Page 45 - TPA Journal November December 2022

committed a crime with another person. Put another remaining affidavit set forth details in sufficient
way, all parties suspected of participating in an facts to support probable cause. Considering the
offense would be subject to having their cell whole of the affidavit, here is no information
phones searched, not because they used their included that suggest anything beyond mere
phones to commit the crime, but merely because speculation that Appellee’s cell phone was used
they owned cell phones. before, during, or after the crime. In the present
case, there is no evidence that the suspects planned
In the instant case, the parties and the justices of the offense over multiple days other than the fact
the court of appeals disagree as to whether there that Baldwin’s white sedan was seen in the
were sufficient “other facts” present. The majority neighborhood the day before the offense. There is
found that the only “other fact” in this case is that no evidence that these particular suspects
two black men committed the offense together and communicated about the crime by cell phone, as
that this was insufficient to connect the mobile there was in Walker. All that is present here is that
phone to the offense. For the dissent, that fact was two black men committed an offense together,
sufficient to establish that the men might have used which is clearly insufficient to establish a
their cell phones to coordinate. The majority thinks connection between cell phone usage and the
the dissent’s conclusion goes too far. We agree with offense.
the majority. While we defer to all reasonable
inferences that the magistrate could have made, Conclusion
there are simply no facts within the four corners of
the affidavit that tie Appellee’s cell phone to the The record, while viewed in the light most
offense. The affidavit before us indicates nothing favorable to the magistrate’s ruling, supports the
more than that neighbors saw a certain white sedan trial court’s conclusion that the affidavit contained
with a black driver circling their neighborhood the insufficient particularized facts to allow the
day before the offense occurred, a similar sedan magistrate to determine probable cause for a
was seen quickly leaving the neighborhood after warrant to search the phone. Insofar as the court of
the offense, and that Appellee, a black man, was appeals affirmed the trial court’s order granting the
driving the very same vehicle four days after the motion to suppress evidence obtained from the cell
offense, and that this coincidence somehow phone found in Baldwin’s vehicle, we affirm.
necessarily connects Appellee’s phone to the
offense. That witnesses affirm the description and State v. Baldwin, Tex. Crim. App., No. Pd-0027-
license plate number of the white sedan, as well as 21, May 11, 2022
its registration to Appellee’s father, are facts that *****************************************
support the nexus of the vehicle to the offense, they ***********************
have no bearing on whether Appellee’s phone is
connected with the offense. The affidavit contains
nothing about the phone being used before or
during the offense. Suspicion and conjecture do not
constitute probable cause, and “the facts as recited
in the affidavit in this cause evidence nothing more
than mere suspicion. Therefore, the magistrate
erred by substituting the evidentiary nexus for the
officer’s training and experience and generalized
belief that suspects plan crimes using their phones.
The boilerplate language in itself is not sufficient to
provide probable cause in this case, nor does the

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