Before his death, Brent Tapp lived in a homeless encampment near downtown Houston. In August 2017, Tapp was shot in the leg with a 22-caliber weapon by someone standing on the balcony of a residence in a nearby townhouse. Police responded to the shooting. Two residents at the townhouse identified the unit from which the shot had been fired but were unable to identify the shooter. Further investigation by the police identified the resident of the unit from which the shot had been fired as Jamin Kidron Stocker. Tapp identified Stocker as his assailant from a photo shown to him by the police.
Armed with this information, the police secured an arrest warrant for Stocker. They called him on his cell phone but Stocker informed them that he was not in the townhouse at the time. The police nonetheless entered the residence, where they discovered a cache of weapons and ammunition, including a 22-caliber rifle with a homemade silencer. They seized the weapons, but the Houston Forensic Science Center (HFSC) could not match the fragments of the bullet removed from Tapp’s leg to the rifle seized at Stocker’s residence.
The police were unable to locate Stocker to arrest him. He had left Texas and went to Georgia, where he stayed for nearly two months.
In November 2017, Tapp was once again shot at the homeless encampment. This time, he died from the three bullet wounds fired by a 45-caliber Beretta pistol. The medical examiner recovered one of the bullets, and the HFSC quickly matched it to one of the guns owned by Stocker.
Stocker was arrested in Houston in January 2018. During his arrest, the police seized Stocker’s cell phone. They then secured location data and other evidence from the phone covering a period beginning in April 2015 and ending in January 2018. The data revealed that Stocker had texted friends in Houston from Georgia that he had to leave Texas because he had shot a homeless man. The phone data also revealed Stocker had searched for and read articles about Tapp’s murder on the phone; and that he had searched for ways to delete the phone’s location history. The phone data also placed Stocker near the Tapp murder scene.
A Harris County grand jury indicted him for capital murder. He was subsequently tried and convicted, and because the State did not seek the death penalty, he was sentenced to life imprisonment.
Before trial, Stocker’s defense attorney filed a motion to suppress the incriminating evidence the police seized while executing the arrest warrant at his residence as well as the evidence seized from his cell phone through a search warrant and evidence seized from the cell phone’s carrier (T-Mobile) through three additional search warrants. The trial court denied the motion.
This suppression issue became central to Stocker’s direct appeal to the Fourteenth District Court of Appeal in Houston.
Article 18.0215 of the Texas Code of Criminal Procedure governs the searches of cell phones or other wireless devices. This statute requires a law enforcement officer, before the search of a cell phone, to present to a magistrate a warrant application that 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).”
In May 2022, the Texas Court of Criminal Appeals (CCA) confronted a contentious case, State v. Baldwin, in which both the trial court and the Fourteenth Court of Appeals, over a blistering dissent, granted a motion to suppress evidence seized from a cell phone because the “boilerplate language” in the affidavit supporting the warrant application did not demonstrate a “nexus” between the criminal activity charged and the defendant’s cell phone.
In a nutshell, the CCA held that “generic, boilerplate language about cell phone use among criminals,” standing alone, is not enough to establish probable cause for a search for a cell phone.
In December 2022, the Fourteenth Court of Appeals, relying heavily on the CCA’s decision in Baldwin, reversed Shocker’s conviction, finding that:
“The affidavit in today’s case is notably weaker than the one considered and rejected in Baldwin. Considering the four corners of the document, we conclude that the affidavit contains insufficient particularized facts to have allowed the magistrate to determine probable cause for a warrant to search Appellant’s Samsung phone for two reasons: (1) the affidavit does not describe the murder, and (2) it presents no factual nexus between the phone and the murder. It is difficult to see how the affidavit could sufficiently articulate a factual nexus between the [Shocker’s] Samsung phone and the criminal activity described in the affidavit when the affidavit does not describe the criminal activity at issue—the November capital murder. Moreover, the affidavit does not contain any facts suggesting that Appellant used his phone during the crime or shortly before or after. The trial court erred in denying Appellant’s motion to suppress the evidence obtained from the search of Appellant’s Samsung phone.”
The State sought discretion review with the CCA on the premise that the Fourteenth Court of Appeals had expanded the parameters of the probable cause standard stated in Baldwin with its own standard. The CCA granted discretionary on this issue.
On July 31, 2024, the CCA reversed the appeals court’s new trial order in the Shockercase, finding that:
“Relying upon Baldwin, the court of appeals here concluded that the search warrant affidavit was deficient in two ways. First, it said the warrant affidavit’ d[id] not describe the murder’ that Appellant was on trial for committing. Second, it said that the warrant ‘present[ed] no factual nexus between the [cell] phone and the murder.’
“One way to establish the required ‘nexus’ when it comes to a warrant affidavit to search a cell phone would be through reliable information suggesting that the criminal perpetrator ‘used’ that cell phone ‘before, during, or after the crime’ that is being prosecuted. But in Baldwin this Court was presented with different facts than those which occurred here. And the Court did not say there 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.
“To the extent that the court of appeals read our opinion in Baldwin necessarily to require, as a prerequisite of probable cause, that an affidavit must establish (1) use of the cell phone either during, or immediately before or after, commission of (2) the specific offense on trial, it was misguided. Such a showing is not always required before a magistrate may find that a search warrant affidavit’ state[s] facts and circumstances that provide . . . probable cause to believe that . . . searching the telephone . . . is likely to produce evidence in the investigation of certain criminal activity. The court of appeals should reexamine its decision.”
This issue remains unsettled. How will the Fourteenth Court of Appeals reconcile the different findings made by the CCA in the Baldwin and Shocker cases? Will the appeals court embrace more of the dissent in its original Baldwin decision to decide a final outcome in Shocker?
These questions will be answered at a future date. Defense attorneys must plow their way through Baldwin and Shocker in their future motions to suppress cell phone searches.