Jerel Chinedu Igboji v. State

Reversed and Remanded and Majority and Dissenting Opinions filed
September 22, 2020.
In The
Fourteenth Court of Appeals
NO. 14-17-00838-CR
JEREL CHINEDU IGBOJI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 16-DCR-072102
MAJORITY OPINION
A jury found Appellant Jerel Chinedu Igboji guilty of aggravated robbery
and assessed punishment at 17 years’ confinement. Raising one issue on appeal,
Appellant argues the trial court erred by denying his motion to suppress evidence
obtained following the warrantless seizure of his cell phone. For the reasons
below, we reverse and remand for a new trial.
BACKGROUND
Shortly after closing for the night on December 10, 2015, a Kentucky Fried
Chicken in Stafford, Texas was robbed by two armed men. Several employees,
including Appellant, were present during the robbery.
Detective Michael Ramirez was assigned to investigate the robbery and
interviewed some of the employees the morning after the incident. One of the
employees showed Detective Ramirez a Snapchat1 video posted by Appellant; the
video showed several police officers investigating the scene shortly after the
robbery occurred.
Several days later, Detective Ramirez called Appellant and asked him to
provide a formal statement regarding the incident. Appellant agreed and Detective
Ramirez picked Appellant up and drove him to the Stafford police department.
During the interview, Detective Ramirez took possession of Appellant’s cell
phone. Two days later, Detective Ramirez obtained a warrant to search
Appellant’s phone.
Appellant was arrested approximately one month later and charged with
aggravated robbery. See Tex. Penal Code Ann. § 29.03. Appellant pleaded not
guilty and elected to proceed with a jury trial. Before trial, Appellant filed a
motion to suppress and argued that Detective Ramirez’s warrantless seizure of his
cell phone violated the Fourth Amendment. Appellant requested that the trial court
suppress all evidence obtained from his phone. The trial court held a hearing on
Appellant’s motion to suppress and, after hearing evidence and the arguments of
1
Snapchat is a messaging application that allows users to share pictures, videos, and
messages that are only available for a short time before they become inaccessible. “Snaps” can
be directed privately to selected contacts or to a semi-public “story”. See Snapchat, Wikipedia,
https://en.wikipedia.org/wiki/Snapchat (last visited August 11, 2020).
2
counsel, verbally denied Appellant’s motion.
Appellant proceeded to trial and the jury found him guilty of aggravated
robbery. Appellant timely appealed.
ANALYSIS
Challenging the trial court’s denial of his motion to suppress, Appellant
asserts that his cell phone (1) was seized without a warrant, and (2) was searched
without a warrant.
We begin by addressing error preservation with respect to Appellant’s
second contention regarding the search of his phone. To preserve an issue for
appellate review, a party must present to the trial court a timely request, objection,
or motion stating the specific grounds for the ruling desired. See Tex. R. App. P.
33.1(a). The complaint asserted on appeal must comport with the complaint raised
in the trial court. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002);
Pabst v. State, 466 S.W.3d 902, 907 (Tex. App.—Houston [14th Dist.] 2015, no
pet.). Even constitutional claims may be waived by the failure to timely complain
in the trial court. Pabst, 466 S.W.3d at 907 (citing Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995)).
Here, Appellant’s motion to suppress was entitled “Motion to Suppress
Warrantless Seizure” and argued that the seizure of Appellant’s cell phone violated
the Fourth Amendment. Appellant’s motion did not allege that Detective Ramirez
searched his phone without a warrant. Likewise, at the hearing on Appellant’s
motion, Appellant’s attorney argued only that the seizure was improper – he did
not address the propriety of the subsequent search or assert that it was undertaken
without a warrant. Because Appellant did not raise in the trial court his complaint
regarding the alleged warrantless search of his cell phone, this issue is not
3
preserved for appellate review. See Tex. R. App. P. 33.1(a); see, e.g., Pabst, 466
S.W.3d at 907-08 (defendant did not preserve issue for appellate review because it
was not raised in the trial court).
Moreover, the record does not contain any evidence suggesting that
Appellant’s phone was searched without a warrant. Testifying at the hearing on
Appellant’s motion to suppress, Detective Ramirez stated that Appellant’s phone
was searched only after a warrant was obtained. The search warrant for
Appellant’s phone also was admitted into evidence at the hearing – the warrant was
dated December 16, 2015, two days after Appellant’s meeting with Detective
Ramirez. In sum, no evidence supports Appellant’s contention that his phone was
searched without a warrant.
We proceed to analyze the trial court’s denial of Appellant’s motion to
dismiss with respect to the warrantless seizure of Appellant’s phone.
I. Standard of Review and Governing Law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim.
App. 2013); Thomas v. State, 586 S.W.3d 413, 419 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d). The trial court is the sole finder of fact and is free to
believe or disbelieve any or all of the evidence presented at a suppression hearing.
Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Thomas, 586 S.W.3d at
419. We give almost total deference to the trial court’s determination of historical
facts that depend on credibility and demeanor. Wiede, 214 S.W.3d at 24; Thomas,
586 S.W.3d at 420. We view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; Gutierrez v. State, 585 S.W.3d 599, 608
(Tex. App.—Houston [14th Dist.] 2019, no pet.).
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We review de novo mixed questions of law and fact that do not turn on an
evaluation of credibility and demeanor. Wade, 422 SW.3d at 667; Gutierrez, 585
S.W.3d at 608. Where, as here, there are no written findings of fact, we uphold the
ruling on any theory of law applicable to the case and presume the trial court made
implicit findings of fact in support of its ruling so long as those facts are supported
by the record. Thomas, 586 S.W.3d 419-20.
Texas Code of Criminal Procedure article 38.23(a) provides that “[n]o
evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State or Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.” Tex. Code. Crim. Proc. Ann. art. 38.23(a). Here,
Appellant contends that his Fourth Amendment rights were violated when
Detective Ramirez seized his cell phone without a warrant.
The Fourth Amendment prohibits unreasonable searches and seizures. See
U.S. Const. amend. IV; see also State v. Villarreal, 475 S.W.3d 784, 795 (Tex.
Crim. App. 2014). Generally, the seizure of an individual’s personal property is
per se unreasonable within the meaning of the Fourth Amendment unless the
seizure is accomplished pursuant to a judicial warrant issued upon probable cause
and particularly describing the items to be seized. United States v. Place, 462 U.S.
696, 701 (1983); see also Kothe v. State, 152 S.W.3d 54, 59 n.10 (Tex. Crim. App.
2004) (“warrantless searches and seizures are presumed to be unreasonable”). But
there are exceptions to the warrant requirement. Missouri v. McNeely, 569 U.S.
141, 148 (2013); Villarreal, 475 S.W.3d at 796. Voluntary consent to search is an
established exception. Villarreal, 475 S.W.3d at 796 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973)). A second “well-recognized exception”
applies when “the exigencies of the situation make the needs of law enforcement
5
so compelling that a warrantless search or seizure is objectively reasonable under
the Fourth Amendment.” Gutierrez, 585 S.W.3d at 608 (citing McNeely, 569 U.S.
at 148-49).
When a defendant establishes that a search or seizure was conducted without
a warrant, the burden shifts to the State to prove that the search or seizure was
reasonable. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005);
Gutierrez, 585 S.W.3d at 609.
II. Evidence
Detective Ramirez was the first witness to testify at the hearing on
Appellant’s motion to suppress. Detective Ramirez said that, during his interview
with the Kentucky Fried Chicken employees the day after the robbery, one of the
employees showed him a Snapchat video that showed police officers investigating
the robbery. Detective Ramirez recognized the officers in the video and believed
the video was taken shortly after the robbery occurred. Detective Ramirez learned
that the video was posted by Appellant’s Snapchat account. According to
Detective Ramirez, the other restaurant employees “seemed suspicious” of
Appellant.
Detective Ramirez said that, at the time of this investigation, he did not have
a lot of knowledge regarding Snapchat but knew its shared contents were “deleted
after a certain amount of time.” Detective Ramirez believed “the user was able to
predetermine that time on how long the image or video lasts.” Detective Ramirez
also stated that the Snapchat user “can actually keep the image or the video just
like you would on any other app[lication], without having it expire within a certain
amount of time.”
Detective Ramirez testified that he contacted Appellant on December 14,
6
2015, seeking to secure “a copy of the videos and any other evidence.” Appellant
agreed to meet with Detective Ramirez and Detective Ramirez picked him up and
drove him to the Stafford police department. Detective Ramirez said that, at this
point in the investigation, he believed Appellant was a witness and noted that
Appellant had been cooperative during the investigation. According to Detective
Ramirez, he did not have any reason to believe that Appellant would not share the
videos with him.
Detective Ramirez said that, during the meeting, he suggested to Appellant
that Appellant give him consent to search his phone and obtain the videos.
According to Detective Ramirez, Appellant did not consent to the search so he
“seized” Appellant’s phone “to preserve whatever was on the device.” Detective
Ramirez subsequently obtained a warrant to search Appellant’s phone. When
asked why he did not get the search warrant before meeting with Appellant,
Detective Ramirez stated that he was hoping Appellant “would just consent and it
wouldn’t have been a big deal.”
The second witness to testify at the motion hearing was Bruce Motes, a
certified forensic computer examiner. Motes described Snapchat as “a social
media platform to share images that were meant to be instantly deleted.”
Describing the application’s functions, Motes said that a person who sends content
over Snapchat also can retain that content on his phone. Motes said that, if the
transmitted content was deleted from the phone, there was still a possibility of it
being recovered but it was dependent on each phone’s “file system function”.
Also admitted into evidence during the hearing was (1) Detective Ramirez’s
affidavit for the search warrant; (2) the warrant dated December 16, 2015, and
(3) an audio recording of the meeting during which Detective Ramirez obtained
Appellant’s phone. Ramirez’s affidavit provides the following description of the
7
relevant facts:
Upon arrival [at the Kentucky Fried Chicken] reporting officers
interviewed a number of the restaurant’s employees and learned that
two masked men entered the business through the back door and
displayed handguns and ordered the manager to open the business’
safe.
The back door through which entry was made was left unsecured by
[Appellant], an employee. [Appellant] stated he was taking the trash
out of the business at the close of the day. [Appellant] stated he was
told by the manager on duty, Tammie Ball, to take the trash out. Ball
stated that it was against company policy to leave the back door
unsecured. This was supported by a large sign that clearly states,
“DANGER, NEVER open this door after dark . . . .”
Tammie Ball described [Appellant] as “lazy, never wanting to work”
and denied giving [Appellant] the directive to take the trash out.
* * *
[At the police department,] I explain[ed] to [Appellant] that I felt he
may be in possession of digital evidence in his phone and asked for
consent to search the phone. [Appellant] stated he did not have
anything to hide but refused to provide me with consent to search the
phone.
I explained to [Appellant] that I had no other option but to seize his
cell phone as I believe[d] it may contain digital evidence that will be
helpful in this investigation and I did not want to risk having him
delete the data. [Appellant] complied and handed me the phone for
which I am seeking this search warrant.
In the audio recording of Appellant’s December 14, 2015 meeting with Detective
Ramirez, Appellant recounts what occurred at the restaurant the night of the
robbery. Appellant says he was instructed to take the trash out after doing the
dishes and, when he was making his second trip out the back door to the dumpster,
two masked men with guns entered the restaurant. Appellant says the masked men
put the employees (including Appellant) in the freezer; the employees remained in
the freezer until the police officers arrived.
8
Detective Ramirez then brings up the Snapchat videos he saw on the other
employee’s phone and asks Appellant if he can have his copies of the videos.
Appellant says he does not have the videos and explains how Snapchat’s content
deletes itself. Appellant tells Detective Ramirez he is “100% sure” there is nothing
else on his phone.
Detective Ramirez continues discussing the incident with Appellant and tells
Appellant some of the restaurant’s managers said Appellant “volunteered” to take
the trash out that evening. According to Ramirez, the managers said they did not
tell Appellant to take the trash out and also said it was against the restaurant’s
policy to open the back door at night. Ramirez also points out to Appellant that
there was a sign on the restaurant’s back door that says it is not to be opened after
dark. In response, Appellant continues to insist that he was instructed to take the
trash out.
Detective Ramirez again asks for Appellant’s phone and says Appellant has
two options: to “volunteer and give [Ramirez] consent [to] search the phone” or
Ramirez “would have to seize the phone” and get a search warrant. Detective
Ramirez explains to Appellant that, if he seized the phone, he could not tell
Appellant when he would be able to get the phone back. But if Appellant
consented to the search, Detective Ramirez says that he would be able to get his
phone back much faster. Appellant tells Detective Ramirez to “get a search
warrant”. Detective Ramirez tells Appellant he is going to “seize” Appellant’s
phone and states, “I’m going to take it right now until I get a search warrant.”
Afterwards, the meeting ends and Detective Ramirez drives Appellant back to the
location from where he picked him up.
III. Analysis of Error
Our analysis begins by examining whether the evidence shows that
9
Detective Ramirez seized Appellant’s phone without a warrant. See Place, 462
U.S. at 701; Kothe, 152 S.W.3d at 59 n.10. We conclude that it does.
At the motion hearing, Detective Ramirez testified that Appellant did not
consent to the search so he “seized” Appellant’s phone “to preserve whatever was
on the device.”2 In his affidavit for the subsequent search warrant, Detective
Ramirez similarly stated that Appellant “refused to provide [Ramirez] with consent
to search the phone” so the phone was “seize[d]”. And, in the audio recording of
Detective Ramirez’s meeting with Appellant, Ramirez explains to Appellant that
Appellant could either consent to the search of the phone or Ramirez would seize
the phone while awaiting a search warrant. Appellant would not consent and
effectively chose to have Detective Ramirez seize the phone. In sum, the record
clearly shows that Appellant’s phone was seized without a warrant. Therefore, the
burden shifted to the State to prove that the seizure was reasonable. See Ford, 158
S.W.3d at 492; Gutierrez, 585 S.W.3d at 609.
In its appellate brief, the State asserts that Detective Ramirez’s seizure of
Appellant’s phone falls within two exceptions to the warrant requirement: (1) the
voluntary consent exception, and (2) the exigent-circumstances exception. We
2
Which foreseeably included (inter alia) photos, search and browsing histories, location
data, and personalized “apps”. Riley v. California, 573 U.S. 373, 395 (2014) (“The sum of an
individual’s private life can be reconstructed through a thousand photographs labeled with dates,
locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked
into a wallet.”). See also id. at 396 (quoting United States v. Jones, 565 U.S. 400, 415 (2012)
(Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a
person’s public movements that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations.”)) and id. (“There are over a million apps
available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of
the popular lexicon. The average smart phone user has installed 33 apps, which together can
form a revealing montage of the user’s life.”) (citing Brief for Electronic Privacy Information
Center as Amicus Curiae in No. 13-132, p. 9).
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analyze these exceptions below.
A. Voluntary Consent
As an exception to the warrant requirement, consent is valid when
voluntarily given. Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App.
2007). The validity of a consensual search is a question of fact and the burden is
on the State to prove by clear and convincing evidence that consent was obtained
voluntarily. Jackson v. State, 77 S.W.3d 921, 928 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). To determine whether this burden was met, we examine the
totality of the circumstances. Gutierrez, 221 S.W.3d at 686-87; Jackson, 77
S.W.3d at 928.
In its appellate brief, the State asserts that “Appellant handed the cell phone
to Detective Ramirez voluntarily which was with his consent”. But contrary to this
argument, the record does not contain clear and convincing evidence showing that
Appellant voluntarily consented to Detective Ramirez taking his phone.
Detective Ramirez provided the following testimony at the motion hearing:
Q. [D]id you suggest to [Appellant] to send you the videos?
A. I suggested that he give me consent to go in and do what I
needed to do in order to obtain them.
Q. Did he give you that consent?
A. No.
Q. Okay. So is it correct to say to you there was an involuntary
seizure at that point?
A. Well, when he refused to consent, I needed to secure whatever
evidence may be on the phone. So, yes, at that point I seized it
in order to preserve whatever was on the device.
Detective Ramirez provided the same description of events in his warrant affidavit
and said that Appellant “refused to provide [Ramirez] with consent to search the
11
phone.” Likewise, in the audio recording, Appellant clearly can be heard refusing
to consent to the search of his phone and instead opting to have Detective Ramirez
seize the phone while awaiting a search warrant. Even when viewed in the light
most favorable to the trial court’s ruling, this evidence does not support the
conclusion that Appellant voluntarily consented to Detective Ramirez’s seizure of
his phone.
B. Exigent Circumstances
The State also argues “[t]here was exigent circumstances [sic] and urgency
to obtain [Appellant’s] phone, due to the ongoing Snapchat entries being deleted.”
The record is devoid of any evidence presented to the trial court or on appeal
showing the specific details of the Snapchat application with respect to automatic
deletions of relevant data from either Snapchat’s records or from Appellant’s
phone.
The State can meet its burden to show that a warrantless seizure was
reasonable by establishing (1) the existence of exigent circumstances, and (2) that
the officer had probable cause for the seizure. Turrubiate v. State, 399 S.W.3d
147, 151 (Tex. Crim. App. 2013); Gutierrez, 585 S.W.3d at 609. Exigent
circumstances are shown if the risk of an item’s disappearance before a warrant
may be obtained outweighs the suspect’s interest in possession. Gutierrez, 585
S.W.3d at 609; see also Turrubiate, 399 S.W.3d at 151 (exigent circumstances
include “preventing the destruction of evidence or contraband”). But the “mere
possibility that evidence may be destroyed does not give rise to a finding of
exigent circumstances.” Turrubiate, 399 S.W.3d at 153 n.4 (citing United States v.
Menchaca-Castruita, 587 F.3d 283, 295-96 (5th Cir. 2009)).
Whether a law enforcement officer faced an emergency that justified acting
without a warrant is a case-by-case determination based on the totality of the
12
circumstances. Gutierrez, 585 S.W.3d at 609. And whether an exigency justifies a
warrantless seizure depends, at least in some measure, “upon what facts were
actually ‘available’ to the officer” when he conducted the seizure. State v. Garcia,
569 S.W.3d 142, 149 (Tex. Crim. App. 2018). In assessing the reasonableness of
an officer’s actions, the reviewing court should take into account not only the facts
known to the officer but also “‘the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.’” Id. at 150 (quoting
Terry v. Ohio, 392 U.S. 1, 27 (1968)). An officer’s subjective motivations for
conducting a warrantless search are irrelevant to the exigency analysis. Id. “[I]t
does not matter if the officer did not actually infer that he was faced with an
exigency; if the known facts objectively support the existence of an exigency, the
search should be upheld.” Id. at 151.
The State-invoked exigent-circumstances exception recognizes two relevant
routes to proving an exception to the warrant requirement: (1) evidence that will
naturally dissipate (see, e.g., McNeely, 569 U.S. at 142) and (2) evidence that may
be destroyed via “affirmative conduct” (see, e.g., Turrubiate, 399 S.W.3d at 151-
55). Here, the record is devoid of any evidence presented to the trial court or on
appeal showing the specific details of the Snapchat application with respect to
automatic deletions of relevant data from either Snapchat’s records or from
Appellant’s phone; therefore, no fact sufficiently (or even arguably) supported
Officer Ramirez’s supposedly reasonable belief in “the existence of an exigency”,
particularly in light of the fact that he seized Appellant’s phone three days after the
alleged crime. See Garcia, 569 S.W.3d at 151; compare Tata v. State, 446 S.W.3d
456, 469 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (exigent circumstances
existed for fire department investigators to enter a building immediately after
extinguishing a fire) with Steagald v. United States, 451 U.S. 204, 222 (1981) (no
13
exigency when officers knew the address of the house to be searched two days in
advance); G.M. Leasing Corp. v. United States, 429 U.S. 338, 358-59 (1977) (“The
agents’ own actions, however, in their delay for two days following their first
entry, and for more than one day following the observation of materials being
moved from the office, before they made the entry during which they seized the
records, are sufficient to support the District Court’s implicit finding that there
were no exigent circumstances in this case.”); and Leslie v. Ingram, 786 F.2d 1533,
1536 (11th Cir. 1986) (“Moreover, the officer’s own testimony belies their claim
of exigency in that they did not secure the area and waited two days to procure a
warrant.”). We are aware of no cases in which a three-day delay evidences
exigency, particularly where there is no showing that the information at issue
cannot be recovered from an alternative source. Cf. Michigan v. Tyler, 436 U.S.
499, 511 (1978) (holding entry into the burnt out structure “shortly after daylight”
the morning it was extinguished was sufficiently exigent while subsequent entries
“were clearly detached from the initial exigency and warrantless entry”).
Therefore, we analyze this case under the “affirmative conduct” prong of exigent
circumstances.
In 2013, the Texas Court of Criminal Appeals examined the exigent-
circumstances exception in a case involving an officer’s warrantless entry into a
residence.3 See Turrubiate, 399 S.W.3d at 151-52. The defendant in Turrubiate
was at his home when a Texas Department of Family and Protective Services
investigator arrived to investigate allegations of marijuana use at the home. Id. at
149. The investigator knocked on the door and the defendant opened it; the
3
Although Turrubiate analyzes the exigent-circumstances exception in the context of a
warrantless search, the same principles apply to warrantless seizures. See, e.g., Gutierrez, 585
S.W.3d at 609; Crayton v. State, 485 S.W.3d 488, 501 (Tex. App.—Texarkana 2016, no pet.).
14
investigator “noticed a strong odor of marijuana emanating from the home.” Id.
The investigator later returned to the home with a police officer; again, the
investigator knocked on the door, the defendant opened it, and there was “a strong
odor of marijuana.” Id. Determining that entry was necessary to “prevent [the
marijuana] from being destroyed”, the officer forcibly entered the defendant’s
home. Id.
Relying on Kentucky v. King, 563 U.S. 452 (2011), the court stated that the
exigent-circumstances exception based on the destruction of evidence “required
that the record show proof of imminent destruction based on affirmative conduct”.
Turrubiate, 399 S.W.3d at 153 (emphasis added). Concluding that this showing
was not met, the court noted that the only evidence of exigent circumstances was
(1) the odor of marijuana, and (2) the defendant’s knowledge that a police officer
was at his residence. Id. at 154. Because “nothing in the record suggest[ed] that
destruction of evidence was imminent under the circumstances”, the exigent-
circumstances exception did not support the officer’s warrantless entry into the
defendant’s home. Id. at 154-55.
We recently applied the exigent-circumstances exception in Gutierrez, 585
S.W.3d at 610. There, the defendant’s phone was similarly seized during a
meeting with a detective. Id. Testifying at the hearing on the defendant’s motion
to suppress, the detective said he “thought it was important to seize” the
defendant’s phone because the complainant (a minor) had stated to her
grandmother that the defendant had taken nude pictures of her using a cell phone.
Id. Describing his meeting with the defendant, the detective testified that, when he
asked the defendant for his phone, the defendant asked if he could get important
numbers off the phone. The detective said he walked around the table and
observed the defendant “in the gallery section of his phone”. Id. The detective
15
said the defendant “switched back to the contacts” section of the phone before
handing it to the detective. Id.
Viewing the evidence in the light most favorable to the trial court’s ruling,
we concluded that the court could have found that the defendant “was
manipulating the contents of the gallery section of his phone.” Id. Therefore, “the
State showed exigent circumstances for seizing the phone because appellant had
control over easily disposable evidence.” Gutierrez, 585 S.W.3d at 610. The
court’s analysis included law enforcement’s subjective observations of the
defendant therein performing a furtive act related to the precise evidence at issue
that (under the circumstances of that case) supported the officer’s reasonable belief
in “the existence of an exigency”. Id. Without a comparable fact yielding a
comparable finding, our holding in Gutierrez would have been incorrect under
Garcia. See Garcia, 569 S.W.3d at 151.
Guided by these decisions, we reject the State’s contention that the exigent-
circumstances exception applies here with respect to Detective Ramirez’s
warrantless seizure of Appellant’s phone. As we discussed above, the Turrubiate
court noted that this exception requires “proof of imminent destruction based on
affirmative conduct”. Turrubiate, 399 S.W.3d at 153-55 (emphasis added).
Concluding that this showing was not made, the court emphasized that no evidence
showed that the destruction of evidence was imminent. See id. In contrast, the
evidence in Gutierrez supported an inference that the defendant was taking
affirmative steps to destroy evidence on his phone. See Gutierrez, 585 S.W.3d at
610. Specifically, the detective testified that, when he walked around the table to
observe the defendant getting certain numbers from his phone, he saw the
defendant in his phone’s photo gallery. Id.
Here, unlike Gutierrez, the record does not contain any evidence showing or
16
permitting an inference that Appellant was taking affirmative steps to destroy
evidence on his phone. The record shows that the following facts were available to
Officer Ramirez when he seized Appellant’s phone:
• After the robbery, Appellant posted a video to his Snapchat account
showing officers investigating the incident after the incident had
occurred.
• The suspects entered the restaurant through the restaurant’s back door,
which Appellant left unsecured while he was throwing away the trash.
• During his meeting with Detective Ramirez, Appellant said his
manager instructed him to take the trash out that night.
• Some of the other restaurant employees “seemed suspicious”
regarding Appellant’s involvement in the incident. The restaurant’s
manager said it was against company policy to leave the back door
unsecured and denied instructing Appellant to take the trash out that
night. A sign on the restaurant’s back door said it was not to be
opened after dark.
• When asked about the Snapchat video during his meeting with
Detective Ramirez, Appellant said he did not have the video because
Snapchat “deletes itself” after 24 hours. Appellant said he did not
have any other videos of the incident on his phone.
As in Turrubiate, these facts and the reasonable inferences that may be drawn from
them do not suggest that Appellant was taking affirmative steps to delete the
contents on his phone. At most, this evidence shows that (1) Appellant posted a
Snapchat video taken after the robbery occurred, and (2) some of the restaurant
employees were suspicious regarding Appellant’s involvement in the incident.
Responding to Detective Ramirez’s request to obtain the Snapchat videos,
Appellant explained that Snapchat “deletes itself” after 24 hours. Appellant’s
Snapchat videos of the incident, which were taken four days before his meeting
with Detective Ramirez, fell well outside this 24-hour period. Although these facts
suggest that Snapchat, by its own functions, may have been deleting content that
17
Appellant had posted, they do not indicate that Appellant himself was actively
deleting evidence.
Testifying at the motion hearing, Detective Ramirez said he “didn’t have a
whole lot of knowledge” regarding Snapchat at the time of his investigation but
knew its contents “deleted after a certain amount of time.” Detective Ramirez
stated that he believed “the user was able to predetermine that time on how long
the image or video lasts.” Detective Ramirez also stated that the Snapchat user
“can actually keep the image or the video just like you would on any other
app[lication], without having it expire within a certain amount of time.”
The reasonableness of an officer’s beliefs regarding the exigencies of a
situation are issues of fact. See Douds v. State, 434 S.W.3d 842, 847 (Tex. App.—
Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670 (Tex. Crim.
App. 2015); see also Garza v. State, No. 14-15-00902-CR, 2016 WL 7177710, at
*3 (Tex. App.—Houston [14th Dist.] Dec. 8, 2016, no pet.) (mem. op., not
designated for publication). Although Detective Ramirez may have believed that
Appellant had the ability to “predetermine” how long a Snapchat video would
remain on his phone, this belief does not reasonably support a conclusion that
Appellant would have engaged in affirmative conduct to delete information from
his phone (much less that such information was unrecoverable via another means).
Under the dissent’s view, a person’s possession of allegedly relevant information
alone would be sufficient to trigger exigent circumstances and justifiably divest the
People of the right to be free from warrantless seizures of their personal property
despite the plain language of the Fourth Amendment (and Article I, section 9 of the
Texas Constitution).
The dissent’s attempt to curtail such constitutional violations via a
recognition that “the defendant knew that he was a suspect at the time of the
18
seizure” is unpersuasive. Under this standard, police officers seeking to
warrantlessly seize the People’s cell phones need only tell them that they (or
perhaps even loved ones) are suspects in a crime. Such a test would arm law
enforcement with a weapon to defeat the Fourth Amendment as a matter of law,
thereby rendering it effectively null with respect to protecting the People’s
property from unreasonable seizures.
In sum, the record does not contain any evidence showing that Appellant, by
his affirmative conduct, was actively deleting evidence on his phone. See
Turrubiate, 399 S.W.3d at 153-55; see also Gutierrez, 585 S.W.3d at 610.
Detective Ramirez’s beliefs regarding Snapchat, though reasonable, do not by
themselves establish the existence of exigent circumstances. Therefore, Detective
Ramirez’s warrantless seizure of Appellant’s phone did not fall within the exigent-
circumstances exception. We sustain Appellant’s sole issue and hold that the trial
court erred in denying Appellant’s motion to suppress.
IV. Harm
Because the warrantless seizure of Appellant’s cell phone violated
Appellant’s Fourth Amendment rights, we must reverse the judgment unless we
determine beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. See Tex. R. App. P. 44.2(a); Hernandez v. State, 60
S.W.3d 106, 108 (Tex. Crim. App. 2001). This inquiry examines all evidence
derived directly or indirectly from the warrantless seizure of Appellant’s phone.
See Thornton v. State, 145 S.W.3d 228, 232 (Tex. Crim. App. 2004) (en banc)
(under the “fruit of the poisonous tree” doctrine, any evidence derived directly or
indirectly from illegal government action must be excluded at trial).4
4
We note that, under certain doctrines, evidence discovered and seized following an
19
For this analysis, we do not focus on the propriety of the outcome of the
trial; instead, we calculate as much as possible the probable impact on the jury in
light of the existence of other evidence. See Tillman v. State, 376 S.W.3d 188, 202
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). In essence, we examine
whether there is a reasonable possibility that the error, within the context of the
entire trial, moved the jury from a state of non-persuasion to one of persuasion on a
particular issue. See Washington v. State, 567 S.W.3d 430, 443 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d) (citing Davis v. State, 203 S.W.3d 845, 849
(Tex. Crim. App. 2006)).
Based on our review of the record, we cannot determine beyond a reasonable
doubt that the error did not contribute to Appellant’s conviction. Text messages
obtained from Appellant’s cell phone were the only evidence directly tying
Appellant to the robbery. The day before the robbery, the following texts were
sent and received from Appellant’s phone to a different phone number:5
instance of unlawful police conduct may still be admissible. See, e.g., Wehrenberg v. State, 416
S.W.3d 458, 465 (Tex. Crim. App. 2013) (“the independent source doctrine provides that
evidence derived from or obtained from a lawful source, separate and apart from any illegal
conduct by law enforcement, is not subject to exclusion”); Monge v. State, 315 S.W.3d 35, 40
(Tex. Crim. App. 2010) (evidence that is “sufficiently attenuated” from the unlawful police
conduct “is not considered to have been obtained therefrom”). But the burden is on the State to
prove these doctrines’ applicability. See Monge, 315 S.W.3d at 40; Sweeten v. State, 693 S.W.2d
454, 458 (Tex. Crim. App. 1985) (en banc).
Here, the State does not argue that the evidence obtained from Appellant’s phone would
have been admissible even if this court concluded that it was preceded by an instance of unlawful
police conduct. Instead, the State’s primary argument appears to be that “Appellant’s cell phone
was not seized” because “Appellant voluntarily gave it to Detective Ramirez”. Therefore, our
harm analysis considers all evidence that bears a causal connection to the unlawful seizure of
Appellant’s phone. See State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (en
banc) (“[o]nce the illegality and its causal connection to the evidence have been established, the
evidence must be excluded”) (citing Garcia, 829 S.W.2d at 798).
5
Testifying at trial, Detective Ramirez stated that he was unable to locate any matches
for the number with whom Appellant was communicating.
20
Received “Nah we just trying to come hit it u come to us later to get
ur check . . .”
Received “And . . . we Goin put all yall n da freezer”
Sent “Do it however yall want just come when I saw come”
Sent “Lobby close at nine”
Received “OK so we come before it close just tell me when we need
to head up there”
Sent “How yall wanna come in maane [sic] front or back”
Received “The back”
Sent “Bread in the safe and register”
The following texts were sent and received from Appellant’s phone to that same
number the night of the robbery:
Received “He don’t won’t [sic] her tripping out he gotta get to her to
snatched her up where the manager”
Sent “Manager around the register area”
Sent “Make sure that headset off her head . . .”
Sent “If she dnt [sic] in like 14 mins Ima open it”
Received “Play good now”
Aside from these text messages, the only other evidence tying Appellant to the
robbery was circumstantial at best. Appellant’s manager at the restaurant, Tammie
Bell, testified that Appellant took the trash out in violation of the restaurant’s
policy against opening the back door after dark. Bell stated that the suspects were
able to enter the restaurant because Appellant opened the back door. But Bell also
acknowledged that employees regularly exited the back door to smoke cigarettes.
Bell stated that Appellant acted like himself after the robbery and was cooperative.
And according to the testimony of another restaurant employee, Josephina Oboy,
Appellant asked Bell if he could take the trash out and Bell told him, “okay”.
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Against this backdrop, there is a reasonable possibility that the text messages
obtained from Appellant’s phone moved the jury from a state of non-persuasion to
one of persuasion on the issue of Appellant’s guilt. See Washington, 567 S.W.3d
at 443. Therefore, the trial court’s admission of evidence obtained from the
warrantless seizure of Appellant’s phone was not harmless error. See Tex. R. App.
P. 44.2(a).
CONCLUSION
We reverse and remand for a new trial.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Bourliot, and Hassan (Christopher, J.,
dissenting).
Publish – Tex. R. App. P. 47.2(b).
22