Wiltz, Jerry

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 2020
• Docket: PD-0253-20
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NOS. PD-0252-20 & PD-0253-20

JERRY WILTZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

WALKER, J., filed a dissenting opinion.

DISSENTING OPINION

In his petition for discretionary review, Appellant argues that the court of appeals erred in

holding that he abandoned his cell phone by fleeing the scene of a traffic stop and thus lacked

standing to challenge the warrantless search of his cell phone and its contents. This Court has yet

to determine the parameters in which a person’s actions constitute intentional abandonment of his

cell phone for purposes of the Fourth Amendment. Given the importance of this rapidly evolving

issue to Fourth Amendment jurisprudence, I believe this Court should grant review to decide

whether the evidence in this case establishes that Appellant intentionally abandoned his cell phone

and the contents within it. In the absence of full review, I cannot agree with the court of appeals 2

that Appellant evinced an intent to abandon his cell phone and its contents merely by fleeing the

scene. Therefore, I respectfully dissent from the Court’s denial of Appellant’s petition for

discretionary review.

I — Background

While on beat patrol at about 4 a.m. June 15, 2016, Harris County Sheriff’s Deputy Jose

Castellanos initiated a traffic stop of a Chevy Tahoe for failure to stop at a designated point.

Appellant, the driver, pulled into a public parking lot and stopped without parking in a parking

space. Castellanos approached the vehicle and detected the smell of marijuana, at which point he

asked Appellant to exit the vehicle so he could handcuff and detain him. Castellanos then attempted

to detain the passenger in Appellant’s vehicle but was instead led on a foot chase when the

passenger fled. As Castellanos took off after the passenger, Appellant—hands cuffed—ran from

the parking lot.

After a short pursuit, Castellanos apprehended the passenger, who had a gun. Castellanos

returned to the vehicle to discover Appellant was gone. After putting the passenger in his patrol

car, Castellanos began to inventory Appellant’s vehicle.

Castellanos recovered a gun, marijuana, and a cell phone located next to the driver’s seat.

Castellanos also recovered drug paraphernalia and sex toys, all of which were new and in the

original packaging. Castellanos proceeded to look through the contents of the cell phone. As he

did so, Castellanos opened text messages, emails, and the settings application. Searching the

phone, Castellanos found Appellant’s name along with the address of a sex shop that had recently

been robbed. Castellanos entered Appellant’s name into a reporting system, which led him to

positively identify Appellant. 3

Ultimately, police determined the unused, packaged items in Appellant’s vehicle were

stolen from one of two sex shops where employees had been robbed at gunpoint. Appellant—a

former employee of the adult store chain—was indicted for aggravated robbery of two retail stores.

Appellant filed a pre-trial motion to suppress all evidence from the cell phone. The trial

court agreed that the warrantless search of the cell phone could not be justified as a search incident

to arrest or an inventory search. However, the trial court determined that Appellant had abandoned

his cell phone and thus lacked standing to challenge the search. As trial neared, Appellant asked

the trial court to reconsider its suppression ruling and argued that the abandonment doctrine did

not apply because Appellant did not intentionally abandon his cell phone. 1 Following a hearing on

Appellant’s motion to reconsider, the trial court once again ruled that the abandonment doctrine

applied to the warrantless search of the cell phone and denied his motion. A jury found Appellant

guilty of aggravated robbery of both of the sex shops, and a judge sentenced him to ten years on

each count to be served concurrently.

On appeal, Appellant challenged the trial court’s denial of his motion to suppress. In

addition to arguing that he did not intentionally abandon his cell phone, Appellant contended that

the abandonment doctrine could not apply as an exception to a warrantless search of a cell phone

based on the United States Supreme Court decision in Riley v. California, 573 U.S. 373 (2014).

The court of appeals rejected Appellant’s arguments, determined that the abandonment doctrine

did apply to the cell phone, and affirmed Appellant’s convictions. Wiltz v. State, 595 S.W.3d 930,

936 (Tex. App.—Houston [14th Dist.] 2020).

1 At the time Appellant filed his motion to suppress in November 2017, the State had not yet obtained a search warrant for the cell phone. In April 2018, about a month before the motion to suppress hearing, the State obtained a search warrant to forensically examine the cell phone. Subsequently, in July 2018, Appellant filed a motion to reconsider the motion to suppress. 4

II — Abandonment Doctrine A person has no reasonable expectation of privacy in property he abandons. Matthews v.

State, 431 S.W.3d 596, 608 (Tex. Crim. App. 2014). Once a defendant voluntarily and

intentionally abandons property, he no longer has standing to challenge the reasonableness of the

search of the abandoned property. Id. at 608-09. Rather than being determined in the strict

property-right sense, the issue centers on whether the person relinquished his or her interest in the

property so that he or she could no longer retain a reasonable expectation of privacy with regard

to the property at the time of the search. State v. Martinez, 570 S.W.3d 278, 286 (Tex. Crim. App.

2019) (citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)).

Abandonment is primarily a question of intent to be inferred from words spoken, acts done,

and other objective facts and relevant circumstances. Id. “[A]bandonment consists of two

components: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide

to abandon the property.” 2 Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986) (op. on

reh’g). The abandonment “test does not begin with a presumption of abandonment which must be

rebutted by proof of an intent not to abandon.” Martinez, 570 S.W.3d at 286. Instead, affirmative

proof of abandonment is required. Id.

III — The evidence fails to show that Appellant intentionally abandoned his cell phone. While this Court has recognized that the abandonment doctrine may apply as an exception

to the warrantless search of a cell phone, State v. Granville, 423 S.W.3d 399, 409 (Tex. Crim. App.

2014), we have not specified the parameters in which a person’s actions equate to intentional

abandonment of a cell phone for purposes of the Fourth Amendment.

2 A person does not voluntarily abandon his cell phone if his relinquishment is the result of police misconduct. Comer, 754 S.W.2d at 658-59. Because there is no evidence of police misconduct in this case, the abandonment inquiry is one of intent. 5

In concluding that Appellant intentionally abandoned his vehicle and cell phone, the court

of appeals noted that “[t]he video shows appellant fleeing from the vehicle on foot after having

been handcuffed, passing by the wide-open door, leaving behind his vehicle and everything in it,

including the cell phone.” Wiltz, 595 S.W.3d at 935. While I agree that Appellant abandoned his

vehicle when he fled, 3 the same evidence, without more, does not demonstrate that Appellant

intended to abandon his cell phone and the information within it.

It is apparent that when Appellant fled, he knew his vehicle would be left behind and chose

to run anyway. Appellant did not return to his vehicle. By intentionally leaving his unparked

vehicle in a public parking lot, Appellant abandoned the vehicle “in such a way ‘that he could no

longer retain a reasonable expectation of privacy with regard to it at the time of the search.’”

Matthews, 431 S.W.3d at 609 (quoting McDuff, 939 S.W.2d at 616). If the question was whether

Appellant had standing to challenge the search of his vehicle, I would hold that he did not.

But what is not apparent from the record is whether Appellant knew the cell phone was in

his vehicle when he ran or whether he made a conscious decision to leave it behind. Based on the

facts before us, it would be speculative to conclude that Appellant knew his phone was in his

vehicle and intentionally left it behind when he fled just as it would be speculative to conclude that

he believed it was in his pocket when he ran. The record also is silent as to whether Appellant was

in possession or control of his cell phone at the time of the stop. As the Appellant suggested to the

trial court, it is possible that the passenger was using the phone and had control over it when the

traffic stop occurred. Again, reaching that conclusion would be speculative just as concluding that

Appellant was in control of his phone at the time of the stop would be speculative. There is no

evidence that would lead to an inference that Appellant intentionally abandoned the phone.

3 See Matthews, 431 S.W.3d at 610 (concluding that the defendant intentionally abandoned a borrowed vehicle when he fled from the police). 6

Both the trial court and the court of appeals found Edwards v. State, 497 S.W.3d 147 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d) instructive on the issue of whether Appellant

abandoned his cell phone for purposes of the Fourth Amendment. Although the court of appeals

in Edwards did hold that the defendant in that case abandoned his cell phone, the case is

distinguishable in several respects.

In Edwards, the defendant left his phone out in the open on top of a stolen vehicle he and

his co-defendants used as transportation to a game room where they attempted an armed robbery.

Id. at 154. Based on the facts available, it appears that Edwards left his cell phone on top of the

stolen vehicle before he approached the game room and got into a confrontation with the security

guard, which led to a shootout between the defendants and the security guard. Id. at 151–54.

Eventually, Edwards took off running without going back for his cell phone. Id. at 152.

There was an abundance of evidence that Edwards intentionally abandoned his cell phone

when he left it on top of the stolen vehicle out in the open before he attempted an armed robbery

and fled from the scene without going back for his cell phone. Based on these facts, it is clear that

Edwards relinquished any reasonable expectation of privacy with regard to his cell phone.

The facts of Appellant’s case differ substantially. The one similarity is that both Edwards

and Appellant fled from the scene. But while in Edwards there is affirmative evidence 4 to infer

that he knew he would be leaving his cell phone behind when he fled, the same cannot be said in

Appellant’s case.

In Edwards, the appellant placed his cell phone on top of a stolen car and then walked away

to commit a crime. Edwards’s act of getting out of a stolen vehicle and proceeding to the game

room lobby without his cell phone provided some affirmative evidence that Edwards intended to

4 See Martinez, 570 S.W.3d at 286 (explaining that “the test for abandonment in the Fourth Amendment context requires affirmative proof of abandonment”). 7

leave his cell phone behind. In Appellant’s case, there is no evidence that Appellant had the intent

to leave the cell phone behind. There is no evidence to even infer that Appellant thought about

whether he had the time or ability to retrieve the phone while having his hands cuffed behind his

back. Immediately after Castellanos took off after Appellant’s passenger, Appellant—who was

handcuffed and could not have accessed his cell phone even if he knew it was there—ran. Not only

is there no affirmative evidence that Appellant formed the intent to abandon his cell phone, the

record facts would lead to a logical conclusion that it was extremely unlikely that he did so.

Further, in Edwards police found a handprint located on the vehicle near the cell phone

that matched Edwards’s handprint. Edwards, 497 S.W.3d at 158, n. 14. Unlike in Appellant’s case,

this provided some evidence to infer that Edwards placed his phone on top of the car and therefore

knew he was leaving his cell phone behind. The fact that Edwards left his cell phone out in the

open and on top of a vehicle that did not belong to him or his co-defendants can also lead to an

inference that Edwards intended to abandon the cell phone at the time he placed it on top of the

car. See Martinez, 570 S.W.3d at 287 (explaining that “[n]ot only will privacy expectations vary

with the type of property involved ... but they will vary with the location of the property”) (quoting

United States v. Oswald, 783 F.2d 663, 666–67 (6th Cir. 1986)). Conversely, in Appellant’s case,

the cell phone was recovered from the inside of Appellant’s vehicle. For purposes of privacy

expectations, a person leaving his cell phone inside of his own vehicle is much different than a

person leaving his cell phone out in the open and on top of a stolen vehicle to go commit a robbery.

Unlike the present case, consideration of where Edwards left his cell phone is additional

affirmative evidence of his intent to abandon his cell phone.

Absent a showing of any affirmative evidence of Appellant’s intent to abandon his cell

phone, I cannot agree that Appellant did not have any reasonable expectation of privacy regarding 8

his cell phone and would hold that he did have standing to challenge the warrantless search of his

cell phone.

IV — The evidence fails to show that Appellant intentionally abandoned the contents of his cell phone.

Even if evidence existed that could lead to an inference that Appellant had intentionally

abandoned his cell phone by fleeing, there is no evidence that he intentionally abandoned the

information contained in his cell phone. There is a distinction between the privacy interests of a

cell phone as a physical object and the digital contents stored on a cell phone. This Court

recognized as much in Granville when we concluded police were permitted to inspect the physical

aspects of appellant’s cell phone in police custody but were required to obtain a warrant to search

the contents of the phone. Granville, 423 S.W.3d at 416; Id. at 426 (Keller, P.J., concurring).

In Granville, the defendant challenged the search of his cell phone seized while being

booked in jail. Shortly after Granville, a high school student, was booked, a school resource officer

was told that Granville had taken an inappropriate picture of another student in the boys’ bathroom.

The officer went to the jail, retrieved Granville’s cell phone from the property room, and looked

through it until he found the photograph. Id. at 402. In rejecting the State’s argument that Granville

did not have a reasonable expectation of privacy in any property in the custody of jail officials,

this Court distinguished the expectation of privacy in physical objects such as clothing from the

expectation of privacy in cell phones:

[C]lothing does not contain private banking or medical information and records; it does not contain highly personal emails, texts, photographs, videos, or access to a wide variety of other data about the individual citizen, his friends and family. Searching a person’s cell phone is like searching his home desk, computer, bank vault, and medicine cabinet all at once.

Id. at 415. See also Riley, 573 U.S. at 396 (“Indeed, a cell phone search would typically expose to

the government far more than the most exhaustive search of a house[.]”). 9

In Riley, the Supreme Court held a warrant was required to search a cell phone seized

incident to an arrest given the “quantitative and qualitative” differences between a cell phone and

other objects. Id. at 393, 403. In so holding, the Court rejected the Government’s argument that

information stored by cell phones is “materially indistinguishable” from searches of other physical

items that police are authorized to search incident to an arrest such as wallets, purses, and other

containers. Id. at 393. In the Court’s view, the Government’s argument was “like saying a ride on

horseback is materially indistinguishable from a flight to the moon.” Id.

Nor was the Supreme Court persuaded by the Government’s proposed rule that police be

permitted to conduct a limited search of a cell phone seized incident to an arrest “where an officer

reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety

will be discovered.” Id. at 399. The Supreme Court declined to hold as much based on the plethora

of information that would be swept up by such a rule and the inability for police to “discern in

advance what information would be found where.” Id.

The Court also was unpersuaded by the Government’s suggestion that a search of a cell

phone call log always be authorized. Id. at 400. In refusing to adopt such a rule, the Supreme Court

explained that “call logs typically contain more than just phone numbers; they include any

identifying information that an individual might add, such as the label ‘my house’ in [this] case.”

Id.

Although Riley involved the search incident to arrest doctrine rather than the abandonment

doctrine, the same privacy interests and governmental intrusion concerns expressed by the

Supreme Court apply to the contents of the cell phone in this case. While Castellanos may not have

done an extensive search of Appellant’s cell phone, the Riley Court made clear that any warrantless

search of a defendant’s cell phone, however minimal, is unreasonable absent express exigent

circumstances such as a concern for the safety of officers or others. Id. at 388, 399-400. 10

Given the heightened privacy interests associated with the information within a cell phone

as distinct from the privacy interests associated with a cell phone as a physical object and the lack

of any evidence that Appellant intentionally abandoned the contents of his cell phone, I would

hold that Appellant maintained a reasonable expectation of privacy in the contents of the cell phone

and thus had standing to challenge Castellanos’s warrantless search of the cell phone.

V – Conclusion

Application of Fourth Amendment principles to cell phones is an evolving area of

constitutional law that warrants further development. Both this Court and the Supreme Court have

recognized a person’s distinct privacy interests in his cell phone. Granting review in this case

would give the Court an opportunity to address the abandonment doctrine’s application to cell

phones and the vast amount of information stored on them. Without review, I cannot conclude that

the evidence in this case establishes that Appellant abandoned either his cell phone or the contents

within it, thereby losing any reasonable expectation of privacy regarding his cell phone and its

contents. Therefore, I respectfully dissent from the Court’s refusal to grant review.

FILED: October 21, 2020 PUBLISH