¶1dissenting.
¶2The majority perceives the question presented to be the abstract one of whether the State’s use of a pen register may constitute a “search” under Article I, § 9, of the Texas Constitution. Clearly, however, that is not the question presented. The true question presented is whether appellant has shown that he, as a pretrial detainee in a county jail, had a reasonable expectation of privacy in the telephone numbers he dialed on the jail telephone.
¶3Around September 15, 1987, appellant was arrested for capital murder and detained in the Lubbock County Jail to await trial. Sometime between September 15, 1987, and March 30, 1988, state law enforcement authorities learned from informants that appellant was using a telephone at the Lubbock County Jail to continue his control of an illicit drug operation at the Seven Acres Lodge in Lubbock. The authorities also received information that two of appellant’s fellow inmates made calls to the Lodge at his request and relayed information to and from him regarding the drug operation.
¶4On March 30, 1988, the authorities, acting pursuant to Article 18.21, § 2, of the Texas Code of Criminal Procedure, obtained a court order authorizing the installation of a pen register on the Lodge telephone. Utilizing the pen register, the authorities then confirmed that someone at the jail — possibly appellant — was telephoning the Lodge repeatedly. See Majority Opinion, 865 S.W.2d, at 947, fn. 2. Armed with that and other information, the authorities obtained a court order for a wiretap on the Lodge telephone. The wiretap subsequently intercepted several incriminating conversations between appellant and others involved in drug trafficking.
¶5Appellant later filed a pretrial motion, which was denied after an evidentiary hearing, arguing that the installation of the pen register without probable cause was an unreasonable search under Article I, § 9, of the Texas Constitution, and urging suppression of all “poisoned fruit” of the pen register, including the incriminating wiretapped conversations. In other words, appellant’s complaint was that the State (1) had unlawfully learned that someone at the county jail was telephoning the Lodge and (2) then had exploited that tainted information to obtain a wiretap, which had resulted in incriminating evidence against appellant. Significantly, appellant failed to present any argument or evidence in the trial court with respect to any reasonable expectation of privacy he might have had in the telephone numbers he dialed on the jail telephone.
¶6Article I, § 9, guarantees that the people of this state “shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches.” In Green v. State, 566 S.W.2d 578, 582 (Tex.Crim.App.1978), we recognized that “[t]he basic purpose of ... Article 1, Section 9 is to safeguard the privacy of individuals from arbitrary invasions by governmental intrusions.” We also recognized that the threshold question with respect to the existence of a constitutionally cognizable “search” is “whether the defendant had a reasonable expectation of privacy [in the thing searched].” Id., at 583.
¶7Given our analysis in Green, I have no quarrel with the majority’s conclusion that, generally, a defendant has a reasonable ex*956pectation of privacy under Article I, § 9, if (1) he manifests an actual, subjective expectation of privacy (2) that society is willing to accept as objectively reasonable. See Chapa v. State, 729 S.W.2d 723, 727 (Tex.Crim.App.1987). Nor do I quarrel with the majority’s conclusion that, in this case, “the appropriate inquiry [with respect to the reasonableness of appellant’s expectation of privacy] is whether appellant expected that the numbers he dialed on the [jail] telephone would be free from governmental intrusion, and, if so, [whether] this expectation [is] one that society is prepared to recognize as [objectively] reasonable.” Majority Opinion, 865 S.W.2d, at 948-49. However, in my view, the defendant must bear the burden of proving that he had a reasonable expectation of privacy and thus that a “search” within the meaning of the constitution even took place. Accord, Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Hershenow, 680 F.2d 847, 855 (CA1 1982); United States v. Bellina, 665 F.2d 1335, 1340 (CA4 1981); Hightower v. State, 672 P.2d 671, 675 (Okla.Crim.App.1983); State v. Rewolinski, 159 Wis.2d 1, 464 N.W.2d 401, 405-406 (1990). In this case, appellant has failed to prove that he had a reasonable expectation of privacy in the telephone numbers he dialed on the jail telephone.
¶8Appellant offered no argument or evidence in the trial court with respect to any actual, subjective expectation of privacy he might have had. Indeed, the only evidence before the trial court relevant to a subjective expectation of privacy on appellant’s part showed that he gave the Lodge’s telephone number to two of his fellow jail inmates — people he could not reasonably trust to keep the number secret — and had them telephone the Lodge for him. Clearly, that which a person knowingly reveals to strangers, even in his own home or office, is not subject to the protection of Article I, § 9. Green v. State, 566 S.W.2d, at 582.
¶9Appellant has also failed to show that society would accept such an expectation of privacy as being objectively reasonable, and I believe it is fairly obvious that society would not. In Hudson v. Palmer, 468 U.S. 517, 529, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (1984), the United States Supreme Court addressed the question of whether a prison inmate has an objectively reasonable expectation of privacy in his prison cell. After holding that society was not willing to accept such a privacy expectation as objectively reasonable, the Court explained:
The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.
Prisons, by definition, are places of involuntary confinement.... During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. "A number of prison personnel were murdered by prisoners during this period....
Within this volatile “community,” prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize....
The administration of a prison, we have said, is at best an extraordinarily difficult undertaking. But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells....
Determining whether an expectation of privacy is “legitimate” or “reasonable” necessarily entails a balancing of interests. The two interests here are the interest of *957society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. We strike the balance in favor of institutional security, which we have noted is central to all other corrections goals. A right of privacy ... is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that loss of freedom of choice and privacy are inherent incidents of confinement.
¶10Hudson v. Palmer, 468 U.S., at 526-528, 104 S.Ct. at 3199-3201 (citations and some punctuation omitted). The reasoning of Hudson v. Palmer is equally applicable to pretrial jail detainees such as appellant. As the Court explained in Bell v. Wolfish, 441 U.S. 520, 546, n. 28, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979), “[tjhere is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates.”
¶11Accepting the reasoning of Hudson v. Palmer and Bell v. Wolfish, at least four courts have already held that jail inmates have no objectively reasonable expectation of privacy in calls to non-attorneys on institutional telephones. See United States v. Amen, 831 F.2d 373 (CA2 1987); United States v. Clark, 651 F.Supp. 76 (M.D.Pa.1986); United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986); State v. Fox, 493 N.W.2d 829 (Iowa 1992). I have found no cases holding to the contrary.
¶12In sum, appellant has not demonstrated that he ever had an actual, subjective expectation of privacy in the numbers he dialed on the Lubbock County Jail telephone. And in any case, given the need for institutional security, society is not willing to recognize such an expectation as objectively reasonable. Thus, I agree with the court of appeals’ ultimate conclusion that the trial court did not err in denying appellant’s motion to suppress. I would affirm the judgment of the court of appeals, and I dissent to the majority’s failure to do so.
¶13. In both its brief to the court of appeals and its brief to this Court, the State has argued that appellant, because he was a pretrial detainee using a jail telephone, had no reasonable expectation of privacy in the numbers he dialed on that telephone.
¶14. The court of appeals held that no citizen can ever have an objectively reasonable expectation of privacy in the numbers he dials on any telephone. Richardson v. State, 831 S.W.2d 78 (Tex.App.—Amarillo 1992). I need not opine today whether the court of appeals' broad holding was correct; rather, I conclude only that appellant, as a pretrial detainee, had no objectively reason*955able expectation of privacy in the numbers he dialed on the jail telephone.
¶15. The court of appeals decided, by answering in the negative, the concrete question of whether the State's use of a pen register in this case constituted a “search” within the meaning of the Texas Constitution. We granted review of that decision. See Tex.R.App.Proc. 200(a). Instead of reviewing that decision, however, the majority addresses a different, abstract question, to wit: whether the State's use of a pen register may constitute a search sometimes, regardless of whether it actually did in this case. The majority attempts to defend this anomalous outcome by explaining that it is only addressing the "broad” holding of the court of appeals and that it would be "somewhat ironic ... to dispose of this cause now on the narrower question” actually presented by the concrete facts. See Majority Opinion, 865 S.W.2d, at 953-54, fn. 9-10. Without question, the majority's holding is essentially an advisory one, one that is not presented by the court of appeals’ decision or the facts of this case. The majority has lost sight of our constitutional obligation to decide the controversy before us based on the facts of that controversy, not based upon some hypothetical set of facts that are not before us. The majority has apparently decided that it wants to answer an interesting constitutional question while it has the chance, regardless of whether that question is truly presented.