TEXAS FEDERAL AND STATE COURT DRUG CASES: CHALLENGING SEARCH WARRANTS FOR CELL PHONES
Dallas Federal Drug Crime Lawyer John Helms Breaks down the law surrounding warrants for cell phones related to drug crimes federally and in Texas.
Anyone involved in the criminal justice system in Texas—especially law enforcement officers—knows how important evidence on a defendant’s cell phone can be. Text and other messages can link one drug trafficker to another. Messages using code words for drugs can show an obvious consciousness of guilt. Drug traffickers often use almost comical terms to refer to drugs, like “dolls,” “license plates,” or “tortillas.” An example might be, “When you get your shipment of license plates, meet me in the parking lot of the grocery store. I will pay six for each license plate.” The code language is supposed to avoid referring to drugs by name, but it is blatantly obvious what is going on.
Drug traffickers also love to take photos of themselves with guns and drugs to show how successful and powerful they are. Their cell phones may have photos of them holding automatic or semi-automatic rifles with giant piles of cash, or stacks of kilos of drugs.
As a criminal defense lawyer who specializes in drug cases in federal and state courts in Texas, I cringe when I see these kinds of cell phone entries. The evidence on a defendant’s cell phone(s) can be damning, so I also always ask my clients in the beginning whether law enforcement has their cell phone or cell phones.
But even if there is powerful evidence like this on an accused’s cell phone, is it possible to prevent the Government from using it in court? The answer is that it can be. In Riley v. California, 573 U.S. 373, 134 S.Ct. 2473 (2014), the United States Supreme Court held that the search of a person’s cell phone in connection with an arrest requires a search warrant. The reason is that a person’s cell phone usually has all kinds of information about a person’s life, which requires the law to recognize a strong privacy interest in the phone.
If law enforcement has searched a cell phone without a search warrant or consent, the contents can usually be excluded. This almost never happens, though, because law enforcement officers are well aware, from their training, that they need a search warrant or consent before they can look at the information on an accused person’s cell phone.
So, let’s assume that law enforcement got a search warrant to search a person’s cell phone. Does this mean that the Government can always use incriminating evidence in the cell phone against the accused? No, it does not. In federal and state courts in Texas, the search warrant can be challenged. When I am fighting for the rights of my clients, this is something I always investigate and consider. However, federal law and state law are different after two important decisions of the en banc Fifth Circuit Court of Appeals, which governs federal courts in Texas, Louisiana, and Mississippi, and the Texas Court of Criminal Appeals, which is the highest state court in Texas for criminal cases. Understanding the implications and differences is crucial for any lawyer who is fighting for clients in drug cases in Texas federal and state courts.
Federal Law on Search Warrants for Cell Phones: United States v. Morton.
In the recent case of United States v. Morton, 46 F.4th 331 (5th Cir. 2022), the en banc Fifth Circuit considered the legal requirements for reviewing cell phone search warrants. Normally, federal appeals court decisions are rendered by a panel of three judges. Morton, however, was heard by all seventeen judges of the Fifth Circuit, after a panel of three judges first issued a decision in the case. The fact that all seventeen judges considered the case and rejected the opinion of the original panel of three judges makes this a very significant opinion.
The case involved a search warrant of a cell phone based on drugs. Law enforcement searched the cell phone and found photos of child pornography, which the defendant was prosecuted for possessing. The original panel opinion held that, although the evidence used to get the search warrant showed probable cause to search text messages, call logs, and certain other information on the cell phone for evidence of drug possession, the photos of child pornography could not be used, because the search warrant did not establish probable cause to look at the photos on the cell phone. See United States v. Morton, 948 F.3d 421, 428 (5th Cir. 2021).
The original Morton panel opinion was considered highly unusual, because it purported to require probable cause to search individual segments of a cell phone. Although some civil liberties advocates applauded the decision, it was clear to those of us who know the Fifth Circuit that this opinion would not hold up. We were right. It did not.
All seventeen judges of the Fifth Circuit reconsidered the original opinion, and a large majority decided that the photographs on the cell phones could be used to prosecute the defendant. The en banc opinion relied on settled federal law that evidence found as a result of a search warrant can be used against the accused as long as “law enforcement obtained it in good-faith reliance on a warrant.” Morton, 46 Fed. 4th at 335 (quoting United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984)). A search warrant from a neutral magistrate is enough to show good faith, unless at least one of four factors show that the officer’s reliance on the search warrant was not in good faith. They are: “1) the magistrate issued it based on information the [officer] knew was false or should have known was false but for reckless disregard of the truth; 2) the magistrate wholly abandoned the judicial role; 3) the warrant is based on [a sworn statement] so lacking probable cause as to render belief in its existence unreasonable; and 4) the warrant is facially deficient in particularizing the place to be searched or the things to be seized.” Morton, 46th Fed. 4th at 336 (citing Leon, 468 U.S. 897, 923, 104 S.Ct. at 3405).
The en banc Fifth Circuit assumed that the only possible exception was the third one—that the sworn statement filed to support the search warrant was so “bare bones” that it could not establish probable cause. However, the en banc Morton opinion concluded that the officer’s sworn statement was not completely “bare bones.” Specifically, according to the opinion, it was not “wholly conclusory” because it described the facts and circumstances indicating that the defendant possessed illegal drugs. However, as to the cell phone, the opinion held that it was sufficient that the officer’s sworn statement “explains he ‘knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.’” Morton, 46 F.4th at 337 (emphasis added). The Fifth Circuit therefore upheld the search and the use of the photographs on the cell phone.
In Morton, the only evidence in the sworn statement supporting the search warrant that linked the alleged crime to the cell phone was the officer’s general training and experience that evidence could be found there. As we will see, the Texas Court of Criminal Appeals held that, under Texas law, this kind of evidence was insufficient.
Texas Law on Search Warrants for Cell Phones: State v. Baldwin.
State courts in Texas, as opposed to federal courts, must abide by the decisions of the Texas Court of Criminal Appeals, which is the highest court in Texas for criminal cases. In State v. Baldwin, 2022 WL 1499508 (Tex. Crim. App. May 11, 2022), the Texas Court of Criminal Appeals considered the validity of a search warrant to support a cell phone search.
The majority opinion noted that, under Texas law, “[p]robable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular location.” Id. at *7 (emphasis added). Further, according to the majority, “an affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed.” Id. at *9. Although the opinion recited a litany of formulations requiring deference to the magistrate’s determination of probable cause, the majority focused on the sufficiency of “conclusory allegations” or “boilerplate” language in the affidavit to support probable cause. See id.
Like the affidavit in the Fifth Circuit’s Morton decision, the affidavit in Baldwin demonstrated probable cause to believe that the suspect committed the crime and that the cell phone to be searched belonged to the suspect. Also, like the affidavit in Morton, the affidavit in Baldwin relied on the officer’s experience with similar crimes to try to show that it was at least fairly probable that the suspect’s cell phone would contain evidence of the crime. Specifically, the affidavit stated that, in the officer’s experience, people who commit the type of crime under investigation communicate with others about the planning or aftermath of the crime and that they often take photos showing evidence of the crime. This was exactly the kind of affidavit language that the Fifth Circuit found sufficient in Morton.
The Baldwin majority opinion, however, decided that affidavit statements that rely on the officer’s experiences with other investigations or crimes are insufficient to justify a search of a suspect’s cell phone. The opinion explained:
Which brings us to the issue we seek to resolve in this case: Is generic, boilerplate language about cell phone use among criminals sufficient to establish probable cause to search a cell phone? We hold that it is not. Instead, specific facts connecting the items to be searched to the alleged offense are required for a magistrate to reasonably determine probable cause. To hold otherwise would condone the search of a cell 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.
Id. at *11.
Accordingly, in Texas state courts, a search warrant affidavit must include specific facts linking the cell phone to the crime in some way, rather than mere reliance on the officer’s experience with other investigations or crimes.
The Texas Court of Criminal Appeals’ Baldwin holding clearly conflicts with the Fifth Circuit’s decision in Morton. In federal courts in Texas, a search warrant affidavit that relies entirely on an officer’s experience to connect the crime to the cell phone can be sufficient. In state courts in Texas, it cannot be.
The law in the area of search warrants is complicated and specialized. If you or a loved one is accused of a crime and law enforcement has searched a cell phone, you should retain a skilled and experienced Dallas federal drug crime defense lawyer who can analyze these difficult issues in order to protect the rights of the accused. If rights have been violated, you want a criminal defense lawyer who is willing and able to fight aggressively in court to vindicate those rights.
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