                                                                       PD-0969-17
                                                      COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                       Transmitted 10/5/2017 4:06 PM
                                                        Accepted 10/6/2017 10:31 AM
                                                               DEANA WILLIAMSON
                    NO. PD-0969-17                                            CLERK

                    IN THE                              FILED
                                               COURT OF CRIMINAL APPEALS
         COURT OF CRIMINAL APPEALS                    10/6/2017
                   OF TEXAS                     DEANA WILLIAMSON, CLERK
                  AT AUSTIN
           _________________________

               THE STATE OF TEXAS,
                        Appellant

                           v.

               RANDY DALE ADAMS,
                          Appellee
             _________________________

         On appeal in Cause No. F14-34086-K
           from the Criminal District Court #4
                 Of Dallas County, Texas
      And on Petition for Discretionary Review from
           the Fifth District of Texas at Dallas
              In Cause No. 05-16-01045-CR
              _________________________

APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
            _________________________

                                 Counsel of Record:

                                 Alison Grinter
                                 State Bar No. 24043476
                                 633 West Davis Street, Ste. 1017
                                 Dallas, Texas 75208
                                 (214) 704-6400 (phone)
                                 alisongrinter@gmail.com


       ATTORNEY FOR PETITIONER/APPELLEE
                             LIST OF PARTIES


TRIAL COURT JUDGE
Dominique Collins – Criminal District Court No. 4

APPELLANT
The State of Texas

APPELLEE
Randy Dale Adams

DEFENSE COUNSEL AT TRIAL
Alison Grinter
633 West Davis Street, Ste. 1017
Dallas, Texas 75208

Douglas Huff
Dallas County Public Defender’s Office
133 North Riverfront Boulevard LB-9
Dallas, Texas 7520

ON APPEAL
Alison Grinter

STATE’S ATTORNEYS AT TRIAL
Blake Reyna
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

ON APPEAL
Faith Johnson, District Attorney

Brian P. Higginbotham
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399


                                      ii
                                       TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
STATEMENT OF FACTS ........................................................................................ 2
GROUNDS FOR REVIEW ....................................................................................... 2
ARGUMENT ............................................................................................................. 3
Ground One................................................................................................................ 3
         The issue of a hotel guest’s reasonable expectation of privacy in
         his own hotel registration is a novel question of law that has not
         been, but should be decided by the Court of Criminal Appeals. ..................... 3
Ground Two ............................................................................................................... 4
         The Court of Appeals’ decision reversing the trial court’s order
         granting Petitioner’s motion to suppress evidence conflicts with
         decisions of the United States Supreme Court. ............................................... 4
Ground Three ............................................................................................................. 6
         The court of appeals’ failure to grant Appellee’s motion to dismiss
         the State’s appeal for want of jurisdiction has so far departed from
         the usual and accepted course of judicial proceedings as to call for
         an exercise of the Court of Criminal Appeals’ power of
         supervision. ...................................................................................................... 6
PRAYER FOR RELIEF ............................................................................................ 7
CERTIFICATE OF SERVICE .................................................................................. 7
CERTIFICATE OF COMPLIANCE ......................................................................... 8




                                                          iii
                                  INDEX OF AUTHORITIES

Cases
City of Los Angeles v. Patel,
  135 S. Ct. 2443 (2015) ......................................................................................5
Ford v. State,
  477 S.W.3d 321 (Tex. Crim. App. 2015) ..........................................................3
Hankston v. State,
 517 S.W.3d 112 (Tex. Crim. App. 2017) ..........................................................3
Katz,
 389 U. S. 347 (1967) .........................................................................................6
Love v. State,
  No. AP-77, 024 (Tex. Crim. App. 2016) (slip opinion available at 2016 Tex.
  Crim. App. LEXIS 1445) ..................................................................................4
Muller,
 829 S.W.2d 805 (Tex. Crim. App. 1992) ..........................................................7
Smith v. Maryland,
  442 U. S. 735 (1979) .....................................................................................5, 6
State v. Adams,
  No. 05-16-01045-CR, 2017 Tex. App. (Tex. App.—Dallas August 3, 2017)
  (not designated for publication) ........................................................................1
State v. Muller,
  829 S.W.2d 805 (Tex. Crim. App. 1992) ..........................................................6
State v. Shelton,
  830 S.W.2d 605 (Tex. Crim. App. 1992) ..........................................................6
United States v. Miller,
 425 U. S. 435 (1976) .........................................................................................5
US v. Jones,
 132 S. Ct 945 (2012) .........................................................................................5
Statutes
TEX. CODE CRIM. PROC. art. 44.01(a)(5)...............................................................1
TEX. CODE CRIM. PROC. art. 44.01(d) ...................................................................6
TEX. CODE CRIM. PROC. art. 44.01(i) ....................................................................6


                                                      iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Randy Dale Adams, Appellee, respectfully presents to this Honorable Court

his Petition for Discretionary Review of the Fifth District Court of Appeals’

Opinion reversing the trial court’s order.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellee requests oral argument because this case presents a question of law

on an issue having statewide impact and possible reoccurrence. Oral argument may

be helpful to the members of this Court in the resolution of the issue presented.

                          STATEMENT OF THE CASE

      Appellee was charged by indictment with the state jail felony offense of

possession of a controlled substance. (CR: 7). The trial court granted Appellee’s

motion to suppress. (CR: 6; CR: 24; 2RR: 24). The State appealed pursuant to TEX.

CODE CRIM. PROC. art. 44.01(a)(5). (CR: 28). The State’s Notice of Appeal was

signed by the First Assistant District Attorney of Dallas County in the absence of

the elected District Attorney, Susan Hawk. (CR: 28, 29).

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 3, 2017, in an unpublished opinion, the Court of Appeals for the

Fifth District of Texas reversed the trial court’s order granting the motion to

suppress. State v. Adams, No. 05-16-01045-CR, 2017 Tex. App. (Tex. App.—

Dallas August 3, 2017) (not designated for publication). (See Appendix). No



                                             1
motion for rehearing was filed. An extension of time to file was granted by this

Court, and this Petition is timely if filed on or before October 5, 2017.

                              STATEMENT OF FACTS

       On July 10, 2014, two officers from the Irving Police Department,

responding to no call, no disturbance, and with no individualized suspicion of any

criminal activity whatsoever, requested the entire current hotel registry from the

Motel 6 in Irving. The front desk clerk turned over the registry as requested by the

uniformed officers. The officers took the entire hotel registry back to their car and

began searching the names listed against their database. When they came across

the name of Randy Dale Adams, they found that Mr. Adams had misdemeanor

warrants. The officers then went to the room listed for Mr. Adams and his lady

friend, and arrested Mr. Adams as he emerged from the shower wrapped in a

towel. They also found a small quantity of methamphetamine in the bathroom. Mr.

Adams’s motion to suppress the seized evidence was granted after a hearing in

which one of the two officers testified, and the State’s sole argument was that the

Defendant lacked standing to complain about any police intrusion into the hotel

registry.

                            GROUNDS FOR REVIEW

       Ground One: The issue of a hotel guest’s reasonable expectation
       of privacy in his own hotel registration is a novel question of law
       that has not been, but should be decided by the Court of Criminal
       Appeals.

                                          2
      Ground Two: The Court of Appeals’ decision reversing the trial
      court’s order granting Petitioner’s motion to suppress evidence
      conflicts with decisions of the United States Supreme Court.

      Ground Three: The court of appeals’ failure to grant Appellee’s
      motion to dismiss the State’s appeal for want of jurisdiction has so
      far departed from the usual and accepted course of judicial
      proceedings as to call for an exercise of the Court of Criminal
      Appeals’ power of supervision.

                                      ARGUMENT

                                       Ground One

   The issue of a hotel guest’s reasonable expectation of privacy in his own hotel
 registration is a novel question of law that has not been, but should be decided by
                           the Court of Criminal Appeals.

      The Court of Appeals decision is an improper expansion of the Third Party

Doctrine past the limits of any of its prior applications, both because of the

sensitivity of the information sought, and because it was sought here without any

individualized suspicion whatsoever.

      Texas courts have not examined the issue of an individual’s right to expect

privacy in his or her hotel registration information. The Court of Appeals reversed

the trial court’s order entirely on the basis of the Third Party Doctrine, i.e. the hotel

registry was comprised of information in the possession of a third party motel

office. Citing Hankston v. State, 517 S.W.3d 112, 117 (Tex. Crim. App. 2017) and

Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015), the Court found that

Adams had no expectation of privacy in that record. However, Hankston and Ford

                                           3
dealt with targeted investigations into cell site location information obtained by

court order, not suspicionless fishing expeditions, as is the case here. Additionally,

this Court has found that the Third Party Doctrine is not absolute, and that it is

limited by an individual citizen’s legitimate privacy interests. See Love v. State,

No. AP-77,024 (Tex. Crim. App. 2016) (slip opinion available at 2016 Tex. Crim.

App. LEXIS 1445).

      The limits of the Third Party Doctrine are at the forefront of our Fourth

Amendment jurisprudence in the digital age because so much of a modern person’s

life, which would have previously been unquestionably private, is disclosed, in one

way or another, to third parties who may not share the individual’s interest in the

privacy of that information. Whether police officers in Texas should be allowed to

request that information under the color of authority, and aggregate, maintain, and

use it without any individualized suspicion is a question of law that should be

handled by the Court of Criminal Appeals. This is a case that allows the Court to

address the issue in a way that is not married to a particularly specific or arcane set

of technical facts.

                                      Ground Two

      The Court of Appeals’ decision reversing the trial court’s order granting
Petitioner’s motion to suppress evidence conflicts with decisions of the United States
                                   Supreme Court.




                                          4
         Although the Court does not reach the issue specifically in City of Los

Angeles v. Patel, because the city ordinance at issue fails on the city’s stated

purpose, the opinion discusses that a suspicionless request for a hotel registry as

likely illegal because it would constitute “harassment of hotel guests.” City of Los

Angeles v. Patel, 135 S. Ct. 2443, 2453 (2015). This implied recognition of a

privacy right for a hotel guest in his name on the hotel register is born out in the

briefs in Patel, which show a bubbling concern for the use of the statute allowing

for on-demand searches of registries as a pretext for an unconstitutional tool that

police can use as an end-around of the warrant requirement to investigate crime. Id.

This case is exactly the fact pattern anticipated in the Supreme Court’s opinion in

Patel.

         Further, Justice Sotomayor’s concurrence in US v. Jones, 132 S. Ct 945, 957

(2012) spells out a genuine concern for the blind application of the Third Party

Doctrine in situations just like the one in the case at bar.

         More fundamentally, it may be necessary to reconsider the premise
         that an individual has no reasonable expectation of privacy in
         information voluntarily disclosed to third parties. E.g., Smith, 442 U.
         S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This
         approach is ill suited to the digital age, in which people reveal a great
         deal of information about themselves to third parties in the course of
         carrying out mundane tasks. People disclose the phone numbers that
         they dial or text to their cellular providers; the URLs that they visit
         and the e-mail addresses with which they correspond to their Internet
         service providers; and the books, groceries, and medications they
         purchase to online retailers. Perhaps, as Justice Alito notes, some
         people may find the “tradeoff” of privacy for convenience

                                            5
      “worthwhile,” or come to accept this “diminution of privacy” as
      “inevitable,” post,at 10, and perhaps not. I for one doubt that people
      would accept without complaint the warrantless disclosure to the
      Government of a list of every Web site they had visited in the last
      week, or month, or year. But whatever the societal expectations, they
      can attain constitutionally protected status only if our Fourth
      Amendment jurisprudence ceases to treat secrecy as a prerequisite for
      privacy. I would not assume that all information voluntarily disclosed
      to some member of the public for a limited purpose is, for that reason
      alone, disentitled to Fourth Amendment protection. See Smith, 442 U.
      S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete
      commodity, possessed absolutely or not at all. Those who disclose
      certain facts to a bank or phone company for a limited business
      purpose need not assume that this information will be released to
      other persons for other purposes”); see also Katz, 389 U. S., at 351–
      352 (“[W]hat [a person] seeks to preserve as private, even in an area
      accessible to the public, may be constitutionally protected”).

                                     Ground Three

   The court of appeals’ failure to grant Appellee’s motion to dismiss the State’s
  appeal for want of jurisdiction has so far departed from the usual and accepted
  course of judicial proceedings as to call for an exercise of the Court of Criminal
                           Appeals’ power of supervision.

      The State’s notice of appeal was insufficient to confer jurisdiction on the

Court of Appeals because (1) the record is clear that an elected district attorney did

not sign the State's notice of appeal, and (2) the notice of appeal, on its face, failed

to clearly show that an elected district attorney “personally, expressly and

specifically” gave an “explicit instruction” for the First Assistant to sign the State's

notice of appeal. TEX. CODE CRIM. PROC. arts. 44.01(d), 44.01(i); State v. Shelton,

830 S.W.2d 605, 606 (Tex. Crim. App. 1992); State v. Muller, 829 S.W.2d 805,

809-12 (Tex. Crim. App. 1992), 810 n.5, 812. As the State failed to satisfy the

                                           6
narrow requirements of Article 44.01 necessary to invoke the Court of Appeals’

jurisdiction, the Court should here intervene and overturn the Court of Appeals’

extrajurisdictional opinion. Muller, 829 S.W.2d at 811.

                              PRAYER FOR RELIEF

      For the reasons herein alleged, Appellee prays this Court grant this petition

and, upon reviewing the judgment entered below, reverse the opinion of the Dallas

Court of Appeals and affirm the trial court’s order granting Appellee’s motion to

suppress.

                                             Respectfully submitted,
                                             /s/ Alison Grinter
                                             Alison Grinter

                                             State Bar No. 24043476
                                             633 West Davis Street, Ste. 1017
                                             Dallas, Texas 75208
                                             (214) 704-6400 (phone)
                                             alisongrinter@gmail.com


                         CERTIFICATE OF SERVICE

       I hereby certify that on the 5th day of October, 2017, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway, Assistant
District Attorney, Dallas County Criminal District Attorney’s Office, 133 N.
Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic delivery;
and was also served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box
13046, Austin, Texas, 78711 by electronic delivery and by depositing same in the
United States Mail, Postage Prepaid.

                                             /s/ Alison Grinter
                                             Alison Grinter


                                         7
                     CERTIFICATE OF COMPLIANCE

     I certify that the foregoing Petition for Discretionary Review contains 1,423
words.

                                             /s/ Alison Grinter
                                             Alison Grinter




                                         8
APPENDIX
REVERSE and REMAND; and Opinion Filed August 3, 2017.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-16-01045-CR

                             THE STATE OF TEXAS, Appellant
                                         V.
                              RANDY DALE ADAMS, Appellee

                     On Appeal from the Criminal District Court No. 4
                                  Dallas County, Texas
                          Trial Court Cause No. F14-34086-K

                             MEMORANDUM OPINION
                          Before Justices Francis, Brown, and Schenck
                                   Opinion by Justice Brown
       The State of Texas appeals an order granting Randy Dale Adams’s motion to suppress

evidence. In a single issue, the State contends the trial court abused its discretion in granting

Adams’s motion. Because we agree, we reverse the trial court’s order and remand for further

proceedings consistent with this opinion.

       On July 10, 2014, Irving police officers went to a Motel 6 and requested a copy of its

guest registry. The motel manager voluntarily gave the officers the registry. The officers then

checked the names on the registry for warrants. As a result, police discovered Adams was

staying at the motel and also that he had a warrant for his arrest. Police knocked on his motel

room door and asked for consent to search the room. Adams consented and police found

methamphetamine.
       Adams filed a motion to suppress complaining that the investigation that enabled police

to locate him violated his rights under the Fourth Amendment of the United States Constitution

and Article 1, Section 9 of the Texas Constitution. The trial court granted Adams’s motion. In a

single issue, the State contends the trial court erred in granting the motion to suppress because

Adams had no reasonable expectation of privacy in the hotel registry. We agree.

       The Fourth Amendment and Article 1, Section 9 protects individuals from unreasonable

searches and seizures. See U.S. Const. amend. IV; Tex. Const. art. 1, § 9; see also Ex parte

Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). The purpose of both provisions is to

safeguard an individual’s legitimate expectation of privacy from unreasonable governmental

intrusions. Hankston v. State, 517 S.W.3d 112, 117 (Tex. Crim. App. 2017). Under the third-

party doctrine, police are not prohibited from obtaining information revealed to third parties,

even if the information is revealed on the assumption that it will be used only for a limited

purpose and the confidence placed in the third party will not be betrayed. Smith v. Maryland,

442 U.S. 735, 477 (1979); Hankston, 517 S.W.3d at 117; Ford v. State, 477 S.W.3d 321, 328

(Tex. Crim. App. 2015).

       Adams’s motion to suppress was based on his contention that he had a reasonable

expectation of privacy in the motel registry. However, the only information contained on the

registry was information Adams revealed to a third party, the motel. Adams had no reasonable

expectation of privacy in that information. Hankston, 517 S.W.3d at 117; Ford, 477 S.W.3d at

329. We therefore conclude the trial court abused its discretion in granting Adams’s motion to

suppress.




                                              –2–
       We reverse the trial court’s order and remand for further proceedings consistent with this

opinion.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b)

161045F.U05




                                              –3–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the Criminal District Court
                                                   No. 4 of Dallas County, Texas
No. 05-16-01045-CR        V.                       Trial Court Cause No. F14-34086-K.
                                                   Opinion delivered by Justice Brown. Justices
RANDY DALE ADAMS, Appellee                         Francis and Schenck participating.


        Based on the Court’s opinion of this date, the trial court’s order granting Randy Dale
Adams’s motion to suppress is REVERSED and this cause is REMANDED to the trial court for
further proceedings consistent with this opinion.


Judgment entered this 3rd day of August, 2017.




                                             –4–
