Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 30, 2017
Appeal from the 6th District Court Lamar County, Texas Trial
Court No. 26338
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III, Chief Justice
in the afternoon of December 18, 2014, the body of Annie Sims
was discovered on the back porch of her Powderly, Texas, home
with a bullet in her head. Missing were Annie's live-in
grandson, Christian Vernon Sims (Sims), his girlfriend,
Ashley Morrison, Annie's vehicle, and Annie's purse,
its contents including credit cards and at least one handgun.
Officers suspected that the missing couple caused Annie's
death and had taken the missing items from Annie's house.
The officers' investigation was assisted by Sims'
grandfather and Annie's husband, Mike Sims, as well as
Sims' father, Matt.
and Morrison were identified as having charged on Annie's
credit card in McAlester, Oklahoma, shortly before the
discovery of Annie's body. Starting around 5:00 p.m. that
evening and without a warrant, officers had Sims' mobile
carrier "ping" or track Sims' cellular
telephoneby using information from cell towers along
a highway in Oklahoma, Sims' northerly path of travel.
Using the tracking data, officers learned, first, that
Sims' cell phone was somewhere on that northbound
highway, north of McAlester, and, later, at a Sapulpa,
Oklahoma, truck stop located further north along the same
highway. Oklahoma officers soon located Annie's vehicle
in the parking lot of a motel across the highway from the
truck stop. Armed with the license number from the vehicle,
officers learned from the motel desk clerk that Sims and
Morrison had rented room 275 in that motel. From that room,
both suspects were arrested peacefully at approximately 8:25
p.m. At the motel, without being questioned, Sims told
officers, among other things, "[Morrison] had nothing to
do with it. It was all me."
the denial of Sims' various motions to suppress evidence,
he and the State entered into a plea agreement, under which
Sims pled guilty to Annie's murder and was sentenced to
thirty-five years' imprisonment. Having retained the
right to appeal the denial of his motions to suppress and
urging that at least one of his motions was erroneously
denied, making Sims' plea of guilty allegedly
involuntary, Sims appeals in three points of error. In the
first two points, Sims claims that evidence discovered as a
result of the warrantless "pinging" of his cellular
telephone should have been suppressed because it both
constituted a constitutionally unreasonable search and
violated state and federal statutes. In his third point, Sims
argues that the trial court should have also suppressed
evidence discovered from the later, warrant-based, searches
of his cellular telephone and Facebook account because the
warrant affidavits were insufficient. Sims posits that,
because he pled guilty only after his various motions to
suppress had been denied, his conviction and sentence should
be reversed and the case remanded to the trial court for
affirm the trial court's judgment because (1) violations
of the Federal Stored Communication Act (SCA) and of Article
18.21 of the Texas Code of Criminal Procedure do not require
suppression of the evidence discovered thereby, (2) there was
no constitutional violation from this reasonable search in
pinging Sims' cell phone, and (3) the affidavits for the
search warrants for Sims' cellular telephone data and his
Facebook account data support the trial court's findings
of probable cause.
Violations of the Federal Stored Communication Act and of
Article 18.21 of the Texas Code of Criminal
Procedure Do Not Require Suppression of the Evidence
argues that the warrantless pinging of his cellular telephone
to locate him, as he and Morrison travelled north through
Oklahoma, violated both the Federal SCA and its counterpart
Texas statute, requiring suppression of all evidence
discovered as a result of the pinging. See 18 U.S.C.
§ 2702 (2015), § 2703 (2009); Tex. Code Crim. Proc.
Ann. art. 18.21 (West Supp. 2016).
"review the trial court's legal rulings [on motions
to suppress] de novo." State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006); see Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The
State argues that suppression of evidence is not a remedy
available to Sims under either the state or the federal
statute and directs us to the very recent case United
States v. Wallace, 857 F.3d 685 (5th Cir. 2017). We
agree that suppression is not a remedy for a
non-constitutional violation of either statute.
federal statute at issue here is the SCA, which is Title II
of the Electronic Communications Privacy Act of 1986, as
amended. See 18 U.S.C. §§ 2701-12 (SCA);
see also Pub. L. No. 99-508, 100 Stat. 1848 (1986)
(ECPA). The SCA sets out terms under which
government entities, including law enforcement agencies, may
obtain disclosure of information from providers of electronic
communications services, including mobile telephone carriers.
See 18 U.S.C. § 2703. Without providing any
exclusionary rule, the SCA provides for civil actions for
violations of its terms and makes the "remedies and
sanctions described in this chapter" exclusive.
See 18 U.S.C. §§ 2707 (civil actions),
2708 (exclusivity of remedies).
to the SCA is Article 18.21 of the Texas Code of Criminal
Procedure, which sets out its terms for disclosure, provides
for civil actions, but no exclusion of evidence, for its
violation, and states that "[t]he remedies and sanctions
described in this article are the exclusive judicial remedies
and sanctions for a violation of this article other than a
violation that infringes on a right of a party guaranteed by
a state or federal constitution." See Tex. Code
Crim. Proc. art. 18.21, §§ 4-5B (terms for
disclosure), § 12 (cause of action), § 13
(exclusivity of remedies).
suppression is not available to criminal defendants based on
a violation of the SCA or of Article 18.21, so long as the
violation is not also a violation of a constitutional right.
Wallace, 857 F.3d at 689; United States v.
Guerrero, 768 F.3d 351, 358 (5th Cir. 2014), cert.
denied, 135 S.Ct. 1548 (2015); United States v.
German, 486 F.3d 849, 854 (5th Cir. 2007); see Love
v. State, No. AP-77, 024, 2016 WL 7131259, at *7 n.8