               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                     NO. PD–1348–17



                          LAURO EDUARDO RUIZ, Appellee

                                             v.

                                THE STATE OF TEXAS

         ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTH COURT OF APPEALS
                          BEXAR COUNTY

               K EEL, J., delivered the unanimous opinion of the Court.

                                       OPINION

       This case is about the application of our statutory exclusionary rule to private

individuals.

       Appellee was charged with attempted production of sexual performance by a child

for pictures found on his cell phone. T EX. P ENAL C ODE §§ 15.01, 43.25. The trial court

granted his motion to suppress the pictures. The court of appeals reversed the trial court’s

order. State v. Ruiz, 535 S.W.3d 590 (Tex. App.—San Antonio 2017). We granted
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Appellee’s petition for discretionary review to consider whether the court of appeals

misapplied the standard of review and failed to indulge every presumption in favor of the

trial court’s ruling. We affirm the judgment of the court of appeals.

                                           Facts

       Appellee was a substitute teacher at a private high school. Students reported that

he was using his cell phone to take pictures up the skirts of female students. The dean

and vice principal summoned Appellee to the office and questioned him about the

allegations. He became nervous and began fidgeting with his phone. Concerned that he

might delete incriminating information from his phone, the dean asked Appellee to place

the phone on the desk, and he did.

       When Principal Gilbert Saenz joined the meeting, Appellee admitted that he “had a

problem.” Saenz scrolled through the photos on Appellee’s phone and saw images of the

legs of girls who were dressed in the school uniform. Saenz allowed Appellee to retrieve

some information from his phone and then placed the phone in an envelope and turned it

over to the police. Police obtained a series of search warrants for the phone and found

incriminating images taken from underneath students’ skirts.

       Appellee moved to suppress the evidence from his phone because Saenz did not

have either his consent or a warrant to search the phone. Appellee argued that Saenz’s

warrantless search of the phone violated the Fourth Amendment and that the evidence

should be suppressed under Code of Criminal Procedure Article 38.23. The trial court
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agreed and suppressed the evidence as fruit of the poisonous tree because the affidavits

supporting the warrants included information that Saenz obtained when he searched the

phone without a warrant and without any exception to the warrant requirement. The State

appealed.

                                     Court of Appeals

       The court of appeals held that the Fourth Amendment does not apply to the actions

of private individuals who are not acting as government agents. Ruiz, 535 S.W.3d at 594.

It considered whether Appellee met his burden to prove that Saenz otherwise violated the

law in obtaining the evidence. Id. The court noted that Appellee’s motion to suppress did

not allege that Saenz violated the law, the trial court did not make a finding related to the

violation of any laws, and “the record does not support that Saenz violated any state or

federal law that would require suppression in this case.” Id. at 597. Concluding that

Appellee did not meet his burden of proving that Saenz violated the law in searching and

seizing the phone, the court of appeals reversed the trial court’s order. Id. at 598.

                                    Standard of Review

       We review a motion to suppress under a bifurcated standard of review. Valtierra

v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total deference to

the trial court’s findings of fact and review de novo the application of the law to the facts.

Id. We view the record in the light most favorable to the trial court’s ruling and uphold

the ruling if it is supported by the record and is correct under any theory of the law
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applicable to the case. Id. at 447-48.

                                         Analysis

       Appellee argues that the evidence in this case must be suppressed because a police

officer in Saenz’s shoes could not have legally searched Appellee’s phone. He relies on

Texas Code of Criminal Procedure Article 38.23 and Miles v. State, 241 S.W.3d 28 (Tex.

Crim. App. 2007). He claims that the effect of Miles is to apply “the Fourth Amendment

warrant requirement – and the exceptions to that requirement – to the conduct of private

persons.” (quoting Pitonyak v. State, 253 S.W.3d 834, 850 (Tex. App.— Austin 2008,

pet. ref’d)). We reject his argument because (1) the Fourth Amendment does not apply to

the actions of private individuals, (2) reading Article 38.23 to apply the Fourth

Amendment to private individuals would lead to an absurdity, and (3) the context of

Miles’s holding does not support Appellee’s reading of it.

       Appellee argues in the alternative that the evidence had to be suppressed because

Saenz committed breach of computer security when he scrolled through the phone’s

photos. T EX. P ENAL C ODE § 33.02(a). He failed to disprove the statutory defense to that

crime, however, so the evidence will not be suppressed on that basis, either.

Fourth Amendment

       The Fourth Amendment “was intended as a restraint upon the activities of

sovereign authority, and was not intended to be a limitation upon other than governmental

agencies.” Burdeau v. McDowell, 256 U.S. 465, 475 (1921). “It has, of course, been
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settled since Burdeau v. McDowell, that a wrongful search or seizure conducted by a

private party does not violate the Fourth Amendment and that such private wrongdoing

does not deprive the government of the right to use evidence that it has acquired

lawfully.” Walter v. U. S., 447 U.S. 649, 656 (1980) (citation omitted). “The

exclusionary rule under the Fourth Amendment applies only to governmental action.”

Gillett v. State, 588 S.W.2d 361, 363 (Tex. Crim. App. 1979) (en banc). The Constitution

is a restraint on government. Other laws restrain individuals.

Article 38.23

       Article 38.23 reads in pertinent part as follows:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

T EX. C ODE C RIM. P. art. 38.23(a). Its “other person” provision has supported suppression

of evidence obtained by private individuals in violation of criminal laws.

       For example, in State v. Johnson, 939 S.W.2d 586, 587 (Tex. Crim. App. 1996),

we upheld the trial court’s suppression of evidence obtained by private parties via a series

of burglaries. We reasoned that Article 38.23 means “only what it says: that evidence

illegally obtained by an ‘officer or other person’ ought [to] be suppressed.” Id. at 588.

We cited the burglary statute, Texas Penal Code section 30.02, as the law violation that

required suppression of the evidence. Id. at 587.

       Johnson observed that an exclusionary “statute that solely proscribed the use of
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evidence at trial obtained by a private person in violation of the United States

Constitution would be logically absurd because, under our law, actions of private persons

do not fall under the purview of the United State Constitution.” Id. at 588. We agree and

add that a private person cannot comply with the Fourth Amendment, either, to the extent

that he cannot get a search warrant. See T EX. C ODE C RIM. P ROC. art. 18.01(a) (defining a

search warrant as an order “directed to a peace officer”).

       Our opinion in Miles, however, could be read to imply that a private person can

violate the constitution:

       [I]f an officer violates a person’s privacy rights by his illegal conduct
       making the fruits of his search or seizure inadmissible in a criminal
       proceeding under Article 38.23, that same illegal conduct undertaken by an
       “other person” is also subject to the Texas exclusionary rule. If the police
       cannot search or seize, then neither can the private citizen.

241 S.W.3d at 36. That implication was unnecessary to Miles’s holding because the case

did not raise the possibility of a constitutional violation by a private individual. Rather,

Miles addressed whether evidence obtained by a tow truck driver had to be suppressed

because he committed traffic violations in order to get the evidence. 241 S.W.2d at 29.

       Miles held that if evidence is obtained in violation of a criminal law, it may not be

suppressed if the private citizen’s actions mirrored proper, reasonable police action such

as traffic violations during a pursuit. Id. at 45. “Only those acts which violate a person’s

privacy rights or property interests are subject to the state or federal exclusionary rule.”

Id. at 35 n.33. Because the tow truck driver’s traffic violations did not infringe Miles’s
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property or privacy rights, they did not trigger Article 38.23. Id. The Miles “rule” – that

a private person cannot do what a police officer cannot do – arose in the context of

alleged violations of criminal laws rather than alleged violations of the Constitution, and

it should be limited to that context.

       Such a limitation is supported by Miles’s use of its rule to explain the outcome of

four other cases, all of which, like Miles, dealt with alleged criminal law violations by

private individuals. Miles, 241 S.W.3d at 39. See Stone v. State, 574 S.W.2d 85 (Tex.

Crim. App. 1978) (Stone challenged the admissibility of photos on grounds that they had

been stolen by his babysitter); Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002)

(Cobb challenged the admissibility of knives on grounds that his father stole them);

Johnson, 939 S.W.2d 586 (Johnson successfully suppressed evidence acquired by his

stepsons who committed burglary to get it); and Jenschke v. State, 147 S.W.3d 398 (Tex.

Crim. App. 2004) (Jenschke succeeded in suppressing evidence obtained by private

individuals who burglarized his truck).

       Appellee claims that the Miles rule also explains the outcome in Baird v. State, 398

S.W.3d 220 (Tex. Crim. App. 2013). Like the foregoing cases, however, the issue in

Baird was whether evidence obtained by a private individual had to be suppressed

because of criminal law violations; the issue was not whether the private individual

violated the Fourth Amendment. Id. at 222. Appellee cites no case – and we have found

none – in which evidence was suppressed under Article 38.23 for a Fourth Amendment
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violation by a private individual acting in a private capacity.

       We disavow the idea that Article 38.23 extends the Fourth Amendment to private

citizens acting in a private capacity. We reaffirm that the Fourth Amendment is a

restraint on government and that it does not apply to private individuals who are acting as

such. The court of appeals correctly held that Saenz’s search of Appellee’s phone was

not a violation of the Fourth Amendment because Saenz was acting as a private individual

when he looked at the pictures.

Breach of Computer Security

       Appellee argues in the alternative that Saenz’s search of the phone was a breach of

computer security. Appellee had the burden of showing a statutory violation that would

require suppression of evidence under Article 38.23. State v. Robinson, 334 S.W.3d 776,

779 (Tex. Crim. App. 2011). He did not meet that burden.

       “A person commits an offense if the person knowingly accesses a computer,

computer network, or computer system without the effective consent of the owner.”

T EX. P ENAL C ODE § 33.02. It is a defense to breach of computer security that the accused

“acted with the intent to facilitate a lawful seizure or search of, or lawful access to, a

computer, computer network, or computer system for a legitimate law enforcement

purpose.” T EX. P ENAL C ODE§ 33.02(e).

       The trial court found that Saenz accessed the phone without Appellee’s consent.

The trial court made no findings about Saenz’s intent in accessing the phone, and the
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undisputed evidence showed that Saenz took the phone and looked through it for the

purpose of giving it to the police for investigation. The record thus would not support a

finding against the statutory defense of intent to facilitate a lawful search for a legitimate

law enforcement purpose, and Appellee failed in his burden of showing a statutory

violation.

                                         Conclusion

       We affirm the judgment of the court of appeals and remand the case to the trial

court for further proceedings consistent with this opinion.




Delivered: July 3, 2019
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