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Texas Court of Criminal Appeals: Warrant to Search Cellphone Must Establish Nexus Between Device and Offense Beyond ‘Boilerplate’ Language About Cellphones Being Ubiquitous and Used in Crimes

by Anthony W. Accurso

The Court of Criminal Appeals of Texas held that a warrant affidavit failed to link a defendant’s cellphone to a crime under investigation where the warrant affidavit simply made generic statements about the ubiquity of cellphones and their use during criminal activity.

On September 18th, 2016, Adrianus Michael Kusuma was shot and killed during a robbery of the residence he shared with his brother, Sebastianus, who told police there were at least two assailants. The neighborhood was had a single point of entry/exit, and interviews with neighbors as well as video surveillance footage revealed that a white, four-door Lexus was “casing” the neighborhood the day before the homicide. One video revealed the license plate number, which was eventually linked to John Wesley Baldwin, a man who was similar in appearance to the description of one of the suspects.

Investigators tracked him to his girlfriend’s apartment, waited until he drove away in the white Lexus, and pulled him over after witnessing him violate multiple traffic ordinances. While detained, he consented to a search of the vehicle, and police found a smartphone. However, Baldwin refused consent for a search of the phone, so police requested a search warrant for the phone.

The warrant affidavit included the following language: (1) “Affiant knows that phones and ‘smartphones’ … are capable of receiving, sending, or storing electronic data …,” (2) “it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications,” (3) “Affiant further knows … in a moment of panic and in an attempt to cover up an assault or murder that suspects utilize the internet via their cellular telephone to search for information,” and (4) “Affiant has reason to believe that call data, contact data, and text message data, may constitute evidence of the offense of robbery or murder.”

A magistrate judge issued the search warrant for the phone. After it was issued and the search was conducted, a Harris County grand jury indicted Baldwin for the robbery and murder of Kusuma.

Baldwin filed a pretrial motion to suppress, among other things, evidence obtained from the search of his phone. The district court granted his motion after determining the warrant affidavit was insufficient to connect either Baldwin or his phone to the capital murder. The State appealed, and after some back and forth between the district court and the Court of Appeals, the Court of Criminal Appeals granted the State’s petition for discretionary review.

The Court began its analysis by examining the Texas Code of Criminal Procedure, which sets forth requirements for obtaining a search warrant for a cellphone after a lawful arrest. The warrant application must “state the facts and circumstances that provide the applicant with probable cause to believe that (A) criminal activity has been, is, or will be committed; and (B) searching the telephone or device is likely to produce evidence in the investigation of the criminal activity described in Paragraph (A).” Tex. Code Crim. Proc. Ann. art. 18.0215(c)(5).

The Court noted that there is no statutory definition of what constitutes probable cause – this determination is highly case specific. But there is case law that specifies what types of facts and circumstances fall short of this requirement. For instance, the Court explained that “conclusory allegations alone are insufficient to support a finding of probable cause” and quoted the U.S. Supreme Court’s opinion in Illinois v. Gates, 462 U.S. 213 (1983), that “sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.”

The Gates Court highlighted two cases in which conclusory statements failed to establish probable cause for the issuance of a warrant. In Nathanson v. United States, 290 U.S. 41 (1933), the officer applying for the warrant stated “he has cause to suspect and does believe” that illegal liquor is located on the premises to be searched. The Supreme Court ruled that such a conclusory statement fails to establish probable cause. Similarly, in Aguilar v. Texas, 378 U.S. 108 (1964), the Supreme Court ruled that a warrant affidavit stating that the police “have received reliable information from a credible person and do believe” that heroin is stored at the location to be searched is simply a conclusory statement insufficient to establish probable cause.

The Court explained that the U.S. Supreme Court’s jurisprudence in this area makes it clear that a “bare bones” affidavit lacking “some sort of corroboration to the conclusory statement” is insufficient to establish probable cause for the issuance of a search warrant. Applying that same analysis to cellphones and generic boilerplate language in a warrant affidavit, the Court held that such language stating that criminals in general use cellphones in connection with their criminal activity is insufficient to establish probable cause to search a cellphone. The Court instructed that “specific facts connecting the items to be searched to the alleged offense are required for the magistrate to reasonably determine probable cause.”

The Court reasoned that if it were otherwise “all parties suspected of participating in an offense would be subject to having their cellphones searched, not because they used their phones to commit the crime, but merely because they owned cellphones.”

Turning to the present case, the Court said that the warrant affidavit to search Baldwin’s phone set out sufficient details to link the car he was driving to the scene of the murder, and to link him to the vehicle. But the only information in the warrant regarding cellphones said, “[I]t is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications” together with similarly generic statements.

Witnesses never stated that they saw the assailants possessing or using cellphones, and no other details established this, according to the Court. The statements included in the warrant are general statements about cellphone possession and use that wholly lack a relevant nexus to the murder, the Court stated.

The Court contrasted the current case to Diaz v. State, 604 S.W.3d 595 (Tex. App. 2020). Diaz sought to suppress the search of a cellphone pursuant to a warrant by claiming the affidavit used generic language about cellphones. The Diaz Court denied his motion, noting the affidavit detailed investigators had recovered cellphone parts (a cover and a battery) at the scene of the burglary. This “other fact” allowed the magistrate to infer that “the perpetrators possessed or used cell phones before or during the burglary and that the recovered cell phones could have evidence of the burglary.” Critically, no such “other fact” is present in the current case, only generic boilerplate language about cellphones and criminal behavior, the Court observed.

Thus, because the affidavit for the warrant to search Baldwin’s phone contained only boilerplate language without any other facts linking his cellphone to the crime, the Court held that the warrant lacked “particularized facts to allow the magistrate to determine probable cause for a warrant to search the phone.”

Accordingly, the Court affirmed the Court of Appeals’ order granting the motion to suppress evidence obtained from the cellphone. See: State v. Baldwin, 2022 Tex. Crim. App. LEXIS 321 (2022). 

 

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