Lankford, Bobbie Lee

10/29/26

PD-0178-26

  1. “Can an officer objectively rely in good faith on a warrant under article 38.23(b) to conduct a forensic examination of a seized cell phone’s digital contents when the warrant’s command authorized only seizure and return of hardware to the court?”
  2.  “Can an officer objectively rely in good faith on a warrant under article 38.23(b) to search a particular cell phone when the warrant identified the property to be searched only as ‘cellular phones’ without specifying any device by make, model, or IMEI number?”
  3.  “Can an officer objectively rely in good faith on a purported warrant under article 38.23(b) when the ‘warrant’ was signed by a justice of the peace who lacked statutory authority under article 18.01(c) to issue warrants for evidence of an offense under article 18.02(a)(10)?”
  4.  “Does a court misapply the article 38.23(b) good-faith standard when, instead of asking whether a reasonable officer holding this specific warrant—with all three structural deficiencies simultaneously present—would have believed he was authorized to proceed, it addresses each deficiency separately and never applies Wheeler’s standard to the instrument as it actually existed?”

Lankford was the subject of a possession of child pornography investigation.  Police obtained a warrant from a justice of the peace to seize his cell phone, among other devices.  The warrant did not specifically authorize a forensic examination of the phone.  Forensic examiners discovered child pornography on the phone. Using some of the information police obtained from the first search (including the identifying number of the cell phone), police obtained a second warrant that authorized a search of “[a]ll data contained” within the phone.  

Lankford moved to suppress, arguing (1) the first warrant didn’t authorize a forensic exam and (2) even if it did, the justice of the peace lacked the authority to issue a warrant.  The trial court granted his motion to suppress. 

The State appealed the trial court’s ruling.  It argued that a justice of the peace had authority to issue the warrant, that the affidavit incorporated by reference authorized the forensic examination, and that law enforcement acted in good-faith reliance on the warrant in conducting the forensic exam.

Despite any deficiencies in the warrant, the court of appeals held that police had an objectively reasonable, good-faith belief that the forensic search was authorized.  The court observed that the warrant affidavit, expressly incorporated by reference, requested such an examination and that, when there are conflicts, the affidavit can be used to determine the scope of the warrant-authorized search.  Therefore, police could have reasonably concluded that the justice of the peace found probable cause for the forensic exam.

Next, the court rejected Lankford’s argument that the first warrant lacked particularity because Tex. Code Crim. Proc. art. 18.0215(c)(2)(3) requires the identity of a particular phone and its owner.   The court concluded that police had an objective good-faith belief because the affidavit set forth identifying facts and circumstances.  Police conducted the search because they had probable cause to believe the phone contained child pornography.

Lankford argues that the lower court wrongly assumed that incorporation by reference applies.  He also asserts: “When the magistrate reads an explicit request for ‘the forensic examination of the seized items’ and issues a command that omits it, incorporation cannot import what the magistrate withheld.”  He contends that Crider v. State, which held that a search warrant to obtain a blood sample also authorizes the search of the blood, does not control. 607 S.W.3d 305 (Tex. Crim. App. 2020).   Unlike a chemical analysis, a phone “is a repository of ‘the privacies of life.’”  And Crider did not endorse general search warrants for indiscriminate rummaging. Finally, because the State provided more particularity in the second affidavit, recognizing the first warrant's deficiency, it cannot claim the first wasn’t deficient in those respects.  A warrant so facially deficient does not support good faith.

Next, he argues that the first warrant’s specificity as seizing cell phones was enough for that purpose,  but was insufficient for the forensic search.  The fact that the second warrant was sought to be “more in compliance with Article 18.0215” is an objective acknowledgment that the first warrant was inadequate, so good faith should not apply. 

Third, he argues that the justice of the peace lacked authority to issue the evidentiary warrant under Tex. Code Crim. Proc. arts. 18.01(c) and 18.02(a)(10).  They require a licensed attorney-judge.  As such, the evidence from the forensic exam should be suppressed.   He also contends the justice of the peace lacked authority because Article 18.0215, which the lower court relied on, did not apply. 

Finally, he argues that Wheeler poses a single question—whether an objectively reasonable officer holding this specific warrant, with all of its deficiencies present at once, would have believed it authorized the search—not three separate questions.  By addressing each deficiency in isolation rather than evaluating the warrant as a whole, the lower court misapplied the good-faith standard.