Petition for Writ of Certiorari — Jerry Wiltz, Petitioner v. Texas

NO. 20-_____

In the

Supreme Court of the United States

JERRY WILTZ,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

PETITION FOR A WRIT OF CERTIORARI

ALEXANDER J. HOUTHUIJZEN

COUNSEL OF RECORD

ALEXANDER J. HOUTHUIJZEN,

ATTORNEY-AT-LAW, PLLC

917 FRANKLIN ST., SUITE 230

HOUSTON, TX 77002

(713) 600-9902

ALEX@ALEXTHEDEFENDER .COM

COUNSEL FOR PETITIONER

FEBRUARY 23, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

In the present case, a man’s cell phone was

searched without a warrant and the trial court ruled

that the phone was abandoned and that the Defendant

had lost standing to assert his Fourth Amendment

rights to the phone. The questions presented are:

1. Without evidence of intentional abandonment,

can a person abandon their privacy right to an item

just by leaving it behind?

2. Does the doctrine of abandonment from Texas

law conflict with the dicta of Riley and present a

conflict for this Court’s review?

3. Does the doctrine of abandonment conflict with

other jurisdictions’ consideration of the same issue?

4. Can a cell phone really be abandoned if its

privacy interest is equal to that of a house?

ii

PARTIES TO THE PROCEEDINGS

Petitioner

●

Petitioner, Jerry Wiltz, was defendant in the

trial court and Appellant in the 14th Court

of Appeals in Houston and Appellant in the

Texas Court of Criminal Appeals.

Respondent

●

Respondent, the State of Texas, through the

Harris County District Attorney’s Office

was the prosecution in the trial court and

Appellee in the 14th Court of Appeals and

Appellee in the Court of Criminal Appeals.

iii

LIST OF PROCEEDINGS

Court of Criminal Appeals of Texas

Tr. Ct. No. 1514086

Jerry Wiltz v. The State of Texas

Date of Final Order: October 21, 2020

Date of Rehearing Denial: November 25, 2020

_________________

State of Texas, Fourteenth Court of Appeals

No. 14-18-00718-CR

Jerry Wiltz, Appellant, v.

The State of Texas, Appellee

Date of Final Judgment: February 27, 2020

_________________

230th District Court Harris County, Texas

Case No. 151408601010

State ID No.: TX50524692

Incident NO/TRN: 9171982787A00I

State of Texas v. Jerry Wiltz

Date of Judgment of Conviction: August 2, 2018

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ...........................ii

LIST OF PROCEEDINGS .......................................... iii

TABLE OF AUTHORITIES........................................vii

PETITION FOR A WRIT OF CERTIORARI .............. 1

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

JURISDICTION ............................................................. 1

CONSTITUTIONAL PROVISION INVOLVED......... 2

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

REASONS FOR GRANTING THE PETITION .......... 5

I.

ABANDONMENT DOCTRINE IN TEXAS................... 6

II. RILEY V. CALIFORNIA ........................................... 8

III. FEDERAL CASES ON ABANDONMENT ................. 10

IV. ABANDONMENT IN OTHER JURISDICTIONS ........ 11

V. THE POLICY OF ABANDONMENT......................... 12

CONCLUSION ............................................................. 15

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order of the Court of Criminal Appeals of

Texas Refused Appellant’s Petition for

Discretionary Review (October 21, 2020) ........... 1a

Dissenting Opinion filed by Justice Walker in

Court of Criminal Appeals of Texas

(October 21, 2020) ................................................. 3a

Judgment of the State of Texas, Fourteenth

Court of Appeals (February 27, 2020)............... 16a

Opinion of the State of Texas, Fourteenth Court

of Appeals (February 27, 2020).......................... 18a

Order on Defendants Motion to Suppress

Cellular Search (May 30, 2018) ......................... 29a

Bench Ruling in Suppression Hearing

(October 8, 2018).................................................. 30a

Judgment of Conviction by Jury

(August 2, 2018)................................................... 36a

REHEARING ORDER

Order of the Court of Criminal Appeals of Texas

Denying Appellant’s Motion for Rehearing

(November 25, 2020) ........................................... 41a

vi

TABLE OF CONTENTS – Continued

Page

OTHER DOCUMENTS

Cell Phone Search Warrant

(April 9, 2018) ...................................................... 43a

Affidavit of Joe Freeman .................................... 46a

Return and Inventory ......................................... 52a

vii

TABLE OF AUTHORITIES

Page

TABLE OF AUTH ORITIES

CASES

Carpenter v. United States,

138 S.Ct. 2206 (2018) ...........................................11

Chimel v. California,

395 U.S. 752 (1969) ............................................8, 9

Edwards v. State,

497 S.W.3d 147 (Tex. App.–Houston

[1st Dist.] 2016) ..................................................6, 7

Riley v. California,

573 U.S. 373 (2014) ......................................passim

State v. Brown ,

776 S.E.2d 917 (S.C. Ct. App. 2015) ................12

State v. Granville ,

423 S.W.3d 399 (Tex. Crim. App.

2014)........................................................................ 7

State v. KC,

207 So.3d 951 (Fla. 4th DCA 2016) ....................11

State v. Smith,

124 Ohio St. 3d 163 (2009) ..................................11

State v. Thomas,

2014 OK CR 12 (2014) ..........................................11

United States v. Crumble,

878 F.3d 656 (8th Cir. 2018) ..................................10

United States v. Robinson,

414 U.S. 218 (1973) .................................................. 9

United States v. Small,

944 F.3d 490 (4th Cir. 2019) ...............................11

viii

TABLE OF AUTHORITIES – Continued

Page

United States v. Sparks,

806 F.3d 1323 (11th Cir. 2015) ...........................10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV .........................................passim

STATUTES

28 U.S.C § 1257(a).......................................................... 1

OTHER AUTHORITIES

Alan Simpson & Todd Meister,

ALAN SIMPSON’S WINDOWS VISTA BIBLE

(2007) ....................................................................... 5

R. Scott Hiller et al.,

Using Aggregate Market Data to Estimate

Patent Value (April 25, 2017), http://

faculty.fairfield.edu/rhiller/Research/

Smartphones.pdf..................................................... 5

1

PETITION FOR A WRIT OF CERTIORARI

Jerry Wiltz, petitioner, respectfully petitions for

a writ of certiorari to review the judgment of the

Court of Criminal Appeals of Texas in this case.

OPINIONS BELOW

The opinion of the Texas Fourteenth Court of

Appeals is published at 595 S.W.3d 930 and included

in the appendix at App.18a. The order of the Texas

Court of Criminal Appeals denying review included at

App.1a. The dissenting opinion of Justice Walker of

the Texas Court of Criminal Appeals is published at 609

S.W.3d 543 and included in the appendix at App.3a.

JURISDICTION

The Judgment of the Court of Criminal Appeals

was issued on October 21, 2020. (App.1a) A subsequent

motion for rehearing was denied on November 25,

2020. (App.41a) This honorable court has jurisdiction

over this case pursuant to 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const., amend. IV

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.

STATEMENT OF THE CASE

On or about June 13, 2016, two robberies were

reported in Houston, Texas. One occurred at 13137

Willow Chase Drive and the other occurred at 19211

North Freeway. The police did not know who the

suspects were and no identifications were made until

over 48 hours later.

During routine patrol on or about June 15, 2016,

Harris County Sheriff’s Office Deputy Castellanos

allegedly viewed a grey Chevy Tahoe fail to stop at

the designated stopping point at a red light on FM

1960 and thus conducted a routine traffic stop. The

deputy claimed to smell “an odor of marijuana emitting

from the vehicle” upon approaching the driver side of

the Tahoe. The deputy ordered the driver of the

Tahoe out of the vehicle and immediately placed him

in handcuffs. With the driver standing outside the

vehicle with no access to his cell phone, the deputy

3

proceeded to walk around the Tahoe to seize and

detain the passenger.

Upon reaching the passenger side, the passenger,

armed with a pistol, opened the door, jumped out,

and proceeded to flee. Immediately thereafter the

deputy pursued the fleeing sole, armed passenger.

During this process, the already handcuffed driver

ran the opposite direction of the armed passenger

and the deputy. After giving chase and eventually

detaining and securing the armed passenger in the

patrol car, the deputy reviewed the patrol car video

in an effort to determine the location of the handcuffed

driver. After additional officers arrived on-scene but

before a tow truck arrived, the deputy searched the

Tahoe and located Petitioner’s cellular telephone. Then

the deputy searched Petitioner’s cellular telephone

without a properly executed search warrant. During

the pendency of the prosecution of Petitioner, counsel

filed numerous motions addressing the issues with

the search of this cell phone by the deputy.

1. On November 28, 2017, Petitioner’s trial counsel

filed a motion to suppress the search of the cell

phone and a general motion to suppress.

2. On April 9, 2018, Respondents obtained a

search warrant for the cell phone that had already

been searched by the deputy.

3. On May 23, 2018, Petitioner’s trial counsel

along with Petitioner appeared in court for the motion

to suppress hearing concerning the search of the cell

phone. Unbeknownst to Petitioner’s trial counsel,

Respondents had already obtained the above-mentioned

search warrant.

4

4. On May 30, 2018, the Court summarily denied

the motion to suppress and Petitioner’s trial counsel

appeared in Court to hear the ruling and address the

search warrant that had been filed by the State.

5. On July 23, 2018, Petitioner’s trial counsel

filed a motion to reconsider the motion to suppress.

6. On July 30, 2018, the Court denied Petitioner’s

motion to reconsider.

7. A jury found Petitioner guilty of both counts

of aggravated robbery on August 7, 2018.

8. An appeal followed. The Fourteenth Court of

Appeals affirmed the conviction on February 27, 2020.

9. The Court of Criminal Appeals denied a petition

for review, but a dissenting opinion was filed by

Justice Walker. A motion for rehearing was filed and

also denied on November 25, 2020.

10. This final appeal followed.

5

REASONS FOR GRANTING THE PETITION

During a police encounter, a man gets away

from the police without being apprehended. He leaves

his keys behind. Did he abandon those keys within

the traditional meaning of the word? What are the

police allowed to do with those keys? Could they use

the man’s keys to search his home without a search

warrant? If the man abandoned the keys, did he also

abandon the contents of his home?

This analogy is a road map for understanding

the issue and sub-issues in this case. The underlying

facts of this case did not involve keys; they involved a

smartphone. However, for many of us, smartphones

are keys to our digital lives.

Smartphones can hold libraries worth of private

data and can act as conduits for private data stored

remotely. One author states that a gigabyte can store

approximately 500,000 typed, double spaced pages of

text. See Alan Simpson & Todd Meister, ALAN

SIMPSON’S WINDOWS VISTA BIBLE 1012 (2007). One

group of computer scientists found that, in 2017, the

average smartphone stored 11.04 gigabytes of data.

R. Scott Hiller et al, Using Aggregate Market Data to

Estimate Patent Value (April 25, 2017), http://faculty.

fairfield.edu/rhiller/Research/Smartphones.pdf. Therefore, it is conceivable that the average smartphone

could hold in excess of five million typed pages of

information, not including remote data that it can

access.

6

I.

ABANDONMENT DOCTRINE IN TEXAS

Despite this reality, many Texas courts have held

that a person abandons the data contained in his

cell phone when he abandons his cell phone. See e.g.

Edwards v. State, 497 S.W.3d 147 (Tex. App.–Houston

[1st Dist.] 2016). However, the Supreme Court of the

United States handed down an opinion that changed

everything: Riley v. California, 573 U.S. 373 (2014).

Since Riley impacted the Fourth Amendment’s application to cell phones, Texas courts must reconsider

holdings that are in conflict with Riley.

Our system of federalism is both a blessing and

a curse. It is a blessing because, in a theoretical

vacuum, constitutional jurisprudence should be uniform

among the states. Federalism is a curse when the

states’ constitutional interpretations depart from each

other or federal jurisprudence. The result from this

departure is not just confusion: people go to prison.

There is an even larger systemic concern. Fourth

Amendment jurisprudence is like a slice of Swiss

cheese. It was whole once, but cases have continually

carved out exceptions to its protections. This thin,

hole-filled protection still has to protect every United

States citizen. How can eroding away the Fourth

Amendment a little further be justified?

When a person leaves behind a cell phone, is the

person intentionally abandoning his privacy expectation

in the data contained on that phone? Petitioner

acknowledges that many courts have held that yes,

leaving behind your cell phone means leaving behind

your fourth amendment rights and expectations of

privacy in the data stored in that cell phone. However,

that abandonment doctrine should be imposed more

7

selectively and logically. Without evidence of intentional abandonment, how can a person lose the rights

to that person’s phone? Post Riley, however, in

consideration of the heightened protection cell phones

deserve, it is time for courts to rethink this position

and, at least one court has. Furthermore, can abandonment really apply to cell phones when they are

just like a house?

In State v. Granville, 423 S.W.3d 399 (Tex. Crim.

App. 2014), whose judgment was upheld by the

Court of Criminal Appeals, the holding was that a

warrantless search of a cell phone by an officer after

an arrest of the defendant was conducted in violation

of the Fourth Amendment. This proposition is quite

simple. So long as the government has the Defendant

in custody then he still has standing to assert his

Fourth Amendment rights. If the Defendant is not in

custody then the police can rummage through his

belongings without warrants and without a care for

the Fourth Amendment. The abandonment doctrine

decimates Fourth Amendment protections for something which deserves more protection: our private

lives on our cell phones. In essence, according to

current law, a person must be arrested and maintain

care, custody, and control over their cell phone to

assert their expectation of privacy in its contents. If

they walk away or run away from it, then they have

somehow abandoned it even absent evidence showing

intentional abandonment.

In Edwards v. State, 497 S.W.3d 147 (Tex. App.–

Houston [1st Dist.] 2016), the 1st Court of Appeals in

Houston held exactly that. A defendant left his phone

sitting on the roof of a car at the scene of a robbery.

He ran away and the court held that the phone was

8

abandoned and thus, the defendant had no expectation

of privacy in that phone. That case as highlighted by

Justice Walker’s dissent from the Court of Criminal

Appeals is distinguishable from the present case in

many different ways because in that case there was

evidence of intentional abandonment by the Defendant.

Abandonment is an affront to the Fourth Amendment and the dicta from Riley. Abandonment was

classically used in situations where defendants were

trying to dispose of illegal contraband; such as drugs.

A person could not claim to have standing to assert

their fourth amendment rights if they discarded

something, but what if you left it behind without

realizing it?

The Court of Appeals in this case held that

abandonment means that the petitioner has no

standing. They state that because he ran in the video

that he intentionally relinquished his rights to the

phone. However, Justice Walker discusses in his

dissenting opinion from the Court of Criminal Appeals

that no evidence was actually adduced of intentional

abandonment and that review should have been

granted to consider this important issue.

II. RILEY V. CALIFORNIA

In Riley v. California , 573 U.S. 373 (2014), the

Supreme Court of the United States held that the police

could not, without a warrant, search digital information on the cell phones seized from a defendant as

incident to the defendant’s arrest. The Riley court

cited Chimel v. California, 395 U.S. 752 (1969), in its

analysis. In that case, police arrested the defendant

inside of his home. Riley, 134 S.Ct. at 2483. The police

then proceeded to search the defendant’s three-bedroom

9

house, including the attic, garage, and the content of

drawers. Id. The Chimel court ruled in favor of the

defendant because the search extended beyond the

defendant’s person and the area within the defendant’s

immediate control, the permissible scope of a search

incident to lawful arrest. See id.

The circumstances in Chimel are analogous to the

circumstances here. As mentioned previously, a smart

phone is capable of storing and accessing librariesworth of private, sensitive data. Searching a smartphone, therefore, is very much like searching an entire

house, its recesses, and its fixtures. In some respects,

searching a smart phone is more invasive than the type

of search in Chimel. See Riley, 134 S.Ct. at 2491.

At the time our cardinal Fourth Amendment cases

were decided, smart phones did not exist. Riley, 134

S.Ct. at 2484. How can a “cigarette pack case” be

applied to a smart phone case? A cigarette pack can

contain a limited amount of information, unlike a smart

phone. A cigarette pack could contain a dangerous

weapon, like a razor or bullets. A smart phone cannot

contain a dangerous weapon. See Riley, 134 S.Ct. at

2485. The figurative key to the library of sensitive,

personal data poses no real risk to the police.

The Riley court also declined to apply United

States v. Robinson, 414 U.S. 218 (1973), to smartphones. Riley, 134 S.Ct. at 2484. Robinson would have

permitted a search of an arrestee even absent a

concern for destruction of evidence or a specific concern

about officer safety. Id. at 2483-85; cf. id. at 2487-88

(carving out an exception for a true “now or never”

remote-wipe situation). The figurative key to the

library of sensitive, personal data poses no real risk

to crime fighting in general.

10

Instead, the Riley court applied a balancing test

“by assessing, on the one hand, the degree to which

[the search] intrudes upon an individual’s privacy and,

on the other, the degree to which [the search] is

needed for the promotion of legitimate governmental

interests.” Riley, 134 S.Ct. at 2484. The Supreme Court

of the United States ultimately held that, “officers

must generally secure a warrant before conducting

such a search” of digital data on a cell phone. See id.

at 2485. It remarked that, “The fact that an arrestee

has diminished privacy interests does not mean that

the Fourth Amendment falls out of the picture

entirely.” Id. at 2488.

Admittedly, the smartphone in this case was not

extracted from the Petitioner. It was searched after

he left the scene of an armed officer and an armed

passenger. The trial court found that the Petitioner

had abandoned the smartphone. The question through

the Petitioner’s analogy which must be confronted: is

leaving the key to a vast library of sensitive, personal

data the same as abandoning the contents of that

vast library?

III. FEDERAL CASES ON ABANDONMENT

A line of cases exists — even cases decided in the

age of modern smartphones — holding that cell phone

data can be abandoned. See United States v. Sparks,

806 F.3d 1323, 1341 (11th Cir. 2015); see also United

States v. Crumble, 878 F.3d 656, 660 (8th Cir. 2018).

However, these holdings are misplaced.

How can cell phone data be abandoned when our

jurisprudence affords cell phone data protection in

other circumstances? Examining records of a cell

phone user’s physical movements constitute a search

11

deserving of Fourth Amendment protection. Carpenter

v. United States, 138 S.Ct. 2206, 2220 (2018). The

simple loss of a cell phone does not entail the loss of

a reasonable expectation of privacy. United States v.

Small, 944 F.3d 490 (4th Cir. 2019).

IV. ABANDONMENT IN OTHER JURISDICTIONS

Despite Texas’ interpretation of the law concerning

cell phones and abandonment; abandonment has had

a myriad of results in different states across the union.

In State v. KC, the Florida Court of Appeals for

the Fourth District held that a juvenile who ran away

from a stolen car in which he had left his cell phone

was entitled to fourth amendment protection in his

cell phone. State v. KC, 207 So.3d 951 (Fla. 4th DCA

2016). In fact, the holding states specifically that the

abandonment doctrine did not apply because the

phone was password protected evidencing a privacy

interest in the contents of the phone.

In Ohio, the Supreme Court of Ohio held that a

police officer’s warrantless search of a cell phone

following a valid arrest violated the Fourth Amendment

because the search of the phone’s contents was not

necessary to ensure officer safety and as there was

no evidence that the information police were searching

for was subject to imminent destruction. State v.

Smith, 124 Ohio St. 3d 163 (2009).

In Oklahoma, the Court of Criminal Appeals of

Oklahoma held in State v. Thomas that the trial court

did not err in suppressing photos obtained in a

warrantless search of a defendant’s cell phone because

defendant had a right to privacy in the contents of

the phone. State v. Thomas, 2014 OK CR 12 (2014).

12

Nevertheless, in South Carolina, the Supreme

Court held in State v. Brown that abandonment

applied and that the Defendant did not have standing

to assert his fourth amendment rights to his phone.

State v. Brown, 776 S.E.2d 917 (S.C. Ct. App. 2015).

In that case, the Defendant was charged with a

burglary. He allegedly had left his cell phone behind

at the scene of the burglarized home. The supreme

court of South Carolina posited that because Brown

had not tried to look for his phone in any way that

was evidence of abandonment and his standing to

assert his fourth amendment rights was denied.

These cases across this country highlight the need

for a bright line rule on abandonment. Abandonment

cannot just be thrown at cell phone cases because

courts don’t want to protect citizens’ privacy rights in

their cell phones. Abandonment gives the courts,

without evidence, the ability to take citizens’ Fourth

Amendment rights from them.

V.

THE POLICY OF ABANDONMENT

If abandonment was applied to other possessions

such as houses or cars then law enforcement could go

in those items whenever a person walks away from

them. If a person leaves their house and accidentally

forgets to lock it does that mean that law enforcement

may enter that house? If a person leaves their car

unlocked do the police get to search it? If a person

leaves their phone in a coffee shop or a public place,

do the police get to pick it up and search it? If a

person like Jerry Wiltz runs away from people with

firearms and leaves behind a phone, do the police get

to pick it up and search it?

13

How does the abandonment doctrine affect the

holding of Riley? It obliterates it. Abandonment posits

the idea that our privacy in our possessions is not

real. Abandonment allows courts to express opinions

that defy logic and permit peoples’ fourth amendment

rights to their cell phones to be trampled. Abandonment

should not be used as it has been across this country.

Abandonment allows courts to say that defendants

have “relinquished rights” to their property when in

fact they never relinquished those rights at all.

Above all, the law must be fair. The law must

apply equally to everyone for if it doesn’t then the

law cannot help keep order in our society. A doctrine

such as abandonment insidiously rips away at the

words written in Riley; it allows lower courts to

contradict the binding precedent from this honorable

court.

The dicta in Riley explains that a cell phone must

be treated like a house. It contains thousands of

pictures, documents, search history, text messages,

phone calls, and much, much more. Justice Roberts

explained in Riley that it must be protected because

technology has changed. Human beings now walk

around with digital houses in their pockets. How can

the house that sits in your pocket be abandoned if

you leave it behind unbeknownst to you?

The police should have to get a search warrant to

search any phone at any time. We implore this court

to see this simple argument and change the law on

abandonment so that the police may not search all of

our electronic devices without Fourth Amendment

protections to protect our privacy. Very simply, should

the abandonment doctrine be allowed to continue to

pervasively eat away at the Fourth Amendment rights

14

this court ruled on in Riley ? As more technology is

invented and humans are able to store more and

more data on their phones, tablets, or computers; the

law should follow the technological advances of our

society. The abandonment doctrine was created for

situations wherein a person tries to abandon contraband; the classic scenario of a person dumping

contraband as they try to escape the police. Abandonment was never intended for cell phones, but it has

been allowed to persist. Petitioner prays that this

honorable court rule that it should not. Petitioner

prays that this honorable court rule that abandonment

should be an exception; not the rule which allows

courts to strip citizens of their privacy in their cell

phones.

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ALEXANDER J. HOUTHUIJZEN

COUNSEL OF RECORD

ALEXANDER J. HOUTHUIJZEN,

ATTORNEY-AT-LAW, PLLC

917 FRANKLIN ST., SUITE 230

HOUSTON, TX 77002

(713) 600-9902

ALEX@ALEXTHEDEFENDER .COM

COUNSEL FOR PETITIONER

FEBRUARY 23, 2021