"The Court of Appeals erred in holding the State's petition to obtain the Appellant's cell phone records set forth the "specific and articulable facts" required by federal law under 18 U.S.C. section 2703(d)."
A detective investigating Holder for murder petitioned the district court for a warrant to obtain Holder's cell-phone records for a designated twenty-day period. In it, he stated that he had reason to believe the records are relevant to an ongoing investigation because the phone was "used to communicate with unknown persons and obtaining the locations of the handset will allow investigators to identify if [Holder] was in the area at the time of the offense and will provide investigators with leads in this case." Holder moved to suppress the records, claiming that the petition violated 18 U.S.C. § 2703(d). Subsection (d) requires law enforcement to "offer specific and articulable facts" showing "reasonable grounds" that the records are "material and relevant." The trial court denied his motion.
The court of appeals affirmed. Citing the detective's statement relating to the investigation of Holder, the court held that the petition satisfied (d)'s pleading requirements. Further, though the offense date was not provided, the request was limited to a twenty-day period, which suggested the offense occurred within that time.
Holder points to a footnote in Ford v. State, which recently held that no warrant is needed to obtain historical cell-phone data. 477 S.W.3d 321 (Tex. Crim. App. 2015). The footnote observed that, even though compliance with 18 U.S.C. § 2703(d) was not an issue, the petition contained three pages of exhaustive factual information. Holder claims that the information supplied here is conclusory and thus does not provide "specific articulable facts."