Richardson v. State

• Decision Date: 27 October 1993
• Docket Number: No. 901-92,901-92
• Citation: 865 S.W.2d 944
• Parties: Damon Jerome RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 944

865 S.W.2d 944

Damon Jerome RICHARDSON, Appellant, v. The STATE of Texas, Appellee.

No. 901-92

Court of Criminal Appeals of Texas En Banc.

Oct. 27, 1993.

Rehearing Denied Dec. 8, 1993.

Richard L. Wardroup, Lubbock, for appellant.

Travis S. Ware, Dist. Atty. and Michael West, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of engaging in organized criminal activity in violation of V.T.C.A. Penal Code, § 71.02, and the jury assessed punishment at life confinement in the penitentiary and a $10,000 fine. On appeal he contended, inter alia, that the trial court erred in overruling his motion to suppress evidence obtained by use of a pen register because the use of the pen register was a search in contemplation of Article I, § 9 of the Texas Constitution; therefore, Article 18.21 V.A.C.C.P. is unconstitutional insofar as it authorizes a search without requiring a showing of probable cause. ¹ The Amarillo Court of Appeals affirmed, holding that Article 18.21, supra, is not unconstitutional for failing to require probable cause because the use of a pen register is not a search under the Texas Constitution. Richardson v. State, 821 S.W.2d 304 (Tex.App.--Amarillo 1991).

We have seen this cause before. Richardson v. State, 824 S.W.2d 585 (Tex.Cr.App.1992). Because the court of appeals relied on cases from this Court which held that Article I, § 9 was not more restrictive than the Fourth Amendment to the United States Constitution, we vacated the judgment of the court of appeals and remanded the case for reconsideration in light of our opinion in Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991) (When analyzing and interpreting Article I, § 9, Texas courts will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue). On remand, the court of appeals reaffirmed its original holding. Richardson v. State, 831 S.W.2d 78 (Tex.App.--Amarillo 1992). We granted appellant's second petition for discretionary review to determine the novel question of whether the installation and use of a pen register by law enforcement personnel requires probable cause under the Texas Constitution. Tex.R.App.Pro., Rule 200(c)(2).

I. Facts

In March of 1988, officers of the Texas Department of Public Safety were involved in an extensive investigation of a suspected drug ring operating in Lubbock County. The investigation centered around appellant, who was in the Lubbock County Jail awaiting trial for capital murder, and several other individuals residing at the Seven Acres Lodge, a motel in Lubbock. Despite appellant's incarceration, officers believed that he was controlling a cocaine and crack distribution organization using the telephones located in the county jail, by placing calls to a private telephone located at the Seven Acres Lodge. Due to the difficulty in investigating this case through customary investigative techniques, the officers sought court orders authorizing electronic surveillance to assist in their identification of co-conspirators and the modus operandi of the alleged trafficking organization.

On March 30, 1988, in accordance with the provisions of Article 18.21, supra, the officers applied for and received a court order authorizing the installation of a pen register to catalogue the telephone numbers dialed from (806) 744-4729, a telephone at the Seven Acres Lodge. The officers then combined this information with other information outlined in a fifty-six page affidavit signed by Officer J.A. Randall, and on April 13, 1988, applied for and received a court order authorizing the wiretapping and recording of communications on the same telephone line. See Article 18.20, V.A.C.C.P. The wiretap intercepted numerous incriminating telephone conversations involving appellant and other targeted suspects. Based largely on these conversations, the officers executed several search warrants which uncovered evidence relating to the drug trafficking organization. This evidence and the taped conversations were presented to the jury which ultimately convicted appellant.

Prior to trial on the merits, appellant filed several motions seeking to suppress all "fruits" derived from the pen registers. In a single motion, appellant sought to suppress any evidence obtained through registers installed on the telephones on numbers (806) 741-1271, (806) 741-1272 and (806) 744-4729 or any other telephone number in connection with the present investigation. Despite the breadth of appellant's motion, testimony at the pretrial hearing revealed that there were only two court orders issued in this case authorizing pen registers. The first pen register was ordered on March 30, 1988, and was installed to record the telephone numbers dialed from (806) 744-4729, a private telephone at the Seven Acres Lodge. The second pen register was ordered on April 14, 1988, and was installed to record the telephone numbers dialed from (806) 741-1272, a limited use telephone in the Lubbock County Jail. In both instances, the installation of the register was authorized by court order pursuant to Article 18.21, supra.

Appellant argued that the government's use of a pen register is a search under Article I, § 9 of the Texas Constitution:

"yet the provisions of 18.21 allow such installations without the showing of probable cause that criminal activity is, has been or is about to be engaged in and that said telephone is, has been, or is expected to be utilized in the course of conduct of such criminal activity."

Thus, appellant argued that Article 18.21 is unconstitutional and that the court orders issued in the instant case, which failed to set forth probable cause, were illegal and ineffectual, and all fruits of the execution of these orders should be suppressed. The trial court summarily denied appellant's motion without comment. ²

Court of Appeals' Opinion

The court of appeals disposed of appellant's contentions on appeal on the basis of a broad holding that the use of a pen register is never a search within the purview of Article I, § 9. Whether the government's activity was a search depends upon whether at the time the activity occurred appellant had a reasonable expectation of privacy. Richardson, at 80. The court of appeals observed:

"[w]hen making a telephone call, a person conveys the information as to the number called to the telephone company. Thus, as contrasted to the content of the telephone conversation which, of course, is not revealed in the usual course of business, a caller has no reasonable expectation of privacy as to the number called. The information as to the number called is not information which is concealed ... but is, rather, information which has been disclosed."

Id. Because an individual does not have a reasonable expectation of privacy in the numbers which are disclosed to the telephone company, the court of appeals reasoned, the government's use of a pen register to catalogue those numbers is not a search under Article I, § 9. Thus, Article 18.21 is not unconstitutional for failing to require probable cause for the use and installation of a pen register.

The court of appeals did note that several other state courts have held their state constitutions do provide a person with a reasonable expectation of privacy in the telephone numbers dialed on the telephone. State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986); People v. Sporleder, 666 P.2d 135 (Colo.1983); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). However, the court of appeals believed these courts placed undue emphasis on the facts that a telephone is a necessity of modern life and an individual has no choice but to divulge the number dialed to the telephone company. Instead, the court of appeals analogized the disclosure of the telephone number to an individual who "must travel in a manner that is open to public view" in order to get to work or an individual who actually works in public view such as the cashier at a grocery store. Richardson, at 80. The court of appeals opined that the necessity of exposing oneself to public view in these situations dispels any reasonable expectation of privacy; therefore, so should the necessity of exposing the numbers dialed on a telephone.

The court of appeals also rejected the argument that a reasonable privacy interest exists because the caller's disclosure of the telephone numbers was for the limited business purpose of providing telephone communication services and was not for release to the general public. The court of appeals was persuaded that such logic would result in "a drug dealer who solicits sales on a street corner" having "a reasonable expectation of privacy because his solicitation has been made for a limited business purpose." Id., at 80-81. In our estimation the court of appeals has taken too narrow a view of the privacy interest under Article I, § 9.

II. Reasonable Expectation of Privacy

Article I, § 9 of the Constitution of the State of Texas provides:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

The Fourth Amendment to the United States Constitution acknowledges the inviolability of the "right" of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. If anything, Article I, § 9 recognizes that same basic protection, but in terms more imperative. We have observed that the two provisions are "in all material aspects, the same." Eisenhauer v. State, 754 S.W.2d 159, at 162 (Tex.Cr.App.1988). But in Heitman v. State, supra, we disavowed any notion that because the two provisions are ...