APPELLEE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
FOURTH COURT OF APPEALS BEXAR COUNTY
case is about the application of our statutory exclusionary
rule to private individuals.
was charged with attempted production of sexual performance
by a child for pictures found on his cell phone. Tex. Penal
Code §§ 15.01, 43.25. The trial court granted his
motion to suppress the pictures. The court of appeals
reversed the trial court's order. State v. Ruiz,
535 S.W.3d 590 (Tex. App.-San Antonio 2017). We granted
Appellee's petition for discretionary review to consider
whether the court of appeals misapplied the standard of
review and failed to indulge every presumption in favor of
the trial court's ruling. We affirm the judgment of the
court of appeals.
was a substitute teacher at a private high school. Students
reported that he was using his cell phone to take pictures up
the skirts of female students. The dean and vice principal
summoned Appellee to the office and questioned him about the
allegations. He became nervous and began fidgeting with his
phone. Concerned that he might delete incriminating
information from his phone, the dean asked Appellee to place
the phone on the desk, and he did.
Principal Gilbert Saenz joined the meeting, Appellee admitted
that he "had a problem." Saenz scrolled through the
photos on Appellee's phone and saw images of the legs of
girls who were dressed in the school uniform. Saenz allowed
Appellee to retrieve some information from his phone and then
placed the phone in an envelope and turned it over to the
police. Police obtained a series of search warrants for the
phone and found incriminating images taken from underneath
moved to suppress the evidence from his phone because Saenz
did not have either his consent or a warrant to search the
phone. Appellee argued that Saenz's warrantless search of
the phone violated the Fourth Amendment and that the evidence
should be suppressed under Code of Criminal Procedure Article
38.23. The trial court agreed and suppressed the evidence as
fruit of the poisonous tree because the affidavits supporting
the warrants included information that Saenz obtained when he
searched the phone without a warrant and without any
exception to the warrant requirement. The State appealed.
court of appeals held that the Fourth Amendment does not
apply to the actions of private individuals who are not
acting as government agents. Ruiz, 535 S.W.3d at
594. It considered whether Appellee met his burden to prove
that Saenz otherwise violated the law in obtaining the
evidence. Id. The court noted that Appellee's
motion to suppress did not allege that Saenz violated the
law, the trial court did not make a finding related to the
violation of any laws, and "the record does not support
that Saenz violated any state or federal law that would
require suppression in this case." Id. at 597.
Concluding that Appellee did not meet his burden of proving
that Saenz violated the law in searching and seizing the
phone, the court of appeals reversed the trial court's
order. Id. at 598.
review a motion to suppress under a bifurcated standard of
review. Valtierra v. State, 310 S.W.3d 442, 447
(Tex. Crim. App. 2010). We give almost total deference to the
trial court's findings of fact and review de
novo the application of the law to the facts.
Id. We view the record in the light most favorable
to the trial court's ruling and uphold the ruling if it
is supported by the record and is correct under any theory of
the law applicable to the case. Id. at 447-48.
argues that the evidence in this case must be suppressed
because a police officer in Saenz's shoes could not have
legally searched Appellee's phone. He relies on Texas
Code of Criminal Procedure Article 38.23 and Miles v.
State, 241 S.W.3d 28 (Tex. Crim. App. 2007). He claims
that the effect of Miles is to apply "the
Fourth Amendment warrant requirement - and the exceptions to
that requirement - to the conduct of private persons."
(quoting Pitonyak v. State, 253 S.W.3d 834, 850
(Tex. App.- Austin 2008, pet. ref'd)). We reject his
argument because (1) the Fourth Amendment does not apply to
the actions of private individuals, (2) reading Article 38.23