Opinion issued November 27, 2018




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-18-00076-CR
                          ———————————
                   MATTHEW D. HOWARD, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 185th District Court
                          Harris County, Texas
                      Trial Court Case No. 1553508


                                OPINION

     Matthew Howard was convicted in 2009 of sexual contact with a minor

under the age of sixteen, child pornography, and wrongfully impeding an

investigation. He was sentenced to 15 years’ confinement in a federal military

prison. In January 2017, Howard was released to supervised residency—akin to
parole—at Leidel Halfway House, a federal residential re-entry facility. Leidel’s

residency rules prohibit the possession of unauthorized mobile phones and grant

staff the right to search residents’ personal “belongings.” After two months at

Leidel, during a random head count, Howard was found in possession of a

contraband mobile phone. Leidel staff confiscated the phone and did a “cursory

review” of its contents, where they found child pornography. The Federal Bureau

of Investigations and local law enforcement were contacted. Law enforcement

personnel requested search warrants at the federal and state levels, but the search

warrants were requested and issued only after federal and state law enforcement

personnel viewed the contents of the phone and confirmed it contained images of

child pornography. Howard was charged with possession of child pornography

under Texas state law.

      Howard filed a motion to suppress evidence obtained from his phone. While

Howard conceded that the Leidel residency rules forbid him and other sex-offender

parolees from possessing internet-accessible mobile phones and that his phone

was, as a result, contraband, Howard argued that the search of his phone’s contents

violated his Fourth Amendment protections because it was performed before a

warrant issued and he did not otherwise consent to the search. Howard’s motion

was denied. He pleaded guilty and was sentenced to 10 years’ confinement. The




                                         2
trial court certified his right to appeal the denial of his motion to suppress. In a

single issue, Howard contends that the trial court erred in denying his motion.

      We affirm.

          Warrantless Search of Parolee’s Contraband Mobile Phone

      Howard contends that the trial court erred in denying his motion to suppress

because he had a privacy interest in the contents of his contraband mobile phone,

the Fourth Amendment protects that privacy interest, and the results of the

unconsented to, warrantless search should have been inadmissible in his criminal

proceeding.

A.    Standard of review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000). First, we afford “almost total deference” to the trial court’s determination of

historical facts and rulings on mixed questions of law and fact that depend on an

evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854

(Tex. Crim. App. 2012); Carmouche, 10 S.W.3d at 327; Sayers v. State, 433

S.W.3d 667, 673 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The “trial court is

the sole trier of fact and judge of the credibility of the witnesses and the weight to

be given their testimony.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000); Sayers, 433 S.W.3d at 673. The trial court may believe or disbelieve all or


                                          3
part of the witnesses’ testimony. Ross, 32 S.W.3d at 855; Sayers, 433 S.W.3d at

673. Second, we review de novo the trial court’s rulings on questions of law and

mixed questions of law and fact that do not depend on an evaluation of credibility

and demeanor. Gonzales, 369 S.W.3d at 854; Carmouche, 10 S.W.3d at 327;

Sayers, 433 S.W.3d at 673.

      When neither party requests findings of fact or conclusions of law, we imply

the necessary findings to support the trial court’s ruling, so long as the evidence

viewed in the light most favorable to the trial court’s ruling supports those

findings. Davila v. State, 441 S.W.3d 751, 756 (Tex. App.—Houston [1st Dist.]

2014, pet. ref’d). We will uphold the trial court’s ruling if it is “reasonably

supported by the record and is correct on any theory of law applicable to the case.”

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); see Sayers, 433

S.W.3d at 673.

B.    Fourth Amendment protections for parolees

      The Fourth Amendment provides:

      The right of the people to be secure in their persons, houses, papers,
      and effects, against unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the place
      to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV; see TEX. CONST. art. I, § 9. The “ultimate touchstone” of

the Fourth Amendment is the reasonableness of the search. Riley v. California, 134


                                         4
S. Ct. 2473, 2482 (2014). Whether a person’s Fourth Amendment rights have been

compromised by a warrantless search of his possessions depends on whether, first,

the person had a subjective expectation of privacy in those belongings, and,

second, if so, whether that subjective expectation of privacy is one that society is

prepared to recognize as reasonable under the circumstances. Carpenter v. United

States, 138 S. Ct. 2206, 2213–14 (2018);1 see Love v. State, 543 S.W.3d 835, 840–

41 (Tex. Crim. App. 2016). The question here, then, is whether Howard, as a sex-

offender parolee in possession of a contraband mobile phone at a half-way house

that prohibited its possession, had a subjective expectation of privacy in his

phone’s contents, and whether society would regard that expectation as objectively

reasonable or justifiable under the circumstances. Carpenter, 138 S. Ct. at 2213.

      The Supreme Court has addressed warrantless searches of probationers and

parolees. See United States v. Knights, 534 U.S. 112 (2001) (probationer); Samson

v. California, 547 U.S. 843 (2006) (parolee). In Knights, the Court upheld a

warrantless search of a probationer’s apartment because a condition of his


1
      The Carpenter dissents argued that neither the history nor the text of the Fourth
      Amendment supports expanding constitutional protections to privacy-based, as
      opposed to property-based interests; instead, they argued, the Fourth Amendment
      protects the right of people to be secure in “their persons, houses, papers, and
      effects” against unreasonable searches and seizures. Carpenter v. United States,
      138 S. Ct. 2206, 2235–36 (2018) (Thomas, J., dissenting) (quoting U.S. Const.
      amend. IV); see id. at 2226 (Kennedy, J., dissenting); Id. at 2247 (Alito, J.,
      dissenting); Id. at 2264 (Gorsuch, J., dissenting). It is undisputed that this was
      Howard’s mobile phone and that he possessed the contraband phone while on
      parole and in violation of the rules of the half-way house where he resided.
                                           5
probation was that he submit to warrantless searches without reasonable cause and,

under the facts, there was reasonable suspicion to conduct the search. 534 U.S. at

121–22. The Court stated, “Inherent in the very nature of probation is that

probationers do not enjoy the absolute liberty to which every citizen is entitled.”

Id. at 119 (internal quotation omitted). And courts “granting probation may impose

reasonable conditions that deprive the offender of some freedoms enjoyed by

law-abiding citizens.” Id.

      The warrantless-search probation condition diminished the probationer’s

expectation of privacy in his apartment. Id. at 119–20. On the other hand, the State

had an interest in the probationer successfully completing probation and

integrating back into the community and an interest in addressing its justified

concern that probationers are more likely to engage in criminal conduct than

ordinary members of the community. Id. at 119.

      Balancing the probationer’s diminished privacy interest against the State’s

legitimate governmental interests, the Court held that a standard less than probable

cause applied in the context of a warrantless search involving a probationer who is

subject to a warrantless-search probation condition. Id. at 121. In that context, the

Fourth Amendment requires only reasonable suspicion that the probationer is

engaged in criminal activity, and reasonable suspicion existed. Id.




                                         6
      The Court addressed the privacy interests of parolees in Samson and

concluded that “parolees have fewer expectations of privacy than probationers”

because “parole is more akin to imprisonment than probation is to imprisonment.”

547 U.S. at 850. In Samson, a parolee was stopped as he walked down the street,

searched without a warrant, and found to be in possession of drugs. Id. at 846–47.

A condition of his parole was that he submit to warrantless searches without cause.

Id. Again, the Court applied a balancing test, considering the parolee’s diminished

privacy interest and the legitimate governmental interests. Id. at 848. The Court

recognized an “overwhelming” governmental interest in supervising parolees

because they are more likely to commit future criminal offenses, have a high

recidivism rate, and therefore require close supervision. See id. at 853.

      Balancing the parolee’s diminished privacy interest against the strong

governmental interests, the Court held that the Fourth Amendment does not

prohibit a police officer from conducting a suspicionless search of a parolee who is

subject to a warrantless- and suspicionless-search parole condition. See id. at 857;

see also State v. Villarreal, 475 S.W.3d 784, 802, 812 (Tex. Crim. App. 2014)

(rejecting argument that Samson presented issue of waiver of constitutional rights

and recognizing, instead, that holding was based on general Fourth Amendment

totality-of-the-circumstances   analysis       weighing   privacy   interests   against

governmental interests).


                                           7
      Howard also is a parolee. He seeks to distinguish the search of his mobile

phone from Samson in two regards. First, Leidel notified him only that any

unauthorized mobile phone would be confiscated and that he would be disciplined

if he violated the phone policy, not that his phone would be searched without a

valid warrant. Second, a recent Supreme Court case has recognized a privacy

interest in the contents of personal mobile phones that is greater than the privacy

interest held in other personal possessions. See Riley, 134 S. Ct. at 2488–91

(holding that incident-to-arrest exception to Fourth Amendment does not authorize

warrantless search of contents of mobile phone seized during person’s lawful

arrest). Howard argues that parolee-search cases like Samson must be read in light

of the protections later recognized in Riley for personal information stored on

mobile phones. We consider both arguments below.

      1.    Parole conditions and privacy expectations

      Howard was subject to two different release conditions: (1) those imposed

by the Department of Justice upon his release from federal military prison and

(2) his half-way house’s residency rules and conditions. He argues that his release

conditions were less intrusive than in Samson and other parolee-search cases.

            a.     Federal release conditions

      Howard’s Department of Justice certificate of mandatory supervision was

prepared pursuant to the Department of Justice regulation governing mandatory


                                         8
supervision of a released military prisoner. 28 C.F.R. § 2.35(d). That regulation

states that an individual released under its provision “shall be deemed to be

released as if on parole, and shall be subject to the conditions of release at § 2.40.”

Id.

      Section 2.40, in turn, incorporates general conditions of release that apply to

all released individuals. See id. § 2.40(a)(1) (“All persons on supervision must

follow the conditions of release described in § 2.204(a)(3) through (6).”). The

general conditions do not include a global authorization of warrantless searches but

do require that released individuals allow supervising officers to “seize any item

that the officer reasonably believes is an item you are prohibited from possessing

(for example, an illegal drug or a weapon), and that is in plain view in your

possession, including in your home, workplace or vehicle.” Id. § 2.204(a)(4)(iv).

      Section 2.40 also states that special conditions of release may be imposed,

depending on the circumstances involved. See id. § 2.40(b). Examples of available

special conditions are listed in Section 2.204. Id. § 2.204(b)(2). One special

condition is a requirement that released individuals “permit a supervision officer to

conduct a search of your person, or of any building, vehicle or other area under

your control, at such time as that supervision officer decides, and to seize any

prohibited items the officer, or a person assisting the officer, may find.” Id.

§ 2.204(b)(2)(iv).


                                          9
      Howard’s certificate of mandatory supervision contains a seizure condition

but no search condition. Condition Twelve requires that Howard “shall permit

confiscation by [his] Probation Officer of any materials which [his] Probation

Officer believes may constitute contraband in [his] possession and which [his]

Probation Officer observes in plain view in [his] residence, place of business or

occupation, vehicle(s) or on [his] person.” There is no general authorization to

search confiscated contraband. Nor is there a specific authorization to search the

digital content of a confiscated electronic device, such as a mobile phone, or, as

may arise in other scenarios, a digital camera, computer, or USB drive.

      Thus, Howard’s federal release conditions did not notify him that a

condition of his parole was a requirement that he submit to a suspicionless search.

Samson is distinguishable in this regard because the Samson parolee had been

notified, as a condition of his parole, that he was subject to suspicionless searches,

and that notice was held to have diminished his expectation of privacy. See 547

U.S. at 857; see also 7A Michael J. McCormick et al., Texas Practice: Criminal

Forms and Trial Manual § 90.22 n.1 (11th ed. 2018) (“Fourth Amendment does

not prohibit a police officer from conducting a suspicionless search of a parolee.

California law requires each parolee to agree in writing to such searches.”) (citing

Samson, 547 U.S. 843).




                                         10
      Because Howard did not have such a search condition placed on his release

from federal military prison, his conditions of release do not bring the facts of his

search squarely within Samson. We consider next whether Leidel’s policies—the

focus of Howard’s argument—affect the level of privacy a sex-offender parolee

resident, like Howard, might expect with regard to the content of a contraband

mobile phone.

             b.     Leidel’s conditions

      Howard asserts that Leidel’s rules authorize only the confiscation of

contraband phones and not the warrantless search of their contents and, therefore,

do not diminish his expectation of privacy in the contents of his mobile phone.

      Leidel’s intake packet, signed by Howard, contains a section addressing

communication devices, which states that mobile phones are not allowed unless

authorized by Leidel and affixed with a Leidel-supplied approval tag. But not

every type of mobile phone is subject to approval: for a resident to obtain

authorization to possess a mobile phone, the phone must have only basic call and

text features and cannot have advanced features, like a camera, recording device,

or internet access, that could be used to obtain sexually explicit material.

      The intake packet further informs residents that those who abuse a granted

privilege of possessing a phone may have their privileges revoked. The intake




                                          11
packet notifies residents that possession of an unauthorized mobile phone will

result in two actions:

      1) the item(s) will be confiscated and either held until [the resident’s]
         release or disposed of per the Leidel SCS guidelines.2

      2) Disciplinary action will be taken.

Later, the intake packet elaborates that possession of an unauthorized mobile

phone will result in confiscation, an incident report, and possible sanctions,

including removal from Leidel House.

      While we agree that these Leidel forms—like the conditions of release

discussed above—do not specifically authorize a search of confiscated materials,

they are not the only applicable provisions. A different section of the intake packet

concerns “search and seizure” policies. It authorizes staff, in general terms, to

“search any resident, resident’s belongings, or resident’s cubicle at any time.”

      Belongings are a category of possessions. See Belonging, WEBSTER’S NEW

WORLD COLLEGE DICTIONARY (5th ed. 2014) (defining belonging as “possessions;

property”); Belongings, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining

belongings as “personal property; effects”). But they are more personal in nature

than other categories of possessions. See Possessions, Belongings, Effects,

GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011) (distinguishing belongings

from possessions and effects by stating that the term belongings “suggests items

2
      The Leidel SCS guidelines are not in the record.
                                          12
more closely associated with the owner or the owner’s sentiments, including not

only clothes and toiletries but also family albums, valuable keepsakes, and the

like”).

          As a textual interpretation matter, it is evident that a mobile phone is a

belonging, just like a photo album, camera, book, and magazine—any of which

could contain pornography and would be subject to search under Leidel’s

residency rules. But Howard argues that the Supreme Court’s recent holding in

Riley distinguishes mobile phones from other personal belongings and recognizes a

greater expectation of privacy in mobile phone content, as a constitutional matter,

even if it falls within the generally understood meaning of the term belongings.

134 S. Ct. at 2488–89 (“Modern cell phones, as a category, implicate privacy

concerns far beyond those implicated by the search of a cigarette pack, a wallet, or

a purse.”).

          2.    Mobile phone privacy as discussed in Riley

          The era of personal mobile phones has given rise to questions about the

scope of Fourth Amendment protection afforded phone owners when interacting

with law enforcement. In 2014, the Supreme Court addressed a warrantless search

of a mobile phone incident to a lawful arrest. Riley, 134 S. Ct. at 2488–91. The

Court described mobile phones as “minicomputers that . . . could just as easily be

called cameras, video players, rolodexes, calendars, tape records, libraries, diaries,


                                          13
albums, televisions, maps, or newspapers” and noted that mobile phones are

capable of storing large amounts of data and revealing personal and intimate

matters such as internet search histories, contact lists, inclinations to use certain

“apps,” and other private information. Id. at 2489–90.

      The Court distinguished a search of the contents of an arrestee’s mobile

phone from the search of the contents of an arrestee’s pocket based on the

abundance of personal information citizens keep on their mobile phones and their

strong privacy interest in that stored material. Id. at 2488–91 (distinguishing

United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467 (1973)); see State v.

Granville, 423 S.W.3d 399, 415–17 (Tex. Crim. App. 2014) (distinguishing mobile

phones from other personal items and stating that “searching a person’s cell phone

is like searching his home desk, computer, bank vault, and medicine cabinet all at

once”).

      Acknowledging that mobile phones “differ in both a quantitative and a

qualitative sense from other objects that might be kept on an arrestee’s person,” the

Court held that the incident-to-arrest exception to the Fourth Amendment’s warrant

requirement does not authorize the warrantless search of the contents of a person’s

mobile phone seized during the person’s lawful arrest. Riley, 134 S. Ct. at 2489.

For the State to lawfully search a person’s mobile phone seized during the person’s

lawful arrest without first obtaining a warrant, the State would have to successfully


                                         14
argue the application of another Fourth Amendment exception, such as the

exigency of the circumstances. See id. at 2488–91. Otherwise, a warrant is

required. Id.

      While the holding in Riley does not directly apply here because Howard’s

phone was not searched incident to his arrest, Howard argues that the holding

limits the scope of Samson and other cases discussing the diminished privacy

interests of parolees. The question, then, is whether Leidel’s written policies,

which notified Howard that any unauthorized mobile phone is subject to

confiscation and that his “belongings” are subject to search while within the

half-way house’s premises, sufficiently diminished any expectation of privacy to

permit a warrantless search of the contents of the parolee’s contraband mobile

phone, even after Riley.

C.    Search did not violate Fourth Amendment

      Parolees have limited expectations of privacy, Samson, 547 U.S. at 850,

which are even more diminished while inside a half-way house that has express

rules limiting parolee residents’ activities and possessions and subjecting them to

warrantless searches of their belongings.

      While at Leidel and subject to those restrictions, Howard was knowingly in

possession of a contraband phone. Not only did Howard possess a phone for which

he had not sought approval, his type of phone was banned due to its internet-


                                            15
accessible features. The offending features were the same features that made the

phone usable as a source of sexually explicit material, which Howard, as a sex-

offender parolee, was prohibited from possessing. Leidel staff reasonably could

have believed that a contraband phone, in this context, would, itself, contain

contraband material, such as prohibited pornographic images.

      We recognize that Riley distinguished the contents of a person’s mobile

phone from the contents of non-digital personal possessions. But Riley was decided

in the limited context of the search-incident-to-arrest exception and does not have

rote application in all other Fourth Amendment contexts. See United States v.

Dahl, 64 F. Supp. 3d 659, 664–65 (E.D. Pa. 2014) (rejecting argument that Riley

supersedes Knights if reasonable suspicion exists to search probationer’s mobile

phone). Not every context presents the same level of privacy expectations.

      In our view, the context in which this search occurred greatly diminishes the

privacy interest Howard held in the content of his mobile phone. See Riley, 134 S.

Ct. at 2482, 2488–91 (noting that “ultimate touchstone” of Fourth Amendment is

reasonableness). Howard is not an arrestee in lawful possession of a personal

mobile phone. Cf. Granville, 423 S.W.3d at 417 (concluding that detained high

school student charged with misdemeanor offense continued to have legitimate

expectation of privacy in contents of his mobile phone temporarily being stored for

safekeeping in jail property room, such that search of phone hours later by school


                                        16
resource officer who suspected that phone contained inappropriate images

unrelated to basis for arrest violated student’s Fourth Amendment rights). Nor is he

a probationer in lawful possession of a mobile phone. Cf. United States v. Lara,

815 F3d 605, 610 (9th Cir. 2016).

      Howard, instead, is a sex-offense parolee living in a half-way house who,

under the express terms of his release, was not allowed to possess pornography,

was not allowed to possess an unauthorized phone, and could not have obtained

authorization for any phone with features that would allow access to pornography.

Howard knew that he was in possession of a contraband mobile phone in violation

of multiple residency rules and that Leidel’s rules made his belongings subject to

search.

      While in possession of a contraband electronic storage device, like an

advanced mobile phone or computer, a probationer or parolee has a reduced

expectation of privacy. See Wisconsin v. Purtell, 851 N.W.2d 417, 427 (Wis. 2014)

(stating that probationer’s privacy interest in contents of computer is undercut

when computer is, itself, contraband); cf. United States v. Boyce, No. 2014-00029,

2015 WL 856943, at *5–6 (D. V.I. Feb. 26, 2015) (mem. op.) (noting that

prisoners have even weaker privacy interests than probationers and parolees and

concluding that prisoners have no reasonable expectation of privacy in contraband

mobile phone); United States v. Savala, No. 13cr4514–BEN, 2015 WL 468352, at


                                        17
*1 (S.D. Cal. Feb. 3, 2015) (order) (same). Howard’s residency conditions

“significantly diminished” his “reasonable expectations of privacy” in his

contraband phone. Knights, 534 U.S. at 119–20.

      Howard’s diminished expectation of privacy must be balanced against the

State’s legitimate interest in supervising parolees and guarding against their

possession of layered contraband—contraband pornography hidden within a

contraband mobile phone.

      The parties have not directed us to any Texas cases that have balanced

similar interests, and we have found none. But we note that at least one federal

court has held that a warrantless search of an unauthorized mobile phone belonging

to a sex-crime offender residing in a supervised-release facility did not violate the

Fourth Amendment because that individual did not have a reasonable expectation

of privacy in the content of his contraband phone given the rules against its

possession, the resident’s notice of a general right to search, and the governmental

interests involved. United States v. Jackson, 866 F.3d 982 (8th Cir. 2017); see

United States v. Huart, 735 F.3d 972 (7th Cir. 2013) (holding similarly but in

context of half-way house with explicit rule that mobile phones, specifically, are

subject to search of their contents by staff at any time).

      By knowingly possessing a contraband phone in violation of his residency

rules—given the facility’s stated and known policy that residents’ belongings are


                                           18
subject to search—we conclude that Howard could not have reasonably held an

expectation of privacy in the contents of his contraband phone. Moreover, we

conclude that, under an objective standard, and in light of the likelihood of layered

contraband (i.e., contraband within contraband), society would be unwilling to

recognize that a sexual-offense parolee who is living in a half-way house that

forbids the possession of internet-accessible phones and pornography has an

expectation of privacy in the contents of a contraband phone. Therefore, the trial

court did not err in denying Howard’s motion to suppress evidence obtained from

his contraband mobile phone without a warrant.

      Our holding does not erode the privacy interests recognized in Riley: the

reasonable expectation of privacy of this parolee in this locale is too small, the

legitimate governmental interests are too great, and the context in which this search

occurred is too narrow.3 See Dahl, 64 F. Supp. 3d at 664 (stating that allowing

search of mobile phone contents in possession of individual with limited

expectations of privacy “does not open the floodgates to massive invasions of

privacy without judicial oversight.”).



3
      To recap, this case involves a warrantless search of a mobile phone found within
      the half-way house’s premises, without an authorization tag affixed to it, in the
      possession of a sex-offender parolee who did not obtain any mobile phone
      pre-clearance, when the phone visually appeared to be the type of phone capable
      of accessing the internet in direct violation of the half-way house’s residency
      policies, and the parolee was informed that his belongings were subject to search.
                                          19
                                    Conclusion

      We affirm.



                                             Harvey Brown
                                             Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Publish. TEX. R. APP. P. 47.2(b).




                                        20
