FRASER, MARIAN v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0964-24
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MARIAN FRASER, Appellant
v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Seventh Court of Appeals
McLennan County
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YEARY, J., filed a concurring and dissenting opinion in which
SCHENCK, P.J., and PARKER, J., joined.

I agree with the Court on its disposition of Appellant’s sufficiency
of the evidence issue and on its disposition of Appellant’s complaint
about the Court of Appeals decision relating to the necessity of a request
for a limiting instruction. I join the Court’s opinion as to those issues.
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But I disagree with the Court’s conclusion that the warrant affidavit
was insufficient to provide the warrant-issuing magistrate with a
substantial basis to conclude that the affiant-officer had probable cause
to justify searching Appellant’s cell phone. And I write only to explain
my disagreement with the Court on that Fourth Amendment search
issue.
On the strength of this Court’s decision in State v. Baldwin, 664
S.W.3d 122 (Tex. Crim. App. 2022), the Court today concludes that “the
court of appeals erred” when it held that “the trial court did not abuse
its discretion in denying Appellant’s pre-trial motion to suppress.”
Majority Opinion at 35. But the Court itself errs, by relying upon the
flawed reasoning and holding from Baldwin, which the Court should
immediately disavow. Baldwin conflicts with the decision of the United
States Supreme Court in Illinois v. Gates, 462 U.S. 213, 235 (1983), and
it was wrong on its own facts about the existence of probable cause in
that case.
I. PROBABLE CAUSE
Affidavits seeking warrants “‘are normally drafted by nonlawyers
in the midst and haste of a criminal investigation.’” Id. at 235 (quoting
United States v. Ventresca, 380 U.S. 102, 108 (1965)). That is why
“[t]echnical requirements of elaborate specificity . . . have no proper
place in this area.” Id. In fact, the Supreme Court has explained that the
“central teaching” of its decisions bearing on “the probable cause
standard” is that “it is a ‘practical, nontechnical conception.’” Id. at 231
(quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)) (emphasis
added). As “its very name implies[,]” probable cause “deal[s] with
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probabilities.” Id. Probabilities “are not technical; they are the factual
and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.” Id.
In assessing the existence of probable cause, “[f]inely tuned
standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence . . . have no place in the magistrate’s
decision.” Id. at 235. “Technical requirements of elaborate specificity”
also “have no proper place in this area.” Id. (quoting Ventresca, 380 U.S.
at 108). The Supreme Court has observed that, “[i]f the affidavits
submitted by police officers are subjected to the type of scrutiny some
courts have deemed appropriate, police might well resort to warrantless
searches, with the hope of relying on consent or some other exception to
the warrant clause that might develop at the time of the search.” Id. at
236. And the “possession of a warrant by officers conducting [a] . . .
search greatly reduces the perception of unlawful or intrusive police
conduct, by assuring ‘the individual whose property is searched . . . of
the lawful authority of the executing officer, his need to search, and the
limits of his power to search.’” Id. (quoting United States v. Chadwick,
433 U.S. 1, 9 (1977)).
Probable cause, ultimately, “is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not readily
or even usefully reduced to a neat set of legal rules.” Id. at 232. In
assessing whether it has been shown, “‘only the probability, and not a
prima facie showing, of criminal activity is the standard[.]’” Id. at 235
(quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). “The task
of the issuing magistrate is simply to make a practical, common-sense
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decision whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Id. at 238. And “the duty of
a reviewing court is simply to ensure that the magistrate had a
‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Id.
at 238−39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit
should not take the form of de novo review.” Id. at 236.
II. BALDWIN SHOULD BE DISAVOWED BECAUSE
IT CONFLICTS WITH ILLINOIS V. GATES

In Baldwin, this Court recently interjected a new and rigid test
for ascertaining the existence of probable cause to search a cell phone.
But that decision conflicts with the Supreme Court’s call, in Gates, to
only require a magistrate to make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before
him, . . ., there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Id. at 238. It also violates Gates by
demanding that reviewing courts do more than to simply “ensure that
the magistrate had a ‘substantial basis for concluding’ that probable
cause existed.” Id. at 238−39.
In Baldwin, the Court on the one hand authorized the inclusion
of what it called “boilerplate language” in an affidavit seeking to search
a cell phone. Baldwin, 664 S.W.3d at 123 (emphasis added). The
applying officer’s affidavit in Baldwin clearly expressed his reasons for
wanting to search the phone, and those reasons included some
assertions that purported to be based on the officer’s “training and
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experience[.]” 1 Id. at 132. Baldwin used the term “boilerplate” to

1 These parts of the affidavit are reproduced here:

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 e-mail 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, often
times, 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-
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describe this language. See id. at 135 (“[T]he magistrate erred by
substituting the evidentiary nexus for the officer’s training and
experience and generalized belief that suspects plan crimes using their
phones. The boilerplate language in itself is not sufficient to provide
probable cause in this case[.]”).
On the other hand, the Court then held that, any such
“boilerplate” language in an affidavit seeking to search a cell phone
“must be coupled with other facts and reasonable inferences that
establish a nexus between the device and the offense.” Id. at 123 (all
emphasis added). 2 The plain import of the Court’s holding therefore

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 Galaxy5,
within a red and black case, serial #unknown, IMEI #unknown.
Affiant believes *127 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.

See Baldwin, 664 S.W.3d at 126−27 (quoting the affidavit verbatim).

2 Quite apart from the Fourth Amendment’s constitutional demand for

probable cause to conduct a search, Texas’s statutory law requires an
application for a warrant to search a cell phone to “state the facts and
circumstances that provide 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(c)(5). But that
provision, in reality, requires no more than the Fourth Amendment does:
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demands that, before a magistrate may issue a warrant based on an
affidavit seeking to search a cell phone, the magistrate must set to one
side any statements in the affidavit that purport to be based on an
officer’s “training and experience,” and then find still “other facts”
establishing a “nexus between the device and the offense.” This formula
requires that an affidavit to search a cell phone contain facts showing
probable cause to search a phone that are independent of any
statements that are based on an officer’s training and experience. And
by imposing that special test on probable cause determinations,
Baldwin violates the central tenet of Gates.
In Gates, after the Illinois courts uniformly agreed to suppress
evidence obtained in searches of a car and home belonging to Mr. and
Mrs. Gates, the Supreme Court addressed the continuing viability of the
“two-pronged test” that had arisen from its opinions in Aguilar v. Texas,
378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969),
for cases involving search warrant affidavits that relied on anonymous
tips. Gates, 462 U.S. at 227−28. These prongs required an affidavit
relying on an anonymous tip to (1) “adequately reveal the ‘basis of
knowledge’” of the person providing the tip, and (2) “provide facts
sufficiently establishing either the ‘veracity’ of the affiant’s information
or . . . the ‘reliability’ of the informant’s report in the particular case.”
Id. at 228-29. While agreeing with the Illinois courts that “veracity,”
“reliability,” and “basis of knowledge,” are all “highly relevant in
determining the value” of an anonymous tip, the Supreme Court

Probable cause to believe that searching the phone will reveal evidence of the
crime under investigation.
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explained that it did not agree that “these elements should be
understood as entirely separate and independent requirements to be
rigidly exacted in every case[.]” Id. at 230. Instead, the Supreme Court
said, “they should be understood simply as closely intertwined issues
that may usefully illuminate the commonsense, practical question
whether there is ‘probable cause’ to believe that [evidence of a crime will
be] located in a particular place.” Id. It concluded, finally, that “it [was]
wiser to abandon the ‘two-pronged test’ established by [its] decisions in
Aguilar and Spinelli[,]” and “reaffirm the totality-of-the-circumstances
analysis that traditionally [had] informed probable cause
determinations.” Id. at 238.
Baldwin, however, has done again what Gates explicitly rejected.
It has attempted to erect a new and rigid test—reminiscent of the
Aguilar and Spinelli “two-pronged test”—for cases involving anonymous
tips, but this time for cases involving requested cell phone searches. It
demands that, while an officer’s experience and training are nice to
learn about in an affidavit seeking a warrant to search the contents of a
cell phone, facts independent of that kind of information must separately
demonstrate probable cause to search the phone. Gates, rejected that
kind of rigid special-test approach to probable cause determinations and
demanded adherence to “the totality-of-the-circumstances analysis that
has traditionally informed probable cause determinations.” Id. So
Baldwin’s adoption of this new and rigid test should be immediately
disavowed.
Furthermore, Baldwin also conflicts with Gates by encouraging
reviewing courts to independently re-examine a magistrate’s probable
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cause determination while applying its own new and rigid test. Gates
explained that the work of reviewing courts in relation to a magistrate’s
determination about the existence of probable cause has traditionally
been limited. See id. at 236 (“[T]he traditional standard for review of an
issuing magistrate’s probable cause determination has been that so long
as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a
search would uncover evidence of wrongdoing, the Fourth Amendment
requires no more.”) (quoting Jones, 362 U.S. at 271). Gates then
concluded that “the duty of a reviewing court is simply to ensure that
the magistrate had a substantial basis for concluding that probable
cause existed.” Id. at 238−39 (emphasis added). And while Baldwin gave
lip service to this limitation, Baldwin, 664 S.W.3d at 131−32 (noting
Gates’s requirement that reviewing courts should determine whether
“[a] magistrate was provided with a substantial basis for concluding that
probable cause existed”), it actually demanded that reviewing courts
engage in a de novo search of warrant affidavits for probable cause to
search a cell phone using its new exacting standard. Id. at 123 (“[T]o
support probable cause, the language must be coupled with other facts
and reasonable inferences that establish a nexus between the device and
the offense. Because the affidavit in the instant case failed to do so, we
discern no abuse of discretion[.]”).
The Court relies on Baldwin in this case to reverse the court of
appeals’ judgment for upholding the reviewing trial courts’ decision to
deny Appellee’s motion to suppress. But Baldwin was clearly wrong and
in conflict with Gates. So, rather than reversing the court of appeals’
judgment on the strength of Baldwin, the Court should instead
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immediately disavow Baldwin and affirm the court of appeals’ judgment
affirming the trial court.
III. BALDWIN SHOULD ALSO BE DISAVOWED BECAUSE
IT WAS WRONG ON ITS OWN FACTS

Baldwin should also be disavowed because it was wrong on its
own facts to conclude that the warrant failed to establish, even apart
from the affiant-officer’s statements derived from his own experience
and training, a nexus between the phone and the offense. Even the
Baldwin majority acknowledged its agreement with the State that “the
Lexus that Baldwin was driving four days after the offense was linked
to the capital murder.” Id. at 131. The phone found in the car also
belonged to Baldwin. He had it with him in the car when he was stopped,
and he knew and revealed the number associated with it. Id. at 126. And
because Baldwin was driving the car that was known to be connected to
the people who committed the crime, so very close in time to its
commission, he and his phone were also linked to the offense.
The Court lamented in Baldwin that, if it did not impose the strict
new formula it established for determining whether there is probable
cause to search a cell phone, then “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. at 134 (emphasis added). But the Court
failed in its lament to recognize that, at least in Baldwin’s case, there
existed not only a suspicion that Baldwin was involved in the offense
being investigated, but there was also actual probable cause to believe
he was involved in it, and there was also probable cause to believe that
he possessed the phone on or about his person when he was preparing
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to commit, committing, and escaping from his commission of the crime
that the officers were investigating. See id. at 385 (a “visitor from Mars
might conclude [that a cell phone was] an important feature of human
anatomy”). He was found only four days after the crime driving the very
same vehicle that the perpetrators used to go to the crime scene and to
flee when the crime was complete. And he did not just happen to own a
cell phone somewhere in the world; he had his cell phone with him inside
the car at the time he was detained—inside the car that he had used to
drive to, and then escape from, the scene of the robbery/murder that the
affiant-officer was investigating—because the phone was, after all, his
phone. And because it was his, and it was with him when he was
detained while driving that car, at least a reasonable inference was
available that he also had it with him when he committed the crime. Id.
(“anatomy”).
To deny that these facts established a connection between the
phone and the offense being investigated is to deny what is plain to every
logical, thinking human on the planet—to include the Chief Justice and
Associate Justices of United States Supreme Court. In 2014, Chief
Justice Roberts of that Court wrote, in an opinion that was joined by
Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor and
Kagan, and concurred with by Justice Alito, that “it is no exaggeration
to say that many of the more than 90% of American adults who own a
cell phone keep on their persons a digital record of nearly every aspect
of their lives—from the mundane to the intimate.” Riley v. California,
573 U.S. 373, 395 (2014). Are we to conclude that cell phones contain all
that personal information, but still we may not conclude that evidence
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of a criminal suspect’s crime will probably be found in the phone he
keeps on or about his person?
Roberts’ nearly unanimous Supreme Court majority opinion went
on to say that “[i]n the cell phone context . . . it is reasonable to expect
that incriminating information will be found on a phone regardless of
when [a] crime occurred[,]” and that, “[i]t would be a particularly
unimaginative law enforcement officer who could not come up with
several reasons to suppose evidence of just about any crime could be
found on a cell phone.” Id. at 399. His opinion explained that “[e]ven an
individual pulled over for something as basic as speeding might well
have location data dispositive of guilt on his phone[,]” and “[a]n
individual pulled over for reckless driving might have evidence on the
phone that shows whether he was texting while driving.” Id. Perhaps
the Baldwin majority would have us dismiss these musings by the Chief
Justice of the United States Supreme Court—in nearly unanimous
agreement with his fellow Justices—as mere “boilerplate.”
In what is perhaps even more mere “boilerplate” language, the
Supreme Court also acknowledged in Riley that “[c]ell phones have
become important tools in facilitating coordination and communication
among members of criminal enterprises and can provide valuable
incriminating information about dangerous criminals.” Id. at 401. It
explained that “[m]odern cell phones are not just another technological
convenience[;] [w]ith all they contain and all they may reveal, they hold
for many Americans ‘the privacies of life[.]’” Id. at 403 (quoting Boyd v.
United States, 116 U.S. 616, 630 (1886)). Nothing in the Fourth
Amendment requires law enforcement to check at the door their own
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common-sense, well-known facts about human nature itself, and logic,
in their investigations of criminal activity. See United States v. Sokolow,
490 U.S. 1, 8 (1989) (“Long before the law of probabilities was articulated
as such, practical people formulated certain common-sense conclusions
about human behavior; jurors as fact-finders are permitted to do the
same—and so are law enforcement officers.”). But that is where the
Court has taken us with Baldwin.
This Court manifestly erred in Baldwin to dismiss the affiant-
officer’s recitation of his own experience and training in his warrant-
affidavit. In those parts of his affidavit, the officer expressed his own
reasons for believing that probable cause supported his desire to search
Baldwin’s phone. Baldwin, 664 S.W.3d at 126−27. His own statements
described how his experiences and training informed his thoughts about
how criminals use cell phones in such a way as to leave evidence of their
crime behind, to be discovered if only law enforcement were permitted
to look inside. And those statements powerfully supplemented the other
facts recited in the affidavit that showed probable cause to believe that
Baldwin committed the crime, and that he did so with his phone in tow
only four days before he was stopped in traffic, still in possession of his
phone—because, again, after all, it was his phone. Id. at 124−26.
The Baldwin majority concluded that “[t]he record, while viewed
in the light most favorable to the magistrate’s ruling, support[ed] the
trial court’s conclusion that the affidavit contained insufficient
particularized facts to allow the magistrate to determine probable cause
for a warrant to search the phone.” Id. at 135. I urge the Court to admit
that its conclusion in Baldwin was an error. Of course the officer’s
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affidavit there demonstrated probable cause to believe evidence of
Baldwin’s crime would be found on his phone. The Court was simply
mistaken to conclude otherwise. And the Court should not compound the
problem by perpetuating the Baldwin error. Instead, it should move
forward, confidently affording appropriately great deference to
magistrate judges’ determinations about the existence or non-existence
of probable cause and reviewing their determinations only for whether
warrant-seeking affidavits provide a substantial basis to support their
conclusions. See Gates, 462 U.S. at 238−39.
IV. CONCLUSION
In Baldwin, this Court erected a rigid test for affidavits seeking
warrants to search cell phones. But the Court’s test is of the same hyper-
technical sort explicitly rejected by the United States Supreme Court in
Gates. We should reject such a rigid formula here and now and disavow
our opinion in Baldwin on that ground. What is more, we should also
disavow Baldwin because the affidavit in that case demonstrated a
substantial basis for the issuing magistrate to find the existence of
probable cause to search Baldwin’s cell phone.
In Riley v. California, the U.S. Supreme Court demanded that,
before officers may search a cell phone, they must “get a warrant.” 573
U.S. at 403. The officers did that here. For the reasons I have expressed
here, then, we should quickly abandon Baldwin’s rigid test and simply
affirm the judgment of the court of appeals relating to the affidavit
supporting the search warrant in Appellant’s case.

FILED: September 3, 2025
PUBLISH