                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-16-00226-CR

                                        The STATE of Texas,
                                             Appellant

                                                 v.

                                        Lauro Eduardo RUIZ,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR4068
                           Honorable Andrew Carruthers, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 26, 2017

REVERSED AND REMANDED

           This case stems from Appellee Lauro Eduardo Ruiz’s ten-count indictment charging Ruiz

with attempted production of sexual performance by a child. TEX. PENAL CODE ANN. § 43.25(d)

(West 2016) (“A person commits an offense if, knowing the character and content of the material,

he produces, directs, or promotes a performance that includes sexual conduct by a child younger

than 18 years of age.”). The trial court granted Ruiz’s motion to suppress and excluded all

photographs, evidence, and data obtained from the search of Ruiz’s cell phone. This State’s appeal

ensued.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       On February 26, 2014, two female students at a private high school notified Dean of

Students Dolores Rodriguez that Ruiz, a substitute teacher, was acting inappropriately. The

students provided images of Ruiz’s cell phone, placed on top of his bag, near the podium, with the

camera facing up, and allegedly capturing images from underneath the female students’ skirts.

Rodriguez contacted Academic Dean and Vice Principal Steven Hayward; Hayward summoned

Ruiz to the administrative offices. Principal Gilbert Saenz was not on campus at the time.

       Pending Principal Saenz’s return to campus, Rodriguez and Hayward began investigating

the allegations. Rodriguez posed the initial question to Ruiz—whether “anything happened that

day in the classroom.”     A very nervous Ruiz acknowledged “he had a problem.” Ruiz’s

nervousness and “fidgeting” with his cell phone led Rodriguez to fear the possible deletion of

information. Rodriguez requested that Ruiz place the cell phone on Saenz’s desk; both Rodriguez

and Hayward testified that Ruiz complied without incident, comment, or objection. Shortly

thereafter, Principal Saenz arrived. All three administrators testified that Ruiz again admitted that

“he had a problem” and that there were inappropriate images on his cell phone. Saenz terminated

Ruiz’s employment and informed Ruiz that law enforcement would be notified.

       Principal Saenz advised Ruiz that the cell phone would be turned over to law enforcement

authorities. Pursuant to his own request, Ruiz retrieved several phone numbers from the cell

phone. At some point, Saenz saw approximately twenty videos or images on the cell phone. After

Ruiz obtained the information from his cell phone, he returned the cell phone to Saenz, and Saenz

placed the cell phone in a manila envelope and sealed the envelope. Consistent with his statement

to Ruiz, Saenz contacted the Castle Hills Police Department, made a report, and turned the cell

phone over to the officers. Pursuant to a search warrant, the Castle Hills Police Department

officers viewed and secured several images depicting the area underneath the students’ skirts. Ruiz
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was subsequently charged with multiple counts of attempted production of sexual performance by

a child.

           On December 31, 2015, Ruiz filed a motion to suppress any and all tangible evidence

seized in connection with the case asserting that Principal Saenz did not obtain a warrant and no

exception to the warrant requirement applies. The State filed a memorandum of law in opposition

to the motion to suppress on March 11, 2016. Following an evidentiary hearing on March 9, 2016,

and on April 7, 2016, the trial court made the following oral findings of fact, see State v. Cullen,

195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (explaining that trial court’s findings on a motion to

suppress may be written or oral):

    •      “the information obtained from Ruiz’s cell phone was a result of a private citizen
           seizing [Ruiz’s] telephone;”
    •      “Ruiz may or may not have consented to leaving his cell phone with school
           authorities;”
    •      “Ruiz did not consent to [Saenz’s search of Ruiz’s cell phone];”
    •      “Saenz . . . conducted a search of the defendant’s telephone without obtaining a
           search warrant;”
    •      “[Saenz] subsequently gave the information he had obtained from the search of
           [Ruiz]’s cell phone to law enforcement authorities;”
    •      “a search warrant was obtained by police officers;” and
    •      “information was obtained from [Ruiz’s] cell phone through the search warrant.”

The trial court concluded that because Saenz’s actions did not fall under the warrantless search

exceptions of either consent to search or exigent circumstances, Saenz’s warrantless examination

of Ruiz’s cell phone violated Texas Code of Criminal Procedure article 38.23(a). See TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (West 2005).

           The trial court also made the following oral conclusions of law:
    •      “Information [taken from the cell phone was] fruit of the poisonous tree since the
           initial examination of the contents of [Ruiz’s] cell phone was without a warrant,
           was without [Ruiz’s] consent or permission.”


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   •   “Saenz’s examination of [Ruiz’s] cell phone [was] without a warrant, without
       [Ruiz’s] consent, [and] without exigent circumstances which justified a warrantless
       search.”
   •   “[A]ll of the information obtained from [Ruiz’s] cell phone is inadmissible against
       [Ruiz].

       The one-sentence, handwritten, order signed by the trial court on April 7, 2016, provides

as follows:

       The motion to Suppress Granted as to all photographs, evidence & data obtained
       from the search of [Ruiz’s] cell phone.

                                      STANDARD OF REVIEW

       An appellate court reviews a trial court’s ruling on a motion to suppress on a bifurcated

standard of review; a reviewing court must

       give almost total deference to the trial court’s rulings on (1) questions of historical
       fact, even if the trial court’s determination of those facts was not based on an
       evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions
       that turn on an evaluation of credibility and demeanor. But when application-of-
       law-to-fact questions do not turn on the credibility and demeanor of the witnesses,
       we review the trial court’s rulings on those questions de novo.

Wilson v. State, 442 S.W.3d 779, 783 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)); see also Valtierra v. State, 310 S.W.3d 442,

447 (Tex. Crim. App. 2010); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

This court must “uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was

supported by the record and was correct under any theory of law applicable to the case.”

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000)). We will reverse the trial court’s suppression decision if it is

unsupported by the record, “arbitrary, unreasonable, or ‘outside the zone of reasonable

disagreement.’” State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).




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                        MOTION TO SUPPRESS BEFORE THE TRIAL COURT

       The State contends the trial erred in granting Ruiz’s motion to suppress under the Texas

exclusionary rule. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

A.     Texas Code of Criminal Procedure Article 38.23(a)

       The Texas exclusionary rule provides 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.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a); see Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App.

2007). If the search or seizure violated the law, the Texas exclusionary rule is applicable to “‘other

persons,’ even when those other persons are not acting in conjunction with, or at the request of,

government officials.” Miles, 241 S.W.3d at 36; see also Cobb v. State, 85 S.W.3d 258, 270–71

(Tex. Crim. App. 2002) (considering private citizen under section 38.23(a)’s “other person”

status); Royston v. State, No. 14-13-00920-CR, 2015 WL 3799698, at *3 (Tex. App.—Houston

[14th Dist.] June 18, 2015, pet. ref’d) (mem. op., not designated for publication) (same). Simply

put, if no violation of the law occurred, article 38.23(a) has no application in the present case.

B.     Burden of Proof on a Motion to Suppress

       “‘[T]he burden of persuasion is properly and permanently placed upon the shoulders of the

moving party. When a criminal defendant claims the right to protection under an exclusionary

rule of evidence, it is his task to prove his case.’” Pham v. State, 175 S.W.3d 767, 773 (Tex. Crim.

App. 2005) (quoting Mattei v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970)). When the

evidence is collected by a private person, the Texas Code of Criminal Procedure requires proof

that the private person obtained the evidence in violation of the law. See Cobb, 85 S.W.3d at 270–




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71 (citing State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim. App. 1996)) (considering private

citizen under section 38.23(a)’s “other person” status); Royston, 2015 WL 3799698, at *3 (same).

C.     Proof that Evidence Obtained in Violation of Law

       In this case, the trial court made an affirmative finding that Principal Saenz was a private

person, and we afford the finding “almost total deference.” Wilson, 442 S.W.3d at 783. Because

Saenz was a private person, or “other person” pursuant to article 38.23(a), Ruiz bore the burden to

prove that Saenz obtained the evidence “in violation of law.” See Baird v. State, 379 S.W.3d 353

(Tex. App.—Waco 2012), aff’d, 398 S.W.3d 220 (Tex. Crim. App. 2013); see also Mayfield v.

State, 124 S.W.3d 377, 378 (Tex. App.—Dallas 2003, pet. ref’d) (“If a defendant challenges the

admissibility of evidence under article 38.23(a) on the ground it was wrongfully obtained by a

private person in a private capacity, the defendant must establish that the private person obtained

that evidence in violation of law.”). In other words, to implicate the protections of the Texas

exclusionary rule, Ruiz had to establish that Saenz violated a law in the process of seizing Ruiz’s

phone. See Baird, 379 S.W.3d at 357. Here, the only alleged violation of law Ruiz raised in his

motion to suppress was a violation of the Fourth Amendment to the United States Constitution and

article I, section 9, of the Texas Constitution. U.S. CONST. amend. XIV; TEX. CONST. art. I, § 9.

       1.       Alleged Fourth Amendment Violation

       The Fourth Amendment only applies to searches and seizures by agents of the government;

it does not extend to the conduct of private persons who are not acting as government agents.

Walter v. United States, 447 U.S. 649 (1980); Brimage v. State, 918 S.W.2d 466, 479 n.14 (Tex.

Crim. App. 1994); Gillett v. State, 588 S.W.2d 361, 363 (Tex. Crim. App. 1979). Similarly, article

I, section 9 of the Texas Constitution does not apply to the actions of private individuals. Lee v.

State, 773 S.W.2d 47, 48 (Tex. App.—Houston [1st Dist.] 1989, no pet.). Therefore, because

Saenz is a private individual, his alleged search of the cell phone under either the Fourth
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Amendment or the Texas Constitution cannot substantiate the violation of law required under

article 38.23.

        2.       Violation of Law by Private Individual

        When the movant on a motion to suppress proves the individual acted with intent to deprive

the owner of the seized property, the evidence is properly excluded under article 38.23(a). See

TEX. CODE CRIM. PROC. ANN. § 38.23(a); see also Cobb, 85 S.W.3d at 270–71 (explaining court’s

first question when evidence obtained through private individual is whether private individual was

acting to deprive the owner of the seized items). In Dixon v. State, No. 13-09-00445-CR, 2010

WL 3419231, at *1 (Tex. App.—Corpus Christi Aug. 27, 2010, pet. ref’d) (mem. op., not

designated for publication), a private citizen was shopping when he noticed a cell phone “laying

on a pair of pants.” The individual took the cell phone, handed it to his sister, and she placed the

cell phone in her pants pocket. Id. The individual and his sister left the store with the cell phone.

Id.

        Upon discovering that the cell phone’s battery was dead, the individual removed the SIM

card and placed the card into another cell phone. Id. Instead of the anticipated music, the SIM

card contained videos depicting “individuals being beaten up.” Id. Several weeks later, the

individual’s girlfriend showed the videos to a security officer at her place of employment. Id. The

security guard confiscated the phone as evidence of a crime. Id. Based on the videos, the State

charged Dixon, the cell phone owner, with injury to a disabled individual; Dixon filed a motion to

suppress the videos. Id. at *2. The trial court concluded the private individual obtained the

evidence in question by violating the law. Id. In other words, because the individual’s original

intent in taking the cell phone was to deprive the owner of the property, i.e. he intended to steal

the cell phone, article 38.23(a) mandated exclusion of the videos. See id. (citing TEX. CODE CRIM.

PROC. ANN. § 38.23); see also State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim. App. 1996)
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(suppressing evidence obtained by victim’s son who illegally entered a funeral home and removed

evidence resulting in burglary charges filed against son); Jenschke v. State, 147 S.W.3d 398, 403

(Tex. Crim. App. 2004) (suppressing evidence of used condom obtained by victim’s parents from

defendant’s truck and held evidence for almost two years before turning over to police).

       Here, Ruiz does not contend Saenz obtained the phone by theft, criminal trespass, or similar

criminal violation.

       3.      Individual Actions Cannot Exceed Actions Warranted by Officer

       In Miles v. State, 241 S.W.3d at 43–46, the Texas Court of Criminal Appeals addressed

whether any violation of law perpetrated by private individual implicates article 38.23. After an

intoxicated Miles drove away from the scene of an accident, a tow-truck driver followed Miles the

wrong direction down a one-way street. Id. at 44. The individual, along with others, ultimately

stopped Miles and detained him until officers arrived. Id. A firearm was located in the vehicle

and Miles was charged with unlawful possession. Id. Miles filed a motion to suppress the firearm

alleging that, because the private citizen violated the traffic laws, the evidence obtained after the

stop violated article 38.23. Id.

       During the motion to suppress, the tow-truck driver acknowledged violating the traffic

laws, but explained that he activated his overhead lights as he followed Miles in an attempt to both

stop Miles and to warn on-coming traffic of Miles’s reckless behavior. Id. at 45. The court

concluded that contrary to Miles’s contention that the individual’s conduct increased the risk to

public safety, the tow-truck driver’s actions warned oncoming traffic of the danger Miles posed to

other drivers. Id. An officer could have acted as the individual did in attempting to stop Miles,

i.e. violate the traffic laws in an attempt to arrest Miles; thus, the private individual’s actions did

not implicate article 38.23. Id. at 45–46. Because Miles failed to prove the private individual’s

violation of the traffic laws exceeded the manner in which a peace officer could have acted in
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effectuating Miles’s arrest, article 38.23 did not apply and the trial court properly denied the

motion to suppress. See id.

       Like the Texas Court of Criminal Appeals’ determination that the Texas exclusionary rule

did not apply to the tow-truck driver in Miles, Ruiz failed to prove Saenz violated the law and the

Texas exclusionary rule does not apply to Saenz.

       4.      Possession with Intent to Provide Evidence to Police Officers

       Courts have long held that a private citizen taking possession of evidence—solely with the

intent to provide the evidence to police officers for purposes of a criminal investigation—does not

implicate article 38.23(a). In Stone v. State, 574 S.W.2d 85, 87 (Tex. Crim. App. 1978), the

defendant and his wife “hired their next-door neighbor to babysit their children while both

[parents] were at work.” Although the children were generally cared for at the babysitter’s home,

the babysitter had access to the Stone residence to obtain diapers and other necessary supplies for

the Stone children. Id.

       On the day in question, the babysitter accessed the Stone residence “to get soap for the

infant’s bath.” Id. “While in the bedroom, the baby-sitter saw a stack of photographs on a dresser

and looked through them.” Id. The top photograph depicted the youngest Stone child. Id. Four

of the other photographs in the stack were pictures of Stone. Id. Four pictures were of a naked

Stone engaged in sexual activity, including oral sex with an unrelated seven-year-old victim who

lived nearby. Id. Two more photographs showed the same child performing oral sex on Stone’s

wife. Id. The remaining photograph was of the victim naked from the waist down. Id.

       The babysitter took the photographs to the manager of the housing complex in which Stone

lived. Id. The manager contacted law enforcement; the babysitter and the manager identified the

seven-year-old victim as the child of another family in the housing complex. Id. Prior to the

photographs being turned over to law enforcement, the photographs were also shown to the
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victim’s parents. Id. Stone was charged with sexual abuse. Id. Stone filed a motion to suppress

the photographs alleging that article 38.23 of the Texas Code of Criminal Procedure prohibited the

admission of the photographs obtained in violation of the law by a private citizen. Id. at 88.

       The Texas Court of Criminal Appeals began its analysis explaining that, “[i]f no violation

of the law occurred, [article 38.23] can have no application in the present case.” Id.; see also Hailil

v. State, 430 S.W.3d 549, 554–55 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (concluding

exclusionary rule did not apply when private person did not violate a law in procuring the

evidence—no criminal trespass because he was invited into the room). The babysitter was

authorized to be in the Stone residence when she found the photographs. Stone, 574 S.W.2d at 87.

The court noted that after taking possession of the photographs, the photographs “were turned over

to the police and the owners identified.” Id. at 88. “This negates any inference that [the babysitter]

sought to deprive the owner of his property.” Id. The court further explained that if the

photographs had not been evidence of a crime, law enforcement would have returned the

photographs to Stone. Id. at 88–89. The court concluded that article 38.23 “[did] not require the

exclusion of [the photographs].” Id. at 89.

D.     Application to Present Case

       Here, the trial court made a finding that Saenz was a private citizen, but did not determine

whether Ruiz “consented to leaving his cell phone with school authorities.” We defer to such

findings. See Wilson, 442 S.W.3d at 783; Baird, 398 S.W.3d at 226. This case, however, does not

turn on whether Ruiz consented to Saenz’s search of the cell phone. Rather, it turns on whether

Ruiz met his burden to prove that Saenz violated the law in obtaining the evidence. See TEX. CODE

CRIM. PROC. ANN. art. 38.23(a). Ruiz’s motion to suppress did not allege that either Saenz or the

Castle Hills Police Department violated any other law, and the trial court did not make such a



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finding. Furthermore, the record does not support that Saenz violated any state or federal law that

would require suppression in this case.

       1.      Lawfully on the Premises

       The babysitter in Stone clearly did not obtain consent from Stone before taking possession

of the photographs. The court’s analysis in Stone began with a determination that the babysitter,

a private individual, was lawfully in Stone’s residence when she found and took possession of the

photographs. See Stone, 574 S.W.2d at 87; Cobb, 85 S.W.3d at 271. Like the Stone babysitter,

when Saenz took possession of Ruiz’s cell phone, he was acting as a private individual and was

lawfully in his office when the cell phone came into his possession. See Stone, 574 S.W.2d at 87;

Cobb, 85 S.W.3d at 271.

       2.      Taking Possession of the Evidence

       In Stone, the defendant argued the babysitter committed a theft when she removed the

pictures from the defendant’s residence. See Stone, 574 S.W.2d at 88; see also Baird, 379 S.W.3d

at 357 (concluding defendant’s effective consent to access bedroom and computer negated claims

of trespass or breach of computer security); Kane, 458 S.W.3d at 187–88 (concluding

administrator’s access of thumb drive did not constitute breach of computer security). Ruiz, on

the other hand, does not assert Saenz committed any criminal offense—Ruiz does not contend

Saenz violated the law in obtaining the pictures; he does not allege that Saenz committed a theft,

that Saenz trespassed, or that Saenz breached computer security in viewing the pictures or

procuring the cell phone. Cf. Stone, 574 S.W.2d at 87–88 (theft); Baird, 379 S.W.3d at 357

(trespass); Kane, 458 S.W.3d at 187–88 (breach of computer security). Instead, Ruiz argues that

Saenz grabbed Ruiz’s cell phone, “without Ruiz’s consent, and thus, in violation of his legitimate

expectation of privacy, the Fourth Amendment, and article 38.23.”



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        Similar to the photographs obtained by the babysitter in Stone, Saenz believed the cell

phone contained images involving minor, female students, i.e. evidence of criminal wrongdoing,

and took possession of the cell phone with the intent “of turning it over” to the police. See Stone,

574 S.W.2d at 87. The record substantiates, and Ruiz’s counsel argued the same during oral

argument, that prior to viewing any images contained on the cell phone, Saenz told Ruiz that the

cell phone would be turned over to law enforcement and that the cell phone would not be returned

to Ruiz. Saenz told him “I’m taking your phone and I’m going to give it to the police.” 1 It was

Saenz’s directive that the cell phone would not be returned that prompted Ruiz’s request to access

the cell phone to retrieve stored telephone numbers. Saenz subsequently placed Ruiz’s cell phone

in a manila envelope “to secure the evidence” and “to protect the chain of custody.”

E.      Conclusion

        Giving deference to the trial court’s findings of fact, the record clearly supports that (1)

Saenz was a private person and was lawfully in his office, (2) Saenz took possession of the cell

phone with the intent to turn the evidence over to law enforcement, (3) Saenz placed the cell phone

in a manila envelope, and (4) Saenz turned the cell phone over to law enforcement authorities.

Bearing in mind that Ruiz bore the burden of persuasion on his motion to suppress, see Pham, 175

S.W.3d at 773, Ruiz failed to establish that Saenz violated any law when he took possession of

Ruiz’s cell phone, see TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In other words, Ruiz failed to

prove Saenz took the cell phone for any purpose other than to turn the cell phone over to law

enforcement. See Stone, 574 S.W.2d at 88–89; see also Pham, 175 S.W.3d at 773.




1
  We further note that Saenz never relinquished possession of the cell phone—even after Ruiz requested permission
to obtain a telephone number from the cell phone’s directory. Although Saenz allowed Ruiz to physically hold the
cell phone in order to obtain telephone numbers, Saenz was present the entire time and monitoring Ruiz’s actions.
After Ruiz wrote down the information in question, Ruiz returned the cell phone to Saenz’s physical possession and
Saenz immediately placed the cell phone in the manila envelope.

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       Based on a review of the entire record, we conclude Ruiz failed to establish that article

38.23(a) applies to Saenz. Because the statute does not apply, the trial court erred in suppressing

the photographs, evidence, and data obtained from the subsequent search of Ruiz’s cell phone by

the Castle Hill Police Department officers. See Stone, 574 S.W.2d at 88–89; Cobb, 85 S.W.3d at

270–71. Additionally, because article 38.23 does not apply, the question of exigent circumstances

is of no consequence. Accordingly, the trial court erred in concluding that the information taken

from Ruiz’s cell phone was “fruit of the poisonous tree.” We, therefore, reverse the trial court’s

order granting the motion to suppress and remand this matter to the trial court for further

proceedings consistent with this opinion.

                                                  Patricia O. Alvarez, Justice

Publish




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