Barfield v. State

In Barfield v. State, 416 S.W.3d 743 (Tex. App.--Houston 14th Dist. 2013, no pet.), the State used third-party cell tower records to establish the defendant's whereabouts during times relevant to when the complainant was murdered. Id. at 745. The State obtained the records through use of a subpoena and did not obtain a search warrant. Id. The defendant in Barfield similarly argued that the State violated his reasonable expectation of privacy because it obtained the cell tower records without a warrant. Id. at 748. The Court in Barfield disagreed and reasoned that: "When an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence." Id. The mere fortuity of whether or not the third party, in its own discretion, elects to store the information makes no constitutional difference. Barfield, 416 S.W.3d at 748. Once an individual exposes information to a third party, it can be used for any purpose, including conveying it to law enforcement authorities. Id. The court also emphasized the fact that the transmission of location information by the cell user to the service provider is voluntary because the user knows generally that "cell phones exchange signals with nearby cell towers, that if they are in an area without network towers, their call will not connect, and if they are in an area with heavy cell usage, they may also have trouble connecting." Id. The user voluntarily decides to obtain a cell phone, choose a provider, and make a call from a particular location. Id. at 748-49. Thus, in relying primarily on the Fifth Circuit's decision in In re Application of United States, the Court held that the State's obtaining of cell tower records from a third-party provider does not violate a defendant's reasonable expectation of privacy. Id. at 749.