TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI. It is information kept by the phone provider and voluntarily disclosed to it by the use of the cell phone. Ford v. State, 2014 Tex. App. LEXIS 9159 (Tex. App. – San Antonio August 20, 2014):
Relying on and concurring with the Fifth Circuit’s analysis, the Fourteenth Court of Appeals recently held a defendant’s reasonable expectation of privacy under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) and its progeny was not violated when the State obtained cell tower records from a third party without a warrant. See Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In Barfield, the State offered third-party cell tower records obtained without a warrant to establish [*33] the defendant’s whereabouts during times relevant to the crime — just as the State did in this case. See id. at 745. According to the Fourteenth Court of Appeals, this action did not violate the defendant’s Fourth Amendment rights because if “an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.” Id. at 748 (quoting In re U.S. for Historical Cell Site Data, 724 F.3d at 610); Reporters Comm. For Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043, 192 U.S. App. D.C. 376 (D.C. Cir. 1978). Furthermore, the fortuity of whether or not the third party, acting at its own discretion, chooses to store the information makes no constitutional difference. Barfield, 416 S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724 F.3d at 610); Smith v. Maryland, 442 U.S. 735, 745, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)). Essentially, once an individual voluntarily exposes information to a third party, it can be used for any purpose, such as conveying it to law enforcement authorities. Barfield, 416 S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724 F.3d at 610); S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984) (“[W]hen a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”)); see also United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
Applying the precedent above, Ford cannot successfully complain about the State’s warrantless retrieval of the AT&T records. The cell site data acquired by the State is simply the business records memorializing Ford’s voluntary subscriber transaction with AT&T for the service he wanted from his cellular provider all along, i.e. the ability to transmit and receive data on AT&T’s network of cell towers. See Barfield, 416 S.W.3d at 748. The fact that this data happens to reveal the general location of Ford’s cell phone, and presumably himself, at given points in historical time is of no consequence to the legal analysis here. Accordingly, we overrule this issue and hold the State’s actions did not violate Ford’s Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party. See id. at 746-48.
. . . .
Unlike the Supreme Court’s decision in Smith, the Richardson decision does not concern an individual’s protection under the Fourth Amendment; rather, the Court of Criminal Appeals was determining whether the use of a pen register constitutes a “search” under Article I, section 9 of the Texas Constitution. See Richardson, 865 S.W.2d at 953. After examining Smith, the court stated “society recognizes as objectively reasonable the expectation of the telephone customer that the numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of the world.” Id. However, this proclamation is regarding the Texas Constitution, as opposed to the Fourth Amendment of the United States Constitution that Ford is invoking here. Accordingly, we reject Ford’s argument.
In addition to his argument based on Richardson, Ford also attacks the third-party disclosure theory on the ground that he did not voluntarily disclose his location information to AT&T, which cases like Smith require for a forfeiture of protected privacy interests. See Smith, 442 U.S. at 743-44 (noting “[t]his Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (emphasis added)). In support of this argument, Ford directs the court to authority for the proposition that an individual placing or receiving a call on a cell phone has not voluntarily exposed their location information. See United States v. Davis, 754 F.3d 1205, 2014 WL 2599917 at *10 (11th Cir. 2014); In re App. of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t., 620 F.3d 304, 317 (3d Cir. 2010); In re App. of the U.S. for an Order Auth. the Release of Hist. Cell-Site Info., 809 F.Supp.2d 113, 127 (E.D.N.Y. 2011). The Fifth Circuit, responding to the same argument raised by the ACLU in U.S. for Historical Cell Site Data, rejected Ford’s position outright. See 724 F.3d at 612-13. We agree with the Fifth Circuit’s conclusion.
The Fifth Circuit emphasized that a cell phone user generally understands: (1) their cell phone must send a signal to a nearby cell tower in order to wirelessly connect their call; (2) if their cell phone cannot pick up a signal, they are out of range of their service provider’s tower network; and (3) if too many customers in the same area attempt to make calls at the same time, the call may not go through because the network’s local towers are overloaded with traffic. Id. at 613; Barfield, 416 S.W.3d at 748. Accordingly, a cell phone user knows that in order to receive service the provider will have to know which tower their phone is connecting to. In re U.S. for Historical Cell Site Data, 724 F.3d at 613; Barfield, 416 S.W.3d at 748.
This information — AT&T’s records of which towers Ford’s phone connected with to receive cellular service — was what the State used to determine his phone’s approximate location at certain times on the night Edwards was murdered. Ultimately, Ford voluntarily decided to obtain a cell phone, chose AT&T as a service provider, and availed himself of the benefits of its network of cell towers. See Barfield, 416 S.W.3d at 748-49. Accordingly, we overrule this issue and hold Ford voluntarily disclosed the location of his cell phone through cell site data to a third party. See id.; In re U.S. for Historical Cell Site Data, 724 F.3d at 614.
Admittedly, unlike the situation in the Fifth Circuit case, where the user data included affirmative activity like placing calls, Ford’s incriminating evidence was determined from records of passive activity on his cell phone. However, this is a distinction without a functional difference. Ford still voluntarily availed himself of AT&T’s cellular service, which includes the ability to receive data sent to a subscriber’s phone, when he chose it as his provider.
