In Richardson v. State, the Texas Court of Criminal Appeals granted Richardson’s second petition for discretionary review to determine whether law enforcement’s use of a pen register constitutes a search. The use of a pen register may be a search within the purview of Article I, Section 9 of the Texas Constitution. Courts use the reasonable-expectation-of-privacy test, from Katz v. United States, to determine whether a search has occurred under the Fourth Amendment. In Richardson, the Texas Court of Criminal Appeals reviewed whether the use of a pen register equates to a search despite the U.S. Supreme Court’s determination in Smith v. Maryland. In Smith, the Court determined the use of a pen register does not constitute a search under the Fourth Amendment. In Richardson, the court determined telephone customers have a subjective expectation of privacy in the numbers they dial, and society recognizes such an expectation as reasonable. The majority concluded the use of a pen register may be a search under Article I, Section 9. The Texas Court of Criminal Appeals made a valiant effort to protect privacy rights of Texas citizens in Richardson. The Court sent a message to Texas law enforcement officials—unreasonable government intrusions will not be tolerated. The Richardson decision failed to address the question in the minds of lower courts and attorneys. When is it appropriate to take a more protective stance under the Texas Constitution than taken by the Supreme Court under the federal constitution on privacy issues? They will not find the answer in the text or history of the Texas Constitution’s search and seizure provision. By passing over the opportunity to clear up this confusion with an instructive, state-specific rationale, the Richardson Court has unjustly threatened the uniformity of state and federal search and seizure jurisprudence.
St. Mary's University School of Law
Use of a Pen Register May Be a Search within the Purview of Article I, Section 9 of the Texas Constitution.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol26/iss2/10
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