                                                                             PD-1396-14
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 4/7/2015 9:43:23 AM
                                                             Accepted 4/8/2015 8:25:15 AM
April 8, 2015
                                                                              ABEL ACOSTA
                         NO. PD-1396-14                                              CLERK

                      JON THOMAS FORD,
                                Appellant
                             v.

                     THE STATE OF TEXAS,
                                Appellee

                APPELLEE‟S BRIEF ON THE MERITS
                      AFTER GRANTING OF
                    DISCRETIONARY REVIEW

                     In the Court of Appeals for the
                Fourth Court of Appeals District of Texas
                             at San Antonio
  _____________________________________________________________

               On appeal from the Fourth Court of Appeals,
           No. 04-12-00317-CR, and the 186th District Court of
              Bexar County, Trial Court No. 2010-CR-7741,
              Honorable Maria Teresa Herr, Judge Presiding
 _______________________________________________________________

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

                             CATHERINE BABBITT
                             KIRSTA MELTON
                             KATHERINE CUNNINGHAM
                             Assistant District Attorneys

                             JAY BRANDON
                             Assistant District Attorney
                             SBN 02880500
                             101 W. Nueva
                             San Antonio TX 78205
                             (210) 335-2418
                             jay.brandon@bexar.org
                            TABLE OF CONTENTS
                                                Page
INDEX OF AUTHORITIES                             3

STATEMENT OF THE CASE                            4

STATEMENT OF PROCEDURAL HISTORY                  4

GRANTED GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE
WHETHER A WARRANTLESS
SEARCH OF INVOLUNTARILY
CONVEYED HISTORICAL CELL
TOWER DATA IS AN ILLEGAL SEARCH                  4

GROUND FOR REVIEW TWO
THE COURT OF APPEALS’ HOLDING,
THAT CELL TOWER DATA INFORMATION
CONVEYED FROM A PHONE INVOLUNTARILY,
IS PUBLIC INFORMATION UNDER THE
THIRD PARTY RECORD DOCTRINE; [sic]
IS CONTRARY TO RICHARDSON V. STATE.              4

STATE’S RESPONSE
THE COURT OF APPEALS CORRECTLY
HELD THAT FORD COULD NOT COMPLAIN
OF RECORDS PROPERLY ACQUIRED BY
COURT ORDER FROM A THIRD PARTY.                  5

(A third ground for review was not granted.)

PRAYER FOR RELIEF                                15

CERTIFICATE OF COMPLIANCE                        16

CERTIFICATE OF SERVICE                           16




                                        2
                            INDEX OF AUTHORITIES
                                                                Page

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

In re Application of the U.S. for Historical Cell Site Data,
       724 F.3d 600 (5th Cir. 2013)                                8

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

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577,
      61 L.Ed. 220 (1979)                                          8

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

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

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081,
      75 L.Ed.2d 55 (1983)                                         6




                                          3
                          STATEMENT OF THE CASE

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

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

                  STATEMENT OF PROCEDURAL HISTORY

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

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

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

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

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

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

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

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



                  GRANTED GROUND FOR REVIEW ONE
                     WHETHER A WARRANTLESS
                     SEARCH OF INVOLUNTARILY
                    CONVEYED HISTORICAL CELL
                  TOWER DATA IS AN ILLEGAL SEARCH

                GRANTED GROUND FOR REVIEW TWO
                  THE COURT OF APPEALS’ HOLDING,
               THAT CELL TOWER DATA INFORMATION
             CONVEYED FROM A PHONE INVOLUNTARILY,
                 IS PUBLIC INFORMATION UNDER THE
                THIRD PARTY RECORD DOCTRINE; [sic]
               IS CONTRARY TO RICHARDSON V. STATE.


                                         4
                         STATE’S RESPONSE
                 THE COURT OF APPEALS CORRECTLY
                HELD THAT FORD COULD NOT COMPLAIN
                 OF RECORDS PROPERLY ACQUIRED BY
                 COURT ORDER FROM A THIRD PARTY.

TO THE HONORABLE JUDGES OF SAID COURT:

                          What is Not Preserved for Review

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

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

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

based on a provision of the Texas Constitution.

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

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

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

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

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

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

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

case to the court of appeals to answer that question.

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


1
  865 S.W.2d 844 (Tex.Crim.App. 1993)
2
  Id. at 846.
3
  Id. at 953-54.
                                          5
and does not apply to this case.

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

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

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

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

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

review.4

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

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

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

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

texting Ford that night.

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

             The Preserved Argument: Jones and the Fourth Amendment

      “A person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” 5

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

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

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

4
  444 S.W.3d at 192
5
  United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)
6
  132 S.Ct. 945, 181 L.Ed.2d 911 (2012)
                                               6
however, by its terms is inapplicable to this case and does not support Ford‟s

argument.

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

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

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

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

Amendment rights against unreasonable searches, because officers physically

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

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

right to touch Jones‟ car without a warrant.7

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

contact with him or his personal property.

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

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

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

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

such as conveying it to law enforcement authorities.”8

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



7
    444 S.W.3d at 187-88; Jones, 132 S.Ct. at 249.
8
    Id. at 188.
                                                 7
conveys to a third party is not subject to Fourth Amendment protection.9 It has

been upheld in this same context by the Fifth Circuit Court of Appeals.10

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

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

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

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

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

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

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

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

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

was none here.

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

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

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

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

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

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


9
 Smith v. Maryland, 442 U.S. 735, 745, 99 S.Ct. 2577, 61 L.Ed. 220 (1979); cited in Ford,
supra, 444 S.W.3d at 189.
10
   In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013)
                                                 8
existed in the care of the third party, with no intrusion by police.

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

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

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

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

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

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

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

privately in the phone.

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

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

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

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

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

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

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

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

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

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

11
     423 S.W.3d 399 (Tex.Crim.App. 2014)
12
     423 S.W.3d at 415-16.
                                            9
girlfriend and her dog. Therefore, he argues, he didn‟t voluntarily convey his

location information to AT&T.

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

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

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

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

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

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

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

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

travel without it.

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

longstanding precedent and nothing in this case distinguishes it from that

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

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

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

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

See below.




13
     444 S.W.3d at 190.
                                            10
                      No Expectation of Privacy in One’s Whereabouts

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

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

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

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

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

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

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

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

scene. Any suspect could successfully move to suppress eyewitness testimony

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

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

were private, most traditional evidence would not be admissible.

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

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

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

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

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

he had no standing to complain.

14
     (Supp.CR 177)
15
     See quote from U.S. v. Knotts, supra, at the beginning of this argument.
                                                  11
                                     The Statute

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

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

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

      (a) A court shall issue an order authorizing disclosure of contents,
      records, or other information of a wire or electronic communication
      held in electronic storage if the court determines that there is a
      reasonable belief that the information sought is relevant to a legitimate
      law enforcement inquiry.

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

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

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

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

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

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

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

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

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

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

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

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

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


                                         12
Ford‟s white Tahoe entering and exiting the condo complex twice; it also showed a

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

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

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

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

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

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

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

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

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

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

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

police.19

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

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

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

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




16
   Supp.CR 180-83
17
   CR 101-04
18
   444 S.W.3d at 193
19
   Supp.CR 189, 199
                                          13
                The Acquisition Did Not Violate the Fourth Amendment

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

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

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

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

successfully do so.

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

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

apply to this procedure.

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

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

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

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

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

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

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

of the court.

      Attorneys are subject to disciplinary sanctions for signing false pleadings.

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

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


                                          14
contents.

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

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

Amendment rights.

      But this wasn‟t a search.

                             PRAYER FOR RELIEF

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

appeals.

                                      Respectfully submitted,

                                       NICHOLAS “NICO” LaHOOD
                                       Criminal District Attorney
                                       Bexar County, Texas
                                        Jay Brandon
                                       ______________________________
                                       JAY BRANDON
                                       Assistant Criminal District Attorney
                                       Bexar County, Texas
                                       101 West Nueva, 3rd Floor
                                       San Antonio, Texas 78204
                                       (210) 335-2418
                                       State Bar No. 02880500
                                        jay.brandon@bexar.org

                                       Attorneys for the State




                                         15
                         CERTIFICATE OF COMPLIANCE

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

that this document contains 3,014 words.
                                        Jay Brandon
                                       _____________________________
                                       JAY BRANDON



                           CERTIFICATE OF SERVICE

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

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

                                        Jay Brandon
                                       ___________________________
                                       JAY BRANDON




                                         16
