Texas Search and Seizure © Dr. D. Kall Loper, all rights reserved Computer Crime Texas Search and Seizure

Texas Code of Criminal Procedure Article 18.20 § 4: Offenses for Which Interceptions May be Authorized A judge of competent jurisdiction may issue an order authorizing interception of wire, oral, or electronic communications only if the prosecutor applying for the order shows probable cause to believe that the interception will provide evidence of the commission of: Interceptions Citation © Dr. D. Kall Loper, all rights reserved

TCCP 18.20 § 4 (1) a felony under Section 19.03(a)(3) [murder for remuneration] or Section 43.26 [possession or promotion of child pornography], Penal Code; (2) a felony under: (A) Chapter 481, Health and Safety Code [Texas Controlled Substances Act], other than felony possession of marihuana; (B) Section 485.033, Health and Safety Code [inhalant paraphernalia]; or (C) Chapter 483, Health and Safety Code [Dangerous Drugs]; or Interceptions Citation © Dr. D. Kall Loper, all rights reserved

TCCP 18.20 § 4 (3) an attempt, conspiracy, or solicitation to commit an offense listed in this section. Interceptions Citation © Dr. D. Kall Loper, all rights reserved

Computer Crime Warning from the Defense Some states have two-party consent requirements. That means that both parties to wire communications must consent to interception or recording. Texas is a one-party consent state, but calls originating outside of Texas may become complicated. Consult your legal counsel or prosecutor before proceeding. © Dr. D. Kall Loper, all rights reserved

Esterline v. State, (1986) Citation Recording of defendant's telephone conversations with the witness did not violate TCCP 18.20, § 1(4) because the statute applied only to nonconsensual communications; although defendant had not consented to the taping of such conversations where the witness, in cooperation with the police, telephoned defendant from the police station to set up a meeting with defendant to buy drugs from him,… One-party Consent State Esterline v. State, 707 S.W.2d 171, 1986 Tex. App. LEXIS 12292 (Tex. App. Corpus Christi 1986). Citation © Dr. D. Kall Loper, all rights reserved

Esterline v. State, (1986) Citation …no court order for taping such conversations was required as defendant, in talking to such witness, took the risk that the witness would repeat or record their conversation. Esterline v. State, 707 S.W.2d 171, 1986 Tex. App. LEXIS 12292 (Tex. App. Corpus Christi 1986). Citation © Dr. D. Kall Loper, all rights reserved

Texas Code of Criminal Procedure ARTICLE 18.21. Pen registers and trap and trace devices; access to stored communications; mobile tracking devices Sec. 2. (c)(1 & 3) [Application and Order] The application must be made in writing under oath and state that the installation and use of the device or equipment will likely produce information that is material to an ongoing criminal investigation. Standard for a Pen Register/Trap and Trace/ESN Reader. Citation © Dr. D. Kall Loper, all rights reserved

Uresti v. State, (2003) Citation Under TCCP 18.20, § 1(14) [I]n a gambling case, a court did not err by denying defendant's motion to suppress evidence gathered by the use of a pen register, where, although defendant's conduct may have been calculated to keep the contents of conversations private, defendant's conduct was not and could not have been calculated to preserve the privacy of the number defendant dialed. Content versus Transmittal Uresti v. State, 98 S.W.3d 321, 2003 Tex. App. LEXIS 734 (Tex. App. Houston 1st Dist. 2003). Citation © Dr. D. Kall Loper, all rights reserved

Texas Code of Criminal Procedure ARTICLE 18.21. Pen registers and trap and trace devices; access to stored communications; mobile tracking devices Sec. 6. (a) [Backup Preservation] A subpoena or court order for disclosure of the contents of an electronic communication in a remote computing service under Section 4(c) of this article may require that… Preservation Subpoena Citation © Dr. D. Kall Loper, all rights reserved

TCCP 18.21 § 6(a) Citation Preservation Subpoena …the service provider to whom the request is directed create a copy of the contents of the electronic communications sought by the subpoena or court order for the purpose of preserving those contents. The service provider may not inform the subscriber or customer whose communications are being sought that the subpoena or court order has been issued. Preservation Subpoena Citation © Dr. D. Kall Loper, all rights reserved

TCCP 18.21 § 6(a) Citation Preservation Subpoena The service provider shall create the copy not later than two business days after the date of the receipt by the service provider of the subpoena or court order. Preservation Subpoena Citation © Dr. D. Kall Loper, all rights reserved