STOCKER v. STATE (2025)

OPINION ON REMAND

This case returns to us on remand from the Court of Criminal Appeals. A jury found appellant Jamin Kidron Stocker guilty of capital murder. On original submission to this court, appellant raised six issues. In his first four issues, appellant argued that the trial court erred in denying his motions to suppress: (1) evidence seized from his residence (Issue One); (2) his Samsung cell phone, which was seized without a warrant (Issue Two); (3) evidence obtained from his cell phone pursuant to a warrant (Issue Three); and (4) T-Mobile cell site location information (Issue Four). In his fifth issue, appellant argued that the evidence is legally insufficient to support the jury's guilty verdict. In his sixth and final issue, appellant contended that the trial court erred in admitting evidence of an extraneous offense.

We addressed and overruled appellant's first, fourth, fifth, and sixth issues. Stocker v. State, 656 S.W.3d 887, 897-99, 909, 912, 914 (Tex. App.—Houston [14th Dist.] 2022), rev'd, 693 S.W.3d 385 (Tex. Crim. App. 2024). However, we agreed with appellant that the trial court erred in refusing to suppress evidence obtained from his cell phone. Although the State secured the evidence pursuant to a warrant, we concluded that the supporting affidavit failed to articulate sufficient probable cause. Id. at 901-02. Because we also concluded that the erroneous admission of evidence obtained from the phone harmed appellant, we sustained appellant's third issue, reversed the trial court's judgment, and remanded for a new trial. Id. at 904-05, 914. Due to our disposition of appellant's third issue, we did not address his second issue. Id. at 901.

The State filed a petition for discretionary review, and appellant did not. The court of criminal appeals granted the State's petition and addressed a single issue pertaining to our probable cause analysis under appellant's third issue. Stocker, 693 S.W.3d at 386 n.1.¹ The high court reversed this court's judgment and remanded the case to this court for reexamination of probable cause. Id. at 388.

Having considered the parties’ original and supplemental arguments ² and the record before us, we address in the first instance appellant's second issue, and we reconsider appellant's third issue mindful of the court of criminal appeals’ opinion and judgment. We reject appellant's second issue, in which he challenges the warrantless seizure of his cell phone, because the record supports the trial court's implied findings that the police were justified in seizing appellant's cell phone under the plain-view doctrine. We reject his third issue, in which he challenges probable cause to support the search of his cell phone, because the affidavit supporting the search warrant contains sufficient specific facts demonstrating a nexus between appellant's cell phone and the criminal activity under investigation and described in the affidavit. Accordingly, and finding it judicially inefficient to discuss the issues on which we have already ruled, we affirm the trial court's judgment.

Factual Background

We recounted the factual background in detail in our original opinion, and we need not repeat it here. Stocker, 656 S.W.3d at 895. Appellant was charged with and convicted of capital murder after fatally shooting (in November 2017) a homeless man, whom appellant previously shot and injured three months earlier (in August 2017).

When police officers ultimately arrested appellant, they seized his Samsung mobile smart phone. Id. at 899. Law enforcement obtained a search warrant to search the device. Id. A search of the phone produced appellant's texts and browser history. Id. Appellant filed a motion to suppress the fruits of the search and seizure, which the trial court denied. Id.

Scope of Remand

After a case has been remanded by the court of criminal appeals to an intermediate appellate court, “the jurisdiction originally granted to the [court of appeals] by constitutional and statutory mandate is fully restored.” Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim. App. 1988); Calhoun v. State, 951 S.W.2d 803, 806 (Tex. App.—Waco 1997, pet. ref'd). We are therefore jurisdictionally authorized to address not only the specific points that are the subject of the remand, but also to reconsider issues in our earlier decision which the Court of Criminal Appeals did not. Calhoun, 951 S.W2d at 806; cf. State v. Hall, 794 S.W.2d 916, 917 (Tex. App.—Houston [1st Dist.] 1990), aff'd, 829 S.W.2d 184 (Tex. Crim. App. 1992) (refusal to grant a petition for discretionary review does not express approval of the lower court's decision). Despite possessing this authority, we are not required to reexamine issues already resolved in the interest of judicial economy. See Calhoun, 951 S.W.2d at 806.

The court of criminal appeals granted review and addressed only the State's challenge to our analysis of appellant's third issue, remanding with instructions for this court to reexamine that issue. In supplemental briefing filed in our court after remand, appellant limited the substance of argument to his second and third issues, and he did not urge us to reconsider any issue on which we ruled previously against him. Judicial efficiency counsels against reconsidering those issues that we have already resolved based on the parties’ briefing, that were not appealed to the high court, on which that court did not grant review, and that appellant has not asked us to reconsider. See id. Therefore, we limit our discussion at this point in the proceedings to appellant's second and third issues.

Analysis

In his second and third issues, appellant challenges the trial court's denial of his motion to suppress the Samsung phone evidence. Appellant argues that the warrantless seizure of his phone was unreasonable and illegal and that the search warrant for his phone's contents was not supported by probable cause.

A. Appellant's phone was lawfully seized without a warrant.

We originally did not address appellant's complaints regarding the seizure of his cell phone. See Stocker, 656 S.W.3d at 901 (“We will presume without deciding that the seizure of appellant's phone was lawful and, in so presuming, we do not reach the merits of appellant's second issue.”). We do so now.

We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023). We review a trial court's determination whether a specific search or seizure was reasonable under a de novo standard, but we give trial courts almost complete deference in determining historical facts that depend on credibility and demeanor. Id. Our deferential review of the trial court's factual determinations also applies to the trial court's conclusions regarding mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). Because the trial court did not make explicit findings of fact in this case, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record. Igboji, 666 S.W.3d at 612. Generally, our review is limited to the record at the time of the suppression hearing. Id.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. Generally, the Fourth Amendment requires that searches and seizures be accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be searched or seized. Igboji, 666 S.W.3d at 613 (citing United States v. Place, 462 U.S. 696, 701 (1983)). A warrantless search or seizure is per se unreasonable under the Fourth Amendment unless it falls within a recognized exception to the warrant requirement. Id.

Two such exceptions are implicated here, the protective-sweep exception and the plain-view exception. Under the protective-sweep exception, when an officer has an objectively reasonable belief, based on specific and articulable facts, that someone may be inside the premises who poses a danger to the officer or to others in the area, the officer may perform a “protective sweep” of the premises without a warrant or consent.³ See Maryland v. Buie, 494 U.S. 325, 327 (1990); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).

During a protective sweep, officers may seize evidence within their plain view. Lipscomb v. State, 526 S.W.3d 646, 655 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). For the plain-view exception to apply, two requirements must be met: (1) the officer must be in a proper position to view the item or lawfully be on the premises; and (2) the fact that the officer has discovered evidence must be immediately apparent. Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991); see also Nichols v. State, 886 S.W.2d 324, 325 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). “This second prong does not require the officer to ‘know’ that certain items are evidence of a crime.” Nichols, 886 S.W.2d at 325-26. Instead, it requires the officer to have “probable cause to believe the property is associated with some criminal activity.” Id. at 326.

Houston Police Department (“HPD”) Officer Jose Coronado executed an arrest warrant at appellant's place of business, which was a pizza company that operated out of a “house that's turned into a business, more of a community center that's open to the public.” According to Officer Coronado, “there were a lot of people coming in and out.” His partner, HPD Officer Tony Villa, “started to call people out of the building so [officers] could detain them until [officers] could determine whether or not Mr. Stocker was actually inside or not.” Stocker came out and spoke to the officers, although he initially gave them a fake name.

The police then conducted a “safety sweep” of the building “to ensure that [people were not] there to ambush” the officers. Officer Coronado testified that the area was “pretty populated with gang activity, drugs, guns. There's a lot of people that don't like police in that neighborhood.” He did not know “for sure” whether anyone else was inside the building, which was a “safety concern” for the officers.⁴

During the sweep, Officer Coronado found a cell phone inside “in plain sight,” about which he commented, “Hey, they wanted this phone.” He clarified “they” meant “Homicide.” Officer Coronado believed the phone belonged to appellant because the phone was found in the kitchen, and appellant had told officers that “he was the only person that was cooking pizzas.” Officer Coronado seized the phone. Officer Villa then transported appellant “to Homicide,” and he gave the cell phone to one of the homicide detectives.

Appellant does not challenge the legality of the protective sweep or the officers’ lawful presence and right of access.⁵ Appellant argues that the plain-view exception does not apply because a cell phone is not contraband or otherwise “inherently incriminating.”

The second requirement of the plain-view doctrine—that the “incriminating character” of the object in plain view must be “immediately apparent” to the police officers—requires a showing only of probable cause that the observed item is incriminating evidence; actual knowledge of the incriminating evidence is not required. Joseph, 807 S.W.2d at 308.

Pursuant to the collective-knowledge doctrine, the officer who initiates the seizure “need not be personally aware of every fact that objectively supports” reasonable suspicion or probable cause. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “Rather, ‘the cumulative information known to the cooperating officers at the time of the [seizure] is to be considered in determining whether reasonable suspicion [or probable cause] exists.’ ” Id. (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)); see also Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983) (noting that, when law enforcement authorities are cooperating in an investigation, the knowledge of one is presumed shared by all). The doctrine applies so long as there is “some degree of communication” between the cooperating officers. Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1984); Morgan v. State, 304 S.W.3d 861, 868 (Tex. App.—Amarillo 2010, no pet.).

Here, Officer Coronado testified that he knew “Homicide wanted to talk to [appellant] about other shootings and murder he may be involved in” and that homicide detectives wanted appellant's phone.⁶ The trial court could have impliedly found that there was “some degree of communication” between the officers investigating the offenses appellant was suspected of committing and the officers who executed the search warrant. Woodward, 668 S.W.2d at 344. Thus, some evidence supports the application of the collective-knowledge doctrine to satisfy the requirement of the plain-view exception with respect to the warrantless seizure of appellant's cell phone. See Derichsweiler, 348 S.W.3d at 917; Woodward, 668 S.W.2d at 344; see also Rodriguez v. State, No. 01-17-00352-CR, 2018 WL 6696490, at *8 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, pet. ref'd) (mem. op., not designated for publication) (utilizing collective-knowledge doctrine to satisfy second prong of plain-view doctrine in affirming denial of motion to suppress warrantless seizure of cell phone); King v. State, No. 03-17-00276-CR, 2018 WL 5728765, *6 (Tex. App.—Austin Nov. 2, 2018, pet. ref'd) (mem. op.; not designated for publication) (same).

Viewing the evidence in the light most favoring the trial court's ruling, we conclude that the record supports implied findings and a determination by the trial court that the police were justified in seizing appellant's cell phone under the plain-view doctrine.⁷ We hold that the trial court did not abuse its discretion in denying appellant's motion to suppress evidence based on the warrantless seizure of the cell phone. Rodriguez, 2018 WL 6696490, at *9.

We overrule appellant's second issue.

B. The search of appellant's phone was supported by probable cause.

In his third issue, appellant challenges the trial court's denial of his motion to suppress evidence obtained from his cell phone because the supporting affidavit failed to establish probable cause. On original submission, we agreed with appellant. Pursuant to the high court's directive, we reconsider this issue.

The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See U.S. Const. amend. IV. Probable cause exists when, under the totality of the circumstances, there is a fair probability or substantial chance that contraband or evidence of a crime will be found in a particular location. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); see also State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012); Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In other words, there must be “a sufficient nexus between criminal activity, the things to be seized, and the place to be searched.” Bonds, 403 S.W.3d at 873.

As applicable to searches of a cellular telephone or other wireless communications device in Texas, the nexus requirement demands a fair probability that searching the device is likely to produce evidence in the investigation of criminal activity. See Tex. Code Crim. Proc. art. 18.0215. Mere possession of a device by a suspect generally is not enough. See State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim. App. 2022). Under article 18.0215, an application to search a person's cell phone after a lawful arrest must “state the facts and circumstances that provide the applicant with probable cause to believe that (A) criminal activity has been, is, or will be committed; and (B) searching the telephone or device is likely to produce evidence in the investigation of the criminal activity described in Paragraph (A).” Tex. Code Crim. Proc. art. 18.0215(a), (c)(5); see also Baldwin, 664 S.W.3d at 131. Neither article 18.0215 nor the Fourth Amendment permit law enforcement to embark on “a general, evidence-gathering search” of a cell phone for personal information. See State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App. 2014); see also Butler v. State, 459 S.W.3d 595, 601 n.3 (Tex. Crim. App. 2015) (acknowledging that both the United States Supreme Court and the Texas Court of Criminal Appeals have recognized that cell phone users have a reasonable expectation of privacy in content of their cell phones).

Importantly, a probable cause affidavit supporting a cell phone search must contain evidence of the requisite nexus with more than mere conclusory assertions. Gates, 462 U.S. at 238-39. For example, this state's court of criminal appeals has held that generic language about cell phone use among criminals is not alone sufficient to establish probable cause to search a cell phone. Baldwin, 664 S.W.3d at 134. The Baldwin court explained:

Is generic, boilerplate language about cell phone use among criminals sufficient to establish probable cause to search a cell phone? We hold it is not. Instead, specific facts connecting the items to be searched to the alleged offense are required for the magistrate to reasonably determine probable cause. To hold otherwise would condone the search of a 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. In Baldwin, the court held that the affidavit supporting the search warrant at issue contained only the officer's generalized belief, based on his experience and training, that suspects plan crimes using phones and that such generic assertions were insufficient to establish the factual nexus required to justify a search the suspect's cell phone.⁸ Id. at 135-36.

But a probable cause affidavit will not be considered insufficient merely because it may contain conclusory or generic assumptions based upon the official's experience. An affidavit including generic allegations may nonetheless support probable cause so long as it contains sufficient additional facts meeting the nexus requirement. Id. at 134-35.

We review a magistrate's decision to issue a search warrant under a highly deferential standard because of the constitutional preference for searches conducted pursuant to a warrant over warrantless searches. State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011). This flexible, non-demanding standard affords great deference to a magistrate's probable cause determination, including implicit findings and all reasonable inferences. See Duarte, 389 S.W.3d at 354; McLain, 337 S.W.3d at 271-72; Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). Even in close cases, we defer to a magistrate's probable cause determination to encourage police officers to use the warrant process. Duarte, 389 S.W.3d at 354. In assessing whether a magistrate reasonably could have arrived at a probable cause determination, we are constrained to the four corners of the affidavit, which we construe in a commonsense and non-hypertechnical manner. McLain, 337 S.W.3d at 271-72.

The affidavit at issue in today's case, like Baldwin, includes generic assertions about cell phone use among criminals. Mindful of Baldwin, we examined the affidavit's substance excluding those generic statements. Even so, in our original opinion we held the affidavit insufficient under Baldwin because it did not describe the capital murder for which appellant was convicted, and it presented no factual nexus between appellant's cell phone and the capital murder. See Stocker, 656 S.W.3d at 902. The court of criminal appeals held that we applied Baldwin too narrowly. As that court stated, while a sufficient factual nexus must exist between the device to be searched and criminal activity, it is not necessary that a connection exist between the device and the particular offense ultimately charged and tried. See Stocker, 693 S.W.3d at 387-88. A factual connection between the device and criminal activity under investigation described in the affidavit is sufficient. See id.

One way to establish the required nexus in an affidavit is “through reliable information suggesting that the criminal perpetrator ‘used’ the cell phone ‘before, during, or after the crime’ that is being prosecuted,” but this is not necessarily a prerequisite of probable cause. Stocker, 693 S.W.3d at 387-88 (quoting Baldwin, 664 S.W.3d at 135); see also Diaz v. State, 604 S.W.3d 595, 603 (Tex. App.—Houston [14th Dist.] 2020), aff'd, 632 S.W.3d 889 (Tex. Crim. App. 2021). The court did not say in Baldwin that “ ‘use’ of a cell phone in aid of the actual perpetration of the crime that is on trial is, necessarily, the only ‘specific fact’ that can serve to establish the required ‘nexus,’ ‘connection,’ or ‘tie’ between a cell phone and an offense under investigation.’ ” Stocker, 693 S.W.3d at 388 (emphasis in original). This link may be shown by facts reasonably indicating use of a cell phone in connection with “an offense under investigation” and described in the affidavit. See id.

With Baldwin so clarified, we embark on our duty to satisfy ourselves that the magistrate had “a substantial basis” for concluding that probable cause existed in this case. Baldwin, 664 S.W.3d at 130; Duarte, 389 S.W.3d at 354. To support a conclusion that a search of a cell phone is likely to produce evidence in the investigation of criminal activity, the affidavit must contain specific facts or circumstances, together with reasonable inferences derived therefrom, connecting the cell phone to the criminal activity described. See Tex. Code Crim. Proc. art. 18.0215(c)(5); Baldwin, 664 S.W.3d at 131-32. So long as the affidavit sufficiently supports a nexus between the device and evidence in the investigation of described criminal activity, the warrant is supported by probable cause and is valid.

Here, the affidavit in support of the warrant to search appellant's cell phone describes substantial criminal activity under investigation and reasonably believed to have been perpetrated by appellant. HPD Homicide Detective Mark Condon prepared the affidavit in support of the search warrant for appellant's cell phone. Detective Condon at the time was assigned to Gang Murder Squad #14 and responsible for investigation of capital murders, murders, and police related shootings. He specifically described appellant's cell phone as the item to be searched and stated that he sought evidence of crimes of aggravated assault, including evidence tending to show that a particular person committed the offenses or to show flight or intent to cause harm, such as GPS data or other information found on the phone itself.

Detective Condon described several aggravated assaults involving the shooting of law enforcement officers and others by an unknown person or persons and using a .22 caliber long gun. One incident occurred on April 13, 2016 at 3100 Alabama, Houston, when Harris County Constable Precinct 7 Deputy Clopton ⁹ was shot multiple times while assisting during a traffic stop. A .22 caliber fired projectile was recovered near the scene, though no shell casings were found. Detective Condon reviewed video surveillance, which showed a person running north along a bike trail carrying what appeared to be a long gun seconds after Deputy Clopton was shot. Detective Condon was aware that some types of long guns, similar to what he saw on the video, are capable of firing .22 caliber rounds. During his investigation, Detective Condon learned of four similar, unsolved shootings that occurred in temporal and geographic proximity to the Deputy Clopton shooting. All of these unsolved incidents involved .22 caliber rounds where no casings were recovered, and three of them involved the shooting of law enforcement officers from a distance. They occurred on April 12, 2015; June 9, 2015; January 13, 2016; and March 29, 2016—all within one year before the Deputy Clopton shooting, and all at addresses 1.7 miles or less from 3100 Alabama where Deputy Clopton was shot (and less than 2.3 miles from appellant's residence).

Later, in January 2017, Detective Condon received a Crime Stopper's tip that identified the shooter of Deputy Clopton as “Jamin LNU [last name unknown].” The tipster stated Jamin owned a long gun with a shell catcher and was “a local activist who did not like law enforcement.” The tipster also provided Jamin's cell phone number.¹⁰

In August 2017, Detective Condon learned that appellant was suspected of aggravated assault after shooting a homeless person named Brent Tapp in the leg from a balcony at 1323 Rosewood, an address associated with appellant. From the offense report, Detective Condon learned that Tapp saw appellant standing on appellant's apartment balcony and fire at Tapp while he was standing in an empty lot. During a search of appellant's residence at 1323 Rosewood, HPD officers recovered a Marlin .22 Long Rifle with a shell catcher, along with two other rifles, two handguns, and more than 1000 rounds of ammunition. Detective Condon believed that the shell catcher on the .22 long rifle explains why no shell casings were recovered at the scene of Deputy Clopton's shooting.

Detective Condon reviewed various HPD reports involving appellant and learned that appellant would provide his phone number, which matched the number given by the Crime Stopper's tipster. Additionally, appellant's address, 1323 Rosewood, is within 1.5 miles of Deputy Clopton's shooting and within a 2.3 mile range of the other shootings.

In January 2018, appellant was arrested for aggravated assault based on the August 2017 shooting of Tapp in the leg.¹¹ Appellant's cell phone was seized during the arrest. Appellant's phone was described as a “smart phone.”

Detective Condon requested a search warrant to “download” appellant's cell phone “in an attempt to discover any electronic data, including deleted data, associated with the shooting of Deputy Clopton and the victim related to the aggravated assault [appellant] was charged in.” Specifically, Detective Condon sought the warrant to search the phone for:

items constituting evidence of the offenses of aggravated assault, or constituting evidence tending to suggest evidence of intent to cause harm, constituting evidence tending to show flight, or constituting evidence tending to show that a particular person committed the offense of murder that may be found in the cellular phone itself, the cellular phone's memory, or any removable media (such as SIM cards, SD cards, or flash drives) therein but is not limited to call logs, GPS data, metadata, text and multimedia messages (SMS and MMS), stored communications, electronic mailbox (E-Mails), voicemails, social media applications, messaging and communication applications ․

Considering the affidavit's specific facts and reasonable inferences derived therefrom, is there a connection or nexus between the described criminal activity under investigation and appellant's cell phone? We conclude there is. Although Baldwin instructs us that “generic, boilerplate language about cell phone use among criminals” is not sufficient to establish probable cause to search a cell phone, Detective Condon's affidavit went further than that.

One way in which the affidavit supplied a factual nexus between appellant's cell phone and the described criminal activity is through appellant's possible use of the phone to communicate about the criminal activity. For example, the tipster specifically identified appellant as Deputy Clopton's shooter and correctly provided his cell phone number. The tipster also said that appellant owned a long gun with, significantly, a shell catcher. These facts tied appellant to Deputy Clopton's crime scene, and the information that appellant was an “activist” with a grudge against law enforcement provided a potential motive for Deputy Clopton's shooting as well as the other peace officer shootings described in the affidavit. Given the specificity of the information the tipster provided, some of which was corroborated independently, the magistrate reasonably could have inferred that the tipster and appellant had communicated with each other through appellant's phone, including by social media, and that those communications would be stored on appellant's phone. See, e.g., Diaz, 604 S.W.3d at 603-04 (upholding probable cause to search cell phone based on facts and inferences reasonably showing that appellant used cell phone to communicate in aid of the offense); Bowden v. State, No. 08-19-00057-CR, 2021 WL 3661163, at *11 (Tex. App.—El Paso Aug. 18, 2021, pet. ref'd) (mem. op., not designated for publication); Martinez v. State, No. 13-15-00441-CR, 2017 WL 1380530, at *3 (Tex. App.—Corpus Christi Feb. 2, 2017, no pet.) (mem. op., not designated for publication) (finding that probable cause existed to search cell phone based on facts that the defendant communicated with his cohorts via cell phone); Walker v. State, 494 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.] 2016, pet ref'd) (upholding probable cause to search cell phone based on allegations that Walker and complainant had been communicating via Walker's cell phone planning robberies around the time that the complainant was killed and the fact that the complainant's stolen property was later found in Walker's possession); Banks v. State, No. 14-11-00722-CR, 2013 WL 1907884, at *11 (Tex. App.—Houston [14th Dist.] May 7, 2013, pet. ref'd) (mem. op., not designated for publication) (upholding probable cause to search cell phone based on fact that appellant and complainant exchanged text messages on date of murder).

Moreover, the facts in the affidavit suggest a likelihood that evidence indicating a particular individual committed the patterned offenses—reflected in the GPS location data—would be revealed from a search of appellant's phone. It is common knowledge that smart phones record and store location data. United States v. Jimenez-Chaidez, 96 F.4th 1257, 1268 n.4 (9th Cir. 2024) (citing, e.g., United States v. Jones, 565 U.S. 400, 428 (2012) (Alito, J., concurring) (“[N]ew ‘smart phones,’ which are equipped with a GPS device, permit more precise tracking [than cell towers].”)); People v. Reyes, 174 N.E.3d 127, 138 (Ill. App. Ct. [2d Dist.] 2020), appeal denied, 169 N.E.3d 346 (2021), cert. denied, 142 S. Ct. 295 (2021) (observing that it is “common knowledge that a phone like the one in this case also passively generates, collects, and processes tracking data on its own, without the user's input”). This location data is recoverable from the device itself. Reyes, 174 N.E.3d at 137-40. It is reasonable to infer that appellant kept his cell phone on hand because his phone was not listed as an item recovered from the search of his residence and was found in his possession when arrested.¹²

The facts contained in the affidavit, and reasonable inferences from those facts, tied appellant to the scene of at least two separate offenses under investigation—Deputy Clopton's shooting and the August 2017 Tapp shooting. The shootings described in the affidavit all occurred within a reasonably close time and all within walking distance of appellant's residence. The tipster directly implicated appellant in Deputy Clopton's shooting, and appellant's involvement in the offense is consistent with the surveillance video showing the suspect fleeing the scene carrying an object that could have been a rifle such as appellant's .22 caliber long rifle recovered from his residence. Also, Tapp identified appellant as the person who shot him from the balcony of appellant's residence.

Thus, the magistrate reasonably could have inferred that appellant's “smart phone,” including its GPS data, would confirm appellant's locations on the dates of the described shootings, including evidence of flight from Deputy Clopton's shooting. See, e.g., Gallagher v. State, Nos. 09-21-00307-CR, 09-21-00308-CR, 09-21-00309-CR, 09-21-00310-CR, 2023 WL 3085768, at *6 (Tex. App.—Beaumont Apr. 26, 2023, pet. filed) (mem. op., not designated for publication) (upholding probable cause to search cell phone when witness placed defendant at crime scene, defendant admitted cell phone belonged to him, and geolocation data from the phone could confirm defendant's presence at the crime scene); Abel v. State, No. 02-18-00051-CR, 2020 WL 5048078, at *27-28 (Tex. App.—Fort Worth Aug. 27, 2020, no pet.) (mem. op., not designated for publication) (upholding probable cause for cell phone search when facts tied defendant to crime scene and to victim, and phone found in defendant's property when arrested); Whitley v. State, No. 04-17-00438-CR, 2018 WL 2694559, at *2 (Tex. App.—San Antonio June 6, 2018, pet. ref'd) (mem. op., not designated for publication) (upholding probable cause to search cell phone when affidavit stated defendant was at crime scene and magistrate could have inferred that cell phone data would confirm defendant's geographic location); Banks, 2013 WL 1907884, at *11 (same); see also Reyes, 174 N.E.3d at 138 (“Cell phone evidence of an offense includes not only the photographs, audio, or video of the offenses being committed but also GPS data that might indicate where the crime occurred or indicia of the identity of the perpetrator.”).¹³

Additionally, the four unsolved aggravated assaults listed in the affidavit contain similar facts to Deputy Clopton's case, indicative of a pattern of criminal activity or a signature crime.¹⁴ The location of a cell phone during separate instances of criminal activity described in the affidavit is evidence in the investigation of such criminal activity described. Thus, a magistrate could have reasonably inferred that GPS location data from appellant's phone was likely to yield a location pattern that would be either consistent or inconsistent with the information known to officers at the time the warrant was presented.

Accordingly, we hold that the record supports the magistrate's finding that probable cause existed that searching appellant's cell phone was “likely to produce evidence in the investigation” of the criminal activity described in Detective Condon's affidavit. Tex. Code Crim. Proc. art. 18.0215(c)(5)(B); see also Stocker, 693 S.W.3d at 388. We overrule appellant's third issue.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   The high court did not address a second ground for review raised by the State. Id.

2.   On remand, we requested and received supplemental briefs from the parties.

3.   A “protective sweep” is a quick and limited search of the premises conducted to protect the safety of police officers or others. Buie, 494 U.S. at 327; Reasor, 12 S.W.3d at 815. It is generally though not necessarily conducted incident to an arrest. See United States v. Gould, 364 F.3d 578, 584-86 (5th Cir. 2004).

4.   He elaborated, “A lot of times when we run warrants, like I said, there's family members, there's friends that hide themselves inside the house. It's my concern as a police officer, my concern for my team that there may be somebody hiding inside wanting to ambush us while we're outside [ ] doing our work.”

5.   Even if appellant had challenged the protective sweep, after viewing the evidence in the light most favorable to the trial court's ruling and affording almost total deference to the trial court's implied findings of fact, we would hold that Officer Coronado had an objectively reasonable belief, based on specific and articulable facts, that there might have been a person inside the business who posed a danger to the officers or to others in the area. Because the officer's belief was objectively reasonable, the protective sweep was lawful.

6.   As we discuss in connection with appellant's third issue, a homicide detective executed an affidavit for a search of appellant's seized cellphone.

7.   To be clear, the plain-view doctrine supports the seizure of the cell phone as a physical object. The State did not access the data contents of appellant's cell phone until after it had obtained a warrant allowing such access. Cf. Riley v. California, 573 U.S. 373, 403 (2014) (holding that police must generally obtain a warrant before searching data contents of a cell phone).

8.   In Baldwin, the affidavit provided, in relevant part: “Additionally, based on your Affiant's training and experience, Affiant knows from other cases he has investigated and from training and experiences that it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications. Further, Affiant knows from training and experiences that someone who commits the offense of aggravated assault or murder often makes phone calls and/or text messages immediately prior and after the crime.” Id. at 126.

9.   It is unclear from the record whether Deputy Clopton is a different person than HPD Officer Kerry Clopton, who obtained the aggravated-assault arrest warrant for appellant.

10.   Detective Condon stated that he believed the tipster was believable and credible because he provided his first name and a working phone number if law enforcement needed to contact him. However, these statements were proven untrue at the suppression hearing. The prosecutor represented to the court that the tipster was “completely anonymous.” The court specifically stated on the record that it did not consider these statements regarding the tipster's credibility when concluding that the affidavit was sufficient to establish probable cause, and we also do not consider them.

11.   As discussed in our original opinion, appellant fatally shot Tapp in November 2017, which resulted in appellant's capital murder conviction in the present case. Stocker, 656 S.W.3d at 895, 897-98.

12.   In fact, the Supreme Court has observed that a cell phone is “almost a feature of human anatomy” and “people compulsively carry cell phones with them all the time.” Carpenter v. United States, 585 U.S. 296, 311 (2018). Indeed, “[n]ow it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time.” Riley, 573 U.S. at 395.

13.   In Reyes, the court held that the magistrate reasonably could have inferred that the defendant's cell phone contained evidence of the offenses because, among other reasons, Reyes carried it on his person and he was at the crime scene. Reyes, 174 N.E.3d at 140.

14.   See Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008) (describing factors that may indicate “signature” crime).

Kevin Jewell, Justice