By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
I was curious about the origin of the term “boilerplate,” so I looked it up on Wikipedia, which, as we all know, is never wrong. Boilerplate refers to the rolled steel used to make boilers; by analogy, it also refers to the typeset metal printing plates that 19th-Century news magnates distributed to small local newspapers.[1] The term eventually came to mean text that can be reused in general applications without significant changes to the original, typically in contracts.
In State v. Baldwin,[2] the Court of Criminal appeals recently addressed the use of boilerplate in cellphone search warrant affidavits, with the admonition that it’s not enough standing alone—there must be a nexus to the offense.
Background
The case involved the capital murder of Adrianus Michael Kusuma in Harris County. On September 19, 2016, Mr. Kusuma’s brother Sebastius was at Adrianus’s home and heard a loud banging downstairs, which was someone kicking in and shattering the back door. When he ran to investigate, he was confronted and assaulted by a masked black man who was armed with a handgun and who demanded money. Sebastius heard a gunshot from the kitchen and saw another masked black man running from the back of the house. The two masked men grabbed a box of receipts and money from the Kusamas’ family business and fled through the front door. Sebastius followed the two and witnessed them getting into a white four-door sedan and fleeing. When he went back inside, he found his brother Adrianus unconscious and unresponsive, with a fatal gunshot wound to the chest.
One of Mr. Kusuma’s neighbors also reported a white four-door sedan leaving the neighborhood at a very high rate of speed. Security footage from three nearby houses also showed a white sedan circling the neighborhood on the day of and the day before the murder, entering the cul-de-sac, driving to the Kusuma residence, and then turning around. A neighbor came forward and told investigators that a white Lexus sedan driven by a black man passed by his residence three times shortly before the murder, and another neighbor saw a white sedan occupied by two black men “casing” the neighborhood the day before the offense; this neighbor contacted police thinking the men may be involved with the murder. The neighbor took a picture of the white sedan, including the license plate.
The license plate was registered to John Wesley Baldwin’s stepfather, who told police that he had sold the sedan to Baldwin. Police found and followed Baldwin in his Lexus and arrested him after committing traffic violations and failing to identify himself. He gave police a lengthy statement and consented to a search of the sedan, and a cellphone was found inside. Baldwin gave police the number to the phone but refused to allow police to search it.
Police applied for a search warrant; the attached affidavit detailed the facts surrounding the offense, the witnesses who saw the white sedan, and the traffic stop and arrest of Baldwin in the white sedan (with some omissions, as discussed below). The affidavit further contained the following statement:
Based on your Affiant’s training and experience, Affiant knows that phones and “smartphones” such as the one listed herein, are capable of receiving, sending, or storing electronic data and that evidence of their identity and others may be contained within those cellular “smart” phones. Affiant also knows it is possible to capture video and photos with cellular phones. Further, Affiant knows from training and experience that cellular telephones are commonly utilized to communicate in a variety of ways such as text messaging, calls, and email or application programs such as Google Talk or Snapchat. The cellular telephone device, by its very nature, is easily transportable and designed to be operable hundreds of miles from its normal area of operations, providing reliable and instant communications. Affiant believes that the incoming and outgoing telephone calls, incoming and outgoing text messaging, emails, video recordings and subsequent voicemail messages could contain evidence related to this aggravated assault investigation.
Additionally, based on your Affiant’s training and experience, Affiant knows from other cases he [sic] 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.
Affiant further knows, based on training and experience, oftentimes, in a moment of panic and in an attempt to cover up an assault or murder, that suspects utilize the internet via their cellular telephone to search for information. Additionally, 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. 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. Based on Affiant’s training and experience, as well as the totality of the circumstances involved in this investigation, Affiant has reason to believe that additional evidence consistent with robbery and/or murder will be located inside the cellular telephone, more particularly described as: a Samsung Galaxy 5, within a red and black case, serial #unknown, IMEI #unknown. Affiant believes that call data, contact data, and text message data may constitute evidence of the offense of robbery or murder. Affiant marked the phone with the unique identifier HC16-0149834 and it is currently located at 601 Lockwood, Houston, Harris County, Texas.[3]
Baldwin filed a motion to suppress both his statement to the police and the search of the cellphone. The trial court judge granted the motion as to the cellphone, orally making note of three omissions in the affidavit:
1) the affiant reported that one witness had identified the driver of the sedan as a “large black male,” but the affiant merely described Baldwin as a “black male,” without identifying his size;
2) the affiant did not explain how investigators had tracked down Baldwin to his girlfriend’s apartment, even though that information was known to them; and
3) the affiant did not indicate that Baldwin was the actual owner of the sedan where the cell phone was found.
The State appealed the suppression. The 14th Court of Appeals, in a rehearing en banc, upheld the trial court’s suppression of the cellphone search.[4] The State had asserted that under Ford v. State,[5] there was a nexus between the white sedan Baldwin was driving after the incident and the white sedan seen by witnesses before and during the offense, but the 14th Court noted that in Ford, the vehicle was described in greater detail (Chevy Tahoe with roof rack and horizontal stripes), and a “plethora of other specific facts linked the defendant to the incident, such as DNA, witness testimony, and surveillance photos of the vehicle on the night of the incident.”[6] The intermediate court concluded that the affidavit contained only generic recitations about abstract cellphone usage and held that it was not reasonable for the magistrate to connect the cellphone to the offense because there was no connection between 1) Baldwin’s sedan and the vehicle observed leaving the scene of the offense, 2) Baldwin and the offense, or 3) the cellphone and any communication or evidence surrounding the incident.
The dissent noted multiple witnesses connected a white four-door sedan to the scene of the murder and criticized the majority for turning a blind eye to the portion of the affidavit that demonstrated the sheer unlikelihood the witnesses saw three different sedans. The majority criticized the dissent in turn by saying that under its reasoning, “any time more than one person is involved in a crime, police officers would have probable cause to search a cellphone. That is not the law in Texas. Our binding precedent requires a connection between cellphone usage and the offense.” The concurring opinion split the difference, disagreeing with the majority that there was no nexus between Baldwin’s car and the murder, but agreeing that there was no probable cause connecting the cellphone to the murder.
As the Court of Criminal Appeals judges saw it
An en banc opinion with a vigorous dissent on a granted suppression in a State’s appeal is exactly the sort of case likely to be heard by the Court of Criminal Appeals. The Court granted the State’s PDR to answer two questions:
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?
The Court answered both questions in the negative and narrowly upheld the 14th Court in a 5–4 split. Despite upholding the ruling, the majority opinion by Judge McClure, joined by Judges Hervey, Richardson, Newell, and Walker, did not wholly agree with the en banc opinion. Rather, it appeared to side more with the concurrence (and in part, the dissent), saying that while the Court agreed with the State that the court of appeals’s analysis failed to give deference to the magistrate’s implied finding of a nexus between the white sedan and the murder, the lower court was nonetheless correct in concluding that the “boilerplate language” of the affidavit was insufficient to establish a fair probability that evidence of the murder would be found on the phone.
Regarding the white sedan, Judge McClure observed that the magistrate considered evidence from the homeowner’s brother, neighbors, and security footage and made an implied finding that all three witnesses saw the same vehicle; and that while the brother did not describe the car he saw in detail, he was able to narrow the class by color and number of doors, which fit the description of the car driving by the victim’s house multiple times the day before the murder and captured on camera. Judge McClure agreed with the lower court’s dissent that the separate sightings were too similar and too coincidental to be unrelated, and that the lower court’s majority ignored the portion of the affidavit that described the neighborhood as branching cul-de-sacs having only a single point of entry. From that, he reasoned, a magistrate could reasonably infer that:
1) because thru traffic is not possible in this neighborhood, there is a reasonable probability that the vehicles seen most frequently there belong to residents, which would also tend to explain why two separate neighbors became suspicious of an unfamiliar sedan circling the area;
2) because the neighbors’ suspicions were raised on two consecutive days about sedans that were similar in appearance, there is a reasonable probability that the neighbors witnessed the same sedan and that its driver was deliberately circling the neighborhood in preparation for the capital murder; and
3) because the sedan was positively linked to Baldwin through the license plate, there is a reasonable probability that Baldwin was the driver witnessed by the homeowner’s brother and that Baldwin participated in the capital murder.[7]
The cellphone itself was a different matter. As Judge McClure put it, “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.” He reasons that if the Court were to hold otherwise, all parties suspected of participating in an offense would be subject to a search of their cellphones, “not because they used their phones to commit the crime, but merely because they owned cell phones.” The possibility the men might have used their cell phones to coordinate the offense was a bridge too far for Judge McClure; he found there “are simply no facts within the four corners of the affidavit that tie [the] Appellee’s cell phone to the offense.”
Presiding Judge Keller dissented, joined by Judges Yeary, Keel, and Slaughter. Judge Keller agreed with the majority that there must be a nexus between “so-called” boilerplate language and other facts and reasonable inferences connecting the phone to the offense, but she disagreed there was no such nexus here. She reasoned that if the car was connected to the murder and the phone was found in the car, then the phone’s presence in the car was itself a fact that linked it to the crime. As Judge Keller wrote, “The crime here—capital murder—was committed by two people, acting together over the course of two days, and it was the kind of crime that involves coordination, so cell phone use would be expected. There could be crimes that would be less likely to involve the use of a cell phone and might not support probable cause to search. But it should come as no surprise that a cell phone would be used in the planning and commission of a crime such as the one before us, at least when the defendant had an accomplice.” She quoted with approval the lower court’s dissent observing that the capital murder was committed not by a lone wolf, but by two men acting in concert, who prepared for the offense over the course of two days—which required a certain level of coordination and communication, the evidence of which might be discovered on a cellphone.
Judge Yeary joined with the dissent but wrote separately to say that “boilerplate” should not be considered a dirty word, but rather an expression that some standardized language will be applicable in certain situations far more often than not. He also expressed the majority should have limited itself by saying the warrant’s search authority was too broad given the limited information in the warrant. In Judge Yeary’s view, the majority opinion would have been better served had it focused more narrowly on whether the affidavit was at least sufficient to search some applications on the phone, in particular the identity of the phone service provider so that the geolocation information for the times at or near the offense could be obtained.
The takeaway
What does this mean to me, the hard-working front-line prosecutor? I’m so glad you asked. As we said at the outset, the Court’s unanimous finding that the lower court erred in not upholding the portion of the warrant regarding a vehicle seen by neighbors casing a closed-off neighborhood for days that matched the car seen by the murder victim’s brother at the time of the offense will be useful for the State in future cases. The remainder of the opinion—regarding the warrant as it pertains to the cellphone—has less utility, for a number of reasons.
Chief among them: the opinion (by no fault of the judges or parties) raises perhaps as many questions as it settles. The opinion addressed cellphones, but wasn’t expressly limited to them; are there scenarios where the same logic could be applied beyond phones? For instance, was the intervening time a factor, or would the result have been the same had the car been stopped on the day of the offense?
Another such question jumps out: Is there language that in hindsight could have saved the affidavit? The affidavit, and therefore the opinions, focused on a cellphone’s general use between co-conspirators as a device of com- munication and coordination, which the majority said was boilerplate and not enough to support probable cause. A cellphone has many other uses, however, including one that Judge Yeary’s dissent touches on: geolocation, which is mentioned but not explored in the affidavit. The little device we call a “phone” is so much more than that; it’s essentially a geolocation and tracking device we carry around with us. It’s also a world map, and given the driver’s behavior in the neighborhood, it seems a fair probability that a look at the search history or map application could have turned up a search for the victim’s address. The possible use of geolocation data also arguably makes the intervening time more of a factor; had the white sedan been stopped close in time to the offense, there’s a stronger argument that the phone was at the scene and could have been used for geolocation evidence.
Those questions will have to wait for another day (and quite possibly for the motion for rehearing and writ of certiorari that still may come in Baldwin), so for the time being we’ll have to be content with simpler advice: Tie the cellphone to the facts.
Endnotes
[1] en.wikipedia.org/wiki/Boilerplate_text (retrieved June 3, 2022).
[2] State v. Baldwin, —- S.W.3d —-, No. PD-0027-21, 2022 Tex. Crim. App. LEXIS 321 (Tex. Crim. App. May 11, 2022).
[3] Baldwin, 2022 Tex. Crim. App. LEXIS 321, at *8.
[4] State v. Baldwin, 614 S.W.3d 411 (Tex. App. Houston 14th Dist., Dec. 10, 2020).
[5] 444 S.W.3d 171, 193 (Tex. App.—San Antonio 2014), aff’d, 477 S.W.3d 321 (Tex. Crim. App. 2015).
[6] Baldwin, 614 S.W.3d at 417 (citing Ford at 193).
[7] Baldwin at *23.