Sims v. State

• Decision Date: 16 January 2019
• Docket Number: NO. PD-0941-17,PD-0941-17
• Citation: 569 S.W.3d 634
• Parties: Christian Vernon SIMS, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

569 S.W.3d 634

Christian Vernon SIMS, Appellant

v.The STATE of Texas

NO. PD-0941-17

Court of Criminal Appeals of Texas.

Delivered: January 16, 2019

Michael Mowla, P.O. Box 868, Cedar Hill, TX 75106, for Appellant.

Jeffrey W. Shell, Attorney Pro Tem, Attorney & Counselor at Law P.O. Box 397 Rockwall, Texas 75087-0397, Stacey Soule, State’s Attorney, Austin, for The State.

OPINION

HERVEY, J., delivered the unanimous opinion of the Court.

Christian Vernon Sims, Appellant, was charged with murder. He filed a pretrial motion to suppress evidence of real-time location information used to track his cell phone by "pinging" it without a warrant.¹

Using that information, police found and arrested Appellant. In his motion to suppress, Appellant argued that the police violated the Fourth Amendment when they searched his phone for real-time location information. He also contended that the search violated the Stored Communications Act (the SCA), a federal law, and articles 18.21 and 38.23(a) of the Texas Code of Criminal Procedure.² The trial court denied Appellant's motion, and Appellant pled guilty pursuant to a plea bargain. The judge sentenced him to 35 years' confinement. As part of the agreement, he reserved the right to appeal the trial court's ruling. The court of appeals affirmed the ruling of the trial court. Appellant filed a petition for discretionary review, which we granted on two grounds: (1) whether suppression is a remedy for a violation of the SCA or Article 18.21, and (2) whether a person is entitled to a reasonable expectation of privacy in real-time CSLI records stored in a cell phone's electronic storage.³

We conclude that suppression is not an available remedy under the Stored Communications Act unless the violation also violates the United States Constitution. And suppression is not an available remedy for a violation of Article 18.21 unless the violation infringes on the United States or Texas constitutions. We further conclude that, under the facts of this case, Appellant did not have an expectation of privacy in the real-time location information stored in his phone. We affirm the judgment of the court of appeals.

FACTS

On December 18, 2014, Annie Sims (Appellant's grandmother), was found dead on the porch of her home in Lamar County. She had been killed by a single gunshot to the back of her head. Mary Tucker, Annie's mother, discovered her daughter's body and called 911. Annie was lying face down on the back porch in a pool of blood. Detective Jonathan Smith of the Lamar County Sheriff's Office responded, and he contacted Tucker, who identified the body as that of her daughter. Lieutenants Joe Tuttle and Joel Chipman also spoke to Tucker, who told them that Annie's 2012 Silver Toyota Highlander was missing from the driveway and that Appellant (her great-grandson) and his girlfriend, Ashley Morrison, were possible suspects. Police searched the property and discovered that, in addition to the Highlander and Annie's purse, a Beretta 9mm handgun and a .38 Special revolver were also missing.

When Mike Sims (Annie's husband) arrived home, he spoke to police, who told him about the missing purse. Mike called Capitol One to report credit cards from Annie's purse as stolen, and a company representative told him that they had been used three times, including once at a Wal-Mart in McAlester, Oklahoma (about 80 miles north of Powderly, Lamar County, Texas). Police in Texas contacted the McAlester Police Department and asked them to go to the Wal-Mart to investigate. Officers discovered that a young man and woman, who used a credit card stolen from Annie's purse, bought some items and left in a 2012 Silver Toyota Highlander. McAlester police took pictures of the man and woman from security footage and texted them to Texas law enforcement. Appellant's grandfather identified the two people as his grandson and Morrison.

Chief Deputy Jeff Springer from the Lamar County Sheriff's Office thought that there was probable cause to believe that Appellant committed the felony offenses of murder, burglary of a habitation, unauthorized use of a motor vehicle, and credit card abuse based on all the information he had. He also believed that Appellant and Morrison were a danger to the public because they were likely armed. Springer returned to the Lamar County Sheriff's Office to obtain a warrant to "ping" Appellant's and Morrison's cell phones.⁴ Back in the office, however, Springer discovered that another officer, Sergeant Steve Hill, had already begun the process to ping the cell phones. According to Springer, he could have obtained a warrant because it was during business hours and local judges were readily available, but he did not because he was told not to do so. Instead of seeking a warrant, Hill used an "EMERGENCY SITUATION DISCLOSURE" form provided by Verizon Wireless (Verizon), Appellant's service provider. Below the title of the document, the form states that, "Upon receipt of this completed form, Verizon[ ] may divulge records or other information to governmental entities in certain emergencies, pursuant to 17 U.S.C. § 2702(b)(8) or § 2702(c)(4) or an equivalent state law."⁵ The first question on the form asks whether the situation "potentially involve[s] the danger of death or serious bodily injury to a person, necessitating the immediate release of information relating to that emergency." Hill checked the box labeled, "YES." Under "Types of Records Being Requested," Hill checked the box "Location Information." The form also asked the "Time Frame for Which Information is Requested," and he wrote "current." Hill signed the document on December 18, 2014 and faxed it to Verizon.

According to Hill, there was a 20-minute delay from when Appellant's phone was "pinged" and when the police received real-time location information. The real-time CSLI from the first ping showed that the phone was a few miles north of the Wal-Mart where the Capitol One credit card was used. Because of the 20-minute delay, Hill used Google Maps to estimate where Appellant and Morrison probably were, assuming that they continued in the same direction.⁶ Hill called ahead to three different Oklahoma police departments to request that they look for Appellant and Morrison. The police found them based on information from a ping, which showed that Appellant's phone was at a truck stop off of the Indian Nation Turnpike. Police located Appellant and Morrison at a motel across the street from the truck stop.

Officers spoke to the motel manager and identified which room Appellant and Morrison were staying in. Both suspects were taken into custody without incident. Appellant told an officer that "[Morrison] had nothing to do with it. It was all me." After searching the motel room, among other things, the police discovered several hundred .22-caliber bullets, six knives, a white towel with a blood stain, a Beretta 9mm, and two boxes of 9mm bullets. The Beretta 9mm was loaded, and there was a bullet in the chamber.

MOTION TO SUPPRESS

In defense counsel's motion to suppress, he alleged that accessing the real-time location records stored in Appellant's cell phone violated the Fourth Amendment, Article I, Section 9 of the Texas Constitution, and Article 38.23 of the Code of Criminal Procedure. At the hearing on the motion, defense counsel added that the evidence should have been suppressed because the police violated the Stored Communications Act and Article 18.21, both of which deal with accessing electronically stored data. The State responded that, even if Appellant did have an expectation of privacy in the data stored on his phone, law enforcement had exigent circumstances to ping Appellant's cell phone to determine his whereabouts.⁷

The trial court denied Appellant's motion. In written findings of fact and conclusions of law, the court found that police had exigent circumstances to ping Appellant's cell phone pursuant to Article 18.21 of the Texas Code of Criminal Procedure.⁸ It did not address his Fourth Amendment or Stored Communications Act claims.

STANDARD OF REVIEW

We review a ruling on a motion to suppress using a bifurcated standard of review. Guzman v. State , 955 S.W.2d 85, 87–91 (Tex. Crim. App. 1997). A trial court's findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor are afforded almost total deference if they are reasonably supported by the record. Id. We review a trial court's determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor de novo . Id. When a trial court denies a motion to suppress, we will uphold that ruling under any theory of the law applicable to the case. Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

STATUTORY CONSTRUCTION

Statutory construction is a question of law, which we review de novo . Ramos v. State , 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). When construing statutes, we "seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation." Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We first look to the statute to determine if its language is plain. We presume that the legislature intended for every word to have a purpose, and we should give effect if reasonably possible to each word, phrase, and clause of the statutory language. State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). We read "[w]ords and phrases ... in context and constru[e] [them] according to the rules of grammar and usage." Sanchez v. State , 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). If the language of the statute is plain, we follow that language unless it leads to absurd results that the legislature could not have possibly intended. When the plain language leads to absurd results, or if the language of the statute is ambiguous, we consult extra-textual factors to discern the legislature's intent. Boykin , 818 S.W.2d at...