Wednesday, September 22, 2010

Cell-Phone, Privacy and "Injury to a Disabled Individual"

This post is about a case in which a rather unusual 4th Amendment issue came up, and was resolved in a manner that somewhat surprised me, at least. The case is State v. Dixon, 2010 WL 3419231 (Texas Court of Appeals 2010) and this is how it arose:

David Herrera, a former employee of the Christus Spohn Health Systems, was shopping at the Corpus Christi Wholesale Mart with his sister when he noticed a black cell phone that resembled an Apple iPod laying on a pair of pants. Thinking it was an Apple iPod, Herrera took the cell phone and gave it to his sister, who put the cell phone in her pants pocket. Herrera and his sister left the store to go home. Neither attempted to locate the owner of the cell phone, nor did they alert a store employee that someone had lost the cell phone.

When he arrived home, Herrera turned on the cell phone and attempted to see what music [was] stored inside. . . . However, the battery . . . was dead, so Herrera removed the SIM card and placed it in another cell phone. . . . [When] Herrera . . . took the cell phone from the store, he intended to deprive the owner of the property, he believed [it] was an Apple iPod that contained music files in its memory, and did not obtain consent from the cell phone's owner to use or search the cell phone. Upon inserting the SIM card into another cell phone, Herrera noticed that several `different videos started popping up, just different videos on the little card.’ [He said] the videos depicted `individuals being beaten up’ while in a hospital setting.

State v. Dixon, supra. In footnotes, the Court of Appeals explains that in one video Herrera saw what he thought was “`a maintenance-type worker or a janitor assaulting what was obviously a handicapped patient’” and in another he could “`hear people laughing in the background and an unknown person was taking . . . shampoo or some sort of a liquid and dumping it on the heads of patients as they were sleeping.’” State v. Dixon, supra. You can read about what was going on in these videos in the news story you can find here. If you search for other stories on the “fight club,” you can see some similar videos (maybe even the same ones).

After he saw the videos, Herrera showed them to his sister and his girlfriend,

Linda Franco. Herrera's sister and Franco wanted to turn the cell phone in to the local news station `because they wanted something to be done about it.’ Herrera tried to take the cell phone to the Channel 10 News Station, but they did not answer the door. . . . Herrera then took the cell phone to David Frazier at the Channel 6 News Station. Frazier kept the cell phone for `about two weeks,’ but asserted he could not do anything with [it] `because the phone wasn't charged and they couldn't see the videos that were in there.’ Subsequently, Franco, an emergency room technician at the Christus Spohn Memorial Hospital, informed Officer Shipley, the security guard at the hospital, about the cell phone. While at the hospital several days later, Franco showed Shipley the contents of the cell phone, including the three videos.

State v. Dixon, supra. Shipley later testified that once he saw the videos, he “determined a crime had been committed and confiscated the cell phone to preserve it as evidence.” State v. Dixon, supra. After police viewed “the contents of the cell phone,” they “charged Dixon with four counts of injury to a disabled individual” in violation of Texas Penal Code § 22.04. State v. Dixon, supra.

Dixon then moved to suppress “the evidence obtained from the cell phone as a product of an unlawful search.” State v. Dixon, supra. The trial court held a hearing on Dixon’s motion and granted it. State v. Dixon, supra. The trial judge found that “`Herrera, a private individual, illegally obtained evidence by the theft of Dixon's cell phone’” and held that Article 38.23 of the Texas Code of Criminal Procedure “mandated the exclusion of any evidence obtained from the cell phone at Dixon's trial.” State v. Dixon, supra. The prosecution appealed. State v. Dixon, supra.

Article 38.23 of the Texas Code of Criminal Procedure says that

[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

According to the Court of Appeals, this statute codifies the exclusionary rule. State v. Dixon, supra. So while the judge didn’t explicitly mention either the 4th Amendment or the Texas State Constitution’s analog of the 4th Amendment (all U.S. states have their own constitutions and most, probably all, have a version of the 4th Amendment), under this rule the judge was suppressing the evidence because it violated the 4th Amendment and/or Texas Constitution Article 1 § 9 (“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches. . . “).

On appeal, the prosecution argued that the trial court erred because (i) Dixon hadn’t shown that he was the owner of the cell phone that contained the videos and/or (ii) even if Dixon had owned the cell phone, he abandoned it and thereby lost any Constitutional expectation of privacy in its contents. State v. Dixon, supra.

As to the first issue, the Court of Appeals pointed out that evidence in the records showed that Dixon was, in fact, the owner of the cell phone:

[T]he trial court, in its findings of fact, explicitly stated that, `[i]t is without controversy that the cell phone belonged to Timothy Dixon even if the cell phone account was in the name of his common law mother-in-law.’ Dixon clearly stated in his motion to suppress that the cell phone was his and asserted that the phone had been the subject of an unlawful search and seizure. Moreover, Dixon directs us to Herrera's testimony, wherein Herrera, on cross-examination, admitted several times that the cell phone belonged to Dixon.

State v. Dixon, supra. The Court of Appeals also noted that in his motion to suppress,

Dixon argued that the evidence obtained from the cell phone should be excluded from the trial in this matter because Officer Shipley and Herrera searched the phone without Dixon's consent or a warrant . . . which suggests Dixon harbored an expectation that the contents of his cell phone would be free from searches conducted by governmental officials or others. . . . We believe Dixon's expectation of privacy in the cell phone is reasonable given the circumstances of this case.

State v. Dixon, supra. The Court of Appeals then took up the issue of abandonment. As I’ve noted in earlier posts, abandonment is basically an exception to the 4th Amendment requirement that officers must have a warrant in order to lawfully search a place or a thing (or seize it). As the Court of Appeals noted, in determining whether someone abandoned their property the issue is whether he “voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” State v. Dixon, supra (quoting McDuff v. State, 939 S.W.2d 607 (Texas Court of Criminal Appeals 1997)).

In analyzing this issue, the court noted that in this case, “we are presented with a set of facts involving the search of the cell phone without the owner's consent and without a clear expression of abandonment that was preceded by an unlawful act-theft-of a third person, Herrera.” State v. Dixon, supra. It explained that in its findings of fact, the

Trial court stated that, `[t]here was no evidence of abandonment presented during the Pretrial Hearing. . . . Herrera testified that the cell phone belonged to Dixon and he took the cell phone from the store with the intent to deprive Dixon of its use. Thus, Herrera's actions constituted an unlawful theft of Dixon's cell phone. . . . Herrera testified that he did not intend to give the cell phone to police when he took it from the department store. . . . Essentially, the searches of Dixon's cell phone by Herrera and police flowed from Herrera's unlawful theft of the cell phone from the department store.

State v. Dixon, supra. This is where, IMHO, it gets a little weird:

[T]he incriminating videos were only visible when conducting an intrusive search of the cell phone, and there is no testimony that Herrera, acting in the shoes of law enforcement, had probable cause to conduct a warrantless search of the cell phone at the time the phone was found in the department store. . . . Because `a private person can do what a police officer standing in his shoes can legitimately do but cannot do what a police officer cannot do,’ we hold that Herrera's unlawful theft of Dixon's cell phone would have constituted misconduct if Herrera had been a police officer and, therefore, precludes a finding that Dixon abandoned the cell phone.

State v. Dixon, supra. First of all, I don’t think Herrera was “acting in the shoes of law enforcement” when he originally searched the cell phone – he was looking for music, for himself, presumably. Second, as I’ve noted in earlier posts, if a private person conducts a search that would violate the 4th Amendment if a law enforcement officer conducted it, you don’t have to suppress the evidence because the 4th Amendment exclusionary rule (and I assume the Texas rule is the same) doesn’t apply to private citizens . . . only to law enforcement officers. Maybe I’m missing something, but this part of the opinion doesn’t really work for me.

The Court of Appeals then holds that “Herrera's unlawful theft and subsequent search of the phone required that the evidence obtained from the cell phone be suppressed in” accordance with the Texas Rule of Criminal Procedure. State v. Dixon, supra.


Susan Brenner said...

(I don't know why that first paragraph is showing up in tiny text, but I can't seem to fix it . . . )

Anonymous said...

OMG, this whole story is SICK and made me both mad and sad.

Anonymous said...

Yes but the TX law excludes evidence obtained by any person in violation of any provisions of the Constitution.

Robert said...

The Texas Exclusionary rule (38.23 CCP) is stricter than what is allowed under US v Leon. It applies to evidence illegally seized by both the government and by private citizens. It has been on the books since 1925. See Lawrence Preston Miles v. Texas (Tx. Ct. of Crim. App., PD-1019-06 & 1047-06, Oct. 17,2007) for the history of 38.23. Also see Ronald WIlson v. Texas (Tx. Ct. Crim. App. PD-0307-09, Feb. 2010).

Robert said...

Correction to my previous comment. I should have also referenced Mapp v. Ohio. That's what I get for typing so late in the day.

Bob Mabry said...

Like Professor Brenner, I believe that abandonment applies and therefore the trial court and the appellate courts got it wrong. Be advised that it is likely that the Texas Court of Criminal Appeals, Texas's highest criminal court, will overturn this decision.