Love v. State

• Decision Date: 07 December 2016
• Docket Number: NO. AP–77,024,AP–77,024
• Citation: 543 S.W.3d 835
• Parties: Albert Leslie LOVE, Jr., Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

543 S.W.3d 835

Albert Leslie LOVE, Jr., Appellant

v.The STATE of Texas

NO. AP–77,024

Court of Criminal Appeals of Texas.

DELIVERED: December 7, 2016

Rehearing Denied April 12, 2017

Ariel Payan, Attorney at Law, Austin, TX, for Appellant.

Sterling Alan Harmon, Assistant District Attorney, Waco, TX, for the State.

OPINION

Yeary, J., delivered the opinion of the Court in which Johnson, Keasler, Alcala, Richardson, and Newell, JJ., joined.

In July 2013, a jury convicted appellant of capital murder for the March 28, 2011 murders of Keenan Hubert and Tyus Sneed during the same criminal transaction. See TEX. PENAL CODE § 19.03(a)(7)(A). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death. TEX. CODE CRIM. PROC. art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 § 3(h). Appellant raises eleven points of error.² After reviewing appellant's points of error, we find appellant's sixth point of error, regarding the warrantless seizure of his text messages, to have merit. Consequently, we reverse the trial court's judgment and sentence of death.

BACKGROUND

The evidence at trial showed that on April 8, 2010, Emuel Bowers III was shot and killed while sitting in his car at a Waco park. Close friends and associates of Bowers concluded that Keenan Hubert, a.k.a. "Lockie," was responsible for Bowers' death even though the police had uncovered no evidence to support this theory. These friends included appellant, Rickey Cummings ("Rickey"), and Rickey's brother D'Arvis ("D'Arvis") Cummings. Appellant and the Cummings brothers had grown up with Bowers, who was also known by the nicknames "T–Bucks" and "Man–Man." This group was also close to Bowers' mother, Shelia Bowers, whom appellant referred to as "Mama Shelia" or "Aunt Shelia."

As the first anniversary of the shooting approached, no charges had been filed against any suspect. Appellant, his friends, and Bowers' family were frustrated by that. They felt that they had identified a good suspect, and they had provided that information to the authorities.

On the evening of March 28, 2011, Hubert, Marion Bible, and Deontrae Majors were in Majors' car, which was parked at the Lakewood Villas Apartments in east Waco. Rickey walked by and glared at Hubert, who then "rapped" some antagonizing lyrics at Rickey. After Rickey walked away, Tyus Sneed arrived and joined Hubert, Bible, and Majors in the car to watch videos and smoke marijuana.

At approximately 11:20 p.m., Majors' car was hit with a hail of bullets, shattering all of its windows except the front windshield. Sneed and Hubert were each shot eight times and died in the back seat of Majors' parked car. Majors and Bible, although wounded, were able to escape through the front passenger door. Immediately thereafter, an eyewitness saw Rickey chase Bible and Majors and then abandon his pursuit when his .45–caliber gun jammed.

The evidence showed that the attackers most likely used an AK–47, along with weapons that fired .38–, .40–, and .45–caliber ammunition. Around the time of the offense, three men had been seen in the complex, including a heavy-set man carrying a "long gun." Appellant was described as heavy-set in 2011, according to testimony given at trial. Further, evidence showed that appellant had been attempting to purchase an AK–47 in the weeks prior to the murders. The State argued at trial that Hubert's murder was a revenge killing and that Sneed died because he was in the wrong place at the wrong time.

In appellant's sixth point of error, he argues that the trial court erred in admitting cellular (cell) phone records in violation of the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 9, 10, and 19 of the Texas Constitution. Appellant filed a general pretrial motion to suppress records obtained in violation of the law, and a motion specifically to suppress all cell phone records because they were seized without a search warrant supported by probable cause.³

During the testimony of Kenneth LeCesne, who was the Metro PCS Telephone Company custodian of records and a 28–year veteran of the Dallas Police Department, the State sought to introduce appellant's cell phone records, labeled as State's Exhibit 184 (which included 37 pages showing the contents of approximately 1,600 text messages) and State's Exhibit 185 (call logs from a second number registered to appellant). A hearing on the admissibility of the exhibits was held outside the jury's presence. Appellant specifically objected that the records were inadmissible because they were obtained without a search warrant.⁴ The State responded that the records had been properly obtained through a "court order," although this order was not provided during the hearing.⁵ The trial court overruled appellant's objection and admitted the records.

On appeal, appellant complains that his cell phone records (including subscriber information, call logs, location information, and text messages) were obtained as a result of a warrantless search and seizure in violation of federal and state constitutional prohibitions against unlawful searches and seizures. He further asserts that the records were obtained "by subpoena," which violated the Stored Communications Act. See 18 U.S.C. § 2703(d). The State argues that, contrary to appellant's assertion, appellant's records were legally obtained via a valid court order compelling the production of appellant's cell phone records pursuant to Title 18, § 2703(d) of the United States Code and Article 18.21, § 5(a).⁶

STANDARD OF REVIEW

"In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review." Wilson v. State , 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010). "Although we give almost total deference to the trial court's determination of historical facts, we conduct a de novo review of the trial court's application of the law to those facts." Id. at 458. Here, the facts of the search and seizure are not in dispute as the records were obtained via a court order. The issue before us is whether the court order was the appropriate vehicle for obtaining the records. Resolving this issue involves construing the scope of Fourth Amendment protections in this context. Therefore, the question is solely a matter of law, for which review is de novo . Id.

ANALYSIS

Fourth Amendment

The Fourth Amendment "protects people, not places." Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public [such as the public phone booth at issue in Katz itself], may be constitutionally protected." Id. at 351–52, 88 S.Ct. 507. Whether a person's Fourth Amendment rights have been compromised depends, under this regime, on the answer to "two discrete questions." Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). First, has the person, by his conduct, exhibited an actual (subjective) expectation of privacy—did he seek to preserve something as private? Id. And secondly, if so, is that subjective expectation one that society is prepared to recognize as reasonable or justifiable under the circumstances? Id. at 740–41, 99 S.Ct. 2577. The question in this case is whether appellant had an expectation of privacy in his service provider's records of his cell phone use, and whether society would regard that expectation as reasonable or justifiable under the circumstances.

Appellant's cell phone records, including call logs, historical cell site location information (CSLI), and text messages, were held by Metro PCS, an internet service provider (ISP), on the Metro PCS company servers. Traditionally, individuals do not maintain a reasonable expectation of privacy in information voluntarily revealed to third parties. See, e.g., United States v. Miller , 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ; Smith v. Maryland , 442 U.S. at 743–45, 99 S.Ct. 2577. Specifically, the United States Supreme Court has held that individuals do not have a privacy right in the numbers dialed on their phones. Smith , 442 U.S. at 744–45, 99 S.Ct. 2577. The Supreme Court noted that "[t]elephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes." Id. at 743, 99 S.Ct. 2577. By similar reasoning, most courts that have addressed the question, including this Court, have held that CSLI information obtained from the records of a service provider is not protected under the Fourth Amendment. Ford v. State , 477 S.W.3d 321, 329–30 & nn. 5–7 (Tex. Crim. App. 2015). Appellant's call logs and CSLI are not, therefore, constitutionally protected.

Even in Smith , however, the Supreme Court drew a distinction between the numbers dialed and the content of the communications, observing that "[a]lthough [Smith's] conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed." Id. (emphasis added). Similarly, in holding that CSLI records may be obtained through a court order supported by less than probable cause, we reasoned that "this type of non-content evidence, lawfully created by the cell-phone companies themselves and ... subject to their control, does not belong to [a defendant] even if it concerns him." Ford v. State , 477 S.W.3d at 321 (emphasis added) (citing United States v. Davis , 785 F.3d 498, 511 (11th Cir. 2015) (en banc)); see also In re Application of the United States for an Order...