Petition for Writ of Certiorari — Arthur Whitley, Petitioner v. Texas

No._______________________

________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________________________

ARTHUR WHITLEY,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

To the Texas Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

__________________

Respectfully submitted,

George W. Aristotelidis

Requesting Appointment

In Forma Pauperis

Tower Life Building

310 South St. Mary’s St.

Suite 1910

San Antonio, Texas 78205

(210) 277-1906 - Telephone

(844) 604-0131 – Telefax

jgaristo67@gmail.com

QUESTION PRESENTED FOR REVIEW

Whether the Fourth Court of Appeals’ legal analysis of the nexus

between evidence about a murder investigation and information in the

Petitioner’s cell phone, as alleged in the affidavit in support of a

search warrant for the Petitioner’s cell phone violates well-established

federal search warrant precedent, and nullifies this Court’s landmark

holding in Riley v. California, 573 U.S. ___ (2014)?

ii

TABLE OF CONTENTS

Page

Question Presented For Review................................................................................ii

Table of Contents.................................................................................................iii,iv

Table of Citations..................................................................................................v,vi

Prayer.........................................................................................................................1

Opinions Below.........................................................................................................1

Jurisdiction.................................................................................................................1

Constitutional Provision Involved.............................................................................2

Statement of the Case................................................................................................3

Reason for Granting the Writ…………………………………………………........9

In light of this Court’s landmark opinion in Riley v. California, 573

U.S. __ (2014), which requires a search warrant to obtain cell phone

data, the Court should grant Certiorari to clarify and reaffirm that

before a magistrate can issue a search warrant to search the cell

phone, the Affiant must present the magistrate facts that establish a

nexus between the information sought to be retrieved from the cell

phone and the alleged criminal behavior.

Conclusion...............................................................................................................21

Appendix:

Opinion by the Texas Fourth Court of Appeals,

Whitley v. State, No. 04-17-00438-CR

(Ct. App. – San Antonio 2018)……………………………….22

iii

Order denying en banc rehearing, with dissent from

From Justice Rebecca Martinez, Whitley v. State, No.

04-17-00438-CR……………………………………………..28

Notice of Denial of Discretionary Relief,

State v. Arthur Whitley, Cause No. PD-0929-18,

February 27, 2019, from the Texas Court of Criminal

Appeals………………………………………………………30

iv

TABLE OF CITATIONS

Page

UNITED STATES SUPREME COURT CASES

Riley v. California, 573 U.S. ___ (2014)……………………………….5,9,11,18,20

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967)………………...........9,10

UNITED STATES CASES

United States v. Broussard, 80 F.3d 1025 (5th Cir. 1996)………………………..10

United States v. Freeman, 685 F.2d 942 (5th Cir. 1982)………..……….........10,20

United States v. Solorio-Hernandez, Cause No. 5:15-CR-156-3

(S.D. Tex. June 5, 2015)……………………………………………………10

United States v. Ramirez, 180 F. Supp. 3d 491 (W.D. Ky. 2016)………….15,16,17

United States v. Merriweather, 728 F. App'x 498 (6th Cir. 2018)

(unpublished)……………………………………………………………16,17

STATE COURT CASES

Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991)……………………..…10

Kennedy v. State, 338 S.W.3d 84 (Tex. App. - Austin 2011)……………………..9,14

Roberts v. State, Nos. 07-16-00165-CR, 07-16-00166-CR,

2018 Tex. App. LEXIS 1804 (Tex. App. – Amarillo (March 9, 2018)……….…..13

Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986)………………………11

Martinez v. State, No. 13-15-00441-CR, 2017 Tex. App. LEXIS 879

(Tex. App. – Corpus Christi-Edinburg 2017) ……………………………8,14,15,20

v

Ashcraft v. State, 934 S.W.2d 727

(Tex. App. - Corpus Christi 1996, pet. ref’d)………………………………14

Adair v. State, 482 S.W.2d 247 (Tex. Crim. App. 1972)…………………………….14

Walker v. State, 494 S.W.3d 905

(Tex. App. - Houston [14th Dist.] 2016, pet. ref’d)………………………..12

Whitley v. State, No. 04-17-00438-CR

(Tex. App. - San Antonio – June 6, 2018)(unpublished)……………1,3,6,7,8

Commonwealth v. White, 475 Mass. 583 (2016)………………………………….17

Commonwealth v. Morin, 478 Mass. 415, 85 N.E.3d 949 (2017)………………...18

Moats v. State, 455 Md. 682 (2017)………………………………………………18

Stevenson v. State, 455 Md. 709 (2017)…………………………………………..18

STATUTORY PROVISIONS

28 U.S.C. § 1257(a)………………………………………………………………...1

Tex. Crim. Pro. Art. 38.23………………………………………………………..6,8

Tex. R. App. P. 44.2(a)…………………………………………………………...7,8

Appendix………………………………………………………………………….22

vi

PRAYER

The petitioner, ARTHUR WHITLEY, (Petitioner) respectfully prays that a writ of

certiorari be granted to review the judgment and opinion of the Fourth Court of

Appeals of Texas, against the Petitioner, reverse the judgment of the Fourth Court

of Appeals, and remand this case for reconsideration of the merits.

OPINIONS BELOW

On June 6, 2018, the Fourth Court of Appeals of Texas issued an opinion affirming

Mr. Whitley’s conviction for murder, in Whitley v. State, No. 04-17-00438-CR

(Ct. App. – San Antonio 2018) (unpublished)

On July 30, 2019, the Fourth Court of Appeals of Texas issued an order denying

Mr. Whitley’s panel and en banc petitions for rehearing. Justice Rebecca Martinez

issued a dissent to the denial without first requiring a response from the State.

On February 27, 2019, the Texas Court of Criminal Appeals refused Mr. Whitley’s

petition for discretionary review. See Cause No. PD-0929-18.

On March 21, 2019, a petition for certiorari, Juan Zamudio v. United States, Cause

No. 18-1529, was filed on March 21, 2019. A response to this petition was filed by

the government on July 8, 2019.

JURISDICTION

On June 6, 2018, the Texas Fourth Court of Appeals of Texas affirmed Mr.

Whitley’s conviction for murder, and sentence of 60 years in the Texas Department

of Criminal Justice - Institutional Division (TDCJ-ID). See Whitley v. State, No.

04-17-00438-CR (Ct. App. – San Antonio 2018) (unpublished).

On February 27, 2019, the Texas Court of Criminal Appeals refused Mr.

Whitley’s petition for discretionary review of the Fourth Court of Appeals’

decision. See Cause No. PD-0081-13.

The jurisdiction of the Court is invoked under 28 U.S.C. § 1257(a).

1

CONSTITUTIONAL PROVISION INVOLVED

Petitioner’s questions implicate the Fourth Amendment’s right against

unreasonable searches and seizures, which provides in relevant part as follows:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

2

STATEMENT OF THE CASE

A.

Procedural History of the Case:

Petitioner, Arthur Whitley was indicted for murder (Count I), and for

possessing a weapon as a felon (Count II). CR. 6-7. 1 He waived his right to a jury

trial, electing to be tried and punished before the trial court (CR 106-07). On June

23, 2017, the trial court convicted Petitioner on both counts (6RR32; CR119-20),

and sentenced him to 50 years in the Texas Department of Criminal Justice

Institutional Division (TDCJ-ID). 6RR38; CR119-20. Petitioner timely appealed

his conviction and sentence on June 27, 2017. CR132. The Fourth Court of

Appeals affirmed the conviction in an unpublished opinion See Whitley v. State,

No. 04-17-00438-CR (Tex. App. - San Antonio – June 6, 2018) (unpublished)

(Opinion), and denied panel and en banc rehearing on July 30, 2018, with Justice

Rebecca Martinez “[d]issent[ing] to the denial of the Motion for Rehearing En

Banc without [first] requesting a response [from the State].” (citing TEX. R. APP.

P. 49.2). A petition for discretionary review was denied by the Texas Court of

Criminal Appeals, on February 27, 2019.

1

The Clerk’s Record on appeal, titled CR [page number] and the Reporters Record,

is referred to as RR [page number].

3

Mr. Whitley’s petition for a writ of certiorari was timely filed on May 28,

2019.

B.

Facts:

Petitioner was arrested on the basis of Calvin Williams’ eye witness account

to have seen Petitioner commit murder. Williams’s eyewitness claim, and the

anecdotal allegation by the affiant in an affidavit in support of the search warrant

for the Petitioner’s cell phone, that cell phones generally contain evidence of

criminal activity, were found sufficient by a state magistrate to have established the

nexus between the murder, and evidence of that murder in the cell phone. Pursuant

to the warrant, evidence was extracted from Petitioner’s cell phone and, along with

other evidence, presented by the state at his trial.

There was evidence at trial that the Petitioner was housed at the Crosspoint

halfway house facility, while serving the last leg of a federal sentence. Petitioner’s

stay there was at all times supported by records kept at the facility, and routine

bunk bed counts, which gave him an alibi defense to the murder. Also, Williams’s

eyewitness testimony at trial was colored by his negotiated expectation for a

reduction of his sentence in a federal sentencing hearing that was pending at the

time that he testified for the state. There was also cell phone location evidence,

4

obtained from the Petitioner’s cell phone records, that placed the Petitioner’s cell

phone - but not him - within miles of the site of the shooting.

By contrast, the evidence extracted from the phone that was presented at the

Petitioner’s trial was compelling. This evidence included cell phone text and

picture evidence, as well as the fruits from that search, to include a video recording

at a Texaco gas station, and information about a certain Brittany Bremby as the

owner of a red car that the video was claimed to depict as picking up the Petitioner

at the Texaco location, at a time that he was supposed to be housed at Crosspoint.

This evidence was heavily relied upon and argued by the state to convict the

Petitioner.

C.

Fourth Court of Appeals’ Opinion

On appeal, the Petitioner argued that probable cause was lacking to issue the

cell phone warrant because the affidavit was lacking in facts that connected the

Petitioner’s cell phone with the murder. Specifically, the Petitioner argued that the

affidavit in support of the cell phone warrant lacked probable cause because its

supporting affidavit failed to establish a nexus between the data contained in the

Petitioner’s cell phone, and the murder, all in violation of the Fourth Amendment,

as recently promulgated by the United States Supreme Court’s landmark opinion in

Riley v. California (supra), the Fourteenth Amendment to the United States

5

Constitution, and Articles 38.23 and Chapter 14 of the Texas Code of Criminal

Procedure. The Fourth Court of Appeals discussed the contents of the affidavit in

support of the cell phone search warrant:

During the course of the investigation, Detective Michael Muniz

obtained a warrant to search the contents of Whitley's cell phone. The

affidavit in support of the search warrant stated the following:

Your Affiant is assigned to the Homicide Unit of the San Antonio

Police Department and was assigned to investigate the murder

designated by case number SAPD15111127. On 05/26/2015 officers

of the San Antonio Police Department responded to 311 Ferris in the

City of San Antonio for a shooting. Upon arrival they discovered

Michael Whitley seated in a lawn chair, deceased from an apparent

gunshot wound. Witnesses were located and transported to Police

Headquarters to provide statements in this case. A witness identified

Arthur Whitley arriving at 311 Ferris and then pulled out a handgun

from his waistband and shot Michael Whitley multiple times before

fleeing the scene along with another individual. An arrest warrant

was obtained charging Michael [sic] Whitley with the offense of

murder. Later the same day, the 26th of May, Michael [sic] Whitley

was arrested. Michael [sic] Whitley was found to be in possession of

the phone named in this warrant and reported it was his phone.

It is the belief of your Affiant, through his experience, cell phones

contain evidence of geographical information of where an individual

was, the individuals the person was in contact with on a specific date

and time to include witnesses, accomplices, a list of contacts,

photographs and videos identifying these contacts.

Opinion, at *2-3. Rejecting the Petitioner’s suppression challenge, the following

constitutes the Fourth Court’s entire reasoning:

6

Whitley next contends the affidavit failed to establish a nexus

between the cell phone data and the murder. As previously noted,

however, a “magistrate may use logic and common sense to make

inferences” from the facts stated in the affidavit. Elrod, 538 S.W.3d at

556. In this case, the affidavit stated Whitley was present at the

murder scene, and the magistrate could have inferred the cell phone

data could confirm Whitley's geographic location. In addition, the

affidavit stated Whitley fled the scene with another individual, and the

magistrate could have inferred the cell phone data could identify this

other individual who could be either a witness or an

accomplice. Accordingly, based on the four corners of the affidavit

and the inferences the magistrate could draw based on the facts

provided, the magistrate could have determined the affidavit

established a nexus between the cell phone data and potential

evidence regarding the murder.

Because the affidavit provided the magistrate with a substantial basis

for concluding that probable cause existed, Whitley’s first issue is

overruled, and we need not address Whitley's challenge to an

alternate basis for the trial court's ruling.

The Fourth Court affirmed the conviction in an unpublished opinion. See Whitley

v. State, No. 04-17-00438-CR (Tex. App. - San Antonio – June 6, 2018)

(unpublished) (Opinion).

Unlike the other evidence at his trial, the unsuppressed evidence that was

extracted from the Petitioner’s cell phone and presented at trial clearly contributed

to his conviction. Weighed under Tex. R. Evid. 44.2(a)’s constitutional errorbased, appellate standard on appeal, had the Fourth Court sustained the Petitioner’s

suppression challenge on appeal, it would have been compelled to reverse the

7

Petitioner’s conviction because it could not have determined, beyond a reasonable

doubt, that the error did not contribute to his conviction. See Tex. R. App.

P. 44.2(a). 2

The Fourth Court denied panel and en banc rehearing on July 30, 2018, but

not without Justice Rebecca Martinez’s “[d]issent to the denial of the Motion for

Rehearing En Banc without [first] requesting a response [from the State].” (citing

TEX. R. APP. P. 49.2). A petition for discretionary review of the Fourth Court’s

ruling was denied by the Texas Court of Criminal Appeals on February 27, 2019.

Mr. Whitley’s petition for a writ of certiorari was timely filed on May 28, 2019. A

corrected petition is due to be filed no later than July 29, 2019.

2

It bears noting that, unlike the case with federal search warrants, Texas law, under Tex.

Crim. Pro. art. 38.23(b), does not provide a good faith exception for a warrant that is lacking in

8

REASON FOR GRANTING THE WRIT

In light of this Court’s landmark opinion in Riley v. California, 573

U.S. __ (2014), which requires that law enforcement obtain a search

warrant before information in a cellular phone is searched, the Court

should grant Certiorari and clarify and reaffirm that before a

magistrate issues a search warrant for information contained in a

cellular phone, the Affiant must present facts that establish a nexus

between the information sought to be retrieved from the cellular

phone and the alleged criminal behavior, as held in Warden, Md.

Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).

A.

Legal Arguments

Petitioner will discuss the holdings from Texas and federal courts that have

both found and rejected a nexus, focusing on the facts that allege the minimum

nexus connection between the crime investigated, and a cell phone’s data. These

opinions further explain how anecdotal evidence, including general opinions by

affiants about how cell phones can contain evidence of crime, are insufficient to

establish the nexus requirement under Riley.

“Importantly, there must be a nexus between the items sought to be seized

and the alleged criminal behavior.” Kennedy v. State, 338 S.W.3d 84, 93 (Tex.

App. - Austin 2011) (citing Warden, Md. Penitentiary v. Hayden, 387 U.S. 294,

307 (1967)). That nexus is automatically established when the items sought are

contraband or the fruits obtained from or the instruments used in the criminal

probable cause.

9

activity at issue, but the nexus is not automatic when the items sought are “mere

evidence.” Id.; see also Joseph v. State, 807 S.W.2d 303, 307 (Tex. Crim. App.

1991) (describing “mere evidence” as evidence that is “connected with a crime”

but is not “fruits, instrumentalities, or contraband”). For mere evidence, “probable

cause must be examined in terms of cause to believe that the evidence sought will

aid in a particular apprehension or conviction.” Id. citing (Hayden, 387 U.S. at

307). See also United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)

(“Facts in the affidavit must establish a nexus between the house to be searched

and the evidence sought.”); United States v. Broussard, 80 F.3d 1025, 1034-35 (5th

Cir. 1996) (A warrant to search a particular place only issues upon probable cause

if the attached affidavit “establish[es] a nexus between the [place] to be searched

and the evidence sought. That nexus may be established, however, by direct

observation or through normal inferences as to where the articles sought would be

located.”) (citing Freeman, at 1034); United States v. Solorio-Hernandez, Cause

No. 5:15-CR-156-3 at *5 (S.D. Tex. June 5, 2015) (granting motion to suppress

after determining that the affidavit was “bare bones” as to the nexus element,

explaining that “the fact that there is probable cause to believe that a person has

committed a crime does not automatically give [government agents] probable

cause to search his house for evidence of that crime.”) (citing Freeman at 949);

10

Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986) (overruled on other

grounds). On this authority, the fact that there was probable cause to believe that

the Petitioner committed murder, did not give a magistrate the authority to issue a

search warrant for the Petitioner’s cell phone, to search for evidence of that crime.

Riley’s landmark holding is rendered meaningless if law enforcement is

allowed to sidestep the nexus element, simply by submitting a sworn affidavit that

is devoid of facts that link the cell phone to the targeted criminal activity. The

affidavit in the Petitioner’s case failed to establish any facts that linked the cell

phone and the murder. Specifically, the only factual allegation about the phone in

the affidavit is that the Petitioner “was found to be in possession of the phone,” and

that when asked, he “reported that it was his phone,” at the time of his arrest which was 8 hours after the murder (the affidavit did not explain this time gap).

But there was no evidence and no allegation in the affidavit that the Appellant

possessed the phone from the time of the shooting to the moment that he gave his

statement. In fact, it would have been impossible for the affiant to have alleged this

at the time he applied for the warrant since, as he admitted in his testimony at the

Petitioner’s trial, the affiant had no information that the Petitioner was using a cell

phone during the commission of the murder. See 3RR303. Recent post-Riley

11

opinions require some evidence linking a cell phone to a crime, beyond its simple

possession or ownership by a suspect, at the time of the suspect’s arrest.

1.

Facts are Needed to Establish Nexus

For example, in Martinez v. State, No. 13-15-00441-CR, 2017 Tex. App.

LEXIS 879 (Tex. App. – Corpus Christi-Edinburg 2017) (unpublished), apart from

the fact that Martinez was in possession of the target cell phone when arrested, the

Court explained that the affidavit cited 1. two named eye-witnesses, Eduardo

Sanchez and Flor Garcia, both of whom positively identified Martinez as an active

participant in the robbery, and 2. “Flor Garcia knew Martinez’s phone number,

implying that a point of communication had been previously established between

the two.” Martinez, at *7. The Court reasoned that thus, “it [wa]s “fairly

probable…that Martinez and his cohorts communicated via cell phone in

preparation for and in furtherance of the Matas’ robbery. Id. at *7-8 (citing Gates,

462 U.S. at 246 (observing that probable cause requires only a fair probability of

criminal activity, not a certain showing of such activity).

As additional authority for its holding, Martinez referenced Walker v. State,

494 S.W.3d 905, 909 (Tex. App. - Houston [14th Dist.] 2016, pet. ref’d), as

“concluding that a fair probability of criminal activity existed to search appellant’s

cell phone based on the search-warrant affidavit’s allegation that appellant and the

12

murder victim had been communicating via appellant’s cell phone, planning

robberies around the time that the victim was killed.”. Id. at *8. In a more recent

opinion that upheld a nexus finding the Amarillo Court of Appeals explained:

Here, the warrant sought to search Appellant's cell phone, a particular

thing. Detective Chalifoux’s affidavit attached to the warrant alleged

that Appellant, a particular person, had committed certain specified

offenses. That is, Appellant forced K.V., a person under the age of

seventeen, to perform numerous sex acts and attempted to force her to

perform a sex act while threatening her with a firearm. See Sims [v.

State], 526 S.W.3d [638] at 545 [(Tex. App. – Texarkana 2017)]. In

his affidavit, Detective Chalifoux established a nexus between the

item to be searched (the cell phone) and the offenses being

investigated by stating that Appellant had contacted K.V. on his

cell phone and invited her to go to a club. Prior to the call,

Appellant had been contacting K.V. on Facebook (potentially via

the use of his cell phone). In addition, K.V.'s grandmother

indicated that her granddaughter had been contacted through

Facebook messenger by Appellant's girlfriend who indicated that

Appellant would pay if K.V. agreed to “leave this alone.”

Interpreting the affidavit within its four corners in a

commonsense fashion, a magistrate could have reasonably

inferred from these statements that evidence concerning the

commission of the offenses being investigated would be found on

Appellant’s cell phone. See Bonds [v. State], 403 S.W.3d at 873

[(Tex. Crim. App. 2013)] (affidavit established sufficient nexus

between criminal activity, the things to be seized, and the place to be

searched).

See Roberts v. State, Nos. 07-16-00165-CR, 07-16-00166-CR, 2018 Tex. App.

LEXIS 1804, at *16-17 (Tex. App. – Amarillo (March 9, 2018)) (unpublished)

(emphasis added). Absent facts to connect the murder to the cell phone, bald,

13

conclusory and boilerplate allegations by the affiant could not provide the

necessary nexus to establish probable cause to issue the cell phone warrant.

2.

Affiant’s Bald and Conclusory Allegations Cannot Support Probable

Cause

“An affidavit will not justify the issuance of a search warrant if it simply

contains conclusory statements that provide no basis for determining if probable

cause actually exists” Kennedy, 338 S.W.3d at 92 (citing Rodriguez v. State, 232

S.W.3d 55 at 61 (Tex. Crim. App. 2007); Ashcraft v. State, 934 S.W.2d 727, 733

(Tex. App. - Corpus Christi 1996, pet. ref’d)). And, “an affidavit will only be

effective if it contains allegations that amount to something greater than the

affiant’s suspicion or the “repetition of another person’s mere suspicion.” Id.

(citing Adair v. State, 482 S.W.2d 247, 249 (Tex. Crim. App. 1972)).

In the Appellant’s case, it was the affiant’s “belief, through his experience,

that cell phones contain evidence of geographical information of where an

individual was, the individuals the person was in contact with on a specific date

and time to include witnesses, accomplices, a list of contacts, photographs and

videos identifying these contacts.” See affidavit, supra. But these bald allegations

are insufficient to carry probable cause. After considering the affiant’s “attempts to

establish a nexus between the robbery and Martinez’s cell phone by generally

14

noting that, because cell phones are ‘prevalent’ in ‘today's age,’ evidence

connecting Martinez to the robbery might be found in his phone,” the panel in

Martinez concluded that “such boilerplate language in an affidavit, standing alone,

does not supply probable cause sufficient to search a criminal suspect’s cell

phone.” See Martinez at *8-9. In support of this holding, the Corpus ChristiEdinburg appellate court cited a United States District Court opinion in United

States v. Ramirez, 180 F. Supp. 3d 491, 494 (W.D. Ky. 2016), where the district

judge observed that an affidavit’s boilerplate language claiming that “[criminal

suspects] may keep text messages or other electronic information stored in their

cell phones which may relate them to the crime and/or co-defendants/victim” does

not demonstrate particularized facts supporting probable cause. Ramirez merits

further discussion.

In Ramirez, the United States argued that the affidavit established a

sufficient nexus because Ramirez possessed the phone at the time of his arrest, and

“cell phones and firearms are generally considered the ‘tools of the trade’ of drug

traffickers.” Ramirez, 180 F.Supp. at 495 [] (quoting United States v. Gorny, 2014

U.S. Dist. LEXIS 84807, 2014 WL 2860637 (W.D. Pa. 2014)). Rejecting the

government’s argument, the district court explained:

15

The United States argues that the affidavit established a sufficient

nexus because Ramirez possessed the phone at the time of his arrest,

and “cell phones and firearms are generally considered the ‘tools of

the trade’ of drug traffickers.” Obj. 5 (quoting United States v. Gorny,

2014 U.S. Dist. LEXIS 84807, 2014 WL 2860637 (W.D. Pa. 2014)).

Even if cell phones are the “tools of the trade” of drug traffickers,

the Gorny opinion undermines the government's argument regarding

the sufficiency of this affidavit. In the very next sentence after "cell

phones and firearms are generally considered ‘tools of the trade’ of

drug traffickers,” the Gorny opinion says: “the basis for the

detectives’ probable cause to search the cell phones seized from

Gorny [arose] from the fact that they knew Gorny himself used cell

phones as a tool of his own drug trafficking rather than the suggested

empty assertions about drug traffickers generally." 2014 U.S. Dist.

LEXIS 84807, [WL] at *6. Further, the two affidavits at issue

in Gorny provided details of an investigation by undercover officers

who received the suspect's phone number during a controlled

buy. 2014 U.S. Dist. LEXIS 84807, [WL] at *2.

Here, unlike in Gorny, there is nothing in the affidavit asserting that

Petter knew Ramirez used the phone as a tool of drug trafficking.

Unlike the affidavit in Gorny which provided details of the

investigation, “[t]he affidavit also omits any information regarding the

wiretap warrants, evidence obtained in the search of his residence, or

the ongoing investigation by the DEA into Ramirez’s alleged

involvement in a drug trafficking organization.” R. & R. 6.

Ramirez, at *495-96. Ramirez was recently cited by the Sixth Circuit Court of

Appeals in United States v. Merriweather, 728 F. App'x 498 (6th Cir. 2018)

(unpublished), where the circuit court explained:

The non-binding district court case Merriweather cites in his brief is

also easily distinguished. See United States v. Ramirez, 180 F. Supp.

3d 491 (W.D. Ky. April 12, 2016). In Ramirez, the district court held

16

both that the affidavit supporting the search warrant for Ramirez’s

phone was insufficient to show probable cause and that the good-faith

exception did not apply. Id. at 495-96. That was for very good

reasons—but reasons that are absent in this case. The affidavit

in Ramirez relied only on (1) the fact that Ramirez had a cell phone on

him during his arrest for a drug-related conspiracy and (2) the

affiant’s claim that his training and experience suggest such

conspiracies are often facilitated by cell phones. Id. at 495. While the

affidavit established that Ramirez likely owned the phone, the district

court held that it was nevertheless “insufficient by itself to establish a

nexus between the cell phone and any alleged drug activity,” id., and

that “[a]n objectively reasonable law enforcement officer would have

recognized” the deficiency, id. at 496. But the Ramirez affidavit did

not, as the instant one did, allege that cell phones were used to

facilitate two drugs buys from Merriweather or that the particular cell

phone at issue was found in a vehicle containing apparent

oxymorphone, the very drugs involved in the conspiracy. Those facts

take this case outside of Ramirez’s ambit—and confirm that an officer

could reasonably rely on the affidavit in searching Merriweather’s cell

phone.

Merriweather, at 506.

Appellate opinions from state courts, such as the Supreme Judicial District

of Massachusetts also disagree with the Fourth Court’s reasoning. See

Commonwealth v. White, 475 Mass. 583, 591-92 (2016) (In essence, the

Commonwealth is suggesting that there exists a nexus between a suspect’s criminal

acts and his or her cellular telephone whenever there is probable cause that the

suspect was involved in an offense, accompanied by an officer’s averment that,

given the type of crime under investigation, the device likely would contain

17

evidence. If this were sufficient, however, it would be a rare case where probable

cause to charge someone with a crime would not open the person’s cellular

telephone to seizure and subsequent search.”) (citing Riley, 134 S. Ct. at 2492)

(only “inexperienced or unimaginative law enforcement officer … could not come

up with several reasons to suppose evidence of just about any crime could be found

on a cell phone”); Commonwealth v. Morin, 478 Mass. 415, 85 N.E.3d 949 (2017)

(same holding). For her part, in Moats v. State, 455 Md. 682, 706 (2017), joined in

a concurrence by Justice Clayton Greene, Jr., Judge Sally Adkins agreed that the

federal good faith exception (applicable to Maryland state criminal cases) saved a

warrant with a supporting affidavit constructed like the one at bar, but found the

warrant lacked probable cause (which would have required suppression under Tex.

Crim. Pro. Art. 38.23, supra), explaining “I would not find probable cause where a

warrant affidavit cites only an officer’s training and experience, yet fails to show

any nexus between the suspect’s phone and criminal activity” (citing her

concurrence in Stevenson v. State, 455 Md. 709 (2017) (Riley does not address

what constitutes probable cause sufficient to obtain a warrant to search a cell

phone. I cannot, however, conclude that it is appropriate for this Court to apply

Riley to permit warrants based primarily on an officer’s training and expertise

without the necessary facts to support a reasonable inference that the suspect has

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used his phone in the commission of a crime or that the phone contains evidence of

the crime.) (also joined by Justice Clayton Greene, Jr.)).

Lastly, Petitioner brings to this Court’s attention a recently filed petition for

a writ of certiorari, which raises the same nexus argument, but in the context of a

search warrant for a home, on the simple basis that the owner of the home was a

suspected drug dealer. The case is Juan Zamudio v. United States, Cause No. 181529 (Filed March 21, 2019, response filed by the government on July 8, 2019). 3

The question for this Court in Zamudio is:

Whether a search warrant application that fails to provide any

particularized nexus between an individual’s alleged drug trafficking

activity and the individual’s residence can provide probable cause for

a warrant to search the residence.

In his petition, Zamudio highlights that

“[s]everal federal courts of appeals, including the Seventh Circuit in

the decision below, hold that the mere fact a defendant has engaged in

drug trafficking can establish probable cause for a search warrant to

search the defendant’s home, even if there is no specific evidence

linking the drug trafficking to the defendant’s home.

Two federal courts of appeals and at least five state courts of last

resort, in contrast, require that the search warrant application provide

a particularized nexus between the drug trafficking activity and the

home to be searched.

3

Zamudio’s petition has been distributed for conference of 10-1-2019.

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Petitioner submits Freeman, supra as the Fifth Circuit’s own holding requiring

more than a suspicion of drug trafficking to establish a nexus for probable cause to

search that person’s home, when considering the circuit splits on this authority that

are discussed in Zamudio. Petitioner submits that the Court should consider his

case jointly with Zamudio’s, and grant both certiorari to resolve the failure by the

respective appellate courts to require a nexus, as mandated by this Court’s wellestablished precedent, when dealing with search warrants that are issued for

residences, and for cellular phones. As noted, similar to the basis for issuing

Zamudio’s warrant, all the affiant in Petitioner’s case was aware of and alleged in

the four corners of the affidavit for the cell phone is that the Petitioner was accused

of murder, and that because he had in his possession a cell phone at the time that

he was questioned by police, which was about 8 hours after the murder (though

this time gap was not included in the affidavit), the warrant could be issued on the

general allegation that cell phones often contain evidence of crimes. As the

Petitioner has noted, Justice Rebecca Martinez of the Fourth Court of Appeals

dissented from the Court’s refusal to hear the case en banc, without first requiring

a response from the state on this particular question. The Fourth Court of Appeals’

opinion not only nullifies Riley’s warrant requirement when searching cell phones

in Texas, it does so without adequate explanation.

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