Jessica Robertson, Volume 50 Articles Editor
JUDGE RICHARDSON DELIVERED THE OPINION FOR A UNANIMOUS COURT.
The issue in this case is whether call logs and cell site information possessed by a third party are afforded broader protection under Art. I, § 9 of the Texas Constitution than under the Fourth Amendment. The Court of Criminal Appeals held that the rights under both are the same and the State’s acquisition of such information does not violate either provision.
In Hankston v. State, Hankston’s counsel argued that the State violated Hankston’s rights under both the Fourth Amendment and Art. I, § 9 of the Texas Constitution when it obtained cell phone records of Hankston without a warrant in relation to a murder Hankston was subsequently charged with. The Court of Appeals overruled both challenges. On petition for review, counsel for Hankston claims that Richardson v. State justifies the principle that the Texas Constitution offers greater protection than the U.S. Constitution in regards to records from third parties because this Court rejected the third-party doctrine, thus a person has an expectation of privacy in the numbers they dial under Art. I, § 9.
The Court here refused to acknowledge the cited precedent of Hankston’s counsel based on the overwhelming reasoning previously employed in equating the protection under the Fourth Amendment and Art. I, § 9 concerning search and seizures. In both Ford v. State and Love v. State this Court confirmed that call logs and cell phone records are not constitutionally protected. Individuals do not have privacy rights to numbers dialed on their cell phones. Accordingly, the Court declined to follow Robinson and found that the records under these facts were not protected under either constitutional provision. The Court found further, as a consequence of rejecting Richardson that the third-party doctrine does apply to the voluntarily conveyed cell phone records in this case.
Hankston v. State, No. PD-0887-15 (Tex. Crim. Apr. 12, 2017).