Petition for Writ of Certiorari — Christian Vernon Sims, Petitioner v. Texas

Supreme Court briefApr 16, 2019

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NO. ________________

In the

Supreme Court of the United

States

CHRISTIAN VERNON SIMS,

Petitioner,

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

to the Texas Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

Michael Mowla

P.O. Box 868

Cedar Hill, TX 75106

Phone: 972-795-2401

Fax: 972-692-6636

michael@mowlalaw.com

Counsel of Record

Dated: April 16, 2019

Kristin R. Brown

17304 Preston Rd # 1250

Dallas, TX 75252

Phone: 214-446-3909

Fax: 214-481-4868

kbrown@idefenddfw.com

QUESTION PRESENTED

1. In Carpenter v. United States, 138 S.Ct. 2206

(2018), this Court held that a person has a

legitimate expectation of privacy in both real-time

and historic cell-site location information (CSLI).

The third-party doctrine was held inapplicable

because CSLI data is not voluntarily turned over

to a cellphone service provider. Thus, Carpenter

had a legitimate expectation of privacy in at least

seven days of historical CSLI data associated with

his cellphone and the government violated

the Fourth Amendment when it searched his

phone without a warrant supported by probable

cause. Petitioner Sims’s cellphone was tracked for

an afternoon for about three hours’ worth of realtime CSLI records and without a warrant. And,

his phone was pinged about five times to obtain his

location-information. But, the TCCA determined

that although a 5-4 split on this Court “supported

the idea that longer-term surveillance might

infringe on a person’s legitimate expectation of

privacy if the location records reveal the privacies

of his life,” Petitioner’s is not that case because

apparently the surveillance, although it certainly

occurred, was not pervasive enough.

Question: Under the Fourth Amendment, does a

person have a legitimate expectation of privacy in

historic or real-time cellphone tracking data (CSLI)

regardless of the duration of the tracking (seconds) or

frequency of the tracking (number of pings)?

PARTIES TO THE PROCEEDING

Christian Vernon Sims, Petitioner

State of Texas, Respondent.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

TABLE OF CONTENTS ........................................... iii

APPENDIX ................................................................ iv

TABLE OF AUTHORITIES ...................................... v

OPINIONS BELOW ................................................... 1

STATEMENT OF JURISDICTION .......................... 1

RELEVANT

CONSTITUTIONAL

PROVISIONS ............................................................. 1

STATEMENT OF THE CASE ................................... 2

Introduction ........................................................... 2

Background Facts .................................................. 4

December 18, 2014................................ 4

Trial court proceedings ......................... 8

Proceedings in the TCCA and the

Opinion .................................................. 8

STANDARD OF REVIEW ................................... 10

REASONS FOR GRANTING THE WRIT............... 10

Under the Fourth Amendment, a

person has a legitimate expectation of

privacy in real-time and historic

cellphone tracking data regardless of the

duration (seconds) or frequency of the

tracking (number of pings). ............................. 10

Carpenter is binding on the TCCA

............................................................. 10

Today’s cellphones are different,

and the Opinion ignores this

reality .................................................. 15

The third-party doctrine does not

apply .................................................... 20

A person maintains a legitimate

expectation of privacy in the

record of his physical movements

as captured through CSLI, and

thus has standing to assert such a

violation............................................... 20

Petitioner did not “abandon” the

CSLI data ............................................ 23

Other state courts of last resort

and state statutes require

warrants for real-time or historic

CSLI data ............................................ 25

The TCCA decided an important

federal question in a way that

conflicts with relevant decisions

of this Court ........................................ 28

CONCLUSION AND PRAYER ............................... 28

APPENDIX

Sims v. State, No. PD-0941-17

(Tex.Crim.App. Jan. 16, 2019).......................App.1-23

Sims v. State, 526 S.W.3d 638

(Tex.App.-Texarkana 2017)..........................App.24-37

TABLE OF AUTHORITIES

Cases

Alderman v. United States, 394 U.S. 165

(1969).................................................................. 22

Carpenter v. United States, 138 S.Ct.

2206 (2018) .................................................. passim

Henderson v. State, 695 P.2d 879

(Okla.Crim.App. 1985)....................................... 24

In re Application for Pen Register and

Trap/Trace Device with Cell Site

Location Authority, 396 F.Supp.2d

747 (S.D. Tex. 2005)........................................... 27

In re Application for Pen Register and

Trap/Trace Device with Cell Site

Location Authority, 396 F.Supp.2d

747 (S.D.Tex. 2005)............................................ 27

Katz v. United States, 389 U.S. 347

(1967).................................................................. 21

Kyllo v. United States, 533 U.S. 27

(2001).................................................................. 15

People v. Hampton, 603 P.2d 133 (Colo.

1979) ................................................................... 23

People v. Washington, 413 N.E.2d 170

(Ill.App.Ct. 1980) ............................................... 23

Rakas v. Illinois, 439 U.S. 128 (1978) ..................... 22

Riley v. California, 573 U.S. 373 (2014) ............ 11, 16

Salve Regina College v. Russell, 499 U.S.

225 (1991) ........................................................... 10

Sims v. State, 526 S.W.3d 638 (Tex.App.Texarkana 2017) ............................................ 1, 22

Sims v. State, No. PD-0941-17

(Tex.Crim.App. Jan. 16, 2019)

(designated for publication)................................. 1

Smith v. Maryland, 442 U.S. 735 (1979)................. 15

Smith v. Maryland, 442 U.S. 735 (1979)................. 18

State v. Earls, 70 A.3d 630 (N.J. 2013) ................... 26

State v. Granville, 423 S.W.3d 399

(Tex.Crim.App. 2014) ........................................ 16

State v. Green, 605 P.2d 746 (Ore. 1980)................. 24

Terry v. Ohio, 392 U.S. 1 (1968) ................................ 3

Tracey v. State, 152 So.3d 504 (Fla. 2014)

............................................................................ 25

United States v. Colbert, 474 F.2d 174

(5th Cir. 1973)(en banc) ..................................... 25

United States v. Edwards, 441 F.2d 749

(5th Cir. 1971) .................................................... 23

United States v. Forest, 355 F.3d 942

(6th Cir. 2004) .................................................... 18

United States v. Jones, 565 U.S. 400

(2012).................................................................. 11

United States v. Knotts, 460 U.S. 276

(1983).................................................................. 11

United States v. Knotts, 460 U.S. 276

(1983).................................................................. 19

vii

United States v. Tate, 821 F.2d 1328 (8th

Cir. 1987)............................................................ 23

Zanders v. State, No. 15S01-1611-CR571, 2019 Ind. LEXIS 46 (Ind. 2019) ................ 27

Statutes

28 U.S.C. § 1257(A) (2019) ......................................... 1

725 ILL. Comp. Stat. 168/10 (2019) ........................ 26

Ind. Code 35-33-5-12 (2019) ..................................... 27

Md. Code Ann. Crim. Proc. § 1-203.1

(2019).................................................................. 27

Tex. Code Crim. Proc. Art. 18.21 (2016).................... 5

Va. Code § 19.2-70.3(C) (2019) ................................ 27

Constitutional Provisions

U.S. Const. Amend IV .............................................. 21

U.S. Const. Amend. IV ............................................... 2

U.S. Const. Amend. XIV ............................................ 2

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

Petitioner

Christopher

Vernon

Sims

respectfully petitions for a writ of certiorari to review

the Opinion and Judgment of the Texas Court of

Criminal Appeals (“TCCA”):

OPINIONS BELOW

The Opinion and Judgment of the TCCA from

which this petition is filed is Sims v. State, No. PD0941-17 (Tex.Crim.App. Jan. 16, 2019) (designated

for publication) and is entitled “Opinion” throughout

this petition (App.1-23). This Opinion was the appeal

from the Opinion of the Sixth Court of Appeals of

Texas in Sims v. State, 526 S.W.3d 638 (Tex.App.Texarkana 2017) (App.24-37).

STATEMENT OF JURISDICTION

On January 16, 2019, the TCCA issued the

Opinion in Sims v. State, No. PD-0941-17

(Tex.Crim.App. Jan. 16, 2019) (designated for

publication) (App.1-23). This Court has jurisdiction

under 28 U.S.C. § 1257(A) (2019).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States

Constitution 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.

The Fourteenth Amendment to the United

States Constitution provides in relevant part: “No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. Amend.

XIV.

STATEMENT OF THE CASE

Introduction

In Carpenter v. United States, 138 S.Ct. 2206

(2018), this Court held that a person has a legitimate

expectation of privacy in both real-time and historic

cell-site location information (CSLI). The third-party

doctrine was held inapplicable because CSLI data is

not voluntarily turned over to a cellphone service

provider. Thus, Carpenter had a legitimate

expectation of privacy in at least seven days of

historical CSLI data associated with his cellphone

and

the

government

violated

the Fourth

Amendment when it searched his phone without a

warrant supported by probable cause.

Petitioner’s cellphone was tracked for an

afternoon for about three hours’ worth of real-time

CSLI records and it was done so without a warrant.

His phone was pinged about five times to obtain his

location-information. But, the TCCA determined that

although a 5-4 split on this Court “supported the idea

that longer-term surveillance might infringe on a

person’s legitimate expectation of privacy if the

location records reveal the privacies of his life,”

Petitioner’s is not that case because apparently the

surveillance, although it certainly occurred, was not

pervasive enough.

Thus, the issue before this Court is whether it

matters what the duration of the tracking (in seconds

or minutes) is or the frequency of the tracking

(number of pings). If the Fourth Amendment is

violated by the intrusion, why should it matter how

many seconds or number of pings occurs? The Fourth

Amendment is violated upon an initial intrusion that

is unreasonable. An initial intrusion must generally

be based on reasonable suspicion or probable cause

and the scope of a search must be strictly tied to and

justified by the circumstances which rendered its

initiation permissible. Terry v. Ohio, 392 U.S. 1, 19

(1968). Here, there was nothing reasonable about

intentionally and knowingly violating the warrant

requirement.

Thus, the question for this Court is whether

under the Fourth Amendment a person has a

legitimate expectation of privacy in historic or realtime cellphone tracking data (CSLI) regardless of the

duration of the tracking (seconds) or frequency of the

tracking (number of pings)?

Background Facts

December 18, 2014

On December 18, 2014, Annie (Petitioner’s

grandmother) was found dead by a gunshot to the

back of her head. (App.4; RR2.96; RR3.7)1 Detective

Smith of the Lamar County Sheriff’s Office responded

and identified the deceased. (App.4) Lieutenants

Tuttle and Chipman learned that Annie’s 2012 Silver

Toyota Highlander was missing from the driveway

and that Petitioner and his girlfriend Ashley

Morrison were possible suspects. (RR2.102, 111;

App.4-5). Police searched the property and discovered

that in addition to the Highlander and Annie’s purse,

a Beretta 9mm handgun and a .38 Special revolver

were missing. (App.5; RR2.96). When Mike (Annie’s

husband) arrived home, the police informed him

about the missing purse. (App.5).

Mike Sims called Capitol One to report credit

cards stolen. (RR2.14, 97-98). A company

representative told him that the cards had been used

three times, including once at a Wal-Mart in

McAlester, Oklahoma (80 miles north of Lamar

County, Texas). (App.5). Police contacted the

McAlester Police Department and asked them to go to

the Wal-Mart to investigate. (App.5). Officers

1 Record citations are to the Appendix (“App._”) or the record on

appeal, which are cited to the Clerk’s Record, cited as “CR” and

the page number, and the Reporter’s Record, cited as “RR”

followed by the volume and page or exhibit number (“SX” for

State’s exhibits or “DX” for Appellant’s exhibits). Petitioner will

make the record on appeal available to the court upon demand.

discovered that a young man and woman bought

items using a credit card stolen from Annie’s purse

and left in a 2012 Silver Toyota Highlander. (App.5).

McAlester police took pictures of the man and woman

from security footage and texted them to Texas police.

(App.5). Mike Sims identified the people as Petitioner

and Morrison. (App.5).

Deputy Springer of the Lamar County Sheriff’s

Office thought that there was probable cause to

believe that Petitioner committed murder, burglary of

a habitation, unauthorized use of a motor vehicle, and

credit card abuse. (App.5). Springer also believed that

Petitioner and Morrison were a danger to the public

because they were likely armed. (App.5). Springer

returned to the Lamar County Sheriff’s Office to

obtain a warrant to “ping” Petitioner’s and Morrison’s

cellphones. (App.6). Springer discovered that

Sergeant Hill had already begun the process to ping

the cellphones. (App.6). Petitioner purchased the

phone a year before, he owned it, was always in sole

possession of it, always had possession of it, and

nobody else ever had custody of or used the phone.

(RR2.128-130).

Per Springer, he could have obtained a warrant

because it was during business hours and local judges

were readily available but he did not because he was

told not to do so. (App.6). Hill could have obtained a

warrant under Tex. Code Crim. Proc. Art. 18.21

(2016), Pen Registers and Trap and Trace Devices;

Access to Stored Communications; Mobile Tracking

Devices (repealed 2019), which at the time was the

statute that allowed for warrant-applications for

cellphone “pings” and the underlying data. (RR2.118119). But officers never obtained a search or arrest

warrant. (RR2.28, 31-37, 64-65). Nor did officers

obtain (or attempt to obtain) a warrant for the

“pinging” evidence. (RR2.56).

Instead of seeking a warrant, Hill used an

exigent-circumstances form (“Emergency Situation

Disclosure” form) provided by Verizon, Petitioner’s

service provider. (App.6; RR2.107, 120-121; RR5.SX4B). All the form asks is “Does this request potentially

involve the danger of death or serious physical injury

to a person, necessitating the immediate release of

information relating to that emergency?,” with “Yes”

or “No” checkboxes. (App.6; RR2.125; RR5.SX-4B).

Below the title the form states that “Upon receipt of

this completed form, Verizon may divulge records or

other information to governmental entities in certain

emergencies, pursuant to 18 U.S.C. § 2702(b)(8) or §

2702(c)(4) or an equivalent state law.” (App.6). Hill

checked the box labeled, “Yes.” Under “Types of

Records Being Requested,” Hill checked “Location

Information.” (App.6-7). Under “Time Frame for

Which Information is Requested,” Hill wrote

“current.” (App.7). Hill signed the document on

December 18, 2014 and faxed it to Verizon. (App.7).

Per Hill, there was a 20-minute delay from

when Petitioner’s phone was “pinged” and when the

police received real-time location information.

(App.7). The real-time cell-site location information

(“CSLI”) from the first ping showed that the phone

was a few miles north of the Wal-Mart where the

Capitol One credit card was used, just north of

McAlester. (App.7; RR2.99). Because of this delay,

Hill used Google Maps to estimate where Petitioner

and Morrison probably were. (App.7). Hill called

ahead to Oklahoma police departments to request

that they look for Petitioner and Morrison. (App.7).

Information from a “ping” indicated that cellphone

was at a truck-stop in Sapulpa, Oklahoma, which is

about 90 minutes north of McAlester on the Indian

Nation Turnpike. (App.7; RR2.21.99.118). Based on

this, at 5:53 p.m., a “be on the lookout” was issued for

the 2012 Highlander “being driven by two possible

murder suspects.” (RR2.45-46.49.54-55.59). Police

located Petitioner and Morrison at a motel across the

street from the truck stop. (App.7; RR2.21-22).

Officers spoke to the motel manager and

identified the correct room. (App.7; RR2.23.28). Other

than the information they received from dispatch and

another law-enforcement agency based on cell-phone

pinging before they arrived at the motel, there was no

evidence of illegal activity in the room (i.e., nobody

was entering or exiting the room, nobody was yelling

or screaming in or about the room). (RR2.32-33, 3839, 55-59).

Petitioner and Morrison were taken into

custody without incident. (App.7; RR2.23-26, 59-62;

RR3.11). Upon arrest, Petitioner was not

“Mirandized.” (RR2.89-91). Petitioner told an officer

“[Morrison] had nothing to do with it. It was all me.”

(App.7; RR2.36). Inside the motel room the police

found several hundred .22-caliber bullets, six knives,

a white towel with a blood stain, a loaded Beretta

9mm with a round chambered, and two boxes of 9mm

rounds. (App.7-8; RR2.42, 62, 67).

Trial court proceedings

On July 27, 2015, a grand jury indicted

Petitioner for Murder, alleging that on or about

December 18, 2014, Petitioner “…intentionally and

knowingly” caused the death of (Annie) by shooting

her with a firearm. (CR.182). As to the Fourth

Amendment issues, Petitioner filed a motion to

suppress: (1) the warrantless seizure of the locationdata evidence (“pinging”) of the cellphone; and (2) the

warrantless arrest of Petitioner under the Fourth

Amendment. (CR.240-245, 362-387).

In September-October 2016, hearings were

held on Petitioner’s motion to suppress evidence,

which was denied by the trial court. (CR.390-391,

CR.423-428). In exchange for a 35-year prison

sentence, Petitioner changed his plea to “guilty” to

Murder. (RR4.17; CR.421-422); see Tex. Penal Code §

19.02 (2014).

Proceedings in the TCCA and the Opinion

After the court of appeals affirmed Petitioner’s

conviction, Petitioner filed a petition for discretionary

review, asserting two grounds that were granted

review (as relevant here): (1) The Court of Appeals

erred by ruling that violations of the Federal Stored

Communication Act (“SCA”) do not require

suppression of evidence pertaining to the warrantless

pinging of a cellphone because it is irrelevant that the

SCA does not provide that suppression is available

since they are laws of the United States; and (2) The

Court of Appeals erred by holding that Petitioner was

not entitled to a reasonable expectation of privacy in

the real-time, tracking-data that was illegally seized

because under the Fourth Amendment a person has a

legitimate expectation of privacy in real-time

tracking-data regardless of whether he is in a private

or public location.

The Opinion concluded that Petitioner did not

have an expectation of privacy in the real-time

location information stored in his phone. (App.23).

Per the TCCA, in Carpenter this Court held that a

person has a legitimate expectation of privacy in

historical CSLI records. (App.20); citing Carpenter,

138 S.Ct. at 2214-2215. The third-party doctrine was

inapplicable because historical CSLI information is

not voluntarily turned over to a cellphone service

provider. Thus, Carpenter had a legitimate

expectation of privacy in at least seven days of

historical CSLI associated with his cellphone and the

government violated the Fourth Amendment when it

searched his phone without a warrant supported by

probable cause. (App.20); citing Carpenter, id. at

2221.

The TCCA also observed that this Court’s

reasoning in Carpenter applies to both historical and

real-time CSLI. (App.20-21). There is indeed no

“bright-line rule” for determining how long police

must track a person’s cellphone in real time before it

violates a person’s legitimate expectation of privacy in

those records. (App.20-21). Whether a person has a

recognized expectation of privacy in real-time CSLI

records must be decided on a case-by-case basis.

The TCCA, however, concluded that Petitioner

did not have a legitimate expectation of privacy in his

physical movements or his location as reflected in the

“less than three hours of real-time CSLI records”

accessed by police by pinging his phone “less than five

times.” (App.23). And as the TCCA also observed, a 54 split in this Court “supported the idea that longerterm surveillance might infringe on a person’s

legitimate expectation of privacy if the location

records reveal the privacies of his life, but this

(Petitioner’s) is not that case.” (App.23).

STANDARD OF REVIEW

Because

this

petition

involves

the

interpretation of federal constitutional law and prior

holdings of this Court, the standard of review is de

novo. See Salve Regina College v. Russell, 499 U.S.

225, 231-232 (1991).

REASONS FOR GRANTING THE WRIT

I. Under the Fourth Amendment, a person has

a legitimate expectation of privacy in realtime

and

historic

cellphone

tracking data regardless of the duration

(seconds) or frequency of the tracking

(number of pings).

Carpenter is binding on the TCCA

In Carpenter v. United States, 138 S.Ct. 2206

(2018), this Court held that the Government conducts

a search under the Fourth Amendment when it

accesses historical cellphone records that provide a

comprehensive chronicle of the user’s past

movements. Id. at 2222-2223. And, a person

maintains a legitimate expectation of privacy in the

record of his physical movements as captured through

CSLI, so the location-information obtained from the

wireless carriers is the product of a search subject to

scrutiny under the Fourth Amendment. This Court

went further and also concluded that historical cellsite records present even greater privacy concerns

than the GPS-monitoring of a vehicle considered

in United States v. Jones, 565 U.S. 400 (2012) or the

bugged-container considered in United States v.

Knotts, 460 U.S. 276 (1983). Unlike Jones and Knotts,

a cellphone [referred to as almost a “feature of human

anatomy,” Riley v. California, 573 U.S. 373, 385

(2014)] tracks nearly exactly the movements of its

owner. And while individuals regularly leave their

vehicles, “they compulsively carry cellphones with

them all the time” and in fact, “a cellphone faithfully

follows its owner beyond public thoroughfares and

into private residences, doctor’s offices, political

headquarters, and other potentially revealing

locales.” Carpenter, id. at 2218.

Further, as this Court observed, the

“retrospective quality” of the CSLI-data gives police

access to a category of information otherwise

unknowable. Id. at 2218. While in the past attempts

to reconstruct a person’s movements “were limited by

a dearth of records and the frailties of recollection,”

now with CSLI, the Government can “travel back in

time to retrace a person’s whereabouts, subject only

to the retention polices of the wireless carriers, which

currently maintain records for up to five years.” Id.

And “[C]ritically, because location information is

continually logged for all of the 400 million devices in

the United States—not just those belonging to

persons who might happen to come under

investigation—this newfound tracking capacity runs

against everyone. Id. Unlike with the GPS device

in Jones, police need not even know in advance

whether they want to follow a certain individual, or

when.” Id.

This Court’s bottom-line conclusion is that the

government conducts a search under the Fourth

Amendment when it accesses historical cellphone

records (CSLI records) that provide a comprehensive

chronicle of the user’s past movements. Id. at 2214.

The “records” are the personal location information

maintained by a third-party (wireless carrier)

revealing the location of a user’s cellphone whenever

it was used to make or received calls. Id. Thus, this

Court compared the tracking of a cellphone as the

achieving of “near-perfect surveillance, as if it had

attached an ankle monitor to the phone’s user.” Id. at

2218.

As this Court explained, each time a cellphone

connects to a cell-site, it generates a time-stamped

record known as CSLI. Id. at 2211. Wireless carriers

(like Verizon) collect and store CSLI for business

purposes, including finding weak spots in their

network and applying “roaming” charges when

another carrier routes data through their cell-sites.

Id. at 2212. Keeping this information is useful for

companies because cellphones generate vast amounts

of precise CSLI, id. at 2212, which again in turn as

this Court again termed is “near-perfect surveillance,

as if it had attached an ankle monitor to the phone’s

user.” Id. at 2218.

The facts of Carpenter mirror Petitioner’s in

several aspects. In Carpenter, officers arrested four

men suspected of robbing retail stores. Id. at 2212.

One of the men confessed that over the previous four

months, he and over a dozen others participated in

the robbery of nine stores in two states. Id. He gave

the FBI some of their cellphone numbers, which

allowed the FBI then to review call records to identify

more numbers. Id. Based on this information, the

government applied for court orders under the SCA to

obtain cellphone records for Carpenter and others. Id.

Under 18 U.S.C. § 2703(d), the SCA permits the

Government to compel the disclosure of certain

telecommunications records when it “offers specific

and articulable facts showing that there are

reasonable grounds to believe” that the records

sought “are relevant and material to an ongoing

criminal investigation.” Id. Thus, two orders directing

MetroPCS and Sprint were issued to disclose “cell/site

sector [information] for [Carpenter’s] telephone[s] at

call origination and at call termination for incoming

and outgoing calls” during the four-month period

when the string of robberies occurred. Id. The first

order sought 152 days of cell-site records from

MetroPCS, which produced records spanning 127

days, and the second requested seven days of CSLI

from Sprint, which produced two days of records from

when Carpenter’s phone was “roaming” in

northeastern Ohio. Id. The Government obtained

12,898 location points cataloging Carpenter’s

movements, an average of 101 data points per day. Id.

After he was indicted, Carpenter filed a motion

to suppress the cell-site data provided by the carriers,

arguing that the seizure of the records violated

the Fourth Amendment because they had been

obtained without a warrant supported by probable

cause. Id. at 2212. The District Court denied the

motion. With the information obtained from the cellcite data, Agent Hess produced maps that placed

Carpenter’s phone near four of the charged-robberies.

This is similar to how in Petitioner’s case, after there

was a 20-minute delay from when Petitioner’s phone

was “pinged” and when the police received real-time

location information (App.7) and the real-time CSLI

from the first ping showed that the phone was a few

miles north of the Wal-Mart where the Capitol One

credit card was used, Hill used Google Maps to

estimate where Petitioner and Morrison probably

were. (App.7).

In Carpenter, the Government’s argument was

that the CSLI location records “clinched the case,”

confirming that Carpenter was “right where

the…robbery was at the exact time of the robbery.”

Carpenter, id. at 2213. And in Petitioner’s case, the

CSLI location records placed Petitioner nearby where

he used the credit card and allowed the police to effect

a warrantless search and arrest of Petitioner.

This Court rejected the Sixth Circuit’s view

that Carpenter lacked a reasonable expectation of

privacy in the location information collected by the

FBI because he had “shared” that information with

his wireless carriers (i.e., cellphone users voluntarily

convey cell-site data to their carriers as “a means of

establishing communication,” so the resulting CSLI

records

are

not

entitled

to Fourth

Amendment protection.

Id.

2213,

citing

Smith v. Maryland, 442 U.S. 735, 741 (1979).

This Court compared the tracking of CSLI

information to the type of intrusion that occurred in

Kyllo v. United States, 533 U.S. 27, 34 (2001), where

this Court rejected a “mechanical interpretation” of

the Fourth Amendment and held that use of a

thermal-imager to detect heat radiating from the side

of the defendant’s home was a search that required a

warrant because any other conclusion would leave

homeowners “at the mercy of advancing technology.”

Id. at 2214. There is no functional difference to the

Fourth Amendment search that occurs when the

government tracks a person’s CSLI data (described by

this Court as “near-perfect surveillance, as if it had

attached an ankle monitor to the phone’s user,” id. at

2218, to an intrusion into a person’s home using a

thermal-imager to determine a person’s whereabouts

inside her home. Merely because a person leaves his

home with his cell phone (which per this Court is

functionally attached like an ankle monitor to his

person) does not diminish that person’s rights under

the Fourth Amendment.

Today’s cellphones are different, and the

Opinion ignores this reality

As Justice Roberts explained in Riley, today’s

cellphones are different. They “…differ in both a

quantitative and a qualitative sense from other

objects that might be kept on an arrestee’s person.”

Riley, id. at 393. The term “cellphone” is “misleading

shorthand” since “many of these devices are in fact

minicomputers that also happen to have the capacity

to be used as a telephone. They could just as easily be

called cameras, video players, rolodexes, calendars,

tape recorders, libraries, diaries, albums, televisions,

maps, or newspapers.” Id. Further, one of the most

notable features of today’s cellphones is their

“immense

storage

capacity.” Before

today’s

cellphones, a search of a person was limited by

physical realities and tended as a general matter to

constitute only a narrow intrusion on privacy. And as

a category, today’s cellphones “implicate privacy

concerns far beyond those implicated by the search of

a cigarette pack, a wallet, or a purse.” Id. at

393. Justice Roberts’s description of today’s cellphone

describes the reality of CSLI data: much like GPS

tracking of a vehicle, cellphone location information is

detailed, encyclopedic, and effortlessly compiled

although the fact that the user continuously reveals

his location to the wireless carrier implicates the

third-party principle. Carpenter, id. at 2216.

When a person uses her cellphone in her home,

that person has a right to privacy to the contents of

the phone and “[a] legitimate expectation of privacy

in real-time tracking data in private locations” (such

as her home). These principles have been established

by Riley and by TCCA precedent in State v. Granville,

423 S.W.3d 399, 417 (Tex.Crim.App. 2014) (held that

officers cannot activate and search the contents of a

cellphone that is stored in a jail property room

without a search warrant.). Thus under Riley and

Granville, when the person leaves her home, she does

not lose her right of privacy in her cellphone merely

because she left her home. Along the same lines, it is

not possible for a person to lose “the legitimate

expectation of privacy in real-time tracking data”

merely because the person leaves her home.

As Petitioner explained in the proceedings

below, to understand how today’s cellphone

technology works and how different it is from other

technologies from a Fourth Amendment standpoint,

we contrast it to how a landline works. When a person

makes a call on a landline, that person “voluntarily

conveys” information (phone-number dialed) through

the phone company. The landline phone is connected

to copper wires that runs through a jack to a box

outside, the “entrance bridge.” The entrance bridge is

in turn connected to cable that runs along the road

that either goes to the phone company’s switch or a

digital concentrator, which is a device that digitizes

the person’s voice and combines it with other voices

that are sent along a coax cable to the phone

company’s office. There, the line is connected to a line

card at a switch, which is the source of the “dial tone”

when one picks up a landline. This process is

“reversed” back to the destination of the call. There is

no “tracking” of where the caller or recipient are

because the source-and-destination-points are fixed.

And, when a person makes a call on a landline,

numbers dialed are turned over to the phone

company. See Smith v. Maryland, 442 U.S. 735, 742-

743 (1979) (No legitimate expectation of privacy

regarding numbers dialed on a landline because these

numbers are volunteered to the phone company).

Below is a rough schematic of the landline system: a

call is made using the handset of an analog phone,

which is transmitted to the phone lines outside

through the “entrance bridge” (not pictured). The call

goes through the phone company’s switch or digital

concentrator (analog central office) where the line is

connected or distributed to a line-card at a switch

(inside the analog central office), which is the source

of the “dial tone” when one picks up a landline. This

process is “reversed” back to the destination of the

call.

However, today’s cellphone technology works

differently. As discussed in United States v. Forest,

355 F.3d 942, 951-952 (6th Cir. 2004), unlike dialed

phone-numbers, cell-site data is not “voluntarily

conveyed” by the user to the phone company but

instead is transmitted automatically during the

registration process, independent of the cellphone

user’s input, control, or knowledge. Thus, comparing

what a cellphone conveys to a cell-site to “a person

travelling in an automobile on public thoroughfares”

as held in Knotts (1983 case), long before today’s

cellphones were in use, is an incorrect analysis. See

Sims, 526 S.W.3d at 644; citing United States v.

Knotts, 460 U.S. 276, 281 (1983). Thus, as this basic

diagram shows, other than initiating the call,

cellphone user A has no control over how the data is

transmitted (or where the data is transmitted).

Instead, when the caller makes the call, her phone

looks for the best cell-tower. The tower’s switch

verifies that her cellphone has a valid account and is

a valid subscriber, checks for an available channel,

verifies that the recipient of the call is a valid

subscriber, scans globally for the recipient’s phone,

locates the recipient’s phone at the nearest tower, and

the calls connect. All the while, both the caller and

recipient’s phones are transmitting data to the

cellphone service-provider without their actual

consent (a subscriber gives effective consent when she

signs up for the service with any provider, including

Verizon).

Other than the actual call made (i.e., you call

your spouse and spend 10 minutes discussing dinner

plans), the TCCA’s opinion supposes that any passive

activity (all activity other than the actual call) is not

subject to Fourth Amendment protections. This is

incorrect. By concluding that passive activity of a

cellphone (for which a subscriber has no control) is not

protected, the TCCA ignores the fact that a subscriber

who uses a cellphone must subscribe to one of the few

providers, all of whom keep real-time, tracking-data

pertaining to the location of cellphones. To conclude

that a person loses his expectation of privacy in realtime, tracking-data merely because he leaves his

house using the rationale of “a person travelling in an

automobile on public thoroughfares” (as though the

public or police can “see” the invisible waves

automatically generated by a cellphone) ignores how

today’s cellphone technology works.

The third-party doctrine does not apply

“Given the unique nature of cellphone location

records, the fact that the information is held by a

third party does not by itself overcome the user’s

claim to Fourth Amendment protection.” Carpenter,

id. at 2218. In fact, the third-party doctrine should not

apply at all. Under the third-party doctrine, a person

has no legitimate expectation of privacy in

information voluntarily turned over to third

parties. Carpenter, 138 S.Ct. at 2216. This is so 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. The third-party doctrine is a voluntary

turnover of information to a third party. That simply

did not occur here.

person

maintains

legitimate

expectation of privacy in the record of his

physical movements as captured through

CSLI, and thus has standing to assert such

a violation.

A person maintains a legitimate expectation of

privacy in the record of his physical movements as

captured through CSLI, so the location information

obtained from the wireless carriers was the product of

a search. As this Court explained in Carpenter, and

citing Katz v. United States, 389 U.S. 347, 351-352

(1967), a person does not surrender all Fourth

Amendment protection by venturing into the public

sphere. To the contrary, “what [one] seeks to preserve

as private, even in an area accessible to the public,

may be constitutionally protected.” Id. at 2213.

Society’s expectation has been that law enforcement

agents and others would not—and indeed could not—

secretly monitor and catalogue every single

movement of an individual’s car for a very long

period.” Allowing government access to cell-site

records without a warrant contravenes that

expectation. Id. at 2217. Although historical

cellphone records that provide a comprehensive

chronicle of a person’s past movements are generated

for commercial purposes, that distinction does not

negate the person’s anticipation of privacy in his

physical location.

Throughout the proceedings below, Petitioner

argued that the State’s warrantless use of real-time,

tracking-data obtained from Verizon, which pertained

to the location of his cellphone, was an unreasonable

search in violation of the Fourth Amendment Sims,

526 S.W.3d at 642-646; U.S. Const. Amend IV. The

conclusion of the court of appeals that “…[w]hile there

may be a legitimate expectation of privacy in realtime tracking data in private locations, the same

tracking, when following a subject in public places,

does not invade legitimate expectations of privacy.

Where such surveillance took place on public

highways, there was no legitimate expectation of

privacy,” (App.32); Sims, 526 S.W.3d at 644, is

incorrect.

What the court of appeals was stating is that

once a person leaves a private location, data relating

to the location of his cellphone is open-game to

warrantless searches. This reasoning cannot be

reconciled with a person’s right to privacy under the

Fourth Amendment.

Under the Fourth Amendment, the basis of

assertions of relief is that a person’s reasonable

expectation of privacy was violated. In other words, a

defendant who seeks suppression of evidence

obtained in violation of the Fourth Amendment must

show that he personally had a reasonable expectation

of privacy that the government invaded. Rakas v.

Illinois, 439 U.S. 128, 139 (1978) (Standing involves

two inquiries: first, whether defendant has alleged an

“injury in fact”; and second, “whether the proponent

is asserting his own legal rights and interests rather

than basing his claim for relief upon the rights of

third parties.”). After all, rights under the Fourth

Amendment are personal rights that, like some other

constitutional rights, may not be vicariously

asserted. See Alderman v. United States, 394 U.S.

165, 174 (1969).

In other words, a movant must show that he

was a victim of the unlawful search or seizure. The

burden is on the defendant to show this, and to carry

the burden, the defendant must prove that: (a) by his

conduct, he exhibited an actual subjective expectation

of privacy (a genuine intention to preserve something

as private); and (2) circumstances existed under

which society was prepared to recognize his subjective

expectation as objectively reasonable.

Petitioner did not “abandon” the CSLI

data

Merely because the CSLI data left Petitioner’s

phone (involuntarily) due to the subscriber agreement

does not mean that Petitioner somehow “abandoned”

the data. “Abandonment” is a wholly voluntary act

that usually occurs where a person flees from a

location and leaves behind property. See United

States v. Edwards, 441 F.2d 749, 749-53 (5th Cir.

1971), where it was held that the defendant’s right

to Fourth Amendment protection came to an end

when he abandoned his vehicle to the police on a

public highway, with engine running, keys in the

ignition, lights on, and fled on foot. See also United

States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (A

defendant who fled an unlocked vehicle parked on a

public road abandoned his expectation of privacy in

the vehicle); People v. Hampton, 603 P.2d 133, 135

(Colo. 1979) (A defendant who fled from a borrowed

car and left keys in the ignition lacked standing to

challenge the search); People v. Washington, 413

N.E.2d 170, 177 (Ill.App.Ct. 1980) (A defendant has

no legitimate interest in a borrowed car from which

he fled and that was unlocked and the ignition key

was left in it); Rodriquez v. State, 773 S.W.2d 821, 823

(Ark. 1989) (A defendant who after a high-speed

chase ending at an air strip exited the vehicle and fled

by foot had no reasonable expectation of privacy

especially where the defendant left the vehicle

running and the door open); Henderson v. State, 695

P.2d 879, 882 (Okla.Crim.App. 1985) (A defendant’s

flight constitutes abandonment of vehicle); State v.

Green, 605 P.2d 746, 749 (Ore. 1980) (Where two

defendants have been pursued from the scene of an

apparent burglary and finally leap from their car and

flee, they have abandoned any expectation of privacy

with respect to the car in the same way that a fleeing

robber who drops a bag of loot has abandoned the

loot.”).

There is no expectation of privacy in abandoned

property. When a defendant voluntarily abandons

property, he lacks standing to contest the

reasonableness of the search of the abandoned

property. And when police take possession of property

abandoned independent of police misconduct, as was

the situation in each of the cases cited in the

paragraph above, there is no seizure under the Fourth

Amendment. But merely discarding property is not

abandonment. Nor is an involuntary transfer of

information from one’s cellphone to a CSLI considered

abandonment. Abandonment is a question of intent to

be inferred from words spoken, acts done, and other

objective facts and relevant circumstances, as a

defendant must: (1) intend to abandon property, and

(2) freely decide to abandon the property. If a

defendant intended to abandon the property, such

abandonment is not voluntary if it is the product of

police misconduct. See United States v. Colbert, 474

F.2d 174 (5th Cir. 1973)(en banc) (discussion of how

abandonment is a question of intent to be inferred

from words spoken, acts done, and other objective

facts and relevant circumstances, with the issue not

being in the strict property-right sense, but rather

whether the accused had voluntarily discarded, left

behind, or otherwise relinquished his interest in the

property so that he could no longer retain a

reasonable expectation of privacy with regard to it at

the time of the search.). Petitioner did not intend to

“abandon” the CSLI data from his phone.

Other state courts of last resort and state

statutes require warrants for real-time or

historic CSLI data

Other state courts of last resort follow

Carpenter and require warrants for real-time or

historic CSLI data. See Tracey v. State, 152 So.3d 504,

526 (Fla. 2014) (“we conclude that a subjective

expectation of privacy of location as signaled by one’s

cellphone—even on public roads—is an expectation of

privacy that society is now prepared to recognize as

objectively reasonable under the Katz ”reasonable

expectation of privacy” test. Regardless of the

defendant’s location on public roads, the use of his

CSLI emanating from his cellphone in order to track

him in real-time was a search under the Fourth

Amendment for which probable cause was

required. Because probable cause did not support the

search in this case, and no warrant based on probable

cause authorized the use of the defendant’s real-time

CSLI to track him, the evidence obtained as a result

of that search was subject to suppression”);

State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (in

applying New Jersey Const. Art. I, ¶ 7, an individual’s

privacy interest in the location of his cellphone was

protected. A cellphone user is reasonably entitled to

expect confidentiality in the ever-increasing level of

detail that cellphones can reveal about lives. Because

of the nature of the intrusion, and the corresponding,

legitimate privacy interest at stake, the Court held

that police must obtain a warrant based on a showing

of probable cause, or qualify for an exception to the

warrant requirement, to obtain tracking information

through the use of a cellphone) (note: although the

New Jersey Supreme Court believes that its

constitution provides greater protection than the

Fourth Amendment, there is no functional difference

between the Fourth Amendment from New Jersey

Const. Art. I, ¶ 7, which provides that 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 warrant shall

issue except upon probable cause, supported by oath

or affirmation, and particularly describing the place

to be searched and the papers and things to be seized);

725 ILL. Comp. Stat. 168/10 (2019) (law

enforcement shall not obtain current or future

location information pertaining to a person or his

effects without first obtaining a court order based on

probable cause to believe that the person whose

location information is sought has committed, is

committing, or is about to commit a crime or the effect

is evidence of a crime…);

Zanders v. State, No. 15S01-1611-CR-571, 2019

Ind.

LEXIS

(Ind.

2019)

(Although Carpenter addressed the government’s

receipt of over 125 days of CSLI, it held that an

individual has a reasonable expectation of privacy in

seven days or more of CSLI, which provides a

comprehensive chronicle of the user’s past

movements. The 30 days of Zanders’s historical CSLI

issue

here

was

therefore

a Fourth

Amendment search under Carpenter;

Ind. Code 35-33-5-12 (2019) (Court order for

real time tracking — Exigent circumstances: (a) A law

enforcement officer or law enforcement agency may

not use a real-time tracking instrument that is

capable of obtaining geolocation information

concerning a cellular device or a device connected to a

cellular network unless: (1) the law enforcement

officer or law enforcement agency has obtained an

order issued by a court based upon a finding of

probable cause to use the tracking instrument; or

(2) exigent circumstances exist that necessitate using

the tracking instrument without first obtaining a

court order); see also Md. Code Ann. Crim. Proc. § 1203.1(b) (2019) and Va. Code § 19.2-70.3(C) (2019);

And see also In re Application for Pen Register

and Trap/Trace Device with Cell Site Location

Authority, 396 F.Supp.2d 747 (S.D.Tex. 2005)

(District court ruled that “real-time” location

information may be obtained only under warrant

supported by probable cause).

The TCCA decided an important federal

question in a way that conflicts with

relevant decisions of this Court

As explained in this Petition, the TCCA

decided an important federal question in a way that

conflicts with relevant decisions of this Court in

Carpenter. Once an intrusion is made in the real-time

or historic CSLI data, neither the duration of the

intrusion in tracking (seconds) or frequency of the

tracking (number of pings) should be relevant. All

that is relevant is that the intrusion occurred and it

was unreasonable.

CONCLUSION AND PRAYER

For the reasons stated in this petition, the

TCCA decided an important federal question in a way

that conflicts with relevant decisions of this Court.

Petitioner asks this Court to grant certiorari, reverse

the Opinion of the TCCA, and grant Petitioner’s

motion to suppress that he filed in the trial court.

Respectfully submitted,

/s/ Michael Mowla