OPINION
McClure, J.
During
a capital murder investigation, investigators obtained a
search warrant for Appellee John Wesley Baldwin's phone
pursuant to Texas Code of Criminal Procedure article
18.0215(c)(5)(B). In a motion to suppress, Appellee objected
to the search warrant's supporting affidavit, which
contained generic statements about the use of cell phones.
The
trial court and the court of appeals both concluded that the
affidavit did not contain sufficient facts to establish a
fair probability that a search of the cell phone found in
Appellee's vehicle would likely produce evidence in the
investigation of the murder. We granted review to answer this
question: under what circumstances may boilerplate language
about cell phones be considered in a probable cause analysis?
We hold that boilerplate language may be used in an affidavit
for the search of a cell phone, but to support probable
cause, the language must be coupled with other facts and
reasonable inferences that establish a nexus between the
device and the offense. Because the affidavit in the instant
case failed to do so, we discern no abuse of discretion on
the part of the trial court and no error on the part of the
court of appeals. Background
On
September 18, 2016, Adrianus Michael Kusuma was shot and
killed during a robbery at his residence. The homeowner's
brother, Sebastianus Kusuma, witnessed the murder and said
the perpetrators were two black men who fled in a white,
four-door sedan. Investigators learned that, shortly after
the murder, one of the Kusuma's neighbors saw a white,
four-door sedan exit the neighborhood at a very high rate of
speed.
Investigators
obtained security footage from a nearby residence showing a
white sedan suspiciously circling the neighborhood, not only
on the day of the capital murder, but on the day before as
well. On four separate occasions, the sedan entered a
cul-de-sac, drove to the front of the residence where the
murder occurred, and then turned around.
One
neighbor came forward and informed investigators that a white
sedan had passed by his residence three times shortly before
the murder. The neighbor added that the sedan was driven by a
large black male.
Another
neighbor came forward and said that she had seen a white,
four-door sedan "casing" the neighborhood on the
day before the offense. This neighbor said there were two
occupants in the sedan, and both were black men. This
neighbor took a picture of the sedan, capturing the license
plate.
Investigators
determined that the sedan in the photo was registered to
Appellee's stepfather, who claimed he sold the sedan to
Appellee. Appellee's stepfather told investigators that
Appellee was living at his girlfriend's apartment.
Investigators
located the sedan at the apartment and followed Appellee as
he left in the sedan. A marked unit eventually pulled Baldwin
over for unsafely crossing two lanes of traffic in a single
maneuver and for driving over the "gore zone,"
which is the triangular portion of a highway exit. Baldwin
was arrested for those traffic violations, as well as for
driving with an expired license and for failing to show
identification on demand.
Appellee
made a lengthy statement to the police. He consented to a
search of the sedan, and a cell phone was found inside.
Appellee refused to consent to a search of the phone, so
investigators obtained a search warrant. The following
affidavit was submitted in support of the search warrant:
On September 18, 2016, at 2120 hours, your Affiant was
assigned to investigate the robbery and murder of Adrianus
Michael Kusuma, an Asian male, date of birth September 27
1982, having occurred at his home located at 21522 Canvasback
Glen in unincorporated Harris County, Texas. Upon arrival at
the scene, Affiant spoke with Sebastianus Kusuma, the brother
of
the complainant, who was home at the time of the robbery and
murder, a person Affiant found credible and reliable.
Sebastianus Kusuma advised he was upstairs in his room when
he heard a loud banging noise emanating from downstairs.
Sebastianus Kusuma went downstairs to investigate and was
confronted by a masked black male, armed with a handgun, at
the base of the stairs. The masked gunman demanded money and
began to assault Sebastianus Kusuma with his fists and the
handgun in the dining room of the home. While he was fighting
with this male, Sebastianus Kusuma stated he heard a gunshot
coming from the kitchen area of the home and turned to see a
second black male, also masked, running from the back of the
house toward the dining room. The two gunmen grabbed a box of
receipts and money from the Kusumas' family run business
and fled the residence through the front door. Sebastianus
Kusuma followed the two males from the home and witnessed
them getting into a white, 4-door sedan and flee [sic] the
scene. Sebastianus Kusuma returned to the home to search for
his brother and found him lying on the kitchen floor near the
back door. Adrianus Michael Kusuma had sustained a gunshot
wound to the chest and was unconscious and unresponsive. The
rear door of the residence was open and the door frame
shattered from having been kicked in by the suspects.
The neighborhood where this murder occurred consists only of
a circling boulevard with multiple small cul-de-sac streets
that extend from the main boulevard. Vehicles may only access
the neighborhood from one street that leads east off Gosling
Road.
During the course of conducting the scene investigation,
affiant learned that a neighbor, who lives near the entry
street to the subdivision, was outdoors at approximately 8:45
PM when he observed a white, 4-door sedan exiting the
neighborhood at a very high rate of speed. Within minutes of
this vehicle exiting the neighborhood, this citizen observed
emergency vehicles entering the neighborhood and thought the
white vehicle may be connected to the response of emergency
vehicles into the neighborhood.
Further, while conducting this investigation, Affiant was
advised by Sergeant Mark Reynolds, a certified peace officer
reputably employed by the Harris County Sheriffs Office and
also assigned to the Homicide Division and assisting in this
investigation, that he was approached by a citizen who
advised a white, 4-door Lexus vehicle, bearing Texas license
plate # GTK-6426, was observed driving through the
neighborhood, and specifically, past the residence at 21522
Canvasback Glen, on multiple occasions on Saturday, September
17, 2016. The citizen found the repeated circling of the
neighborhood and the complainant's home so suspicious
that she photographed the vehicle on her smartphone and
captured the license plate.
Based on the suspicious circumstances presented by this
vehicle one day before the murder, this citizen feared the
occupants, two black males, were possibly responsible for the
robbery and murder.
Affiant and other investigators from the Homicide Division
canvassed the neighborhood for residences that may have
security cameras. Three (3) residences were located that had
recording surveillance systems operating. Video from these
surveillance systems were reviewed and one system captured
video images of a white, 4-door vehicle, similar in
appearance to the white Lexus registered under license plate
GTK-6426, circling the neighborhood on Saturday, September
17, 2016 and Sunday, September 18, 2017 [sic]. Specifically,
the video system located at 21622 Redcrested Glen captured
images of the vehicle at 2:03 PM on Saturday, September 18,
2016, and the same vehicle on Sunday, September 19, 2016 at
8: 15 PM, 8:16 PM and 8:23 PM.[1] On each instance, the vehicle
entered the cul-de-sac and drove to the circle in front of
21622 Redcrested Glen and turned around, leaving the view of
the camera. On the 8:23 PM event, the vehicle paused
momentarily before leaving the view of the camera. The
residence at 21622 Redcrested Glen is only 5 residences to
the north of the location where Sebastianus Kusuma observed
the suspects in the robbery enter the white vehicle and flee
the scene.
Affiant also interviewed a citizen at 21423 Mandarin Glen who
advised that on Sunday, September 18, 2016, at a time
estimated by him to be right at duck [sic], observed a white,
Lexus GS300 vehicle, driven by a large black male lapped his
residence three (3) times. Shortly after this vehicle passed
by his residence the last time, the citizen stated he heard
the sirens of emergency vehicles and came outside to see what
was happening. The address of 21423 Mandarin Glen is
approximately 2.5 blocks from the residence where the robbery
and murder occurred.
On September 22, 2016, the vehicle bearing Texas license
plate GTK-6426 was stopped by patrol deputies for traffic
violations and was being operated by John Wesley Baldwin III,
a black male, date of birth June 15, 1988. Baldwin gave
consent to search the vehicle and a Samsung Galaxy5, within
a red and black case was recovered. Baldwin stated that the
phone carried the number 832-541-2500.
Based on your Affiant's training and experience, Affiant
knows that phones and "smartphones" such as the one
listed herein, are capable of receiving, sending, or storing
electronic data and that evidence of their identity and
others may be contained within those cellular
"smart" phones. Affiant also knows it is possible
to capture
...
