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Waco man's death sentence, conviction thrown out over seizure of texts

The Texas Court of Criminal Appeals threw out the conviction and death sentence of a Waco man Friday after ruling that the trial court's admission of text messages was unconstitutional because they were seized without a warrant.

Albert Love

The Texas Court of Criminal Appeals threw out the conviction and death sentence of a Waco man Friday after ruling that the trial court's admission of text messages was unconstitutional because they were seized without a warrant.

Albert Love, 29, was convicted and sentenced to death in the 2011 shooting deaths of Tyus Sneed, 17, and Keenan Hubert, 20, while they were sitting in a car in an east Waco apartment complex, according to court records. He has been on death row for more than three years.

On his direct appeal to the Court of Criminal Appeals, Love argued that the trial court wrongfully presented his cell phone records, which included the content of his text messages, in violation of the Fourth Amendment of the United States Constitution which prohibits unlawful search and seizure. His records were seized by a court order to his wireless provider, not from a warrant based on probable cause.

In a 6-3 ruling, the court ruled that the seizure of text messages requires a warrant, not a court order. It also judged that the admission of Love’s text messages harmed his trial and granted him a new one.

“The question in this case is whether appellant had an expectation of privacy in his service provider’s records of his cell phone use, and whether society would regard that expectation as reasonable or justifiable under the circumstances,” Judge Kevin Yeary said in the court’s opinion.

Love’s lawyer, Ariel Payan, said the ruling was an acknowledgment by the court that people have a certain expectation of privacy.

“I’m a little bit surprised, but I’m extremely happy about it,” he said after the ruling. “It’s incredibly rare.”

The McLennan County District Attorney’s office argued that the trial court was in the right because when Love objected to his cell phone records being presented at trial at a bench hearing, he didn’t specify which parts of his records should be excluded without a warrant, according to the county’s brief to the court.

“Since no specific objections were lodged in regard to specific statements contained in the records as they were offered ... the trial court was not afforded an opportunity to rule on whether any particular statement was objectionable,” the county’s brief said.

A dissenting opinion from Presiding Judge Sharon Keller agreed with the county’s argument, but the majority of the court said in its opinion it could “safely be assumed” that Love was objecting to all of his records being submitted to trial. Past rulings have specified that certain cell records — like call logs and cell tower locations — are less protected, but content is different, the court said.

“The content of appellant’s text messages could not be obtained without a probable cause-based warrant,” the court concluded. “Text messages are analogous to regular mail and email communications.”

On March 28, 2011, Hubert and Sneed were sitting in a car in an apartment complex, smoking marijuana and watching videos, when gunfire erupted, busting all the windows of the car except the windshield and hitting the two men eight times each, killing them, according to the Court of Criminal Appeals opinion. The murders were thought to be revenge killings, as the two men were suspected by Love and his friend Rickey Cummings in the death of their friend a year before.

Cummings, who was also sentenced to death, was seen chasing after two other men who escaped from the car after the ambush, then stopping when his gun jammed, court records said. Two other men had been seen at the complex, and Love tried to buy a gun a few weeks before.

The prosecution in Love’s trial “relied heavily” on his text messages, the court ruled. The county presented other evidence of his guilt, including his friendship with Cummings and the man killed the year before and cell tower records showing Love was near the complex at the time of the murders.

“While this independent, circumstantial evidence suggests that appellant was involved in the crime, the strongest evidence of his guilt came from the improperly admitted text messages,” the court ruled.

The text messages suggested, among other things, that Love concealed murder weapons and was in hiding, trying to get new weapons after the murders. 

“i told u we had 2 get rid of them but they 5till in arm reackh we ju5 got 2 go dwn da hi9hway 2 get em,” Love texted his uncle, two days after the murders, which the prosecution said meant he had hidden the guns.

The McLennan District Attorney's Office can request that the Court of Criminal Appeals rehear the case within 15 days. If such a request is denied or not submitted, county prosecutors can put Love on trial again and decide if they still want to seek the death penalty.  

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