Attorney: Warrants not required in TX for cell-phone location data

Dallas defense attorney Michael Lowe had a probative, recent blog post on a topic much-discussed in this venue titled, "Texas police can get your phone records from phone company without a warrant: Ford v. State" (Sept. 3). A particularly notable point mentioned that, before Ford v. State:

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get ... location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.

Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf

Perhaps the misunderstanding Mr. Lowe describes explains the bizarre confusion demonstrated at the recent Texas Senate State Affairs Committee regarding how to interpret Art. 18.21 of the Code of Criminal Procedure. If Lowe is right that many in law enforcement believed before Ford that a warrant was required, that might explain Houston PDs position. But prosecutors from Harris and Bexar counties must have known about Ford and a similar recent case out of the 14th Court of Appeals (Barfield v. State). And the portions of the statute courts are interpreting did not change with the new language from last session on cloud-based content.

Grits will readily grant the statute on its face is unclear - its plain language offers police a range of options for getting this information, from an administrative subpoena to a full-blown warrant. (In Barfield, police used a subpoena to access location data; in Ford, police obtained a court order using a lesser standard than a probable cause warrant.) But as Mr. Lowe pointed out, case law leaves no ambiguity: At the moment, unless the Legislature changes the law in 2015, no warrant is required in Texas for the government to access cell-phone location data.

MORE: See additional coverage from the Houston Press of last week's State Affairs hearing and law enforcement's strange stance on whether warrants are required for location data.

many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf