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Date: 12-13-2019

Case Style:

Jose Leonel Oseguera-Viera v. The State of Texas

Case Number: 01-18-00459-CR

Judge: Peter Kelly

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Eric Kugler

Defendant's Attorney:

Description:


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This case concerns an off-duty officer’s discovery of pornographic videos
when he looked through a phone in an attempt to ascertain its owner. Oseguera
Viera worked at a grocery store. During his shift, a customer found a cell phone
and brought it to the store’s security officer, who was an off-duty police officer.
The officer asked the customer service manager to make an announcement about
the phone over the store’s speaker system. He then opened the phone, which did
not have a lock or password, to attempt to ascertain its owner. He first checked the
contacts for an emergency contact. Next, he looked for a name or email account
name, but email had not been set up on the phone. He then opened the photo
gallery to try to find a photo or “selfie” of the owner. Instead, he found what he
suspected to be child pornography videos. Finally, he navigated to the text
messages where information led him to believe that the owner’s name was “Jose”
and that he worked at the grocery store. He asked the customer service manager
whether there was anyone by that name working at the store and learned that
someone by the name was working as a parking lot attendant.
The officer went outside and found Oseguera-Viera. The two men began
walking toward an employee-only area as the officer asked Oseguera-Viera if he
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had a cell phone. Oseguera-Viera replied that he had one but had just lost it. He
described the phone that the officer found, and the officer pulled the phone from
his pocket. Oseguera-Viera acknowledged his ownership of the phone and
cooperated with the ensuing police investigation. The officer recalled in his
incident report that 15 minutes elapsed between when he received the phone and
when he arrested Oseguera-Viera.
Oseguera-Viera was indicted for possession of child pornography. TEX.
PENAL CODE § 43.26. At the hearing on the motion to suppress, neither side
presented live witnesses. After reviewing the pleadings and accompanying
documents and hearing argument from counsel, the court denied Oseguera-Viera’s
dispositive motion to suppress, stating that the cell phone was “lost property,
abandoned property” and the officer searched the phone in an attempt to identify
the owner. The State reduced the charge to attempted possession of child
pornography. See TEX. PENAL CODE § 43.26 (possession of child pornography); Id.
§ 15.01 (attempted offense). Oseguera-Viera pleaded guilty, and the court deferred
adjudication, placing him on five years’ community supervision. This appeal
followed.
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Denial of Motion to Supress
On appeal, Oseguera-Viera contends that the trial court erred in denying his
motion to suppress because the officer’s search of the phone violated his
constitutional rights and the Texas Penal Code.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress utilizing 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 determination of
historical facts, but we review de novo the court’s application of the law to the
facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We review the
evidence in the light most favorable to the trial court’s ruling. State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court fails to make
explicit findings of fact, we imply fact findings that support the ruling so long as
the evidence supports these implied findings. Gutierrez v. State, 221 S.W.3d 680,
687 (Tex. Crim. App. 2007). We will uphold the ruling if it is reasonably
supported by the record and is correct on any theory of law applicable to the case.
State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
B. Constitutional Violations
Oseguera-Viera asserts that his motion to suppress should have been granted
because the evidence was obtained in violation of his rights under the federal and
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state constitutions to be free from “unreasonable searches and seizures.” See U.S.
CONST. amend IV; TEX. CONST. art. I, § 9.
We first address whether Oseguera-Viera met his burden to establish that he
had standing to challenge the admission of evidence from his cell phone. A person
has standing to challenge the admission of evidence obtained by a governmental
intrusion only if he had a “legitimate expectation of privacy” in the place subject to
intrusion by the government. See Rakas v. Illinois, 439 U.S. 128, 143 (1978);
Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The accused “has
the burden of proving facts establishing a legitimate expectation of privacy.”
Villareal, 935 S.W.2d at 138. “To carry this burden, the accused must normally
prove: (a) that by his conduct, he exhibited an actual subjective expectation of
privacy, i.e., a genuine intention to preserve something as private; and (b) that
circumstances existed under which society was prepared to recognize his
subjective expectation as objectively reasonable.” Id.; State v. Granville, 423
S.W.3d 399, 405 (stating a person must prove that he had a subjective expectation
of privacy and that society is prepared to recognize that expectation as
“reasonable” or “legitimate”).
In general, a person has a subjective expectation of privacy in the contents of
his cell phone, and this expectation of privacy is one society recognizes as
reasonable and legitimate. Granville, 423 S.W.3d at 405–06. “Searching a person’s
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cell phone is like searching his home desk, computer, bank vault, and medicine
cabinet all at once.” Id. at 415; see also Riley v. California, 573 U.S. 373, 394
(2014) (holding that before searching a cell phone seized incident to an arrest,
officers must generally obtain a warrant and stating that “[o]ne of the most notable
distinguishing features of modern cell phones is their immense storage capacity”).
However, a person may lose a reasonable and legitimate expectation of privacy in
the contents of his cell phone under some circumstances. Granville, 423 S.W.3d at
409 (stating a person may lose the expectation in some circumstances, such as if he
abandons the phone, lends it to others to use, or gives his consent to its search).
Even assuming Oseguera-Viera had exhibited a subjective expectation of
privacy in the cell phone, the trial court did not abuse its discretion in finding that
such expectation was not objectively reasonable under these particular
circumstances. The Court of Criminal Appeals has held that the following factors
are relevant to the court’s determination of whether a person’s subjective
expectation of privacy was one that society was prepared to recognize as
objectively reasonable:
(1) whether the accused had a property or possessory interest in the place invaded;
(2) whether he was legitimately in the place invaded;
(3) whether he had complete dominion or control and the right to exclude others;
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(4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy;
(5) whether he put the place to some private use; and
(6) whether his claim of privacy is consistent with historical notions of privacy.
Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) (citing Villareal,
935 S.W.2d at 138). “This list of factors is not exhaustive, however, and none is
dispositive of a particular assertion of privacy; rather we examine the
circumstances surrounding the search in their totality.” Id. Although the above
factors are more readily applicable to the expectation of privacy in a place rather
than an object, courts have applied the factors to intangible objects. See Miller v.
State, 335 S.W.3d 847, 855 (Tex. App.—Austin 2011, no pet.) (applying factors to
a flash drive); Rogers v. State, 113 S.W.3d 452, 457 (Tex. App.—San Antonio
2003, no pet.) (applying factors to a computer hard drive).
Reviewing the factors in this case while giving appropriate deference to the
trial court’s factual determinations as we must, we hold that the trial court did not
abuse its discretion in finding that Oseguera-Viera’s subjective privacy interest
was objectively unreasonable. The first factor supports Oseguera-Viera’s position.
He had a possessory interest in the cell phone. At the time of the search, he had
8

mislaid it, but he had not abandoned it.1 But the other relevant factors weigh
against a finding of objective reasonableness. When he left the phone in the
entrance to the store, Oseguera-Viera no longer exercised dominion or control over
it. It became available for a customer to pick up and take to the officer. The record
also supports a finding that he did not take normal precautions to maintain his
expectation of privacy. The phone was unlocked and did not have a passcode. He
did not mark the phone with his name or information such that access would be
unnecessary nor did he secure it locked on his person so that another person could
not pick it up. Oseguera-Viera left the phone where any member of the public
might pick it up, and he did not password protect it to limit another person’s ability
search through it to ascertain ownership. See Lown v. State, 172 S.W.3d 753, 761
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that appellant
1 The State asserts on appeal that Oseguera-Viera abandoned the cell phone because he did not respond to an announcement over the speaker system in the grocery store that a phone had been found. The Fourth Amendment does not protect those who voluntarily abandon property. Abel v. U.S., 362 U.S. 217, 241 (1960). But abandonment of property occurs only “if the defendant intended to abandon the property and his decision to abandon it was not due to police misconduct.” McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997); see Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986) (“[A]bandonment consists of two components: (1) a defendant must intend to abandon property, and (2) a defendant must freely decide to abandon the property.”). There is no evidence that OsegueraViera heard the announcement and chose not to return for his phone. In this case, the record does not demonstrate that Oseguera-Viera intended to abandon his cell phone. Cf Lopez v. State, 512 S.W.3d 416, 424 (Tex. App.—Corpus Christi 2016, no pet.) (holding an employee of a fast food restaurant abandoned iPod after he accidentally left it in the restaurant’s bathroom because, though he returned to work and knew the manager had the device, he did not claim it).
9

failed to show that his expectation of privacy was objectively reasonable because,
among other reasons, “there is no evidence demonstrating that appellant took any
precautions (such as encryption) to protect his privacy in the information contained
on the computer system”). Whatever subjective expectation of privacy Oseguera
Viera may have had in the cell phone, his objective expectation of privacy was
limited by the officer’s ability to access it for the purposes of determining
ownership. See, e.g., Brackens v. State, 312 S.W.3d 831, 837 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d) (observing that “an individual’s conduct or activity or
the circumstances of the situation” may “significantly lessen the defendant’s
reasonable expectation of privacy by creating a reasonable foreseeable risk of
intrusion by private parties”).
Under these particular circumstances, the trial court could have reasonably
inferred that in order to return the phone to Oseguera-Viera, others must have
taken temporary possession of it and could access it briefly to ascertain its owner.
See Miller v. State, 335 S.W.3d 847, 856 (Tex. App.—Austin 2011, no pet.)
(stating trial court could reasonably infer that to return a flash drive left in
computer room accessible to many, others must take temporary possession and
possibly access it to determine the owner); Kane v. State, 458 S.W.3d 180, 185,
(Tex. App.—San Antonio 2015, pet. ref’d) (stating court could infer individuals
10

with access to university classroom would access unlocked flash drive in order to
ascertain ownership).
The record supports the trial court’s implied finding that Oseguera-Viera did
not have standing to challenge the officer’s review of the phone because Oseguera
Viera did not have a reasonable expectation of privacy that would prevent someone
from attempting to identify the phone’s owner. Story, 445 S.W.3d at 732. We
emphasize that our holding is limited to the facts and circumstances of this case.
There was no live witness testimony. Therefore, the officer’s account that he
reviewed the photos for the purpose of identifying the phone’s owner and that he
looked through the phone for less than 15 minutes was unimpeached. In the
absence of contradictory evidence, the trial court did not abuse its discretion in
finding these actions reasonable. We do not decide today the extent to which an
officer may review the contents of a cell phone to determine its owner. We cannot
conclude that the trial court abused its discretion in denying Oseguera-Viera’s
motion to suppress the evidence obtained as a result of the officer’s attempt to
identify the phone’s owner.2
2 Other courts have held that a person’s expectation of privacy is limited by another’s ability to access a lost or mislaid object in order to find its owner. In State v. Pidcock, the Supreme Court of Oregon held that a briefcase was not abandoned because it was merely misplaced rather than deliberately left behind. The court nonetheless upheld the officer’s examination of the contents of the case as a reasonable search undertaken in an effort to identify the owner. 306 Or. 335, 340, 759 P.2d 1092, 1095 (1988). The Supreme Court of Hawaii suppressed drugs
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C. Statutory Exclusionary Rule
In his second issue, Oseguera-Viera asserts that his motion to suppress
should have been granted because the evidence was obtained in violation of article
38.23 of the Texas Code of Criminal Procedure, which provides in relevant part
that “no evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas . . . shall be admitted in
evidence against the accused on the trial of any criminal case.” TEX. CODE CRIM.
PROC. art. 38.23(a). Oseguera-Viera claims the officer committed a breach of
computer security under section 33.02 of the Texas Penal Code, which provides
that “[a] person commits an offense if the person knowingly accesses a computer,
computer network, or computer system without the effective consent of the
owner.” TEX. PENAL CODE § 33.02(a).
In denying the motion to suppress, the trial court implicitly found that the
exclusionary rule did not apply because the officer acted with the intent to facilitate
a legitimate law enforcement purpose, such as community caretaking. Story, 445
S.W.3d at 732; Kelly, 204 S.W.3d at 818. “It is a defense to prosecution under
[section 33.02] that the person acted with the intent to facilitate a lawful seizure or
found as a result of a second search of a leather pouch, after the officer had found identification in his first search. State v. Ching, 67 Haw. 107, 112, 678 P.2d 1088, 1093 (1984) (search of cylinder attached to keychain went beyond the scope of a lost property inventory search).

12

search of, or lawful access to, a computer, computer network, or computer system
for a legitimate law enforcement purpose.” Id. § 33.02(e). The trial court stated that
the officer discovered the evidence in the course of his effort to locate the owner of
found property at a public business. Local police officers frequently engage in
“community caretaking functions,” totally divorced from the detection,
investigation, and acquisition of evidence relating to the violation of a criminal
statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to
‘serve and protect,’ a police officer may stop and assist an individual whom a
reasonable person—given the totality of the circumstances—would believe is in
need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999).
However, because the reasonableness of a community-caretaking action arises
from its dissociation from ferreting out crime, “a police officer may not properly
invoke his community-caretaking function if he is primarily motivated by a non
community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276–77 (Tex.
Crim. App. 2002).
Whether the officer was motivated by a community caretaking purpose is a
fact question that turns on credibility and demeanor on which we must defer to the
trial court. See Gonzales v. State, 369 S.W.3d 851, 855 (Tex. Crim. App. 2012)
(deferring to the trial court’s determination of an officer’s primary motivation for a
community-caretaking stop when it was supported by the record because the issue
13

“depends so much on credibility and demeanor.”). The officer’s unimpeached
report includes that he accessed the phone, including the contacts, photos, and text
messages, in an effort to return it to its owner. Given that his account was
uncontradicted by any other document or testimony, the trial court did not abuse its
discretion in deciding that the officer was acting with a community-caretaking
purpose and consequently, that his access of the phone was lawful. Because the
officer did not violate section 33.02, Oseguera-Viera failed to prove the evidence
should have been excluded under article 38.23. Kane, 458 S.W.3d at 188.
We overrule Oseguera-Viera’s challenge to the denial of the motion to
suppress.

Outcome: We affirm the judgment of the trial court.

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