This post examines a recent opinion from the Court of Appeals of Texas, San Antonio: Murray v.
State, 2017 WL 2664436. The court begins the opinion by describing the
history of the case:
Allen John Murray was convicted by a jury of compelling prostitution. To support this conviction, the State introduced into evidence pictures, private messages, and other electronic data from a Facebook account assigned to Murray. On appeal, Murray contends: (1) the affidavit supporting the search warrant did not establish probable cause to search Murray’s Facebook account because it did not demonstrate the reliability of the informant or source of information; and (2) the evidence the trial court admitted from the Facebook account was not properly authenticated. We affirm the trial court's judgment of conviction.
Murray v. State,
supra.
The Court of Appeals then went on to outline the relevant
facts in the prosecution:
This case arose based upon an outcry
statement made by C.J., a 13-year-old girl, in which C.J. alleged she met Allen
John Murray after she ran away from home. C.J. claimed Murray took pictures of
her and posted them on his Facebook page
to advertise her for sex. C.J. stated that at least three men came to Murray's
house, gave money to Murray and engaged in sexual intercourse with her. After
two days, C.J. left Murray's house and returned to her grandmother's home;
however, she then stole her grandmother's car and ran away again. C.J. was
eventually arrested and taken to the Bexar County Juvenile Detention Center
where she made the outcry statement to a juvenile detention officer. A state
trooper from the Department of Public Safety (DPS), conducted an investigation
and prepared an investigative report of his findings. The report stated the
officer's observation of a Facebook page assigned to Murray, as it appeared to
the general public, confirmed the presence of sexually provocative pictures of
C.J., and these pictures were attached to the report.
Subsequently, Jonathan Brown, a Texas
Peace Officer assigned as an investigator with the Bexar County District
Attorney's Office, executed an affidavit to obtain a search warrant of
Murray's Facebook account,
profile, and private messages based upon the information provided by C.J. to
law enforcement and the DPS officer's investigative report. The magistrate
issued a search warrant.
Murray v. State,
supra.
The opinion went on to explain that
As a result of this investigation, the
State charged Murray in a four-count indictment with trafficking of a child and
compelling prostitution. During trial, the prosecution introduced evidence of
the pictures of C.J. that appeared on the Facebook page assigned to Murray, as well as private messages
received and written pertaining to C.J. through the Facebook account. A jury
acquitted Murray of three counts and returned a guilty verdict on one count of compelling prostitution.
Murray now appeals.
Murray v. State,
supra.
As noted above, Murray raised two issues in his appeal:
(1) the affidavit supporting the search
warrant did not establish probable cause to search Murray's Facebook account because it did
not demonstrate the reliability of the informant or source of information; and
(2) the evidence the trial court admitted from the Facebook account was not
properly authenticated
Murray v. State,
supra.The Court of Appeals took up the two issues in the order given above.
Murray v. State, supra.
The Court began its analysis of Murray’s first issue by
explaining that
[i]n his first issue, Murray argues the
trial court abused its discretion by denying his motion to suppress evidence
obtained as a result of the search warrant. Murray contends the affidavit
supporting the search warrant did not contain sufficient facts to establish
probable cause to search Murray’s Facebook account.
Specifically, Murray asserts Officer Brown attested to information provided by
C.J. through other law enforcement officers, but failed to verify the
information or otherwise establish C.J.'s reliability. Therefore, the affidavit
is based solely upon hearsay and cannot establish probable cause to issue a
search warrant of Murray's Facebook account.
Murray v. State,
supra.
The court began its analysis of the first issue by
explaining that
search warrant must be supported by an
affidavit which sets forth substantial facts establishing probable cause for
its issuance. See Davis v. State, 27 S.W.3d 664, 667
(Tex. App.—Waco 2000, pet. ref'd); Mayfield v. State, 800 S.W.2d
932, 934 (Tex. App.—San Antonio 1990, no pet.). Probable cause to support the
issuance of a search warrant exists when the totality of the circumstances
presented to the magistrate in the affidavit are sufficient to justify a conclusion
that evidence of the specified crime, or the object of the search, is probably
in a particular place. Davis, 27 S.W.3d at 667; Gonzales v.
State, 481 S.W.3d 300, 306 (Tex. App.—San Antonio 2015, no pet.). To
satisfy this standard, there must exist at least a fair probability or
substantial chance that evidence of a specific crime will be found in the
place, person or thing to be searched. Rodriguez v. State, 232
S.W.3d 55, 60-61 (Tex. Crim. App. 2007); Gonzales, 481 S.W.3d at
306. While only the four corners of the affidavit may be examined to determine
whether probable cause exists, reasonable inferences may be drawn from the
affidavit, and it must be interpreted in a commonsense and realistic
manner. Gonzales, 481 S.W.3d at 306.
Murray v. State, supra.
The opinion goes on to explain that the
reliability of the affiant and his
sources of information are part of the totality of the circumstances that the
magistrate should evaluate in making a probable-cause determination. Johnson
v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), cert. denied 501
U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078, overruled on other grounds
by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). However, `where
a crime victim, who is a private citizen, reports the commission of a criminal
offense, and whose only contact with law enforcement authorities is a result of
having been victimized at the hands of another, the credibility and reliability
of the information is inherent.’ Nelson v. State, 855 S.W.2d 26, 30
(Tex. App.—El Paso 1993, no pet.). Therefore, in making a probable-cause
determination, a magistrate is entitled to rely on source information supplied
by a victim eyewitness without an independent showing of reliability. Id.; see
also Gonzales, 481 S.W.3d at 308. Similarly, `[t]he magistrate
may rely on the affidavit of a police officer based on ... the knowledge of
other officers.’ Johnson, 803 S.W.2d at 289.
Murray v. State,
supra.
The Court of Appeals then outlines the “standard of review”
it applies in cases in which an
appellate court must review a trial
court's ruling on a motion to suppress using the “bifurcated” standard of
review set forth in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.
(1997). Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.—San Antonio 2001,
pet. ref'd); see also Burke v. State, 27 S.W.3d 651,
654 (Tex. App.—Waco 2000, pet. ref'd). Thereby, the appellate court will `give
deference to the trial court's determination of historical facts that depend on
credibility choices, but review its application of the law of probable
cause de novo.’ Burke, 27 S.W.3d at 654. Because it
examines only the four corners of the affidavit to determine whether probable
cause to issue a warrant exists, the trial court is not required to make any
credibility choices in examining the affidavit. Robuck, 40 S.W.3d
at 654; Burke, 27 S.W.3d at 654. Therefore, the appellate court
will review the trial court's ruling de novo and must give
great deference to the magistrate's decision to issue the warrant to determine
whether, considering the totality of the circumstances, the magistrate had a
substantial basis for concluding probable cause existed. Bonds v. State,
403 S.W.3d 867, 873 (Tex. Crim. App. 2013); Robuck, 40 S.W.3d at 654; Burke,
27 S.W.3d at 654.
Murray
v. State, supra.
The Court of Appeals then began its analysis of Murray’s
Fourth Amendment argument:
In his affidavit, Officer Brown named
C.J. as a source of information and attested he obtained information “through
personal investigation or discussions with other law enforcement personnel.”
Based upon this information provided, Officer Brown attested Murray took photos
of C.J. and uploaded those photos to Facebook. A short time later, individuals contacted Murray through Facebook private messages. When
these individuals arrived and paid Murray, he instructed C.J. to engage in
sexual intercourse with them.
Because C.J. was the victim of the
alleged crime, Officer Brown did not need to independently verify the
information provided or establish C.J.'s reliability. As the victim, C.J.'s
credibility and the reliability of the information she provided are
inherent. See Nelson, 855 S.W.2d at 30. Similarly, the
magistrate could have relied on information provided to Officer Brown by other
law enforcement officers. See Johnson, 803 S.W.2d at
289. Therefore, the failure of Officer Brown to establish C.J.'s credibility or
to verify information provided by other officers are not valid bases to
suppress the Facebook-account
evidence obtained through the search warrant.
To the extent Murray contends Officer
Brown did not convey sufficient facts to establish probable cause to issue a
search warrant, this argument fails as well. From the information C.J.
provided, the magistrate could reasonably infer that Murray uploaded the
pictures to his Facebook account
for the purpose of prostituting C.J., and evidence of the crime could be found
in Murray’s Facebook account.
Thus, considering C.J.'s description of Murray's actions, the magistrate had a
substantial basis to conclude probable cause existed to issue the search
warrant of Murray's Facebook account.
Therefore, the trial court did not err
by denying Murray's motion to suppress the Facebook evidence obtained as a
result of the search warrant. We overrule Murray's first issue on appeal.
Murray v. State,
supra.
The Court then took up Murray’s second argument: the
authentication of the Facebook evidence. Murray
v. State, supra. It began by explaining that in
his second issue on appeal, Murray
contends the trial court erred by admitting evidence of the electronic contents
of a Facebook page,
particularly the private messages and account subscriber information. Murray
alleges the State did not properly authenticate the Facebook evidence pursuant
to Texas Rule of Evidence 901 because it failed to prove he created
and maintained the content of the Facebook page.
Authentication of evidence is a
condition precedent to its admissibility. TEX. R. EVID.901(a); Tienda
v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). To cross the
threshold of authentication, the proponent must produce evidence `sufficient to
support a finding that the item is what the proponent claims it is.’ See TEX.
R. EVID. 901(a); Reed v. State, 811 S.W.2d 582, 586 (Tex.
Crim. App. 1991); Tienda, 358 S.W.3d at 638. Rule of Evidence
901(b) provides an illustrative, though not exhaustive, list of examples
of extrinsic evidence that satisfies the requirement of authentication. TEX.
R. EVID. 901(b)(1)-(10); Reed, 811 S.W.2d at 586. Rule 902
identifies certain evidence as self-authenticating and dismisses Rule 901's
requirement of extrinsic evidence of authenticity. TEX. R.
EVID.902(1)-(10). Rule 902(10) allows for business records to be
self-authenticated by an affidavit, rather than by testimony at trial, and
enumerates language for such affidavit. TEX. R. EVID. 902(10). An unsworn declaration made under penalty of
perjury may be used in place of an affidavit. TEX. R.
EVID. 902(10)(B).
Murray v. State, supra.
The opinion goes on to explain that
[o]nce the threshold of admissibility
is satisfied, the ultimate question whether an evidentiary item is what its
proponent claims it to be, then it becomes an issue for the fact-finder to
determine. Tienda, 358 S.W.3d at 638. When presented with the issue
of admissibility of evidence, in performing its gate-keeping function, the
trial court itself need not be persuaded that the proffered evidence is
authentic. Id. Rather, the preliminary question for the trial
court to decide is whether the proponent of the evidence presents sufficient
facts to support a reasonable jury determination that the evidence proffered is
authentic. Id.
Murray v. State,
supra.
The opinion goes on to outline the “standard of review” it
applies to issues involving the trial court judge’s admitting certain material
into evidence at a trial. Murray v. State,
supra.
We review the trial court's
admission of evidence under an abuse of discretion standard. Montgomery
v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1991) (op. on
reh'g); Jones v. State, 111 S.W.3d 600, 606 (Tex. App.—Dallas 2003,
pet. ref'd). A trial court does not abuse its discretion if its ruling was
within the “zone of reasonable disagreement.’ Tienda, 358 S.W.3d at 638.
A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner or if it acts without reference to any guiding rules or principles.
Montgomery, 810 S.W.2d at 391. Therefore, if the trial court's ruling
that a jury could reasonably find proffered evidence authentic is at least `“within
the zone of reasonable disagreement,”’ a reviewing court should not
interfere. Tienda, 358 S.W.3d at 638 (quoting Montgomery,
810 S.W.2d at 391).
Murray v. State,
supra.
The Court of Appeals then began its analysis of this issue,
explaining, initially, that
[h[ere, the State proffered evidence of
Murray's Facebook account
by way of a `Certificate of Authenticity of Domestic Records of Regularly Conducted
Activity’ executed by Facebook’s Records Custodian. This Certificate of
Authenticity sufficiently complied with the requirements of self-authentication
outlined in Rule 902(10)(B), obviating the State's need to produce
extrinsic evidence to authenticate the properly admitted Facebook evidence.
Because the State satisfied the requirements of Rule 902(10), it presented
sufficient facts to support a reasonable jury determination that the Facebook evidence
proffered was authentic. Tienda, 358 S.W.3d at
638.
Murray contends the State failed to prove he
created and maintained the contents of the Facebook pages and
therefore did not properly authenticate the Facebook evidence
as required by Rule 901. The State is not required to conclusively
establish that the defendant authored the messages; rather, the State must
present prima facie evidence such that a reasonable jury could find the
defendant created the content of the Facebook pages. Id.at 642. Campbell v. State, 382 S.W.3d 545,
552-53 (Tex.App.-Austin 2012). The courts are mindful of today's electronic
world of cyber challenges where passwords can be compromised, computers can be
hacked and cell phones can be stolen, raising questions about the origin or
source of the information. See Tienda, 358 S.W.3d at 641. Because of
the wide array of `electronically generated, transmitted and/or stored
information, including information found on social networking web sites,’ the
most appropriate method of authenticating electronic evidence to determine
authorship will often depend upon the nature of the evidence and the
circumstances of the particular case. Id. at
638-39.
Murray v. State,
supra.
The opinion goes on to explain that in
Tienda, the appellant complained
the trial court erred in admitting into evidence the electronic content
obtained from MySpace, a social networking website, because the State failed to
prove he created and maintained the content of the MySpace pages. See id. at
637. The State's circumstantial evidence from the MySpace pages included photographs
of the appellant with visibly unique arm, body, and neck tattoos wearing
distinctive eyeglasses and an earring, reference to the deceased and music from
his funeral, references to appellant's gang and messages referring to a
shooting, a snitch, and the user having been on an ankle monitor for one year
along with a photograph of appellant displaying an ankle monitor sent from the
MySpace pages of `ron Mr. T’ or `MR. SMILEY FACE’ with an email address of
`ronnietiendajr@’. The Court of Criminal Appeals held the State produced ample
circumstantial evidence, when `taken as a whole with all of the individual,
particular details considered in combination’ to support a finding that the
MySpace pages not only belonged to appellant but were also created and
maintained by him. Tienda, 358 S.W.3d at 645.
Murray v. State,
supra.
The court then explains that in
this case, the State introduced
sufficient circumstantial evidence of photographs, comments, and private
messages from the Facebook account
to establish a prima facie case such that a reasonable jury could find Murray
created and maintained the contents of the Facebook account. Consistent with
C.J.'s testimony that Murray took photos of her and posted them on Facebook, photos of C.J. were posted
on the Facebook account
bearing the name `Allen Murray’. C.J. identified Murray as the other person in
one picture with her. The post relating to that photograph of C.J. reads `For
sale hmu’ and shows `August 24’ as the date of the post. In addition, the
following private exchange of messages between the account user and another
person, A.G., appeared on Murray's Facebook account
in the late hours of August 24, 2013, and the early hours of August 25, 2013:
[Murray]: Hmu girl for sale
A.G.: What?
....
[Murray]: I got a girl for sale u wanna
sample
.....
A.G.: Send me a pic
[Murray]: I put two up
A.G.: Where
[Murray]: On my status
A.G.: I see
We conclude the State presented
sufficient prima facie evidence to support a finding by a reasonable jury that
the exhibits were what they purported to be, that is, Facebook pages created by Murray.
For these reasons, the trial court's
admission of the Facebook evidence
was within the “zone of reasonable disagreement”, and the trial court did not
abuse its discretion by admitting the Facebook evidence. We overrule Murray's second issue on
appeal.
Murray v. State,
supra.
[I need to point out that the image which appears at the beginning of this post is, of course, not a contemporary image. It's the only image of the courthouse I could find that is in the public domain, presumably because apparently depicts the courthouse as it looked circa 1896-1907.]
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