Hankston v. State, PD-0887-15

• Decision Date: 12 April 2017
• Docket Number: NO. PD-0887-15,PD-0887-15
• Citation: 517 S.W.3d 112
• Parties: Gareic Jerard HANKSTON, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

517 S.W.3d 112

Gareic Jerard HANKSTON, Appellant

v.The STATE of Texas

NO. PD-0887-15

Court of Criminal Appeals of Texas.

DELIVERED: April 12, 2017

Angela L. Cameron, Harris County Public Defender's Office, Houston, TX, for appellant.

Eric Kugler, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for the State.

OPINION

Richardson, J., delivered the opinion for a unanimous Court.

Following the denial of his motion to suppress, Appellant, Gareic Jerard Hankston, was convicted of murder and was sentenced to twenty years in prison. The Fourteenth Court of Appeals affirmed Appellant's conviction, holding that the warrantless acquisition of Appellant's cell phone records from Sprint (comprised of call logs and historical cell site location information ("CSLI")) did not violate Appellant's rights under the Fourth Amendment or under Article I, Section 9 of the Texas Constitution. In light of our recent decision in Ford v. State ,¹ we did not grant review of Appellant's Fourth Amendment claim.² We did, however, agree to address an issue that was unresolved by Ford —whether Art. I, § 9 of the Texas Constitution affords broader protection under these facts than the Fourth Amendment provides. We hold that Appellant's rights pertaining to call logs and cell site location information possessed by a third party are the same under both the Fourth Amendment and under Art. I, § 9. We hold that the State's acquisition of Appellant's cell phone records pursuant to a court order did not violate Art. I, § 9 of the Texas Constitution. We affirm the decision of the Fourteenth Court of Appeals.

BACKGROUND

Appellant's girlfriend, Crystal Jordan, had been stalked by Keith Brown for some time. Brown lived two houses down from Jordan's mother's house, and on several occasions he would stand outside the mother's house and watch Jordan when she visited her mother. He would leave notes on her mother's door. After Jordan moved to an apartment, Brown would still approach her. On the evening of May 19, 2011, Jordan was in her apartment when she heard a knock at the door. She looked out the window and saw someone who looked like Brown standing outside.

She also saw a van that looked like Brown's. Jordan did not open her door, but instead called 911, her parents, and Appellant. The police came and went, and thereafter Jordan left her apartment to go to her mother's house. Appellant had not shown up, and she did not know where he was. Jordan testified at trial that, while she was at her mother's house, she heard gunshots. Some time thereafter, Appellant arrived at Jordan's mother's house.

Witnesses testified at trial that on that same evening Brown came home around 9:00 p.m. Shortly thereafter, someone started banging loudly on his front door. Brown started to open the door but tried to shut it again. The person on the other side of the door fired six gunshots through the door, striking and killing Brown with four of them.

In the course of investigating the murder, Appellant's cell phone records were obtained by members of law enforcement without a warrant. The cell phone records were acquired from Sprint pursuant to a sealed application and court order. The application stated that the records were being requested because law enforcement believed the records would "assist [the] investigation by providing information as to who [Hankston] was in contact with on the date of the Complainant's murder.... [and] will also aid in proving/disproving the defendant's whereabouts before and after the murder." Appellant was eventually charged with the murder of Keith Brown.

A. The Motion to Suppress

Appellant filed a motion to suppress his cell phone records. At the hearing on Appellant's motion to suppress, the State agreed to stipulate that the records were obtained without a warrant. The State relied on Texas Code of Criminal Procedure Article 18.21 as authority to obtain records with only a court order.³ The court order allowed the State to obtain cell phone records for the twelve months preceding the issuance of the order. No witnesses testified at the motion-to-suppress hearing, during which the trial court judge inspected the court order. Appellant's trial counsel argued at the hearing that the records were obtained in violation of the Fourth Amendment and in violation of Art. I, § 9 of the Texas Constitution. He also argued that the Texas Constitution provides greater protection than the Fourth Amendment under these facts. The trial court denied Appellant's motion to suppress, finding that the court order was issued in compliance with state and federal law, and finding that the disclosure did not violate the Fourth Amendment to the U.S. Constitution or Article I, Section 9 of the Texas Constitution.

B. The Trial

At trial, the State presented Officer Michael Burrow as a witness. He was one of the investigating officers. Officer Burrow testified that, in the course of their investigation, they obtained Appellant's cell phone records by court order, and the State introduced them into evidence as business records. Officer Burrows testified that cell site location and call information was obtained "to establish what [Appellant's] pattern of behavior was the night of the incident. To see who he was in contact with, and to prove or disprove any statements that he made."

The State also presented Officer Robert Brown as a witness, who testified that the cell phone records helped establish Appellant's whereabouts during times relevant to when Brown was killed:

Q. What does the analysis of the cell phone records and cell tower locations indicate to you, regarding the location of the defendant at the time of the 911 call?

A. It indicates that he's in the area. That the time of the call being placed, in regards to this incident, that he's in that area and that he's moving in and about that area. And he's moving from that sector 3, of that tower, to the next sector and then south. In a very rapid succession or time wise.

* * *

Q. All right. But we do know that the murder is committed and then we have a 911 call made at 9:32 p.m.?

A. Correct.

Q. And at 9:32 p.m., we have the defendant—what—what is he doing?

A. He's trans—well, the device is transitioning and it's moving.

Q. Fleeing the area? Would that be consistent with someone fleeing the area? ... Would the activity on the defendant's cell phone be consistent with him fleeing the area at that time?

A. Yes.

The jury found Appellant guilty of the murder of Keith Brown and assessed his punishment at twenty years in prison.

C. On Direct Appeal

Appellant urged on direct appeal that the State's acquisition of his cell phone records violated the Fourth Amendment to the United States Constitution and Art. I, § 9 of the Texas Constitution. As to the Fourth Amendment challenge, the Fourteenth Court of Appeals held:

Appellant cannot successfully claim that the State's acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy. The cell site records acquired by the State are simply the business records memorializing appellant's voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint's network of cell towers. The fact that this data happens to reveal the general location of appellant's cell phone, and presumably appellant himself, at given points in time is of no consequence to the legal analysis. The State's actions did not violate appellant's Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.⁴

The court of appeals also overruled Appellant's challenge under the Texas Constitution. Following this Court's holding in Johnson v. State ,⁵ the court of appeals held "that ‘[a] plain reading and comparison of the language of the Fourth Amendment and Art. I, § 9 reveals no substantive difference’ and they both protect the same right."⁶ Quoting from our decision in Crittenden v. State ,⁷ the court of appeals emphasized:

Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different from our preferred interpretation of the Fourth Amendment. We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can.⁸

The court of appeals noted that Appellant based his Texas Constitutional challenge on this Court's 1993 case of Richardson v. State ,⁹ which preceded Johnson and Crittenden . This Court held in Richardson that "the use of a pen register may well constitute a ‘search’ under Article I, § 9 of the Texas Constitution."¹⁰ However, the court of appeals did not follow Richardson , but instead "utilize[d] Fourth Amendment precedent to conclude that the State's acquisition of appellant's cell phone records [did] not violate Article I, section 9 of the Texas Constitution."¹¹

D. Appellant's Petition For Discretionary Review

Appellant argues that the State improperly used his cell phone records that it obtained without a warrant (but with a court order) to establish that, close to the time of the murder Appellant was near the complainant's home and that immediately thereafter his phone usage was more than any other comparable time frame in the preceding 206 days (between May 1, 2011 and November 22, 2011). Appellant claims that the Texas Constitution provides greater protection in regards to records from third parties than does the U.S. Constitution, and that, under Richardson v. State , this Court rejected the third party doctrine, finding that under the Texas Constitution, Art. I, § 9, a person has an expectation of privacy in the numbers they dial. According to Appellant, this same expectation of privacy applies even more to cell phones because in today's society cell phones never leave our...