that there is probable cause to

believe that HCD, the texts, emails or GPS information will contain evidence of

any crime.

       Further, the applications do not even comply with the statutes. They do not

state a “reasonable belief” or “that these are reasonable grounds to believe” that the

facts shown are relevant to a legitimate law enforcement inquiry as required. See

TCCP 18.21 Sec. 5(a) (“if the court determines that there is a reasonable belief”)

and 18 U.S.C. §2703(d) (“that there are reasonable grounds to believe”). Article

18.21 Sec. 5 of the TCCP only allows the issuance of an order for the “disclosure

of contents, records, or other information of a wire or electronic communication

held in electronic storage….” TCCP art. 18.21 Sec. 5 (emphasis added). An



	                                        9	  
electronic communication is “a transfer of signs, signals, writing, images, sounds,

data, or intelligence of any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photo-electronic, or photo-optical system.” TCCP art. 18.20(15).

Here, the State asked for and obtained “cellular site information.”             This

information is connection and location information, not information of transmitted

intelligence as authorized by TCCP art. 18.21 Sec. 5.

       47 U.S.C. § 1002 (a)(2)(B) provides, “with regard to information required

solely pursuant to the authority for pen registers and trap and trace devices,” a

carrier need not allow the government to access “call-identifying information…

that may disclose the physical location of the subscriber (except to the extent that

the location may be determined from the telephone number)….” 47 U.S.C. §

1002(a)(2)(B).

       Therefore, the applications for the records requesting: “cell site activate,

numbers dialed, incoming and outgoing phone calls, an engineering map; showing

all cell site tower locations, billing information, and alpha/numeric text messages,

emails and GPS data” [SCR180-199] should not have been granted. Nothing in the

statutory language of 18.20 of TCCP, authorized the release of cell site records.

       Nevertheless, the granted orders authorized authorities to provide officers of

the Houston Police Department the records obtained from Ford’s cell phone, in

order for HPD “record for any number(s) which are derived from record(s)



	                                       10	  
	  


pertaining to the initial number.” Those records were to include customer and

subscriber information, including customer service and credit scores, the name and

addresses of all subscribers to the telephone numbers revealed by the initial

cellular records. Now, not only has the state obtained records pertaining to Ford,

but also of his known associates located in the vicinity of HPD. (Order, pp. 21, 39-

45).

       The SCA should be held inapplicable to the present case.      The SCA was

enacted in 1986, nearly a decade before SMS messages, e-mails, HCD and

applications became a worldwide phenomenon. Since this information of daily

living and associational conduct is information regarding which Ford had a

reasonable expectation of privacy and because it was information that he did not

voluntarily convey to a third party, a search warrant should have been obtained.

       Search warrants must be supported by probable cause that described the

things to be seized and in regard to First Amendment protected materials, it must

be described with scrupulous exactitude. Stanford v. Texas, 379 U.S. 476, 485, 85

S.Ct. 506, 13 L.Ed.2d 431 (1965).

       The applications submitted by Det L. Carrion, contain a mischaracterization

of his own interviews with witnesses and a bank’s blurry motion activated or time

lapsed video. The application shows no indication of evidence found at the crime

scene, does not state what items were going to be seized, it did not indicate that



	                                      11	  
Ford was a suspect, nor what was the decedent’s cause or time of death. There is

no cause stated to believe that there is evidence in the items to be seized, that Ford

committed the murder of DE.

       There are eleven States (California, Florida, Idaho, Montana, Pennsylvania,

Washington, Colorado, Hawaii, Illinois, New Jersey, and Utah) that rejected the

third-party record doctrine when it came out. Texas joined them in 1993, noting

the opinions from several states.   The Court in Richardson v. State, 865 S.W.2d

944, 947-948 (Tex. Crim. App. 1993) held that a telephone is a necessity of

modern life and that an individual has no choice but divulge the number dialed to

the telephone company. It also discussed that persons who use a phone disclose

telephone numbers for the limited business purpose of obtaining telephone

communication services and not for release to the general public.

       The same type of information that the State obtained via their applications

here, is the same type of information in which the Supreme Court expressed

persons have a privacy interest in Riley, infra, as well. For example, “[a]n internet

search and browsing history…can be found on an internet-enabled phone and

could reveal an individual’s private interest or concerns,” and “data on a cell phone

can also reveal where a person has been. Historic location information is a standard

feature on many smart phones and reconstruct someone’s specific movements

down to the minute, not only around town but also within a particular building.”



	                                       12	  
	  


“Mobile application software on a cell phone, or ‘apps’ offer a range of tools for

managing detailed information about all aspects of person’s life.” Because this is

so the Supreme Court held that stronger protection is required for the contents of a

cell phone as it is closer to the contents of one’s home than to the contents of one’s

pocket.   A search warrant is required. Riley v. California, 134 S.Ct. 2473, 2490,

189 L.Ed.2d 430 (2014). Further, Richardson v. State, demands stronger protection

for information obtained without a warrant from third-party providers. Richardson

held that using a pen register constitutes a “search” under Article I § 9 of the Texas

Constitution. On remand, the Court of Appeals, while acknowledging the Court of

Criminal Appeals’ holding that a pen register was a search requiring a warrant,

avoided deciding whether the pen register in Richardson violated Article 1, Section

9 of the Texas Constitution. It did so by finding that no pen register information

was used to obtain the search warrant complained of in the case, and that no call

originating from Richardson was caught on the pen register so he had no standing

to complain. Richardson v. State, 902 S.W.2d 689, 692.

       Here, the Court of Appeals used the third-party record doctrine and held that

citizens’ information is public “once an individual voluntarily exposes information

to a third party.” Appendix to Petitioner’s Amended Brief at 22. It held that since

Mr. Ford utilized a cell phone and subscribed to AT&T’s phone service,




	                                       13	  
everything he did to use the phone was voluntarily disclosed to AT&T, whether he

knew it was occurring or not.

       However, the Court of Appeals misapplied the ruling in Smith v. Maryland,

where the Supreme Court held there is no legitimate Fourth Amendment

expectation of privacy in the phone number one dials on a phone. The Smith case is

one that pre-dates cell phones, cell towers and the “cloud.” The State attempts to

equate HCD with a pen register. But it is much different. In Smith the pen register

noted the electronic impulses emanating from a rotary dial and reported those

numbers and those numbers alone. The pen register in Smith could not determine

if a call was connected, if there was a call or its duration, what type of information

was relayed or the location of the person dialing the rotary phone, through the

information conveyed in the pen register.

       In United States v. Jones, 132 S.Ct. 945, Justice Sotomayor in her

concurrence addressed the issue, “even in the absence of a trespass, ‘a Fourth

Amendment search occurs when the government violates a subjective expectation

of privacy that society recognizes as reasonable.” Historic location information is a

standard feature on many smart phones and can reconstruct someone’s specific

movements down to the minute, not only around town but also within a particular

building.” Riley v. California, 134 S.Ct. 2471, 2490 (2014). Because a person uses

a third-party to provide a service, one does not necessarily give up their



	                                       14	  
	  


expectation of privacy in the information provided voluntarily. Richardson rejected

the third-party record doctrine because voluntarily provided records for a limited

business purpose.

       The National Association of Criminal Defense Lawyers has also taken a

stand against the warrantless acquisition of HCD. See Amicus brief in In re

Applications of the United States of America for Historical Cell-Site Data, 724

F.3d 600 (5th Cir. 2013). Commentators have noted Fourth Amendment concerns

regarding third-party records, signaling the demise of the doctrine. “In our view,

what is troubling about the data surveillance technologies that take advantage of

the third party doctrine is not what information they gather, but, rather, the broad,

indiscriminate, and continuous nature of the surveillance they facilitate, and the

effects of that surveillance on general security in our persons, houses, papers, and

effects. If we want to preserve reasonable expectations of privacy against these

technologies, then we should confront the threats that they pose directly.” The

ABA Standards for Criminal Law Enforcement Access to Third-Party Records:

Critical Perspectives From a Technology-Centered Approach to Quantitative

Privacy, 66 Okla L Rev 919 (2014). And, the ABA Criminal Justice Section has

issued standards to deal with third-party records that require issuance of a search

warrant. See ABA Standards on Third-Party Records. And academics have noted

the doctrine is dead. ABA Journal, Orin Kerr and Greg Nojeim, The Data



	                                       15	  
Question: Should the Third-Party Records Doctrine Be Revisited? (August 1,

2012)[arguing that the rule is an anachronism, from a time when there was no

email, no world wide web, and people communicated by phone, fax and letter].

There were holes created in the doctrine so that the contents of some records could

not be revealed, even if conveyed to a third party. So phone numbers could be

revealed, but not phone conversations; and that email was stored, but not what was

written in it. A world without third parties would be unworkable. If you wanted

to deliver a package, you would have to leave your house instead of sending it

through the mail.   Orin Kerr, argued that the third party doctrine should not apply

when the third party is not a receiver of information, but a mere conduit through

which it passes.    And Mr. Mojeim and Mr. Kerr agree that Smith v. Maryland

rests on shaky ground. Dialing a phone number to place a call is not done by

consent or really voluntary, it is required to use the necessity of life. We no longer

travel long distances to communicate in person.

       The Court should note that the third-party record doctrine is an anachronism.

Almost everything we do depends on the involvement of third parties. As

consumers, our private lives are handled by third parties: cell phones, e-mails, bank

transactions, etc. Just because we ‘willingly’ decide to use those services we have

not as citizens relinquished our expectation of privacy. When we contract with

third parties to provide certain services and store or convey information through



	                                       16	  
	  


calls, texts, apps and emails, we do not contract to convey our cell phones to the

government as surveillance or tracking devices. By converting Ford’s cell phone

to such a tracking device, here, the state, seized his effects, his cell phone and its

attributes, even if it did so virtually.

       Federal and state courts have found that a warrant, based on probable cause,

is required for historic cell tower data, especially involuntary transmitted

information from our cell phones. See Tracey v. Florida, 152 So.3d 504, 515–16,

n.9 (2014). Others have held that sufficient articulable facts under the SCA. See

Tracey v. Florida, 152 So.3d 504, 515–16, n.8 (2014).

       However, the Fifth Circuit and the 14th District Court of Appeals have held

that only voluntarily conveyed information could be obtained under the SCA. The

Government narrowed its request to only the phone numbers dialed into the phone

in In re Applications of the United States of America for Historical Cell-Site Data,

724 F.3d 600 (5th Cir. 2013). The case was also a one-party case so no one could

take the decision up to the United States Supreme Court. But still the government

voluntarily narrowed its request in that case. In Barfield v. State, 416 S.W.3d 743

(Tex. App. Houston [14th Dist.], no pet), Barfield followed the Fifth Circuit

opinion and involved a subpoena for post-indictment voluntarily conveyed

information with regard to which a stored communications act complaint was

raised.



	                                         17	  
       The State’s attempt to apply anachronistic doctrines and cases to this

situation is not appropriate. This Court granted discretionary review not to decide

what the law already is. It granted the PDR to decide what the law should be in

today’s technology dense world. This is unique information that did not exist

when the cases came out and the store communications act was enacted. This

information is different in kind and quantity. There was no change in the law to

make it applicable to the changing data. The old cases do not address modern life,

digital data, modern phones (mini computers), and the “cloud.”

       Physical intrusion is not the only way that person’s property or effects can

be illegally searched and seized. Here, the State repurposed information Ford

provided for a limited purpose, changing it into government surveillance use, “the

all seeing eye.” This is not information the authorities observed on the open streets,

they made his phone into their phone, his information was not his but theirs, to

follow everything he was doing, for how long, and what topics he discussed. All

this information was obtained by going through his private emails, SMS messages,

GPS geo-location, HCD and applications that had been downloaded to his phone.

The government essentially seized Ford’s personal effects through his cell phone to

observe inside and outside his home and at all times. His cell phone is not like a

pair of pants or a bag of groceries, nor is the information it automatically relays

through AT&T unbeknownst to him.              Ford continued to have a reasonable



	                                       18	  
	  


expectation of privacy in the contents of his phone despite the State’s ability to

seize it virtually. See State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App.

2014).

                                     Respectfully Submitted:

                                     ____/s/Cynthia E. Orr_____________
                                     Cynthia E. Orr
                                     Bar No. 15313350
                                     GOLDSTEIN, GOLDSTEIN & HILLEY
                                     310 S. St. Mary’s St.
                                     29th Floor Tower Life Bldg.
                                     San Antonio, Texas 78205
                                     210-226-1463
                                     210-226-8367 facsimile
                                     whitecollarlaw@gmail.com

                                     Attorney for Petitioner/Appellant,
                                     JON THOMAS FORD




	                                     19	  
                      CERTIFICATE OF COMPLIANCE

     I hereby certify that this document complies with the typeface requirements of

Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document does

comply with the word-count limitations of Tex. R. App. P. 9.4(i)(3) because it

contains 4,803 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                          By:__/s/ Cynthia E. Orr______
                                            CYNTHIA E. ORR



                         CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a copy of the above Petitioner’s Reply to

Appellee’s Brief on the Merits After Granting of Discretionary Review has been

sent via E-file.Texas.gov, as registered participants, on this the 28th day of April,

2015 to the following:

      Nicolas LaHood
      District Attorney
      Jay Brandon
      Assistant District Attorney
      Paul Elizondo Tower
      101 West Nueva, Fourth Floor
      San Antonio, Texas 78205
      E-mail: jay.brandon@bexar.org,


                                       ____/s/Cynthia E. Orr_____________
                                             Cynthia E. Orr
