Page 41 - TPA Journal November December 2022

Appellee was driving and the car seen at the
The court below relied on State v. Duarte, for the murder scene was “tenuous at best.” Extending
proposition that for the magistrate’s implied finding that nexus to include Appellee’s cell phone would
to be reasonable, the warrant application must be extending the reach of probable cause too far.
show a correlation between Appellee’s car and the
car used in the murder. Applying Duarte, the court Petition for Discretionary Review
below found there was no evidence that Appellee’s
car was the same car in the neighborhood on the On petition for discretionary review, the State
day of the murder and used in the murder. The argues that the affidavit supported the magistrate’s
court noted, it would strain credulity to conclude implied finding of probable cause because it
that in a county with nearly five million people that contained sufficient facts showing that a search of
evidence of a crime probably would be found in a Appellee’s cell phone would probably produce
someone’s car just because he was in the evidence of preparation and the identity of the
neighborhood the day before the offense in a car other participant in the murder. In addition, the
the same color as the one driven by a suspect who State argues that particularized facts are not
also happened to be Black. Therefore, the warrant required. Instead, according to the State, nothing
application showed no nexus between Appellee’s other than the affiant’s assumption that “It is
car and the car at the scene of the murder. common for suspects to communicate about their
The lower court also distinguished between the plans via text messaging, phone calls, or through
instant case and Ford v. State. In Ford, the car was other communication applications” is necessary to
specifically described as a Chevy Tahoe with a roof connect the murder with Baldwin’s phone. We
rack and horizontal stripes, and other facts tied the granted review of the following two issues:
defendant to the incident. In the instant case,
according to the lower court, nothing distinctive (1) Did the court of appeals depart from the proper
tied Appellee’s car to the one seen at the murder. standard of review by substituting its own
The court below was also critical of the “generic judgment for that of the magistrate who viewed the
recitations about the abstract use of cell phones” in warrant affidavit and found probable cause?
the affidavit. For example, the affiant stated that (2) Did the court of appeals employ a heightened
cell phones “are commonly utilized to standard for probable cause, departing from the
communicate in a variety of ways such as text flexible standard required by law?
messaging, calls, and e-mail or application
programs such as google talk or snapchat” and that While we agree that the court of appeals’ analysis
“it is common for suspects to communicate about failed to give deference to the magistrate’s implied
their plans via text messaging, phone calls, or findings with respect to the nexus between the
through other communication applications.” sedan and murder, the court of appeals was correct
However, this generic language that “a smart phone in concluding that the boilerplate language was
may reveal information relevant to an offense and insufficient to establish a fair probability that
that suspects might communicate about their plans evidence of the murder would be found on the cell
on a cell phone is not sufficient to establish phone.
probable cause to seize and search a cell phone.”
Ultimately, the intermediate court held that, “while The court of appeals misapplied the law with
magistrates may draw reasonable inferences from . respect to the nexus between Appellee’s car and the
. . the four corners of an affidavit, if too many car in the incident.
inferences are drawn, ‘the result is a tenuous rather
than a substantial basis for the issuance of a Probable cause exists when, under the totality of
warrant.’” In this case, the nexus between the car the circumstances, there is a fair probability that

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