Page 44 - TPA Journal November December 2022
P. 44
or during the burglary and that the recovered cell directly tying appellant to the crime
phones could have evidence of the burglary. The scene. From this, the magistrate
court of appeals expressly stated that it wasn’t reasonably could infer that
relying on statements in the probable-cause appellant was the owner of both the
affidavit that criminals generally use cell phones in sunglasses and the cell phone or
crimes. The lower court’s analysis merits quoting phones from which pieces detached
at length: during the offense and were left at
the scene. Further, the affidavit
Here, appellant argues that nothing, provided that appellant was
“other than the officer’s generalized associated with at least two phone
assumptions” that criminals utilize numbers and that police recovered a
cellular telephones to communicate total of five cell phones in
and share information regarding appellant’s immediate possession or
crimes they commit, connected the control upon his arrest. The
specified offense with the phones to magistrate reasonably could infer
be searched. We disagree because, that appellant utilized these phones
excluding any reliance on Sergeant interchangeably and that evidence
Angstadt’s assertion that generally of criminal activity on one phone
criminals use cellular telephones could have been transferred to
and other electronic devices to another.
facilitate criminal activity, other
facts in the affidavit establish a Although only a handful of cases address this
sufficient nexus between the cell specific issue, the courts below seem comfortable
phones and the alleged offense. The with the use of boilerplate language in affidavits for
affidavit stated that two men were warrants to search mobile phones, so long as the
involved in the home invasion and generic language is coupled with “other facts.”
that police recovered several parts Certainly, this holding seems consistent with article
of one or more cell phones at the 18.0215(c)(5) of the Texas Code of Criminal
scene. From this, the magistrate Procedure, which requires an affidavit offered in
reasonably could infer that the support of a warrant to search the contents of a cell
perpetrators possessed or utilized phone to “state the facts and circumstances that
one or more cell phones before or provide the applicant with probable cause to
during the planning or commission believe . . . searching the telephone or device is
of the offense and that any likely to produce evidence in the investigation of . .
recovered cell phones could have . criminal activity.”
evidence of the offense. For
instance, the magistrate reasonably Which brings us to the issue we seek to resolve
could infer that the intruders’ in this case: Is generic, boilerplate language
scheme of pretending to be police about cell phone use among criminals sufficient
officers necessitated planning, to establish probable cause to search a cell
which could have been orchestrated phone? We hold it is not. Instead, specific facts
by telephonic communication. The connecting the items to be searched to the alleged
affidavit also stated that DNA offense are required for the magistrate to
testing could not exclude appellant reasonably determine probable cause. To hold
as a source of DNA on the otherwise would condone the search of a phone
sunglasses left at the scene, thus merely because a person is suspected to have
40 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal
