Drew Willey

Drew Willey, originally from Arlington, passed through Austin and is now based in Houston. A new attorney starting his own practice, he is a member of the FACT (Future Appointed Counsel Training) program through the Harris County Public Defender’s Office and Gideon’s Promise. His practice focuses on criminal law through a passion for public defense. Outside of the criminal world, Drew’s background enables him to practice in tax controversy and energy mediations. Please visit his website at http://www.Law-DW.com.

Lawyers Look Out: Judge May Not Pay for Your Work

If you take court-appointed cases, you know how to turn in a voucher requesting funds for your work. How often do you feel the pay you receive is adequate compensation for your work?

The Texas Indigent Defense Commission, in its report on attorney caseloads, issued an opinion about reasonably effective hours for indigent cases, and even broke it down by offense level.2 For example, on a Class B misdemeanor, they recommend anywhere from 8.6 to 11.7 hours required for “reasonably effective counsel.” If you are not turning in vouchers for Class B misdemeanors at an average of 8.6–11.7 hours, you are either failing to track your hours, or providing ineffective assistance of counsel. This rate applies to clients in custody, too, of course.

Track Your Hours, For Real!

The first step in this “How To” is a strong urge to adequately track your hours. Civil defense attorneys track every minute of every day they work. Criminal indigent defense attorneys should be, too. It’s a required task that comes with the career we chose. And it’s as simple as starting an Excel file to track it. When you forget to document hours worked, we all suffer. Judges across the state have no idea how long it takes to effectively defend criminal indigent cases, and they try to demand we do it quicker and quicker. When judges push to pay less for indigent defense, we are urged to cut hours on our vouchers, meaning either work for free or give our clients ineffective work. Every hour missed or not adequately reported by the defense attorney further allows the entire indigent defense system to be degraded. As defense attorneys, we must give effective counsel, and we must effectively track the hours spent on that counsel.

Why would anyone underreport hours? Sometimes, we live and die by staying in a judge’s grace to receive appointments. If you report too many hours, the judge will slash them and cut your pay, and may avoid giving you future appointments. It is often advised for attorneys to find that balance between doing good work and not asking for too much money. But, in our current state of a degraded indigent defense system, the judges continue to squeeze us to balance their budgets. The result: our clients’ lives and our bottom lines suffer.

Every next step in this article depends on the comprehensive and adequate tracking of the hours we spend on indigent cases. So, one more suggestion to this point: As you track your hours, your private descriptions for tasks do not have to match what you turn into the judge. As you work and track an hour, make a complete note about what you did, who you talked to, and why you did it. Then, when you turn in your voucher to the judge, you can edit your descriptions to preserve confidentialities. If you are later required to further justify the hours spent, you’ve got more than adequate documentation.

When the Trial Judge Denies or Cuts Your Requested Fees

A unique appeal process exists when your fee requests are denied in part or whole. In October of this year, an interesting case high­lighted this process, and the concurring opinion outlines the requirements.3 To start, a trial judge has 60 days after you turn in your voucher/request for fees to act on it.4 If s/he does not act, you treat it as if the judge denied all your funds, and move forward with the appeal process.

In the In re Perkins concurrence, three Court of Criminal Appeals judges suggest defense attorneys are required to obtain written findings about the denial of funds.5 The law states that the trial judge shall make these findings, but if they do not follow the law, the Court of Criminal Appeals apparently believes that defense attorneys are required to ensure the judge follows the law. Otherwise, the defense attorney will lose his appeal. The rational conclusion of this requirement is that it encourages judges to not follow the law. If they want to deny funds, they can simply fail to make written findings, giving the defense at­tor­ney whose funds are being denied yet another hurdle to overcome before being adequately compensated (another hurdle that must be overcome without compensation for that spent time, of course).

To ensure the judge makes written findings, the concurrence states a defense attorney must file “a written request that the required written findings be made. If, after such a request, the written findings still are not made, the judge is subject to a writ of mandamus that orders that written findings be made.”6 That writ is to be filed with the “presiding judge of the administrative judicial region, or by higher authority if the presiding judge fails to act.”7

Once—and if—the defense attorney successfully obtains the written findings, s/he must follow the statutorily created appeal process for the denial of funds. To appeal any denial or failure to act, you must first prepare a motion and file it with the trial court.8 You must obtain a certified copy of that motion and file it with the presiding judge of your administrative judicial region. That judge should have rules and procedures for this motion and how to file it with them.9

Once that motion has been filed, the trial judge is given an opportunity to modify the approved amount. If the trial judge does not modify, the presiding judge will issue a determination on whether your requested funds are to be paid. If the trial judge modifies and only approves partial payment of your request, the presiding judge will not make a decision on your motion unless you submit notice that you still desire to contest the remaining unpaid fees. You may request a hearing, and the presiding judge may conduct one. However, be warned, no basis for compensation for the hours worked to seek funds currently exists. So, preparation of this motion and any potential hearing are all expected to be done without compensation.10 In your Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee, it is advised to request written findings of fact from the presiding judge. It is not required they do so, and if not requested, you will likely not get any reason if the presiding judge denies your funds, even if the trial court failed to give reasons for denying your funds. Again, at this juncture, it is imperative you have and submit the most detailed documentation of your hours as possible, without compromising confidentialities and including detailed descriptions of the work performed.

If the presiding judge denies your compensation at this point, you can file a writ of mandamus with your court of appeals.11 If the court of appeals denies your funds, you can appeal the writ to the Court of Criminal Appeals.

Get Your Indigent Defense Fees in Ten “Easy” Steps!

Step 1: Adequately track your hours.
Step 2: Turn in vouchers/fee requests.
*Step 3: If denied or ignored, obtain written findings from the trial judge for reasons through a written request.
*Step 4: If denied or ignored, file a writ of mandamus to the presiding judge of your administrative judicial region asking the written findings be made.
*Step 5: If denied or ignored, appeal the writ to “higher authority.”
Step 6: Prepare a Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee (include required attachments from your Administrative Judicial Region’s rules).
Step 7: File the motion with the trial court and obtain a certified copy.
Step 8: File the certified copy with the presiding judge of your administrative judicial region.
Step 8.5: If the trial judge approves partial payment, you must provide the presiding judge notice that the partial payment did not resolve the issue, and you still wish to seek the full amount of requested fees.
Step 9: If funds are still denied, file a writ of mandamus to the court of appeals.
Step 10: If the writ is denied, appeal it to the CCA.

*New requirements, as suggested by In re Perkins concurrence.

Problems with the Current System

As one can see, this system is long, drawn-out, and complicated. Attorneys were involved, so that should be expected. However, more serious concerns with this system as it stands exist, and a few are worth mentioning anytime this system is discussed.

First, indigent defense compensation rates are inadequate from the start and discourage effective defense counsel. In Harris County, the fee schedule states a misdemeanor appointment pays $50–$90 an hour for court appearances. To be effective, de­fense attorneys must put in significant hours outside of court. Adequate investigation, consultation, and motion preparation all require time outside the courtroom to be prepared for each court setting. Often, this work is discouraged by adopted payment schedules. In Harris County, the misdemeanor out-of-court hourly rate is $25.00 an hour. Many rural counties in Texas have approved fee schedules that set out even lower rates. These rates are the plans that judges are supposed to follow. Unfortunately, when judges apply conceived discretion, as in the Perkins case, defense hours are often slashed and we are not even paid the low amounts the plans set out.

Second, courts often slash rates based on nothing. As we saw in Perkins, the trial judge, even throughout the appeals process, gave no rationale for her denial of fees, except that it was her opinion the fees were excessive. No basis for that opinion has ever been given. Judges control the budgets of their court. When money gets tight, as it often does, judges must look for places to squeeze. Unfortunately, an easy place to look is indigent de­fense funding. If judges can pressure a defense attorney into claim­ing fewer hours, working fewer hours, or just not appealing a partial denial of funds, their budget suddenly looks much better. Remember, these judges also control which defense attorneys receive appointments. It is all too easy to pressure an attorney to forego an appeal for funds, if they can feel more likely to receive appointments by staying in good favor with the judge. When a focus on budget brings that pressure to indigent defense, people’s lives are hurt and ineffective counsel is encouraged. Both the de­cision on compensation and the decision for which attorney to appoint should be removed from the judge’s table. Until that conflict of interest is resolved, injustice will continue, and the underpayment and non-payment of fees are just one example of that injustice.

Third, as briefly mentioned before, when a judge does deny a fee request, the time to remedy the situation is extremely lengthy and complicated. A defense attorney must spend many hours preparing the motions, filing, following up, etc. And now, Perkins suggests all onus of ensuring judges follow the law falls on the defense attorney! The defense attorney will not be paid for a single minute of that work. That takes more time away from other productive actions for often a solo practitioner. The true costs of this process get lost among all the different attorneys re­ceiv­ing appointments. But make no mistake, that cost is real and ultimately costs true justice.

Fourth, the decision in Perkins encourages trial judges to not follow the law. When they decide to cut an attorney’s hours, by law, they must give written findings for doing so. However, now, if a judge does not follow that law, the defense attorney is more likely to lose any appeal for his requested funds. That money will now more likely stay with the county, and help the judge with his budget. Court decisions should not encourage Texas judges to become ostriches with their heads in the ground, as much as some judges would like to play ignorant.

Fifth, and maybe most important, is the message this case sends about how Texas values indigent defense. Indigent defendants are usually the individuals in our society who struggle the most with mental health issues, unemployment, and addiction. They are the least, forgotten, and most vulnerable in our society. The appointed attorneys who represent these men and women are too often the last—or only—sign of hope in their lives. Each decision affecting this system makes a statement about how Texas should respond to this group of people. Unfortunately, per­petuating this system of conflicted judges, pay rates that discourage effective counsel, and nonpayment of fees to attorneys only pushes to keep our most vulnerable locked away forever.

When problems are pointed out, solutions should be sought. In this situation, the solution is very simple: Pay indigent defense attorneys for the hours they work!

Notes

1. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016)(J. Alcala dissenting). In the case highlighted in this article, Mr. Perkins was defending a capital case in which the state sought the death penalty. They didn’t get it.

2. Texas Indigent Defense Commission Guidelines for Indigent Defense Caseloads, January 2015: pages 1, 15–28.

3. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016).

4. Tex. Code Crim. Proc. Art. 26.05(c).

5. While this requirement does come from a concurrence, and was not pub­lished, Mr. Perkins in fact lost his appeal and this was the only reason offered by the court. Therefore, this author feels that if this step is not satisfied, you will lose opportunity for appellate review, making it, in fact, a true requirement now to be followed in all appeals of denial of funds.

6. In Re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016) (J. Johnson con­curring).

7. Id.

8. Tex. Code Crim. Proc. Art. 26.05(c).

9. Your Administrative Judicial Region judge may be found at http://www.txcourts.gov/organizations/policy-funding/administrative-judicial-regions/ (last visited on November 27, 2016).

10. Given judges’ growing hubris in denying funds, rising budget concerns in Texas counties, the need for independence in this process, and the current un­der­utilization of this increasingly complicated appeal process, attorneys could begin handling these appeals on a contingency basis on behalf of indigent defense attorneys.

11. However, the Thirteenth District Court of Appeals decision suggests that writ relief is not proper because a separate appeals process is in place, and the trial judge’s award of attorney’s fees is discretionary and not ministerial. In re Perkins, No. 13-16-00001-CR (Tex. App.—Corpus Christi 2016). It is not clear whether appellate courts would view this differently when a defense attorney compelled the trial judge to make written findings. A direct appeal of the presiding judge’s decision may be a remedy worth exploring.

Extending Riley and Wurie: Warrantless Privacy Intrusions on Location Records of Texas Defendants

Riley and Wurie are unanimous wins for the Fourth Amendment.1 Law enforcement is now required to obtain a warrant before searching cell phones incident to arrest. While the ruling is specifically limited to cell phone searches incident to arrest, the determinations about citizens’ privacy in cell phones could be extended, if argued for. Particularly, we could obtain a warrant requirement for location data collected through cell phone companies from cell phone use. While a seemingly narrow situation, prosecutors all over the country use this information to further their theories. This extension of cell phone privacy would be another great win for the Fourth Amendment.

Technological advances have created “modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”2 Justice Roberts’ in-depth analysis of cell phone advancements was a refreshing nod from the Court to realities of the real world and created a warrant requirement the general public may have assumed already existed. However, our right to privacy is still being put to the test by law enforcement.

We keep and conduct a huge amount of private information exchange on our cell phones and smart phones through cell phone companies. Currently, law enforcement is obtaining our private and personal information from cell phone companies through a lowered standard of scrutiny. Particularly, cops are tracking individuals’ locations without their knowledge through their cell phones by obtaining the information from cell phone companies, and they can do so without a warrant! The statutes surrounding this area of law are often worded unclearly, because the drafters do not have the knowledge about the technology necessary to be clear, or the technology advances too fast for the wording to be relevant in the slowly approved statutes. Generally, cops will pursue their agendas with the maximum capabilities the law allows, even pushing the envelope too far in some cases. For this reason, it is imperative for statutes and courts’ interpretations to adequately protect our rights.

The cases on point are at times hard to understand, but this issue boils down to whether citizens have a reasonable expectation of privacy in their cell phone location information. If not, this information constitutes business records or a release of privacy expectation to a third party, and it is let in at trial. If we do have that expectation of privacy, the acquisition of this information constitutes a search and does not fall within an exception for a warrant, thus requiring a showing of probable cause.

Much of the debate on this issue focuses on federal law, so this article first argues for a warrant requirement under federal law. However, the later discussion of Texas law is also important to keep in mind whenever making this argument, depending on how the prosecution is attempting to justify its warrantless acquisition of cell phone location information.

The United States Code & the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

The applicable statute, 18 U.S.C. § 2703, justifying requests for expansive cell phone information reads, in part:

(c) Records concerning electronic communication service or remote computing service.

(1) A governmental entity may require a provider of electronic communication service or remote com­puting service to disclose a record or other in­formation pertaining to a subscriber to or customer of such service (not including the contents of communications) . . .”[emphasis added]3

The term “record or other information pertaining to a subscriber to or customer” is being expanded by law enforcement to include a vast array of information. It is important to look at the requests by law enforcement to make sure they are not overreaching. These requests can come through subpoenas or court orders—neither requiring probable cause. Further, these requests may be made for any length of time. This information could track a person’s location, their calls, and other intimate information for years.

The words “record or other information” are unclear as to what was intended to be included. This vast amount of information is analogous to the NSA’s collection of metadata currently at issue in federal district courts. The ubiquity of cell phones results in a higher need for protection of citizens’ privacy in regards to information obtained through cell phone records and data.4 In 2011 alone, cell phone carriers (not including T-Mobile) responded to 1.3 million requests from law enforcement for call data.5 Given U.S. citizens’ expectation of privacy, this statute should not be interpreted to allow law enforcement to obtain such vast amounts of intimate information without probable cause through a warrant.6

Location information is often discussed directly. Proposed legislation specifically prohibits acquiring this information without a warrant.7 This bill is currently in front of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. This bill does not address the wording in § 2703 that law enforcement currently uses to justify obtaining location information. The separation of this geolocation protection from § 2703, and inclusion in a different chapter, indicates that geolocation information was not intended to be covered by the words “record or other information.” Therefore, § 2703 does not currently authorize law enforcement to obtain location information. However, the ambiguity in the statute creates the opportunity for police to obtain this information without a warrant first, and held accountable only if someone challenges a request, which can be rare. Legislation should make it perfectly clear that a warrant is required.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Jones found that using electronic tracking methods violates the fourth amendment.8 The unanimous Riley court even specifically addressed location information: “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”9 Smart phone advancements give an expectation of privacy for information from that phone.10 Therefore, obtaining location information through a cell phone is a search and requires a warrant.

A federal circuit split is moving towards a reasonable expectation of privacy in cell site location information.

In an admittedly narrow 2–1 decision, the Fifth Circuit ruled that historical cell site information is not protected by an expectation of privacy, but recognizing that cell phone users will want their locations private and suggesting their recourse should be a demand to service providers or “lobbying elected representatives to enact statutory protections.”11 They concluded location information is a business record and admitted without a warrant. On the other hand, in a somewhat confusing ruling, the Third Circuit ruled that cell phone users do not voluntarily give cell phone providers their location information when making and receiving calls, indicating this information is not a business record.12 Then, from the Eleventh Circuit, Davis came down this past June, ruling “cell site location information is within the subscriber’s reasonable expectation of privacy.”13 Two weeks later, the unanimous decision in Riley and Wurie gave dicta arguably confirming the Eleventh Circuit’s ruling.14 [Author update: On September 4, 2014, the court vacated their opinion, granting rehearing en banc.15 On November 17, 2014, AT&T filed an amicus brief asking “the Eleventh Circuit to clear up the confusion surrounding whether the government needs a warrant to access cellphone location data . . .”16] In federal courts, the trend seems to be moving towards the appropriate regard for privacy, and this trend can continue into Texas if argued.

Federal Law Summary

Requesting an overbroad amount of intimate information over a lengthy period of time without a warrant should not be interpreted as allowable under 18 U.S.C. § 2703 and violates the U.S. Constitution. Provided the advancement of technology in cell phones and the increasing number of cell towers in urban neighborhoods, tracking citizens’ locations with electronic devices such as cell phones violates their reasonable expectation of privacy. Furthering the trend in federal circuit courts could lead to a citizen’s instilled right to privacy in location information, which would prevent law enforcement from bypassing a warrant by obtaining the information from cell phone service companies.

The Texas Code & the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

The applicable statute reads:

(a) An authorized peace officer may require a provider of an electronic communications service … to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

(b) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose only electronic customer data that is information revealing the identity of customers of the applicable service or information about a customer’s use of the applicable service, without giving the subscriber or customer notice . . . [emphasis added]17

The statute then lists six ways to obtain the information under (b) through lower standards than a warrant requires.

Under this statutory structure, the requirement of a warrant depends on whether information is (a) “in electronic storage” or (b) “information about a customer’s use.” Vast information is obtained from a customer’s use of cell phone service. From a customer’s act of merely dialing phone numbers, law enforcement can find a cell phone user’s location. However, that location information is also stored by the cell phone company in electronic storage. So, does it fall under (a) or (b), and should a warrant be required to obtain that information?

Information under section (a) requires a warrant, and information under section (b) does not. Historical cell site information comprises records that track individuals’ locations, and would seem to fall under “in electronic storage” terms. It would seem broader information falls under section (a), as it includes broader terms of “in electronic storage.” Following that reasoning, broader information likely includes cell phone site and location records, requiring a warrant for that information. However, law enforcement is not currently obtaining a warrant for such information. They often seek overbroad information, reaching beyond the scope of section (b). They may even fail to cite the correct statute in their applications to avoid obtaining a warrant.

Look for overbroad and overreaching applications when location records are being used.

Applications for information often request information beyond the scope of section (b)’s “information about a customer’s use of the applicable [electronic communications] service.”18 They could list every possible cellular phone and internet service provider as potential carriers of the information sought, as well as request information on email and IP address, network and routing, and cell site.

Again, it is important to view the applications for this information to make sure law enforcement is doing its due diligence to determine the type and scope of information they seek, and not merely on phishing expeditions. A higher standard of scrutiny through a warrant should be applied when law enforcement is seeking vast amounts of private information.

Further, section (b) deals with identity and a single customer’s use of service. This section is focused on one individual’s wireless service. It does not indicate that other people’s information may be gathered with the lower standard for law enforcement. As soon as law enforcement starts to gather other people’s information, they are obtaining information under section (a), requiring a warrant. Otherwise, law enforcement could obtain information about any and every individual that ever came in contact with the number subject to the search, through outgoing and incoming calls and texts, website visits, and/or emails. If this were allowed, law enforcement could conceivably find a political campaign email sent to a subscriber’s email address connected to his or her phone, and without looking at the content of the email, be connected to a candidate’s entire distribution list without ever requesting a warrant. This was not likely the intent of the legislature by including section (b). In order to protect citizens’ rights, law enforcement should be required to show probable cause for this type of information.

Make sure law enforcement’s citations justifying their applications are correct.

Often, law enforcement may cite to the wrong section as justification for their warrantless searches. For example, they often rely solely on federal statute and law. If they do not cite which section of the Texas statute on which they are relying, the intentions of the Texas Legislature and protections of the Texas Constitution are lost. Applicable Texas statutes exist, and law enforcement should be kept accountable in classifying their searches to adequately determine the warrant requirement.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Before Riley and Wurie, the CCA gave an almost identical ruling in Granville when analyzing the Fourth Amendment. Texas had a ruling for the expectation of privacy in our cell phones before federal law required this.19 Granville involved an arrestee who still had an expectation of privacy when his cell phone was in the jail property room.20 Judge Cochran explained that a cell phone contains data that “may involve the most intimate details of a person’s individual life, including text messages, emails, banking, medical, or credit card information, pictures, and videos. . . . [T]he potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”21

Citizens who are not an arrestee and whose phones are not in possession of law enforcement have a higher expectation of privacy in their cell phone information. Those citizens are not aware that their cell phone information is being searched by law enforcement. Law enforcement can use this information to find who citizens are calling, when those calls were made, and how long each call lasted. The search for this intimate information should not be allowed without a warrant.

One case out of the Fourteenth District directly opposes this argument. Barfield followed the Fifth Circuit’s reasoning that obtaining “cell tower records from the third-party provider did not violate reasonable privacy expectations.”22 This case was wrongly decided before the guidance of Riley and Wurie, Granville, and Davis.23 It was also decided on federal law alone and did not apply Texas law, arguably weakening its persuasive strength. With a little help from defense attorneys, the Fourteenth District will hopefully soon overturn this ruling. Texas courts should provide for probable cause showings in these situations before SCOTUS dictates this to us.

Art. I, Sec. 9 of the Texas Constitution may provide Texas citizens higher protections than the Fourth Amendment.

Richardson ruled the Texas Constitution gave greater protection from warrantless uses of pen registers while stating:

The mere fact that a telephone caller has disclosed the number called to the telephone company for the limited purpose of obtaining the services does not invariably lead to the conclusion that the caller has relinquished his expectation of privacy such that the telephone company is free to turn the information over to anyone, especially the police, absent legal process.24

As protection from state constitutions can only be greater than the Fourth Amendment, Texas courts should follow this ruling to find the same or more expectation of privacy is applicable to the Texas Constitution.25 The federal constitution and decision of the federal courts provide the minimum protection required by states.26 “The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.”27

Art. I, Sec. 9 of the Texas Constitution, in this regard, provides Texas citizens more protection than the Fourth Amendment. Often, law enforcement relies solely on federal law for these types of warrantless searches. While it seems these searches still violate the federal constitution, it is a closer call under federal law. These violations become clearer under Texas law. Texas citizens should not be subject to searches of information by merely dialing numbers on our cell phones absent the legal process of obtaining a warrant.28

Similarly, many other states have given their citizens “a reasonable expectation of privacy in the telephone numbers dialed on the telephone.”29 The company’s records of this intimate information do not diminish a person’s expectation of privacy in their cell phone. Law enforcement may not circumvent searching an individual’s cell phone by acquiring the records from a cell phone company. Location information obtained in this manner should be excluded from evidence unless a warrant was used.

Texas Law Summary

When law enforcement seeks expansive information, Texas statutes and protections of the Texas Constitution are at play.30 Following dicta in Granville, Barfield should be overturned.31 Citizen’s expectation of privacy should be protected from warrantless searches of cell providers’ location information of their subscribers, especially under the added protection of Texas law.

Conclusion

Citizens have an expectation of privacy with their cell phones.32 Texas citizens are afforded an expectation of privacy that extends to the phone numbers they dial on their phones.33 Citizens also share an expectation of privacy from electronic tracking devices.34 Extending Riley and Wurie to protect us from warrantless acquisition of cell site location information takes more defense attorneys making the arguments; after which, we could make a simple edit to the last sentiments of Riley: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’ [citation omitted]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant”35 [strikethrough added].

Endnotes

1. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

2. Id. at 9.

3. 18 U.S.C. § 2703.

4. Klayman v. Obama, 957 F.Supp.2d 1, 35–36 (D.D.C. 2013); but cf. ACLU v. Clapper, 959 F.Supp.2d 724, 749 (S.D.N.Y. 2013).

5. Peter Maass and Megha Rajagopalan, That’s No Phone. That’s My Tracker, http://www.propublica.org/article/thats-no-phone.-thats-my-tracker (July 13, 2012).

6. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615–16 (5th Cir. 2013) (Dennis, J., dissenting) (discussing the statutory interpretation canon of constitutional avoidance).

7. 2013 Cong US HR 983, Sec. 3. Geolocation Information Protection.

8. United States v. Jones, ___U.S.___, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (reasoning a trespass, in part, constituted the search, but also using a Katz analysis to determine warrantless use of a GPS tracking system violated the Fourth Amendment; Justice Alito’s concurrence also recognizes that technological advances can affect the Katz standard of a reasonable expectation of privacy).

9. Riley, supra.

10. Id.; United States v. Davis, 754 F.3d 1205 (11th Cir. 2014), re’hrg en banc granted by United States v. Davis, No. 12-12928 (11th Cir., September 4, 2014); State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014).

11. In re Application of the United States for Historical Cell Site Data, supra, 724 F.3d at 615.

12. In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317–18 (3rd Cir. 2010).

13. United States v. Davis, supra.

14. Riley v. California, supra.

15. David McAfee, “11th Circ. to Rehear Warrantless Cell Tracking Case En Banc,” http://www.law360.com/articles/574025/11th-circ-to-rehear-warrantless-cell-tracking-case-en-banc (September 4, 2014).

16. Lance Duroni, “AT&T Asks 11th Circ. for Clarity On Warrantless Cell Tracking,” http://www.law360.com/articles/597360 (November 18, 2014).

17. Tex. Code Crim. Proc. Art. 18.21, Sec. 4.

18. Tex. Code Crim. Proc. Art. 18.21 Sec. 4(b).

19. State v. Granville, supra.

20. Id.

21. Id.

22. Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

23. See supra, note ix.

24. Richardson v. State, 865 S.W.2d 944, 951 (Tex. Crim. App. 1993) (the court further discusses the issue at 953: “. . . we believe it would be likewise unfair to hold that the customer ‘assumes the risk’ of public disclosure of a number he dials on the telephone. Other than for billing purposes, the telephone company itself has no interest in memorializing that information. Moreover, the telephone company is fiercely protective of what it considers the privacy interest of its customers even in the information it does record in the ordinary course of business—as any private citizen will discover if he attempts to obtain the telephone bill of another customer without that other’s express permission. [cite omitted]. It goes without saying that telecommunications are pervasive in our society. The telephone company’s vigilance in protecting from public disclosure the uses to which its customers put their telephones reflects a value that is equally pervasive. As with information imparted to a doctor, we share a common understanding that the numbers we call remain our own affair, and will go no further. Thus, society recognizes as objectively reasonable the expectation of the telephone customer that the numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of the world.”)

25. See id. at 947.

26. See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).

27. Id. (citing LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)).

28. See Richardson v. State, supra, 865 S.W.2d at 951.

29. Id. at 950–51 (citing State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (New Jersey Constitution gives a telephone subscriber a constitutionally protected privacy interest in the telephone company’s home toll billing records for the subscriber’s telephone); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, at 826, 602 P.2d 738, at 746 (Cal. 1979) (“a hotel guest may reasonably expect that the calls he makes from his room are recorded by the hotel for billing purposes only, and will not be disclosed to others without legal process”); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783, at 791 (Pa. 1984) (“an individual’s expectation of privacy in telephone numbers he calls is reasonable, legitimate, and is protected by the State Constitution against government surveillance and intrusion without probable cause”); People v. Sporleder, 666 P.2d 135 (Colo.1983) (under the Colorado Constitution a telephone subscriber has a legitimate expectation of privacy that telephone numbers dialed on a home telephone will remain private, and that in the absence of exigent circumstances law enforcement officers must have a search warrant supported by probable cause prior to the installation of a pen register); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 813 (Wa. 1986) (“The privacy interests of citizens which are protected by article 1, section 7 of the Washington State Constitution prevent the defendant’s long distance telephone records from being obtained from the phone company, or any pen register from being installed on her telephone connections, without a search warrant”); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (Ida. 1988) (installation of a pen register on defendant’s telephone line was a search under the state constitution); State v. Rothman, 70 Haw. 546, 779 P.2d 1, at 7 (Ha. 1989) (“persons having private telephone lines have a reasonable expectation of privacy with respect to the communication of the numbers they call, and the numbers of incoming calls, and the seizure of those numbers by the government, without a warrant, would violate such persons’ right to privacy”).

30. Art. 18.21 Sec. 4(a); Tex. Const., Art. I, Sec. 9; see Richardson v. State, supra.

31. See State v. Granville, supra; Barfield v. State, supra, 416 S.W.3d at 746 (decided before Granville).

32. See State v. Granville, supra.

33. Richardson v. Stata, supra, 865 S.W.2d at 947.

34. United States v. Jones, supra, 132 S.Ct. at 949.

35. Riley v. California, supra.