On March 11, 2020, the Court of Criminal Appeals of Texas handed down Holder v. State, an opinion stemming from a capital murder case that could have far-reaching consequences regarding the way investigators obtain cell site location information in the future. Specifically, the high court held that obtaining 23 days of cellphone location tracking dates without a warrant violated the Article I, Section 9 of the Texas Constitution and that the defendant had a reasonable expectation of privacy in his cell site location.
What is Cell Site Location Information?
Cellphones are the most commonly used electronic device by individuals in the United States, providing an intimate window into a person’s life. An estimated 96 percent of Americans own cell phones, allowing friends, family, and others to track an individual’s location through Find my Friends, Snapchat, A-GPS Tracker, and other free phone applications. Yet, people fail to realize that their cellphone providers have access, and regularly store, their cell site location information.
Cell site location information refers to the time-stamped information cell phones transmit to nearby cell towers every time a phone call is made, a text message is sent, or a web browser is opened. Police officers, during ongoing criminal investigations, may request an individual’s cell site location information. This allows authorities to triangulate the general location of a suspect.
What’s the Background in Holder v State?
On November 11, 2012, police found the body of Billy Tanner in his east Plano home. Tanner had been beaten and stabbed. It also appeared that the killer had also attempted to burn down Tanner’s house.
Investigators quickly honed in on Christopher James Holder as the suspect. Holder had been romantically involved with Tanner’s step-daughter, Casey James, and the couple and her young children had lived together in Tanner’s house. In late October 2012, Tanner asked Holder to move out at the request of his stepdaughter because they were having relationship problems.
The following month, James told Holder saying she believed Tanner had inappropriately touched one of her daughters. CPS and police investigated but found no evidence that inappropriate activity had occurred between Tanner and his step-granddaughter.
The next time James spoke to Holder she told him she was going out of town for the weekend. When she returned home two days later on Nov. 11, James knew something was wrong. Tanner’s truck was missing, the garage door-opener didn’t work, and there was a horrible smell in the house. Police responded to the scene and found Tanner dead, a victim of a blunt force trauma to the head and 20 stab wounds. It also appeared that
On Nov. 12, the police interviewed Holder, who claimed he had been out of town the last few days — an alibi that would later be disproved by Holder’s cell site location information. That same day, police got a court order requiring Holder’s cellphone provider, ATT, to disclose Holder’s call log and cell site location information records between Oct. 20, 2012 and Nov. 12, 2012. It was a total of 23 days’ worth of data.
Holder’s cell site location information showed that on November 10 between 3:28 p.m. and 4:16 p.m., he was near Tanner’s home. The death investigation revealed that Tanner’s death mostly likely occurred during that time period. The cell site location information further revealed that Holder was near Tanner’s home, again, on November 11 at 12:41 a.m. and that he was suspiciously near where Tanner’s truck was located at roughly 2:11 a.m.
Confronted with the information, Holder changed his story, saying that he remembered being near Tanner’s house but it was only to buy drugs.
Holder was subsequently arrested and later charged with capital murder in connection with Holder’s death.
Several months later, a jail inmate told detectives that that on Nov. 10, 2012, Holder called him asking for drugs and needed help with something. They ended up at a house where a man was dead to clean up the crime scene. The inmate told police that the dead man had “molested a little girl.”
During his trial in the summer of 2015, Holder went on trial for capital murder in connection with Tanner’s death. Tanner filed a motion to suppress the cell data, claiming he had a protected privacy interest in his cell site location information. The trial court denied the motion and Holder was subsequently convicted and sentenced to life in prison without parole.
Holder appealed. In Holder v State, the question for the Court of Criminal Appeals of Texas was whether the cell site location information should have been suppressed?
What About Privacy Rights?
As citizens of the United States we have a reasonable expectation of privacy so long as society considers that expectation of privacy objectively reasonable. The Fourth Amendment guarantees the right of the people, “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV.
Furthermore, the Texas Constitution guarantees the right of the people to be, “secure in their persons, houses, papers and possessions from all unreasonable seizures or searches.” TEX. CONST. art. I, § 9. Privacy rights are neither absolute nor explicitly listed. Caselaw clarified scenarios in which individuals have a reasonable expectation of privacy. Ultimately, the court in Holder focused on the privacy rights provided in the Texas Constitution, Article 1, S 9, when discussing how to resolve this case.
How did the Court in Holder Handle Privacy Right’s?
The Court of Criminal Appeals of Texas held that Holder had a right to privacy when it came to his cell site location information. Accordingly, the data which was used to refute Holder’s alibi should have been suppressed. Arrival at this holding required an extensive review of past cases with similar issues and a thorough discussion of the nature of cell site location information records.
- Katz v. United States: Electronically listening to and recording an individual’s phone call, with electronic wiretaps, violates that individual’s reasonable expectation of privacy. This was a monumental Supreme Court decision because it was the first time the concept of “reasonable expectation of privacy” was thoroughly considered. Katz v. United States, 389 U.S. 347 (1967).
- United States v. Knotts: Attaching a surveillance device in order to reveal information regarding public movement, that could also be obtained through ordinary visual surveillance, is not an unreasonable search. A person travelling on public roads has no reasonable expectation of privacy in his movements from one place to another. If, however, the beeper is used in a private place to track an individual’s location there could be an argument that privacy rights have been violated. United States v. Knotts, 460 U.S. 276 (1983).
- United States v. Jones: The government’s installation of a GPS device on an individual’s vehicle and the use of that device to monitor the vehicle’s movements, twenty-four hours a day for 28 days, violated his Fourth Amendment rights to privacy. Here, the Supreme Court reasoned that the Fourth Amendment violation happened when officers attached the GPS device to the vehicle which was Jones’s private property. United States v. Jones, 565 U.S. 400 (2012).
- Carpenter v. United States (2018): Warrants are required when gathering cell phone tracking information. Cell phones are a vital part of human autonomy which means tracking the location of a cellphone is almost perfect surveillance. The Court went as far as to compare a cellphone to an ankle monitor in terms of location surveillance capability. Additionally, the Court reasoned that the longer GPS monitoring takes place, the higher the probability an individuals’ privacy rights have been violated, “regardless of whether those movements were disclosed to the public at large.” Carpenter v. United States, 138 S. Ct. 2206, 2215 (2018).
Holder v State differs from the cases above because it illustrates privacy concerns that arise from tracking someone through their cell site location information. Precedent calls for the application of the third-party doctrine to resolve the issue present in Holder. The third-party doctrine states that people who voluntarily give information to third parties –banks, phone companies, internet providers, and e-mail servers – have no reasonable expectation of privacy to that information. Accordingly, the government does not need a warrant to access these personal records. Following this reasoning, the data police officers collected in Holder should not have been suppressed – the trial court’s decision was correct. Ultimately, however, the Court chose not to apply the third-party doctrine. The Court instead adopted the ruling in Carpenter: the third-party doctrine will no longer be applicable to cell site location information under Article 1, § 9 of the Texas Constitution. Holder v. State, 595 S.W.3d 691, 701 (Tex. Crim. App. 2020). Accordingly, the cell site location information collected in Holder should have been suppressed because the defendant had a protected privacy interest in that data.
What the Effect of Holder v. State?
In the years to come, expect to see the law change as technology continues to advance. The Constitution of the United States of America and the Texas Constitution guarantee the people a right to privacy, but fail to explicitly state what privacy rights the people have. The Courts in Carpenter and Holder reasoned that as technology advances, it becomes more difficult to determine when privacy rights have been violated. If you or a loved one is facing criminal charges where privacy rights may have been violated it is important to contact an experienced criminal defense attorney.