Baldwin, John Wesley ( 2022 )

In the Court of Criminal
Appeals of Texas
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No. PD-0027-21
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THE STATE OF TEXAS
v.
JOHN WESLEY BALDWIN, Appellee
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On State’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Harris County
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YEARY, J., filed dissenting opinion.
“Boilerplate” is not a dirty word. In the legal context, it usually
refers to standardized language that is frequently pre-printed on a
contract or other legal document for the sake of convenience, since it will
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be applicable far more often than not. 1 The Court points to nothing in
the warrant affidavit in this case that appears to have been pre-printed,
and it seems to use the descriptor “boilerplate” interchangeably with
“generic.” So, I take it that the Court only means to communicate that
the language it says is “boilerplate” has general application; and that,
because of that very generality, such language is insufficient, on its own,
to supply the degree of particularity required to satisfy probable cause.
Unlike the Court, and for the same reasons expressed in
Presiding Judge Keller’s dissent, I am persuaded that the affidavit
furnished by the officer in this case expressed at least probable cause to
believe that evidence of the crime would be found by examining the
entire contents of the phone. But even if I did not join the Presiding
Judge in that view, I would be troubled by the Court’s willingness to
approve the trial court’s seemingly wholesale exclusion of all evidence
that might be, or have been, gathered from the phone without first
considering whether the facts stated in the affidavit were sufficient to
search at least certain unique applications on the phone that would
certainly lead to actionable evidence. Foremost among these unique
applications would be the one that would identify the name of the phone
service provider.
The affidavit of the officer explained,
based on your Affiant’s training and experience, Affiant
knows from other cases he has investigated and from
training and experiences that searching a suspect’s phone
will allow law enforcement officers to learn the cellular
telephone number and service provider for the device.
1 See, e.g., BLACK’S LAW DICTIONARY 216 (11th ed. 2019) (“1. Ready-
made or all-purpose language that will fit in a variety of documents.”).
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Affiant knows that law enforcement officers can then
obtain a subsequent search warrant from the cellular
telephone provider to obtain any and all cell site data
records, including any and all available geo-location
information for the dates of an offense, which may show the
approximate location of a suspect at or near the time of an
offense.
Majority Opinion at 6. There is no question that evidence developed in
this case established probable cause to arrest Appellee for the charged
offense. The affidavit for search also confirmed that the phone at issue
was found with Appellee at the time of his detention and that he
admitted being connected to the phone by informing officers of the phone
number attached to it at the same time. Majority Opinion at 5. A search
of the cell phone for the identity of the service provider could therefore—
according to a combination of facts developed in the investigation and
other facts more generally known to the applicant officer (all of which
were stated in the affidavit)—lead to the development of facts that
would demonstrate Appellee’s location at the time that the crime
occurred as well as on the day before, when neighbors of the victim saw
a suspicious vehicle “casing” the neighborhood. Other applications likely
to be on the phone also would similarly probably contain information
that might show Appellee’s location at those times.
The Court all but ignores the actual grounds we granted review
to consider: “(1) Did the court of appeals depart from the proper standard
of review by substituting its own judgment for that of the magistrate
who viewed the warrant affidavit and found probable cause?”; and “(2)
Did the court of appeals employ a heightened standard for probable
cause, departing from the flexible standard required by law?” Although
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the Court’s opinion gives a modicum of pen-service to the standard of
review applied by the court of appeals, the Court’s opinion seems to fall
into the same error that the State has argued was made by the court of
appeals.
Instead of answering the grounds that this Court granted review
to assay, concerning whether the court of appeals properly applied the
appropriate standard of review to the issue before it, the Court instead
makes up a new ground upon which to base its own independent
determination: “Is generic, boilerplate language about cell phone use
among criminals sufficient to establish probable cause to search a cell
phone?” And then, as if answering the actual ground we granted for
review, the Court answers its own question: “We hold it is not.” Majority
Opinion at 21.
The Court’s opinion also announces what, in my opinion, is an
overly categorical rule that focuses too acutely on whether a warrant
relies on so-called boilerplate language. In doing so, the Court fails to
exhibit the great deference that is owed under the Fourth Amendment
to the magistrate who issued the warrant in the first place. See Jones v.
State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012) (observing that a
reviewing court should afford “great deference” to the magistrate’s
probable cause judgment respecting probable cause, and that the
magistrate’s view should prevail in “marginal cases”); Massachusetts v.
Upton, 466 U.S. 727, 733 (1984) (“A deferential standard of review is
appropriate to further the Fourth Amendment’s strong preference for
searches conducted pursuant to a warrant.”). And it fails to acknowledge
that, at least with regard to certain information and applications that
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will likely be found within the phone, the affidavit supplies more than
sufficient probable cause to justify the magistrate’s issuance of the
warrant.
The Court could have expressed an opinion that was narrower—
one that merely contended that perhaps the court of appeals should have
focused on the fact that the general nature of the warrant’s search
authority was too broad given the limited information contained in the
warrant. I would not have joined that opinion either, but it would have
been preferable to the opinion that the Court issues today. I believe that
the Court’s opinion in this case will serve only to significantly inhibit
otherwise perfectly constitutional future investigative activities by law
enforcement. Neither the law nor the people will be served by this
decision, but criminals and their enterprises will benefit.
With these brief further comments, I join the Presiding Judge’s
dissent.
FILED: May 11, 2022
PUBLISH