PD-0377-24 & PD-0378-24 08/21/2024
1. “The court of appeals misapplied the Guzman standard of review as it applied to the seizure of Rodriguez’s cell phone.”
2. “The court of appeals misapplied the attenuation of taint doctrine.”
3. “Does article 18.0125 apply to all cell phone searches or just the searches of cell phones seized pursuant to an arrest? ”
Rodriguez was a San Antonio police officer. After investigation revealed he was disclosing confidential information to a suspect via text for money, a detective obtained a warrant from a magistrate to seize and search Rodriguez’s phone. That detective and her superior presented the warrant to Rodriguez the next morning at roll call and obtained the phone he had on him. Rodriguez then agreed to follow them to headquarters and answer questions. Rodriguez signed a form consenting to a “complete search” of his phone, was Mirandized, and admitted he made the communications with the suspect. Afterwards, the detective manually searched his phone and corroborated that. She obtained a second warrant from a district court. That search revealed evidence that led to six more warrants, which revealed child pornography. Rodriguez was charged for the pornography, misuse of public information, and bribery. He filed a motion to suppress. The trial court concluded that the first warrant was invalid and the seizure and search were not saved by the plain view doctrine, consent doctrine, or independent source doctrine.
The court of appeals affirmed. It held that the plain view doctrine could not justify the seizure because, as it emphasized, “reasonable minds could disagree whether the incriminating nature of the phone in Rodriguez’s hand was immediately apparent.” Because the detective did not know the model phone Rodriguez had and no one saw him use that phone to send incriminating texts, there was no nexus between the phone and suspected crime. As for consent, the court of appeals held that it was bound to accept the trial court’s conclusion because it was not clearly erroneous, notwithstanding the fact that the trial court found no evidence of police misconduct. The conclusion was based primarily on the fact that consent followed disclosure of a warrant. As for independent source, the court of appeals held the second warrant could not qualify because it did not satisfy TEX. CODE CRIM. PROC. art. 18.0215’s heightened particularity requirements. It rejected the argument that art. 18.0215 applies only to searches “pursuant to a lawful arrest of the person without obtaining a warrant,” as its language plainly says.
The State challenges all three rationales for affirming suppression. First, it points out that a “plain view” review asks whether the officer was reasonable, not what a particular judge thinks. The use of the wrong standard was compounded by reliance on search cases; the State relied on plain view to justify only the seizure of the phone. There was ample probable cause to believe seizing that phone at that time would preserve evidence of text messages between Rodriguez and the suspect. Second, the State argues that the attenuation analysis ignored and/or misapplied multiple factors including the most important one—lack of flagrancy. Third, the State argues that construing Art. 18.0215 to supercede the general statute for searches of cell phones, Art. 18.02(a)(14), is untenable. Article 18.02(a)(14) authorizes searches of cell phones “subject to Article 18.0215.” If 18.0215 applies to searches beyond those described by its plain language, art. 18.02(a)(14) became superfluous without any fanfare.
