Texas Court of Appeals finds no expectation of privacy in real time location information based on short duration of search.

In this murder case, the main issue on appeal was whether a motion to suppress evidence should have been granted where law enforcement retrieved real-time location information by “pinging” his cell phone without a warrant. The police used this information to locate and arrest the defendant. When they found him, they found at his motel room several hundred .22-caliber bullets, six knives, a white towel with a blood stain, a Beretta 9mm, and two boxes of 9mm bullets.

The Court first ruled that neither the federal Stored Communications Act nor the Texas Code of Criminal Procedure contained a suppression remedy for the Defendant.

Regarding the constitutional issue, the trial court found exigent circumstances excused the lack of a warrant. Analyzing the Carpenter decision on appeal, the Appellate Court here decided that, although Carpenter was a historical CSLI case rather than a real-time case, that the same logic from Carpenter applied here. However, because this is a case where there were less than five pings over a three hour period, the Defendant had no expectation of privacy in this data.

The case is Sims v. State, 2019 Tex. Crim. App. LEXIS 41, 2019 WL 208631 (TX Ct. App.) January 16, 2019.

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