In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00119-CR __________________
BRENDA AMAZE UHUNMWANGHO, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR33117 __________________________________________________________________
MEMORANDUM OPINION
Appellant Brenda Amaze Uhunmwangho appeals the trial court’s denial of
her motions to suppress. In a single issue, she argues that Carpenter v. United States,
138 S. Ct. 2206 (2018) applies to this case, and she contends the State’s warrantless
search of a database of stored photos of license plates taken by license plate reader
cameras on Highway 59 violated her Fourth Amendment rights. We affirm.
1 Background
A grand jury indicted Uhunmwangho for money laundering in an amount of
$150,000 or more but less than $300,000, with an allegation of a prior felony
conviction. According to the officers who testified at the suppression hearings,
Uhunmwangho was initially stopped for speeding on Highway 59, the police
questioned Uhunmwangho and learned from her that she had just traveled to and
from Memphis, Tennessee, and she showed signs of nervousness, and gave the
officers inconsistent information, and the Officers asked her for permission to search
her vehicle and she consented to the search. 1 The police also ran her license plate
through the license plate reader database and obtained a photograph of her license
plate. After searching her vehicle, a large amount of cash was discovered hidden in
a secret compartment of Uhunmwangho’s vehicle.
In Uhunmwangho’s first motion to suppress she argued that the traffic stop
that resulted in her arrest was not supported by a warrant or probable cause, that her
detention after the police discovered she had no outstanding warrants was
unconstitutional, and that her vehicle was illegally searched without a warrant. The
court held a hearing on the initial motion to suppress and denied the motion.
1 Uhunmwangho argued in her first motion to suppress that she did not consent to the search, but she does not make this argument on appeal. 2 Uhunmwangho filed a second motion to suppress and an amended second motion to
suppress, restating her original arguments, and also arguing that law enforcement’s
use of license plate reader cameras is an unconstitutional violation of privacy. The
trial court held another hearing on the second and amended second motion and
denied the motion. Thereafter, the United States Supreme Court issued its opinion
in Carpenter v. United States, in which the Court held that CSLI (cell-site location
information) records carry an expectation of privacy and the Fourth Amendment
requires that law enforcement must generally obtain a search warrant supported by
probable cause for CSLI associated with a history of the user’s physical location.
See 138 S. Ct. at 2221. Uhunmwangho filed a motion for reconsideration requesting
that the trial court reconsider its ruling in light of Carpenter, and the trial court
denied the motion to reconsider. Uhunmwangho then pleaded guilty, and the trial
court sentenced her to ten years’ imprisonment suspended for eight years of
community supervision. This appeal followed.
On appeal, Uhunmwangho argues in a single issue that the trial court erred in
denying her motions to suppress and that “the use of the license plate reader was a
search” that was done without a warrant and without exigent circumstances.
According to Uhunmwangho, while she was being questioned after the initial traffic
stop, the officer “had no reasonable suspicion of any criminal activity being afoot[.]”
3 Uhunmwangho argues that because the officer lacked reasonable suspicion, he
searched the license plate reader information to see when Uhunmwangho’s car had
passed through the area. Uhunmwangho argues that the photos taken by the license
plate reader cameras “give[] rise to location at a particular time much like the cell
tower gave location information in Carpenter[]” and that “people maintain a
legitimate expectation of privacy in the record of their physical movement.”
The State responds that Uhunmwangho failed to establish that she had an
expectation of privacy in her movements while driving on public roads. The State
further argues that because a police officer’s observation of a license plate that is
viewable on a public street would not constitute a search, then the use of a license
plate reader to “enhance” an officer’s observation should not cause the observation
to become a search for the purposes of the Fourth Amendment.
First Suppression Hearing
Testimony of Deputy Timothy Niemeyer
Deputy Niemeyer testified that on June 7, 2016, he stopped Uhunmwangho
after he observed her vehicle on Highway 59 appear to be speeding—an assessment
that he based on numerous traffic stops he had conducted and his experience
observing vehicles traveling at a speed that he thought were speeding that he later
confirmed by radar. According to Niemeyer, his radar confirmed that
4 Uhunmwangho was traveling at a speed of seventy-one miles an hour, and the speed
limit in the area was sixty-five miles an hour. After activating his lights, he pulled
Uhunmwangho over for speeding, but he agreed he did not give Uhunmwangho a
ticket for speeding. Niemeyer identified State’s Exhibit 1 as a video recording made
from his vehicle’s in-dash or in-car camera and that the recording was an accurate
depiction of events that day, and State’s Exhibit 1 was played. Niemeyer testified
that the traffic offense of speeding occurred before the video started.
After the stop, Uhunmwangho produced her driver’s license to Niemeyer and
Niemeyer observed luggage sitting in the second row of the vehicle, which he
regarded as “a little suspicious[.]” After a few minutes, Deputy Fasolino arrived at
the scene, and Niemeyer showed Uhunmwangho’s driver’s license to Fasolino to
conduct an in-car computer check on the validity of her license and whether there
are any “wants or warrants.” Niemeyer agreed that Uhunmwangho told him she had
gone to Tennessee for three or four days but testified that Uhunmwangho later denied
that she had been to Memphis for three to four days and told Niemeyer that she had
driven to Memphis that morning. Niemeyer testified that, in his experience working
in interdiction, Memphis is sometimes “a destination city for contraband[,]” Houston
is “known as a hub for narcotics[]” and “a source destination city for drugs to go to
5 from Houston[,]” and a typical route from Houston to Memphis would be Highway
59.
At one point during the playback of the video, Niemeyer explained that a
clicking sound was the mouse for his in-car computer, and he testified that he was
“accessing the license plate readers that we have in Liberty County on U.S. 59 [that]
capture license plates [and] the reader with cameras [] documents the time it crossed
and the date that it crossed.” According to Niemeyer, he accessed information from
the license plate readers “through the company’s Web site where the information is
stored.” Niemeyer testified that
we have two license plates readers, one for the northbound lanes and one for the southbound lanes. The northbound lane reader is located on U.S. 59 northbound I would say right around the 105 turnaround where you turn around to go back south to take 105.
Niemeyer testified that the northbound license plate readers had observed
Uhunmwangho’s license plate earlier that morning. State’s Exhibit 2 was admitted
into evidence, which Niemeyer agreed was a true and accurate depiction of what he
saw when he checked license plate information for Uhunmwangho’s vehicle. Exhibit
2 was titled “LEARN Detection Record Detail” and the report also portrayed the
names “Law Enforcement Archival & Reporting Network” and “Vigilant[.]”
Niemeyer testified that the license plate reader reported that Uhunmwangho’s
vehicle crossed the area at 1:00 a.m. on June 7, 2016, and that he made the traffic 6 stop about 9:00 p.m. the same day. Niemeyer agreed that at that point he believed
that something other than a speeding violation had occurred.
Niemeyer testified that dispatch provided vehicle information for the license
plate, and Niemeyer also requested criminal history information. Niemeyer agreed
that the inquiry determined Uhunmwangho was “clear of warrants[.]” According to
Niemeyer, Uhunmwangho was “very nervous” when he was speaking with her, she
rubbed her face, and she “was breathing very hard, breathing very fast.” Based on
his training and experience, he regarded Uhunmwangho’s rubbing her face, playing
with her hair, and muscle twitches as signs of stress. Niemeyer also agreed that, by
the time he got the results from the license plate reader, he believed that
Uhunmwangho had told him something that was not true.
According to the deputy, Uhunmwangho told him “You can go ahead and
search the vehicle[]” and at no time did she ever withdraw her consent. Niemeyer
testified that neither he nor Deputy Fasolino exhibited any force, threat, or coercion
against Uhunmwangho. Niemeyer testified that during the search of
Uhunmwangho’s vehicle, he found: “[f]ive large gallon size zip lock bags containing
a large amount of U.S. currency [] contained in a hidden aftermarket compartment
that was built into the vehicle.” The officers seized the money and the vehicle, and
Niemeyer took photos of the vehicle and the money. Niemeyer testified that at that
7 point, Uhunmwangho was detained for suspicion of being involved in criminal
activity.
Testimony of Deputy Stefan Fasolino
Stefan Fasolino, an officer with the Galveston Police Department, testified
that on June 7, 2016, he was a deputy with the Liberty County Sheriff’s Office and
he had worked in criminal interdiction. Fasolino testified that he rode with Sergeant
Niemeyer that day in the same vehicle. According to Fasolino a “quick turn-around
trip” from one place to another with a short stay before returning is a “clue” that
some criminal activity was going on.
Fasolino testified that Niemeyer stopped Uhunmwangho for speeding. As the
video in State’s Exhibit 1 was played, Fasolino identified a point where Niemeyer
handed him Uhunmwangho’s driver’s license, and Fasolino testified he then went to
the patrol vehicle to check the computer. According to Fasolino, the TCIC and NCIC
systems did not show any warrants for Uhunmwangho, and the driver’s license
appeared to be valid. Fasolino also identified a point in the video where Niemeyer
“was going over the plate scans[]” on the computer in his vehicle. At another point
in the video, Fasolino explained that he could hear Uhunmwangho say “You can
search the vehicle.” Fasolino denied exhibiting any force or coercion or drawing his
8 weapon, pepper spray, or handcuffs, and he testified that Uhunmwangho never
withdrew her consent.
The trial court asked the prosecutor when during the events captured on the
video on State’s Exhibit 1 were the results of the license plate readers obtained, and
Deputy Fasolino explained that at about four-and-a-half to five minutes into the
video Deputy Niemeyer obtained the license plate reader results. Fasolino also
agreed that at about four minutes into the video, he had received information from
TCIC and NCIC that Uhunmwangho did not have any warrants and her license was
valid. According to Fasolino, Niemeyer had asked dispatch to run Uhunmwangho’s
license plate prior to pulling Uhunmwangho over, and he obtained the results of the
license plate reader cameras after pulling Uhunmwangho over.
The trial court denied the motion to suppress and added:
If there is an issue to be addressed in this case, that issue may be the license plate reader itself and the manner of its use by law enforcement and the extent to which it may violate a fundamental constitutional right; that is, to travel about the United States freely without suspicion . . . .
Second Suppression Hearing
At the hearing on Uhunmwangho’s second motion to suppress, defense
counsel stated the issue was whether “the license plate reader that the county has on
Highway 59 in the Cleveland area is a violation of the Fourth Amendment right of
privacy.” According to the defense, the police used the license plate readers 9 unconstitutionally and would not have been able to get a warrant because the officer
“wouldn’t have been able to state specifically what crime had taken place[,]” and the
use of the license plate readers was a “fishing expedition.” Defense counsel agreed
it was not revisiting whether there was probable cause for the initial detention.
Testimony of Officer Paul Young
Officer Paul Young testified that on June 7, 2016, the Liberty County Sheriff’s
Department owned and operated two license place readers in the county. According
to Young, the readers attempt to take a photo of every license plate that passes
through the reader’s location, then the photos are saved of the vehicle and license
plate, and then sent to Vigilant Solutions, and law enforcement has access to the
stored information. Young testified that typically the plate readers “show[] a pattern
sometimes of where the vehicle goes to and travels” and the data is used for recovery
of stolen vehicles, warrants, Amber alerts, missing persons, and interdiction. Young
further testified that some tow trucks have plate readers. According to Young, the
information stored in the Vigilant system is accessed through the internet using pass
codes.
On cross-examination, Young testified that no notice is posted on Highway
59 about the cameras and that travelers do not consent to their use nor contract with
Vigilant. According to Young, the only information stored is a photograph of the
10 vehicle and license plate, and the system does not store names or addresses. Young
testified that when a person is pulled over, the officer can run the driver’s license
through the state system, but the Vigilant system is a different system, although the
Vigilant system is “tied to the DPS state system[]” and can provide an alert if a
vehicle has been reported stolen. Young agreed it is not against the law for a person
to lie about where they have traveled.
In announcing its ruling from the bench, the court stated that the State’s use
of license plate readers was troubling, but the court denied the motion and stated:
. . . The question is [whether] it [is] constitutionally incorrect to engage in this practice. I cannot equate any right of privacy in and to a license plate. It is no different than an officer taking a photograph of an individual to show that an individual was at a particular location. That does not involve a constitutional invasion of rights of privacy because anything you display to the public at large is subject to being photographed. The problem would come in[,] in my opinion[,] in the use of this data. If law enforcement used this data solely to support a reasonable suspicion for the initial detention, then I think we may have a serious issue to be argued about. We don’t have that in this case because reasonable suspicion was supported and found in the last hearing, and that is exceeding the speed limit. I don’t see a Fourth Amendment issue, and I don’t see a constitutional issue. Had it been that the argument being that the data and how law enforcement used this data rather than acquiring this data, we may have a different situation. Law enforcement did not rely solely on this data to justify the initial detention of your client.
11 Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
We review the trial court’s factual findings for an abuse of discretion but review the
trial court’s application of the law to the facts de novo. Turrubiate v. State, 399
S.W.3d 147, 150 (Tex. Crim. App. 2013).
At a suppression hearing, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony, and a trial
court may choose to believe or disbelieve all or any part of a witness’s testimony.
Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.
App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999));
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial
court’s ruling, the appellate court does not engage in its own factual review. St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total
deference to the trial court’s determination of historical facts, “especially if those are
based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d
43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s
conclusions with respect to mixed questions of law and fact that turn on credibility
or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We
12 review purely legal questions de novo as well as mixed questions of law and fact
that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404,
410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.
When, as here, there are no findings of fact and none were requested, an
appellate court must presume that the trial court implicitly resolved all issues of
historical fact and witness credibility in the light most favorable to its ultimate ruling.
State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d
at 857). We will uphold the trial court’s ruling if it is reasonably supported by the
record and is correct on any theory of law applicable to the case. State v. Story, 445
S.W.3d 729, 732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-
63 (Tex. Crim. App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006).
Traffic stops require an officer to have a reasonable suspicion that the person
detained is, has been, or will soon engage in criminal activity. Jaganathan v. State,
479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Crockett v. State, 803 S.W.2d 308,
311 (Tex. Crim. App. 1991). The standard is whether, based on facts articulated by
the officer and the totality of the circumstances, an objectively reasonable officer
would have developed suspicion that an offense was in progress or had occurred.
See Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d)
13 (citing Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)). We review
de novo “whether the totality of [the] circumstances is sufficient to support an
officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d at 48-49.
Expectation of Privacy
“Whether society is willing to recognize a particular set of circumstances as
involving a reasonable expectation of privacy has always been treated as a question
of law by the United States Supreme Court.” Villarreal v. State, 935 S.W.2d 134,
146 (Tex. Crim. App. 1996) (Keller, J., concurring). “[A]n accused has standing to
challenge the admission of evidence obtained by an ‘unlawful’ search or seizure only
if he had a legitimate expectation of privacy in the place invaded.” State v. Betts,
397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (citing Rakas v. Illinois, 439 U.S. 128,
139 (1978)). Because she has greater access to relevant evidence, a defendant who
challenges a search has the burden of proving facts establishing a legitimate
expectation of privacy. Villarreal, 935 S.W.2d at 138.
Under the privacy-based model of the Fourth Amendment set forth by Katz v.
United States, a person has standing to contest a search when the person has a
legitimate expectation of privacy in the space being invaded by government agents.
See 389 U.S. 347, 350-51 (1967); see also Rakas, 439 U.S. at 149; Granados v.
State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). A defendant has the burden
14 to prove that a legitimate expectation of privacy existed, and must do so by
demonstrating that (1) by her conduct, she exhibited an actual intention to preserve
something as private, and (2) this subjective expectation of privacy is one that
society is prepared to recognize as reasonable. State v. Granville, 423 S.W.3d 399,
418 (Tex. Crim. App. 2014) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979);
Oles v. State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999)). Factors courts use in
deciding whether a person has a reasonable expectation of privacy in the place or
object searched include: (1) whether the defendant had a proprietary or possessory
interest in the place or object searched; (2) whether the defendant’s presence in or
on the place searched was legitimate; (3) whether the defendant had a right to
exclude others from the place or object; (4) whether the defendant took normal
precautions, prior to the search, which are customarily taken to protect privacy in
the place or object; (5) whether the place or object searched was put to a private use;
(6) whether the defendant’s claim of privacy is consistent with historical notion of
privacy. See id. at 407-08 (citing Granados, 85 S.W.3d at 223).
Analysis
The officers testified that two license plate reader cameras on Highway 59 in
Liberty County took photographs of vehicles’ license plates, that the images were
stored by Vigilant Solutions, and that law enforcement could access the photographs
15 by use of log-in pass codes. In this case, Officer Niemeyer’s search of the Vigilant
Solutions database yielded a photograph of Uhunmwangho’s vehicle taken at about
1:00 a.m. in the morning on June 7, 2016, and Uhunmwangho was stopped for
speeding at about 9:00 p.m. on June 7. Uhunmwangho argues that the search of the
third-party Vigilant Solutions database violated her Fourth Amendment rights
because “people maintain a legitimate expectation of privacy in the record of their
physical movement.” Therefore, she must demonstrate that she has an expectation
of privacy in the photographs of her license plate that were stored in the Vigilant
Solutions database.
A car’s license plate is exposed to public view. The license plate displayed on
a vehicle while traveling on a public roadway is not typically an area where a person
has a reasonable expectation of privacy, and we conclude that taking a picture of a
license plate displayed on a vehicle that is traveling on a public road would not be
subject to Fourth Amendment protection nor would it constitute a search. See Katz,
389 U.S. at 351; Michalec v. State, No. 03-11-00104-CR, 2013 Tex. App. LEXIS
6431, at **10-11 (Tex. App.—Austin May 24, 2013, no pet.) (mem. op., not
designated for publication) (citing Wood v. State, 632 S.W.2d 734, 741-42 (Tex.
Crim. App. 1982); Turner v. State, No. 05-99-01246-CR, 2000 Tex. App. LEXIS
7746, at *2 (Tex. App.—Dallas Nov. 15, 2000, no pet.) (mem. op., not designated
16 for publication)). On this record, we cannot say that Uhunmwangho has
demonstrated any conduct by her that exhibited “an actual intention to preserve [] as
private[]” a photograph of her vehicle and its license plate taken while she was
driving on Highway 59. See Granville, 423 S.W.3d at 418.
Uhunmwangho does not challenge the license plate reader taking a picture of
her license plate on the public highway, but she argues that a warrant was required
for a search of the license plate photo database because the license plate readers in
this case, like the cell-phone location data in Carpenter, store data that then produces
a record of her location and that is something in which she has a privacy interest. In
Carpenter, the defendant was charged with six counts of robbery and six counts of
carrying a firearm during a federal crime of violence. See 138 S. Ct. at 2212. Among
the evidence prosecutors obtained from the cell phone carrier by subpoena were
“12,898 location points” from Carpenter’s cell phone records that catalogued
Carpenter’s movements. See id. From this evidence, the FBI produced a map that
placed Carpenter’s phone near four of the charged robberies. See id. at 2212-13. The
Supreme Court held that the Government’s acquisition of the cell-site records was a
search within the meaning of the Fourth Amendment for which a warrant supported
by probable cause was required. See id. at 2220-21. The Court explained:
Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS 17 information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” ... A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.
Id. at 2217-18 (citing Riley v. California, 573 U.S. 373, 403 (2014); Katz, 389 U.S.
at 415). The Court concluded that the retrospective quality of cell phone location
data creates the ability to reconstruct a person’s movements and possibly results in
“tireless and absolute surveillance.” Id. at 2218.
By contrast, the Court explained, “‘[a] car has little capacity for escaping
public scrutiny.’” Id. (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality
opinion)). “What a person knowingly exposes to the public . . . is not a subject of
Fourth Amendment protection.” Katz, 389 U.S. at 351. In Chaney v. City of Albany,
No. 6:16-CV-1185, 2019 U.S. Dist. LEXIS 143055 (N.D.N.Y. Aug. 16, 2019), the
trial court faced a Fourth Amendment challenge concerning fixed license plate
readers that recorded twenty-four hours a day. Id. at **21-22. Chaney alleged that
the use of cameras throughout the city operated like a tracking device, which resulted
in a “‘massive invasion of [his] privacy.’” Id. The New York federal court noted that
18 courts have consistently upheld the use of license plate readers and similar
technology by law enforcement agencies. Id. at **22-23.2 The court explained:
Because the purpose of a license plate is to readily facilitate the identification of the registered owner of the vehicle for the administration of public safety, a person has no reasonable expectation of privacy in the information acquired by the State for this purpose and contained in a law enforcement or DMV database.
Id. at *23 (quoting People v. Bushey, 29 N.Y.3d 158, 163 (2017)). The New York
federal court noted that the fixed cameras “indiscriminately recorded 24-hours a day,
without any particular focus on specific individuals,” and because Chaney had no
reasonable expectation of privacy in his license plate information while traveling on
public roads, no Fourth Amendment violation had occurred. Id. at **25-26.
A Vigilant Solutions license plate reader system was also challenged in United
States v. Yang, No. 2:16-cr-231-RFB, 2018 U.S. Dist. LEXIS 11967 (D. Nev. Jan.
25, 2018). In that case, the license plate readers were mounted on tow trucks,
2 See, e.g., United States v. Miranda-Sotolongo, 827 F.3d 663, 668 (7th Cir. 2016) (“Because the police conducted a check of a database containing only non- private information and did so using only registration information that could be seen by any member of the public, the police did not conduct a Fourth Amendment search.”); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (stating that “when police officers see a license plate in plain view, and then use that plate to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search.”); United States v. Ellison, 462 F.3d 557, 563 (6th Cir. 2006) (“Thus, so long as the officer had a right to be in a position to observe the defendant’s license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment”). 19 vehicles used by repossession companies, and law enforcement vehicles that drove
around the city. Id. at **4-5. The Nevada federal district court explained:
The observations of license plate locations noted in the [Vigilant] database do not rely upon invasive technology allowing law enforcement officers to essentially peer into the private property of individuals. The [Vigilant] database relies upon random observations of license plates by digital cameras placed on tow trucks or other vehicles for repossession companies and on some law enforcement vehicles. The digital cameras capture images of license plates when the vehicle with a mounted camera drives past or near another vehicle with a license plate. The program is not designed to and does not track an individual’s movements or an individual automobile’s movements continuously or even regularly. The program does not permit a law enforcement client to direct that a vehicle with a [Vigilant] digital camera follow and continuously record the location of a particular automobile. The [Vigilant] database can but does not regularly provide contemporaneous location information.
[][T]he Court finds that the technology associated with the digital camera for [Vigilant] does not permit advanced or invasive surveillance of individuals or individual automobiles. The [Vigilant] digital cameras do not have the capability of capturing images through solid barriers such as walls erected to protect the privacy of personal property or individual movements. The technology does not have the capability of taking photos of license plates from a significant distance—that is beyond two to three standard lanes of a street. The cameras cannot be readily or easily manipulated while the vehicle upon which the camera is mounted is moving.
[][T]here is no evidence in this case to suggest that law enforcement officers used the [Vigilant] database to regularly or continuously monitor the movements of Yang[.] ... [T]he Court does not find that there was any form of “electronic trespass” that might implicate a reasonable expectation of privacy. The location information in this case was not generated by Yang 20 electronically or digitally surrendering private or confidential information to a third-party working in cooperation with law enforcement. The location information for the [vehicle] was not identified by use of any invasive digital technology regarding its whereabouts or those of Yang. The location information was obtained through random observation(s) recorded on public streets.
Id. at **15-16, 18-19. The Nevada federal district court concluded that the officers
had not used an invasive vehicle location tracking technology for which a warrant
was required. Id. at **14-15.
On this record, we cannot say that the trial court erred in concluding that
Uhunmwangho failed to demonstrate that she had a privacy interest in the retrieval
of the data and a photograph of Uhunmwangho’s license plate and vehicle when it
was traveling on Highway 59. The trial court did not err in concluding that no
warrant was required. 3 We find Carpenter factually distinguishable. Carpenter
involved a search of the information generated by Carpenter’s personal cell phone
over a lengthy period of time that was then used to reconstruct Carpenter’s
movements and location. Here, the police stopped Uhunmwangho for speeding and
visually observed the license plate on her vehicle, and then the police ran her license
3 Uhunmwangho did not make a trespass argument nor does she assert any challenge under the Texas Constitution or under any other provision of the United States Constitution. Cf. United States v. Jones, 565 U.S. 400, 404-05 (2012) (a plurality of the Supreme Court ruled that the physical attachment of a GPS tracking device on Jones’s automobile was a trespass, and an unconstitutional search). 21 plate in the license plate reader database and retrieved a single photograph taken
while Uhunmwangho was driving on a public roadway. Therefore, we find
Carpenter factually distinguishable. 4
That said, even assuming without deciding that Uhunmwangho had a privacy
interest in the photograph retrieved from the license plate reader, Uhunmwangho
herself told Niemeyer that she had driven to Memphis that morning. Niemeyer
testified that he stopped Uhunmwangho for speeding, that Uhunmwangho displayed
signs of nervousness, and that Uhunmwangho initially lied about her trip. Based on
his experience working in interdiction, Niemeyer had suspicions because
Uhunmwangho had indicated she just returned from Memphis, which he testified is
“a destination city for contraband[.]” Uhunmwangho then consented to the search of
her vehicle, and she does not challenge the search of her vehicle in this appeal. A
traffic violation committed in an officer’s presence is sufficient to authorize an initial
traffic stop. See Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). And
consent to search is one of the well-established exceptions to the constitutional
4 See also Sims v. State, 569 S.W.3d 634, 645-46 (Tex. Crim. App. 2019) (examining Carpenter and concluding that appellant did not have a reasonable expectation of privacy in his physical movements or location as reflected in less than three hours of real-time CSLI records the police accessed by pinging appellant’s phone fewer than five times) (citing Carpenter v. United States, 138 S. Ct. 2206, 2014-2021 (2018)). 22 requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App.
2011); Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010).
On this record, we cannot say the trial court erred in concluding that no Fourth
Amendment violation occurred and that, based on the totality of the circumstances,
the officers had reasonable suspicion based on articulable facts that would
reasonably lead them to conclude that Uhunmwangho was, had been, or would soon
be engaged in criminal activity. See Ford, 158 S.W.3d at 492-93.
We overrule Uhunmwangho’s issue and affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on February 25, 2020 Opinion Delivered March 25, 2020 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.