Opinion issued November 27, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00076-CR ——————————— MATTHEW D. HOWARD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1553508
OPINION
Matthew Howard was convicted in 2009 of sexual contact with a minor
under the age of sixteen, child pornography, and wrongfully impeding an
investigation. He was sentenced to 15 years’ confinement in a federal military
prison. In January 2017, Howard was released to supervised residency—akin to parole—at Leidel Halfway House, a federal residential re-entry facility. Leidel’s
residency rules prohibit the possession of unauthorized mobile phones and grant
staff the right to search residents’ personal “belongings.” After two months at
Leidel, during a random head count, Howard was found in possession of a
contraband mobile phone. Leidel staff confiscated the phone and did a “cursory
review” of its contents, where they found child pornography. The Federal Bureau
of Investigations and local law enforcement were contacted. Law enforcement
personnel requested search warrants at the federal and state levels, but the search
warrants were requested and issued only after federal and state law enforcement
personnel viewed the contents of the phone and confirmed it contained images of
child pornography. Howard was charged with possession of child pornography
under Texas state law.
Howard filed a motion to suppress evidence obtained from his phone. While
Howard conceded that the Leidel residency rules forbid him and other sex-offender
parolees from possessing internet-accessible mobile phones and that his phone
was, as a result, contraband, Howard argued that the search of his phone’s contents
violated his Fourth Amendment protections because it was performed before a
warrant issued and he did not otherwise consent to the search. Howard’s motion
was denied. He pleaded guilty and was sentenced to 10 years’ confinement. The
2 trial court certified his right to appeal the denial of his motion to suppress. In a
single issue, Howard contends that the trial court erred in denying his motion.
We affirm.
Warrantless Search of Parolee’s Contraband Mobile Phone
Howard contends that the trial court erred in denying his motion to suppress
because he had a privacy interest in the contents of his contraband mobile phone,
the Fourth Amendment protects that privacy interest, and the results of the
unconsented to, warrantless search should have been inadmissible in his criminal
proceeding.
A. Standard of review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). First, we afford “almost total deference” to the trial court’s determination of
historical facts and rulings on mixed questions of law and fact that depend on an
evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854
(Tex. Crim. App. 2012); Carmouche, 10 S.W.3d at 327; Sayers v. State, 433
S.W.3d 667, 673 (Tex. App.—Houston [1st Dist.] 2014, no pet.). 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.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000); Sayers, 433 S.W.3d at 673. The trial court may believe or disbelieve all or
3 part of the witnesses’ testimony. Ross, 32 S.W.3d at 855; Sayers, 433 S.W.3d at
673. Second, we review de novo the trial court’s rulings on questions of law and
mixed questions of law and fact that do not depend on an evaluation of credibility
and demeanor. Gonzales, 369 S.W.3d at 854; Carmouche, 10 S.W.3d at 327;
Sayers, 433 S.W.3d at 673.
When neither party requests findings of fact or conclusions of law, we imply
the necessary findings to support the trial court’s ruling, so long as the evidence
viewed in the light most favorable to the trial court’s ruling supports those
findings. Davila v. State, 441 S.W.3d 751, 756 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d). 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.”
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); see Sayers, 433
S.W.3d at 673.
B. Fourth Amendment protections for parolees
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV; see TEX. CONST. art. I, § 9. The “ultimate touchstone” of
the Fourth Amendment is the reasonableness of the search. Riley v. California, 134
4 S. Ct. 2473, 2482 (2014). Whether a person’s Fourth Amendment rights have been
compromised by a warrantless search of his possessions depends on whether, first,
the person had a subjective expectation of privacy in those belongings, and,
second, if so, whether that subjective expectation of privacy is one that society is
prepared to recognize as reasonable under the circumstances. Carpenter v. United
States, 138 S. Ct. 2206, 2213–14 (2018);1 see Love v. State, 543 S.W.3d 835, 840–
41 (Tex. Crim. App. 2016). The question here, then, is whether Howard, as a sex-
offender parolee in possession of a contraband mobile phone at a half-way house
that prohibited its possession, had a subjective expectation of privacy in his
phone’s contents, and whether society would regard that expectation as objectively
reasonable or justifiable under the circumstances. Carpenter, 138 S. Ct. at 2213.
The Supreme Court has addressed warrantless searches of probationers and
parolees. See United States v. Knights, 534 U.S. 112 (2001) (probationer); Samson
v. California, 547 U.S. 843 (2006) (parolee). In Knights, the Court upheld a
warrantless search of a probationer’s apartment because a condition of his
1 The Carpenter dissents argued that neither the history nor the text of the Fourth Amendment supports expanding constitutional protections to privacy-based, as opposed to property-based interests; instead, they argued, the Fourth Amendment protects the right of people to be secure in “their persons, houses, papers, and effects” against unreasonable searches and seizures. Carpenter v. United States, 138 S. Ct. 2206, 2235–36 (2018) (Thomas, J., dissenting) (quoting U.S. Const. amend. IV); see id. at 2226 (Kennedy, J., dissenting); Id. at 2247 (Alito, J., dissenting); Id. at 2264 (Gorsuch, J., dissenting). It is undisputed that this was Howard’s mobile phone and that he possessed the contraband phone while on parole and in violation of the rules of the half-way house where he resided. 5 probation was that he submit to warrantless searches without reasonable cause and,
under the facts, there was reasonable suspicion to conduct the search. 534 U.S. at
121–22. The Court stated, “Inherent in the very nature of probation is that
probationers do not enjoy the absolute liberty to which every citizen is entitled.”
Id. at 119 (internal quotation omitted). And courts “granting probation may impose
reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” Id.
The warrantless-search probation condition diminished the probationer’s
expectation of privacy in his apartment. Id. at 119–20. On the other hand, the State
had an interest in the probationer successfully completing probation and
integrating back into the community and an interest in addressing its justified
concern that probationers are more likely to engage in criminal conduct than
ordinary members of the community. Id. at 119.
Balancing the probationer’s diminished privacy interest against the State’s
legitimate governmental interests, the Court held that a standard less than probable
cause applied in the context of a warrantless search involving a probationer who is
subject to a warrantless-search probation condition. Id. at 121. In that context, the
Fourth Amendment requires only reasonable suspicion that the probationer is
engaged in criminal activity, and reasonable suspicion existed. Id.
6 The Court addressed the privacy interests of parolees in Samson and
concluded that “parolees have fewer expectations of privacy than probationers”
because “parole is more akin to imprisonment than probation is to imprisonment.”
547 U.S. at 850. In Samson, a parolee was stopped as he walked down the street,
searched without a warrant, and found to be in possession of drugs. Id. at 846–47.
A condition of his parole was that he submit to warrantless searches without cause.
Id. Again, the Court applied a balancing test, considering the parolee’s diminished
privacy interest and the legitimate governmental interests. Id. at 848. The Court
recognized an “overwhelming” governmental interest in supervising parolees
because they are more likely to commit future criminal offenses, have a high
recidivism rate, and therefore require close supervision. See id. at 853.
Balancing the parolee’s diminished privacy interest against the strong
governmental interests, the Court held that the Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search of a parolee who is
subject to a warrantless- and suspicionless-search parole condition. See id. at 857;
see also State v. Villarreal, 475 S.W.3d 784, 802, 812 (Tex. Crim. App. 2014)
(rejecting argument that Samson presented issue of waiver of constitutional rights
and recognizing, instead, that holding was based on general Fourth Amendment
totality-of-the-circumstances analysis weighing privacy interests against
governmental interests).
7 Howard also is a parolee. He seeks to distinguish the search of his mobile
phone from Samson in two regards. First, Leidel notified him only that any
unauthorized mobile phone would be confiscated and that he would be disciplined
if he violated the phone policy, not that his phone would be searched without a
valid warrant. Second, a recent Supreme Court case has recognized a privacy
interest in the contents of personal mobile phones that is greater than the privacy
interest held in other personal possessions. See Riley, 134 S. Ct. at 2488–91
(holding that incident-to-arrest exception to Fourth Amendment does not authorize
warrantless search of contents of mobile phone seized during person’s lawful
arrest). Howard argues that parolee-search cases like Samson must be read in light
of the protections later recognized in Riley for personal information stored on
mobile phones. We consider both arguments below.
1. Parole conditions and privacy expectations
Howard was subject to two different release conditions: (1) those imposed
by the Department of Justice upon his release from federal military prison and
(2) his half-way house’s residency rules and conditions. He argues that his release
conditions were less intrusive than in Samson and other parolee-search cases.
a. Federal release conditions
Howard’s Department of Justice certificate of mandatory supervision was
prepared pursuant to the Department of Justice regulation governing mandatory
8 supervision of a released military prisoner. 28 C.F.R. § 2.35(d). That regulation
states that an individual released under its provision “shall be deemed to be
released as if on parole, and shall be subject to the conditions of release at § 2.40.”
Id.
Section 2.40, in turn, incorporates general conditions of release that apply to
all released individuals. See id. § 2.40(a)(1) (“All persons on supervision must
follow the conditions of release described in § 2.204(a)(3) through (6).”). The
general conditions do not include a global authorization of warrantless searches but
do require that released individuals allow supervising officers to “seize any item
that the officer reasonably believes is an item you are prohibited from possessing
(for example, an illegal drug or a weapon), and that is in plain view in your
possession, including in your home, workplace or vehicle.” Id. § 2.204(a)(4)(iv).
Section 2.40 also states that special conditions of release may be imposed,
depending on the circumstances involved. See id. § 2.40(b). Examples of available
special conditions are listed in Section 2.204. Id. § 2.204(b)(2). One special
condition is a requirement that released individuals “permit a supervision officer to
conduct a search of your person, or of any building, vehicle or other area under
your control, at such time as that supervision officer decides, and to seize any
prohibited items the officer, or a person assisting the officer, may find.” Id.
§ 2.204(b)(2)(iv).
9 Howard’s certificate of mandatory supervision contains a seizure condition
but no search condition. Condition Twelve requires that Howard “shall permit
confiscation by [his] Probation Officer of any materials which [his] Probation
Officer believes may constitute contraband in [his] possession and which [his]
Probation Officer observes in plain view in [his] residence, place of business or
occupation, vehicle(s) or on [his] person.” There is no general authorization to
search confiscated contraband. Nor is there a specific authorization to search the
digital content of a confiscated electronic device, such as a mobile phone, or, as
may arise in other scenarios, a digital camera, computer, or USB drive.
Thus, Howard’s federal release conditions did not notify him that a
condition of his parole was a requirement that he submit to a suspicionless search.
Samson is distinguishable in this regard because the Samson parolee had been
notified, as a condition of his parole, that he was subject to suspicionless searches,
and that notice was held to have diminished his expectation of privacy. See 547
U.S. at 857; see also 7A Michael J. McCormick et al., Texas Practice: Criminal
Forms and Trial Manual § 90.22 n.1 (11th ed. 2018) (“Fourth Amendment does
not prohibit a police officer from conducting a suspicionless search of a parolee.
California law requires each parolee to agree in writing to such searches.”) (citing
Samson, 547 U.S. 843).
10 Because Howard did not have such a search condition placed on his release
from federal military prison, his conditions of release do not bring the facts of his
search squarely within Samson. We consider next whether Leidel’s policies—the
focus of Howard’s argument—affect the level of privacy a sex-offender parolee
resident, like Howard, might expect with regard to the content of a contraband
mobile phone.
b. Leidel’s conditions
Howard asserts that Leidel’s rules authorize only the confiscation of
contraband phones and not the warrantless search of their contents and, therefore,
do not diminish his expectation of privacy in the contents of his mobile phone.
Leidel’s intake packet, signed by Howard, contains a section addressing
communication devices, which states that mobile phones are not allowed unless
authorized by Leidel and affixed with a Leidel-supplied approval tag. But not
every type of mobile phone is subject to approval: for a resident to obtain
authorization to possess a mobile phone, the phone must have only basic call and
text features and cannot have advanced features, like a camera, recording device,
or internet access, that could be used to obtain sexually explicit material.
The intake packet further informs residents that those who abuse a granted
privilege of possessing a phone may have their privileges revoked. The intake
11 packet notifies residents that possession of an unauthorized mobile phone will
result in two actions:
1) the item(s) will be confiscated and either held until [the resident’s] release or disposed of per the Leidel SCS guidelines.2
2) Disciplinary action will be taken.
Later, the intake packet elaborates that possession of an unauthorized mobile
phone will result in confiscation, an incident report, and possible sanctions,
including removal from Leidel House.
While we agree that these Leidel forms—like the conditions of release
discussed above—do not specifically authorize a search of confiscated materials,
they are not the only applicable provisions. A different section of the intake packet
concerns “search and seizure” policies. It authorizes staff, in general terms, to
“search any resident, resident’s belongings, or resident’s cubicle at any time.”
Belongings are a category of possessions. See Belonging, WEBSTER’S NEW
WORLD COLLEGE DICTIONARY (5th ed. 2014) (defining belonging as “possessions;
property”); Belongings, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining
belongings as “personal property; effects”). But they are more personal in nature
than other categories of possessions. See Possessions, Belongings, Effects,
GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011) (distinguishing belongings
from possessions and effects by stating that the term belongings “suggests items
2 The Leidel SCS guidelines are not in the record. 12 more closely associated with the owner or the owner’s sentiments, including not
only clothes and toiletries but also family albums, valuable keepsakes, and the
like”).
As a textual interpretation matter, it is evident that a mobile phone is a
belonging, just like a photo album, camera, book, and magazine—any of which
could contain pornography and would be subject to search under Leidel’s
residency rules. But Howard argues that the Supreme Court’s recent holding in
Riley distinguishes mobile phones from other personal belongings and recognizes a
greater expectation of privacy in mobile phone content, as a constitutional matter,
even if it falls within the generally understood meaning of the term belongings.
134 S. Ct. at 2488–89 (“Modern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search of a cigarette pack, a wallet, or
a purse.”).
2. Mobile phone privacy as discussed in Riley
The era of personal mobile phones has given rise to questions about the
scope of Fourth Amendment protection afforded phone owners when interacting
with law enforcement. In 2014, the Supreme Court addressed a warrantless search
of a mobile phone incident to a lawful arrest. Riley, 134 S. Ct. at 2488–91. The
Court described mobile phones as “minicomputers that . . . could just as easily be
called cameras, video players, rolodexes, calendars, tape records, libraries, diaries,
13 albums, televisions, maps, or newspapers” and noted that mobile phones are
capable of storing large amounts of data and revealing personal and intimate
matters such as internet search histories, contact lists, inclinations to use certain
“apps,” and other private information. Id. at 2489–90.
The Court distinguished a search of the contents of an arrestee’s mobile
phone from the search of the contents of an arrestee’s pocket based on the
abundance of personal information citizens keep on their mobile phones and their
strong privacy interest in that stored material. Id. at 2488–91 (distinguishing
United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467 (1973)); see State v.
Granville, 423 S.W.3d 399, 415–17 (Tex. Crim. App. 2014) (distinguishing mobile
phones from other personal items and stating that “searching a person’s cell phone
is like searching his home desk, computer, bank vault, and medicine cabinet all at
once”).
Acknowledging that mobile phones “differ in both a quantitative and a
qualitative sense from other objects that might be kept on an arrestee’s person,” the
Court held that the incident-to-arrest exception to the Fourth Amendment’s warrant
requirement does not authorize the warrantless search of the contents of a person’s
mobile phone seized during the person’s lawful arrest. Riley, 134 S. Ct. at 2489.
For the State to lawfully search a person’s mobile phone seized during the person’s
lawful arrest without first obtaining a warrant, the State would have to successfully
14 argue the application of another Fourth Amendment exception, such as the
exigency of the circumstances. See id. at 2488–91. Otherwise, a warrant is
required. Id.
While the holding in Riley does not directly apply here because Howard’s
phone was not searched incident to his arrest, Howard argues that the holding
limits the scope of Samson and other cases discussing the diminished privacy
interests of parolees. The question, then, is whether Leidel’s written policies,
which notified Howard that any unauthorized mobile phone is subject to
confiscation and that his “belongings” are subject to search while within the
half-way house’s premises, sufficiently diminished any expectation of privacy to
permit a warrantless search of the contents of the parolee’s contraband mobile
phone, even after Riley.
C. Search did not violate Fourth Amendment
Parolees have limited expectations of privacy, Samson, 547 U.S. at 850,
which are even more diminished while inside a half-way house that has express
rules limiting parolee residents’ activities and possessions and subjecting them to
warrantless searches of their belongings.
While at Leidel and subject to those restrictions, Howard was knowingly in
possession of a contraband phone. Not only did Howard possess a phone for which
he had not sought approval, his type of phone was banned due to its internet-
15 accessible features. The offending features were the same features that made the
phone usable as a source of sexually explicit material, which Howard, as a sex-
offender parolee, was prohibited from possessing. Leidel staff reasonably could
have believed that a contraband phone, in this context, would, itself, contain
contraband material, such as prohibited pornographic images.
We recognize that Riley distinguished the contents of a person’s mobile
phone from the contents of non-digital personal possessions. But Riley was decided
in the limited context of the search-incident-to-arrest exception and does not have
rote application in all other Fourth Amendment contexts. See United States v.
Dahl, 64 F. Supp. 3d 659, 664–65 (E.D. Pa. 2014) (rejecting argument that Riley
supersedes Knights if reasonable suspicion exists to search probationer’s mobile
phone). Not every context presents the same level of privacy expectations.
In our view, the context in which this search occurred greatly diminishes the
privacy interest Howard held in the content of his mobile phone. See Riley, 134 S.
Ct. at 2482, 2488–91 (noting that “ultimate touchstone” of Fourth Amendment is
reasonableness). Howard is not an arrestee in lawful possession of a personal
mobile phone. Cf. Granville, 423 S.W.3d at 417 (concluding that detained high
school student charged with misdemeanor offense continued to have legitimate
expectation of privacy in contents of his mobile phone temporarily being stored for
safekeeping in jail property room, such that search of phone hours later by school
16 resource officer who suspected that phone contained inappropriate images
unrelated to basis for arrest violated student’s Fourth Amendment rights). Nor is he
a probationer in lawful possession of a mobile phone. Cf. United States v. Lara,
815 F3d 605, 610 (9th Cir. 2016).
Howard, instead, is a sex-offense parolee living in a half-way house who,
under the express terms of his release, was not allowed to possess pornography,
was not allowed to possess an unauthorized phone, and could not have obtained
authorization for any phone with features that would allow access to pornography.
Howard knew that he was in possession of a contraband mobile phone in violation
of multiple residency rules and that Leidel’s rules made his belongings subject to
search.
While in possession of a contraband electronic storage device, like an
advanced mobile phone or computer, a probationer or parolee has a reduced
expectation of privacy. See Wisconsin v. Purtell, 851 N.W.2d 417, 427 (Wis. 2014)
(stating that probationer’s privacy interest in contents of computer is undercut
when computer is, itself, contraband); cf. United States v. Boyce, No. 2014-00029,
2015 WL 856943, at *5–6 (D. V.I. Feb. 26, 2015) (mem. op.) (noting that
prisoners have even weaker privacy interests than probationers and parolees and
concluding that prisoners have no reasonable expectation of privacy in contraband
mobile phone); United States v. Savala, No. 13cr4514–BEN, 2015 WL 468352, at
17 *1 (S.D. Cal. Feb. 3, 2015) (order) (same). Howard’s residency conditions
“significantly diminished” his “reasonable expectations of privacy” in his
contraband phone. Knights, 534 U.S. at 119–20.
Howard’s diminished expectation of privacy must be balanced against the
State’s legitimate interest in supervising parolees and guarding against their
possession of layered contraband—contraband pornography hidden within a
contraband mobile phone.
The parties have not directed us to any Texas cases that have balanced
similar interests, and we have found none. But we note that at least one federal
court has held that a warrantless search of an unauthorized mobile phone belonging
to a sex-crime offender residing in a supervised-release facility did not violate the
Fourth Amendment because that individual did not have a reasonable expectation
of privacy in the content of his contraband phone given the rules against its
possession, the resident’s notice of a general right to search, and the governmental
interests involved. United States v. Jackson, 866 F.3d 982 (8th Cir. 2017); see
United States v. Huart, 735 F.3d 972 (7th Cir. 2013) (holding similarly but in
context of half-way house with explicit rule that mobile phones, specifically, are
subject to search of their contents by staff at any time).
By knowingly possessing a contraband phone in violation of his residency
rules—given the facility’s stated and known policy that residents’ belongings are
18 subject to search—we conclude that Howard could not have reasonably held an
expectation of privacy in the contents of his contraband phone. Moreover, we
conclude that, under an objective standard, and in light of the likelihood of layered
contraband (i.e., contraband within contraband), society would be unwilling to
recognize that a sexual-offense parolee who is living in a half-way house that
forbids the possession of internet-accessible phones and pornography has an
expectation of privacy in the contents of a contraband phone. Therefore, the trial
court did not err in denying Howard’s motion to suppress evidence obtained from
his contraband mobile phone without a warrant.
Our holding does not erode the privacy interests recognized in Riley: the
reasonable expectation of privacy of this parolee in this locale is too small, the
legitimate governmental interests are too great, and the context in which this search
occurred is too narrow.3 See Dahl, 64 F. Supp. 3d at 664 (stating that allowing
search of mobile phone contents in possession of individual with limited
expectations of privacy “does not open the floodgates to massive invasions of
privacy without judicial oversight.”).
3 To recap, this case involves a warrantless search of a mobile phone found within the half-way house’s premises, without an authorization tag affixed to it, in the possession of a sex-offender parolee who did not obtain any mobile phone pre-clearance, when the phone visually appeared to be the type of phone capable of accessing the internet in direct violation of the half-way house’s residency policies, and the parolee was informed that his belongings were subject to search. 19 Conclusion
Harvey Brown Justice
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Publish. TEX. R. APP. P. 47.2(b).