The CCA Is Walking Back Cell Phone Search Case, Baldwin

What do police have to put in a search warrant to provide probable cause to search a suspect cellular phone?

The Court of Criminal Appeals recently wrote in State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim. App.):

Is generic, boilerplate language about cell phone use among criminals sufficient to establish probable cause to search a cell phone? We hold it is not. Instead, specific facts connecting the items to be searched to the alleged offense are required for the magistrate to reasonably determine probable cause. To hold otherwise would condone the search of a phone merely because a person is suspected to have committed a crime with another person. Put another way, all parties suspected of participating in an offense would be subject to having their cell phones searched, not because they used their phones to commit the crime, but merely because they owned cell phones.

The Court just had another opportunity to evaluate cell phone search warrants in Stocker v. State, another case out of Harris County. In Stocker, the Fourteenth Court of Appeals determined the cell phone search warrant did not meet the probable cause standard (and so the appellate court overruled the trial court in this case which did find sufficient probable cause). Stocker v. State, 656 S.W.3d 887 (Tex. App.—Houston [14th Dist.], pet. granted) (reversed and remanded). The Fourteenth Court in Stocker wrote:

The remainder of the affidavit contains nothing about a cell phone being used before, during, or after the charged offense. In fact, the affidavit does not mention the offense of capital murder. The offenses described in the affidavit are those for which appellant was not tried and convicted here. There simply are no facts within the four corners of the affidavit that tie appellant's Samsung phone to any offense, much less the charged offense of capital murder.

Id. at 902.

So, the Fourteenth Court concluded “that the affidavit contains insufficient particularized facts to have allowed the magistrate to determine probable cause for a warrant to search appellant's Samsung phone for two reasons: (1) the affidavit does not describe the murder, and (2) it presents no factual nexus between the phone and the murder.” Id.

The Court of Criminal Appeals now explains that “one way” to establish the nexus between a cell phone and criminal activity is to present “reliable information suggesting that the criminal perpetrator ‘used’ that cell phone ‘before, during, or after the crime’ that is being prosecuted.” Stocker v. State, No. PD-0711-22, slip op. at *4 (Tex. Crim. App. July 31, 2024). “[T]he Court did not say [in Baldwin] that ‘use’ of a cell phone in aid of the actual perpetration of the crime that is on trial is, necessarily, the only ‘specific fact’ that can serve to establish the required ‘nexus,’ ‘connection,’ or ‘tie’ between a cell phone and an offense under investigation.” Id.

The Court of Criminal Appeals remanded the case to the Fourteenth District Court to reconsider whether the search warrant “‘state[s] facts and circumstances that provide . . . probable cause to believe that . . . searching the telephone . . . is likely to produce evidence in the investigation of’ certain criminal activity.” Id. at *5. Baldwin should not be read to require use of the phone either during, or immediately before or after, commission of the specific offense on trial. Id.

It will be interesting to see what the Fourteenth Court does with this case considering the majority described the affidavit for the search warrant as “notably weaker than the one considered and rejected in Baldwin.” Stocker, 656 S.W.3d at 902.