Texas Police Can Get Your Phone Records From Phone Company Without a Warrant: Ford v. State

This week, there’s lots of concern about cell phone security and phone privacy rights.

Why? Thousands of celebrity nude photos have been posted online by a hacker for all to see (with the promise of more to come). Now the FBI has begun investigating how the cell phone pix were stolen (hacked) from private accounts on the cloud and published. Over 100 celebrities like Jennifer Lawrence and Kate Upton are said to be victims of their private phone data being accessed by a stranger.

Criminal charges may be made against the hacker in this case, if he can be found. Meanwhile, what’s not making the viral news these days is the reality that the information about our personal lives as revealed by our cell phones is becoming less and less private.

Police Can Get Cell Phone Records From Phone Company Without a Search Warrant

Last week, the Texas Fourth Court of Appeals (San Antonio) issued its opinion in Ford v. State, joining both its sister state court in Houston, the Fourteenth Court of Appeals, and the federal Fifth Circuit Court of Appeals in ruling that the police do not need a search warrant before they go get information about someone’s cell phone from the phone company.

Which means that Texas law enforcement just got another Texas appellate court’s approval to go directly to Verizon, AT&T, or other phone company, and get records about you, your child, your sister, your friend, or anyone the police want to check out, that tell them not only pings from cellphone towers (for location), but outgoing communication and incoming calls, and more.

They don’t need a search warrant to do it. The police don’t need to tell you that they’re getting your stuff.

The case is Ford v. State and you can read the full opinion here.

What About the Fourth Amendment’s Constitutional Guarantees?

Many assume that the stuff that is stored about them by their phone company is protected and private. They may argue, as Mr. Ford did here, that we all have a reasonable expectation of privacy regarding “… technologically advanced tools that also reveal our locations.”

Wrong.

According to the San Antonio appeals court, you give up your constitutional protections when you contract with the phone company, apparently. The way they see it, the police are asking the phone company for its business records and that’s just fine.

You may not realize it, but the fact that you contract with the phone company for phone service means that all the information that the company has on you in their business records are not considered constitutionally protected. So no search warrant is needed, because these aren’t private files — they are “business records.” Key here is how the information was organized — since the phone company compiled the information, and not the police, then the defendant’s motion to suppress based upon the 4th Amendment would not be sustained.

It’s all under the legal umbrella of the “Third Party Doctrine.”

How This Impacts Criminal Defense and Police Collecting Evidence Against You

The ability of the police to scoot over to the local phone company and get your cell phone information without your knowledge and without the oversight of a judge approving a search warrant is a big deal. Consider what happened to Mr. Ford.

Jon Thomas Ford has been found guilty of murder and sentenced to 40 years behind bars for the killing of his ex-girlfriend. He appealed the conviction to the San Antonio appeals court with 18 points of error — and lost. The murder took place on New Year’s Day 2009, when Dana Clair Edwards was strangled to death in her apartment early that morning. The night before, she had been at a New Year’s Eve party with some friends, including her ex-boyfriend, Jon Thomas Ford.

Witnesses testified that Ford left the party before midnight while Edwards stayed after ringing in the new year and a neighbor told the jury that Edwards had walked her dog sometime between 12:30 and 1 o’clock on New Year’s Day morning. Ford was arrested for her murder after evidence was collected by the police and tried solely on circumstantial evidence which included “historical cell phone data reflecting activity on Ford’s phone in the vicinity of Edwards’s condominium around the time of the murder.”

Ford argued on appeal that the trial court committed reversible error when the judge did not grant Ford’s motion to suppress the historical cell phone records, which the police had obtained from AT&T and were then used by the prosecutor as circumstantial evidence suggesting that Ford was nearby to Edwards’s apartment at the time of her murder. (Ford argued that he had left the party and gone home to bed, and was asleep long before midnight.)

The trial court judge let the AT&T records be used in the murder case and the San Antonio court has approved the judge’s decision.

The Bottom Line

Right now, many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.

Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.

It’s a lot more serious, constitutionally-speaking and life-altering felony-wise, than celebrity selfies being shared on the web.

As explained by Chief Justice Luz Elena D. Chapa in her dissent in the Ford case:

[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001); see Katz v. United States, 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring). Ford’s cell phone provider tracked, collected, and recorded information about Ford’s physical movements and location whenever he received or placed a call or text message. This “historical cell site data” was based on the cell phone towers through which his calls and texts were routed. Because I would hold that Ford retained an objectively reasonable expectation of privacy in his physical movements and location, I respectfully dissent from the court’s judgment affirming Ford’s conviction.

The amount of detailed information that a cell phone provider has the means to track, collect, and record about its customers as they conduct their everyday lives is staggering. See United States v. Jones, 132 S.Ct. 945, 963 (2012) (Alito, J., concurring in judgment). For instance, “[h]istoric 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.” Riley v. California, 134 S.Ct. 2473, 2490 (2014). Although less precise than GPS records, the historic cell site data compiled by cell phone providers can generate a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” See Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring); see also id. at 963 (Alito, J., concurring in judgment).