IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0669-23
AARON RAYSHAN WELLS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
FINLEY, J., filed a concurring opinion in which PARKER, J., joined.
CONCURRING OPINION
I agree with the Court’s judgment today affirming the judgment of the
court of appeals below. I also join Judge Yeary’s opinion that explains why the
State’s geofence warrant was constitutional. Both Judge Yeary and the court
of appeals below assumed, without deciding, that law enforcement obtaining
cell phone location history data from Google was a “search” under the Fourth WELLS CONCURRENCE – 2
Amendment. Notwithstanding my joining Judge Yeary’s opinion today that
would uphold the constitutionality of the geofence warrant, I write separately
to explain that, in my view, we do not need to reach that issue: Law
enforcement did not conduct an unreasonable search under the Fourth
Amendment because Appellant did not have a reasonable expectation of
privacy in the information he voluntarily turned over to a third party.
I. Applicable Law
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. CONST. amend. IV. “A Fourth Amendment privacy interest
is infringed when the government physically intrudes on a constitutionally
protected area or when the government violates a person’s ‘reasonable
expectation of privacy.’” United States v. Smith, 110 F.4th 817, 830 (5th Cir.
2024) (quoting United States v. Jones, 565 U.S. 400, 406 (2012)). To determine
whether a “reasonable expectation of privacy exists,” Justice Harlan’s two-step
approach articulated in his concurring opinion in Katz v. United States, 389
U.S. 347 (1967), controls. See Jones, 565 U.S. at 406. A defendant must show
(1) that he had a subjective expectation of privacy; and (2) that his subjective
expectation of privacy is one that society recognizes, or is prepared to recognize,
as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). WELLS CONCURRENCE – 3
The Supreme Court of the United States has applied the reasonable
expectation of privacy test to electronic information in several cases. In United
States v. Knotts, 460 U.S. 276 (1983), for example, the Court held that the use
of “beeper” information to track a vehicle’s movements was not a Fourth
Amendment search. 460 U.S. at 281. The Court emphasized that the
movements of Knott’s vehicle and its final destination had been voluntarily
conveyed to anyone who wanted to look, and therefore he could not assert a
privacy interest in the information obtained. Id. Three decades later, the Court
decided United States v. Jones, 565 U.S. 400 (2012). There, the Court addressed
whether the remote monitoring of a vehicle’s movements via an attached GPS
tracking device for twenty-eight days violated a person’s legitimate expectation
of privacy. 565 U.S. at 402–04. Applying a physical-trespass theory (instead of
Katz’s expectation-of-privacy analysis), a majority of the Court said yes. Id. at
410–11.
Other cases are equally instructive. In United States v. Miller, 425 U.S.
435 (1976), the Court held that the government did not conduct a search when
it obtained an individual’s bank records from his bank, since he voluntarily
exposed those records to the bank in the ordinary course of business. 425 U.S.
at 443. Finally, in Smith, the Court held that the government did not conduct
a search when it used a pen register to record outgoing phone numbers dialed WELLS CONCURRENCE – 4
from a person’s telephone, because he voluntarily conveyed those numbers to
his phone company when placing calls. 442 U.S. at 742.
Then came Carpenter v. United States, 585 U.S. 296 (2018). In Carpenter,
the Court addressed whether a person has a legitimate expectation of privacy
in historical cell-site location information (CSLI) records. Id. at 303. The Court
concluded that the defendant had a reasonable expectation of privacy in his
historical CSLI, and the government violated the Fourth Amendment when it
searched the location records without a warrant supported by probable cause.
Id. at 316–17. Critically, the Court emphasized that the defendant had not
voluntarily turned over his CSLI to a cell phone provider as understood in
Miller and Smith. Id. at 309.
This Court has addressed CSLI in several cases. Sims v. State, 569
S.W.3d 634 (Tex. Crim. App. 2019), was the first time, and this Court held that
an individual “did not have a legitimate expectation of privacy in his physical
movements or his location as reflected in the less than three hours of real-time
CSLI records accessed by police by pinging his phone less than five times.” 569
S.W.3d at 646. A year later, in Holder v. State, 595 S.W.3d 691 (Tex. Crim.
App. 2020), this Court held that accessing “23 days” of CSLI violated Article I,
Section 9 of the Texas Constitution. 595 S.W.3d at 704. Prior to Carpenter, this
Court also addressed searches of CSLI records in Ford v. State, 477 S.W.3d 321 WELLS CONCURRENCE – 5
(Tex. Crim. App. 2015), and Love v. State, 543 S.W.3d 835 (Tex. Crim. App.
2016). 1 0F
Turning to Google’s location history data, in United States v. Chatrie,
107 F.4th 319 (4th Cir. 2024), the Fourth Circuit held that the government “did
not conduct a search when it obtained [the location history] data” of an
individual. 107 F.4th at 332. The Fourth Circuit first distinguished location
history data from CSLI, noting that location history data is not an “all-
encompassing record of whereabouts,” rather, the information is “far less
revealing” and limited to a “single, brief trip.” Id. at 330. Next, the Fourth
Circuit noted that the appellant “voluntarily exposed his location information
to Google” and did so knowingly, having been warned of the consequences when
he opted into Google’s services. Id. at 331. Thus, the Fourth Circuit concluded
that the third-party doctrine governed the case, so the appellant could not
claim a reasonable expectation of privacy in the information voluntarily
exposed to Google. Id.
The Fifth Circuit soon after disagreed. In United States v. Smith, 110
F.4th 817 (5th Cir. 2024), the Fifth Circuit held that geofence warrants “are
general warrants categorically prohibited by the Fourth Amendment.” 110
1 Both cases upheld multi-day searches of CSLI but were likely abrogated by this
Court’s decision in Holder because both were decided pre-Carpenter. WELLS CONCURRENCE – 6
F.4th at 838. The Fifth Circuit rejected Chatrie and held that “geofence location
data is invasive for Fourth Amendment purposes.” Id. at 834. For the Fifth
Circuit, the question was whether location history data “ha[d] the capability of
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0669-23
AARON RAYSHAN WELLS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
FINLEY, J., filed a concurring opinion in which PARKER, J., joined.
CONCURRING OPINION
I agree with the Court’s judgment today affirming the judgment of the
court of appeals below. I also join Judge Yeary’s opinion that explains why the
State’s geofence warrant was constitutional. Both Judge Yeary and the court
of appeals below assumed, without deciding, that law enforcement obtaining
cell phone location history data from Google was a “search” under the Fourth WELLS CONCURRENCE – 2
Amendment. Notwithstanding my joining Judge Yeary’s opinion today that
would uphold the constitutionality of the geofence warrant, I write separately
to explain that, in my view, we do not need to reach that issue: Law
enforcement did not conduct an unreasonable search under the Fourth
Amendment because Appellant did not have a reasonable expectation of
privacy in the information he voluntarily turned over to a third party.
I. Applicable Law
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. CONST. amend. IV. “A Fourth Amendment privacy interest
is infringed when the government physically intrudes on a constitutionally
protected area or when the government violates a person’s ‘reasonable
expectation of privacy.’” United States v. Smith, 110 F.4th 817, 830 (5th Cir.
2024) (quoting United States v. Jones, 565 U.S. 400, 406 (2012)). To determine
whether a “reasonable expectation of privacy exists,” Justice Harlan’s two-step
approach articulated in his concurring opinion in Katz v. United States, 389
U.S. 347 (1967), controls. See Jones, 565 U.S. at 406. A defendant must show
(1) that he had a subjective expectation of privacy; and (2) that his subjective
expectation of privacy is one that society recognizes, or is prepared to recognize,
as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). WELLS CONCURRENCE – 3
The Supreme Court of the United States has applied the reasonable
expectation of privacy test to electronic information in several cases. In United
States v. Knotts, 460 U.S. 276 (1983), for example, the Court held that the use
of “beeper” information to track a vehicle’s movements was not a Fourth
Amendment search. 460 U.S. at 281. The Court emphasized that the
movements of Knott’s vehicle and its final destination had been voluntarily
conveyed to anyone who wanted to look, and therefore he could not assert a
privacy interest in the information obtained. Id. Three decades later, the Court
decided United States v. Jones, 565 U.S. 400 (2012). There, the Court addressed
whether the remote monitoring of a vehicle’s movements via an attached GPS
tracking device for twenty-eight days violated a person’s legitimate expectation
of privacy. 565 U.S. at 402–04. Applying a physical-trespass theory (instead of
Katz’s expectation-of-privacy analysis), a majority of the Court said yes. Id. at
410–11.
Other cases are equally instructive. In United States v. Miller, 425 U.S.
435 (1976), the Court held that the government did not conduct a search when
it obtained an individual’s bank records from his bank, since he voluntarily
exposed those records to the bank in the ordinary course of business. 425 U.S.
at 443. Finally, in Smith, the Court held that the government did not conduct
a search when it used a pen register to record outgoing phone numbers dialed WELLS CONCURRENCE – 4
from a person’s telephone, because he voluntarily conveyed those numbers to
his phone company when placing calls. 442 U.S. at 742.
Then came Carpenter v. United States, 585 U.S. 296 (2018). In Carpenter,
the Court addressed whether a person has a legitimate expectation of privacy
in historical cell-site location information (CSLI) records. Id. at 303. The Court
concluded that the defendant had a reasonable expectation of privacy in his
historical CSLI, and the government violated the Fourth Amendment when it
searched the location records without a warrant supported by probable cause.
Id. at 316–17. Critically, the Court emphasized that the defendant had not
voluntarily turned over his CSLI to a cell phone provider as understood in
Miller and Smith. Id. at 309.
This Court has addressed CSLI in several cases. Sims v. State, 569
S.W.3d 634 (Tex. Crim. App. 2019), was the first time, and this Court held that
an individual “did not have a legitimate expectation of privacy in his physical
movements or his location as reflected in the less than three hours of real-time
CSLI records accessed by police by pinging his phone less than five times.” 569
S.W.3d at 646. A year later, in Holder v. State, 595 S.W.3d 691 (Tex. Crim.
App. 2020), this Court held that accessing “23 days” of CSLI violated Article I,
Section 9 of the Texas Constitution. 595 S.W.3d at 704. Prior to Carpenter, this
Court also addressed searches of CSLI records in Ford v. State, 477 S.W.3d 321 WELLS CONCURRENCE – 5
(Tex. Crim. App. 2015), and Love v. State, 543 S.W.3d 835 (Tex. Crim. App.
2016). 1 0F
Turning to Google’s location history data, in United States v. Chatrie,
107 F.4th 319 (4th Cir. 2024), the Fourth Circuit held that the government “did
not conduct a search when it obtained [the location history] data” of an
individual. 107 F.4th at 332. The Fourth Circuit first distinguished location
history data from CSLI, noting that location history data is not an “all-
encompassing record of whereabouts,” rather, the information is “far less
revealing” and limited to a “single, brief trip.” Id. at 330. Next, the Fourth
Circuit noted that the appellant “voluntarily exposed his location information
to Google” and did so knowingly, having been warned of the consequences when
he opted into Google’s services. Id. at 331. Thus, the Fourth Circuit concluded
that the third-party doctrine governed the case, so the appellant could not
claim a reasonable expectation of privacy in the information voluntarily
exposed to Google. Id.
The Fifth Circuit soon after disagreed. In United States v. Smith, 110
F.4th 817 (5th Cir. 2024), the Fifth Circuit held that geofence warrants “are
general warrants categorically prohibited by the Fourth Amendment.” 110
1 Both cases upheld multi-day searches of CSLI but were likely abrogated by this
Court’s decision in Holder because both were decided pre-Carpenter. WELLS CONCURRENCE – 6
F.4th at 838. The Fifth Circuit rejected Chatrie and held that “geofence location
data is invasive for Fourth Amendment purposes.” Id. at 834. For the Fifth
Circuit, the question was whether location history data “ha[d] the capability of
revealing intimate, private details about a person’s life,” not whether the
search itself did. Id. at 834 n.8. The Fifth Circuit then held that the third-party
doctrine did not apply because, while an individual does “opt in” to the services,
the decision to opt in is “hardly informed and, in many instances, may not even
be voluntary.” Id. Concluding that a search had occurred, the Fifth Circuit then
held that geofence warrants were unconstitutional general warrants because
the actual database search (at Step 1 of the process), involved a search of the
entire Google repository—as the Fifth Circuit described it, “general,
exploratory rummaging.” Id. at 837. Nevertheless, applying the good-faith
exception to the exclusionary rule, the Fifth Circuit affirmed the district court’s
denial of the motion to suppress. Id. at 840. 2 1F
2 Assuming, arguendo, that the warrant in this case is invalid, the good faith exception applies here as well. Here, law enforcement was using cutting-edge technology that, prior to this investigation, was unknown to them. Further, at the time law enforcement obtained and executed the warrant, there was no authority— much less any published authority—on geofence warrants. And law enforcement acted reasonably and with prudence: They wrote the warrant as narrowly tailored, both geographically and temporally, as they could, and they sought an additional warrant for the personal identifying information after the first anonymized list was provided by Google. WELLS CONCURRENCE – 7
II. Analysis
a. Google’s Location History Data is not CSLI.
Carpenter described CSLI as “an all-encompassing record of the [device]
holder’s whereabouts,” that “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.” Carpenter, 585 U.S.
at 311 (citing Jones, 565 U.S. at 415) (internal quotations omitted). A cell phone
“tracks nearly exactly the movements of its owner . . . faithfully follow[ing] . . .
beyond public thoroughfares and into private residences, doctor’s offices,
political headquarters, and other potentially revealing locales.” Id. Since a
person has a reasonable expectation of privacy in the whole of their physical
movements, it follows that location information obtained from the tracker in
one’s pocket via wireless carriers was the product of a search.
But location history data is noticeably different. A geofence warrant
reveals no more than “an individual trip viewed in isolation.” Chatrie, 107
F.4th at 330 (quoting Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 342
(4th Cir. 2021) (en banc)). The information obtained is more akin to the short-
term public movements in Knotts, or the short-term CSLI records this Court
analyzed in Sims, rather than the records in Carpenter and Jones. I cannot say WELLS CONCURRENCE – 8
that Appellant had a legitimate expectation of privacy in his location records
for the limited timeframe the State sought in this case.
b. The information was voluntarily exposed.
As the Supreme Court correctly recognized in Carpenter, “[c]ell phone
location information is not truly ‘shared’ as one normally understands the
term.” 585 U.S. at 315. Importantly, “a cell phone logs a cell-site record by dint
of its operation, without any affirmative act on the part of the user beyond
powering up.” Id. “[A]part from disconnecting the phone from the network,
there is no way to avoid leaving behind a trail of location data.” Id. Thus, “in
no meaningful sense does the user voluntarily assume the risk of turning over
a comprehensive dossier of his physical movements.” Id. (citing Smith, 442
U.S. at 745).
Not so, here. As the record in this case makes clear, when a user does not
affirmatively turn on the location history settings, a mobile device’s location
will not be automatically saved. Appellant undertook affirmative steps on his
Android device to enable location sharing: He logged in to his Google account
on the device and opted in to the Location History services in the account’s
settings. He also had to click through several warning screens that admonished
him of the consequences of opting in. Those consequences included, as relevant
here, Google collecting and tracking Appellant’s location history and sharing WELLS CONCURRENCE – 9
that data with additional third-parties, inter alia, advertisers. 3 After providing 2F
consent to Google, Appellant still retained ultimate control over both his
settings (he could limit or disable Location History at any time), and the data
collected by Google (he could edit or delete any location history data through
his Timeline). At any time, Appellant had the ability to cease sharing his
location history information with Google and withdraw his consent for Google
to share that information with other third parties. Thus, Appellant voluntarily
exposed his location to Google. The Fourth Circuit in Chatrie put it best: “If
Google compiles a record of [a user’s] whereabouts, it is only because he has
authorized Google to do so.” 107 F.4th at 331. I cannot say that Appellant had
a reasonable expectation of privacy in information he voluntarily turned over
to a third party.
III. Conclusion
I agree with the Court’s judgment to affirm the judgment of the court of
appeals. I only write separately to express my view that Appellant did not have
3 See State’s Pretrial Exh. 7, at 17 (“Advertising: Google processes information, including online identifiers and information about your interactions with advertisements, to provide advertising. This keeps Google’s services and many of the websites and services you use free of charge. You can control what information we use to show you ads by visiting your ad settings.”); see also Chatrie, 107 F.4th at 322 (“But Google uses and benefits from a user opting in, too—mostly in the form of advertising revenue. Google uses Location History to show businesses whether people who viewed an advertisement visited their stores. It similarly allows businesses to send targeted advertisements to people in their stores' proximity.”) WELLS CONCURRENCE – 10
a reasonable expectation of privacy in information that he voluntarily turned
over to Google. Law enforcement did not need a warrant to obtain that
information. With these thoughts, I join the Court’s judgment.
Filed: April 2, 2025 Publish