Texas Stamp


PD-1348-17 03/28/2018

1. “The court of appeals misapplies the standard of review when examining article 38.23 of the Texas Code of Criminal Procedure.”

2. “The court of appeals’ opinion puts it in conflict with other courts of appeals, which have applied constitutional violation analysis to private individuals under article 38.23 of the Texas Code of Criminal Procedure.”

 3. “As Petitioner was the prevailing party at the Motion to Suppress, the court of appeals should have deferred to the trial court and presume it found a violation of law sufficient to trigger the Texas Exclusionary Rule.”

Two high school students accused Ruiz, a substitute teacher at the school, of using his cell phone to capture images from underneath female students’ skirts.  The administration summoned Ruiz to the office.  Ruiz admitted he “had a problem” and was fidgeting with his cell phone. Fearful that he might be deleting information from the phone, the school administrators asked Ruiz to put the phone on the principal’s desk. Ruiz ultimately admitted there were inappropriate images on his cell phone. Ruiz was fired and told the phone would be given to police.  Ruiz was allowed to retrieve several phone numbers stored on the phone, and the principal saw about twenty videos or images on the phone.  The principal gave the phone to police, who obtained a search warrant and retrieved several up-skirt images. Ruiz was charged with attempted production of sexual performance of a child.  He filed a motion to suppress, and the trial court granted it and made oral findings.  It concluded that the principal had conducted a warrantless search when he examined the phone without Ruiz’s consent and without exigent circumstances. The State appealed.

The court of appeals reversed.  It held that a private citizen cannot violate the search-and-seizure provisions of the state or federal constitution and that Ruiz asserted no state statutory violation such as theft or trespass.  It also held that as a private citizen taking possession of evidence with the intent to turn it over to police for a criminal investigation, the principal’s actions in seizing the phone did not implicate the Texas Exclusionary Rule, Tex. Code Crim. Proc. art. 38.23.  

Ruiz argues that a search of a cell phone can be illegal even when it is lawfully seized.  He cites Miles v. State, 241 S.W.3d 28, 39 (Tex. Crim. App. 2007), for the proposition that a private person can only do what a police officer would be authorized to do.  Also, he contends that this and other courts of appeals have applied a search-and-seizure analysis to the conduct of a private citizen in other cases, and that this case stands in opposition to those.  He argues that the principal violated Penal Code § 33.02, Breach of Computer Security, when he accessed Ruiz’s phone without his consent, and that the trial court made no finding that the principal’s intent was to facilitate a law enforcement seizure.   

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