Opinion
04-22-00688-CR
11-22-2023
Benito VILLEGAS, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CR-9377 Honorable Ron Rangel, Judge Presiding
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant Benito Villegas appeals the denial of his motion to suppress. We affirm.
Background
Villegas's eight-year-old daughter told her aunt that Villegas asked her to shower with the window open and, when she did, he used his cell phone to take video or photographs of her through the open window. The aunt told the mother, and the mother reported the crime. The mother and child spoke to San Antonio Police Detectives, and Detective George Segura from SAPD's Vice Unit prepared a search warrant affidavit setting out probable cause to search Villegas's cell phone "for digital photos and/or video files stored on said cell phone's internal or removeable memory, at least one of which is an image of an 8 year old female taken while the female was undressed, in her restroom prior to or just after showering." The affidavit continued, "Your Affiant knows based on knowledge, training and experience that offenders of this type tend to retain photos, video files and images of victims for extended periods of time. They maintain extensive libraries of these images for purposes of sexual gratification." The search warrant affidavit requested "the issuance of a Search Warrant that will authorize the search of the said suspected cell phone" and provided that the "search will be conducted by qualified individuals within the Police Department who will perform a forensic analysis of the said evidence." A district judge issued a search warrant for a forensic search for images on Villegas's cell phone.
Later that day, SAPD patrol officers performed a traffic stop of Villegas at the behest of the Vice Unit. Segura, who was present, told Villegas about the allegation and asked him for consent to search his cell phone. Villegas offered to go through the phone and show Segura the photo gallery but refused to consent to a search without talking to his attorney. Segura immediately showed Villegas the search warrant and Villegas surrendered the phone. As Segura continued speaking to Villegas, Detective Santos Sauceda manually looked through the phone and found a video of the child before turning the phone over to SAPD forensics. Forensics Detective Edward Campos extracted all the data from the phone and provided the vice detectives the "complete download of what was in the phone," tagging two videos. Villegas filed a motion to suppress challenging both the manual and forensic searches, which the trial court denied after a hearing. The trial court made findings of fact and conclusions of law that all the officers were credible, that both searches were "pursuant to the valid search warrant in this case," and that the searches were "neither overbroad nor unauthorized." Villegas subsequently pled no contest to invasive visual recording and the trial court sentenced him to sixteen months in state jail. Villegas retained the right to appeal the denial of the written motion and has now appealed on the ground that the manual and forensic searches exceeded the scope of the search warrant.
Analysis
Motion to Suppress
Applicable Law and Standard of Review
The Fourth Amendment prohibits general search warrants and requires that warrants describe, with particularity, the place to be searched and the persons or things to be seized. U.S. Const. amend. IV. "Regarding computers and other electronic devices, such as cell phones, case law requires that warrants affirmatively limit the search to evidence of specific crimes or specific types of materials." Diaz v. State, 604 S.W.3d 595, 605 (Tex. App.-Houston [14th Dist.] 2020), aff'd, 632 S.W.3d 889 (Tex. Crim. App. 2021). The particularity requirement is intended to protect people from "general, exploratory rummaging in a person's belongings," Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971), and to ensure that a search conducted by law enforcement be "carefully tailored to its justifications," Maryland v. Garrison, 480 U.S. 79, 84 (1987). Thus, the scope of a lawful search "is defined by the object of the search and the places in which there is probable cause to believe that it may be found." United States v. Ross, 456 U.S. 798, 824 (1982). A "search of computer records that is limited to those related to the offense set forth in the affidavit is appropriately limited" in scope. See Diaz, 604 S.W.3d at 605.
"When investigators fail to limit themselves to the particulars in the warrant, both the particularity requirement and the probable cause requirement are drained of all significance as restraining mechanisms, and the warrant limitation becomes a practical nullity." Long v. State, 132 S.W.3d 443, 447-48 (Tex. Crim. App. 2004) (internal quotation marks omitted). "Obedience to the particularity requirement both in drafting and executing a search warrant is therefore essential to protect against the centuries-old fear of general searches and seizures." Id. at 448. "A search is unreasonable and violates the protections of the Fourth Amendment if it exceeds the scope of the authorizing warrant." DeMoss v. State, 12 S.W.3d 553, 558 (Tex. App.-San Antonio 1999, pet. ref'd). Fruits of such a search cannot be "admitted in evidence against the accused on the trial of any criminal case" unless the fruits were "obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." Tex. Code Crim. Proc. Ann. art. 38.23.
Whether a search exceeds the scope of the authorizing warrant requires a Fourth Amendment reasonableness review-a question we review de novo. See Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011); State v. Powell, 306 S.W.3d 761, 769-70 (Tex. Crim. App. 2010).
Application
Villegas does not challenge the validity of the search warrant. Instead, he argues the SAPD officers flagrantly disregarded the terms of the warrant by manually searching the phone before the forensic search and by failing to limit the subsequent forensic search. Villegas asserts this execution constituted an impermissible general search, requiring exclusion of the August 5, 2020 videos particularly described in the warrant.
The Manual Search
Villegas argues that because no language in the affidavit informed the issuing judge that an officer would be conducting a manual search of the phone, Sauceda's manual search exceeded the scope of the warrant. But "when courts examine the description of the place to be searched to determine the warrant's scope, they follow a common sense and practical approach, not a 'Procrustean' or overly technical one." Long, 132 S.W.3d at 448. And, as the trial court found, the search warrant "commanded" the "search of the suspected cell phone" for evidence of "Invasive Visual Recording" and did not limit the search to just the "forensics examination by authorities with the San Antonio Police Department." As was further discussed at the motion to suppress hearing, a forensics examination "can describe a range of examinations." See United States v. Kim, 103 F.Supp.3d 32, 52 (D.D.C. 2015). "Forensic" means "[u]sed in or suitable to courts of law[.]" Forensic, Black's Law Dictionary (11th ed. 2019). A distinction between manual and forensic searches exists in some contexts, see, e.g., United States v. Kolsuz, 890 F.3d 133, 145-46 (4th Cir. 2018), but that distinction loses force where, as here, a warrant authorizes the greater search based on a warrant affidavit that sets out probable cause. We agree with the trial court that Sauceda's manual search for the images described in the search warrant affidavit did not exceed the scope of warrant. Hereford, 339 S.W.3d at 119; Powell, 306 S.W.3d at 769; Long, 132 S.W.3d at 453; DeMoss, 12 S.W.3d at 558.
The Forensic Search
Villegas next argues the "general, unlimited forensic examination of the cell phone's data" was outside the scope of the warrant because it required SAPD to "narrow the examination to images or videos created on August 5th, 2020." Again, the warrant permitted a search for:
evidence of an offense and evidence that a particular person committed the offense of "Invasive Visual Recording" in violation of Section 21.15 of the Penal Code of the State of Texas, and described as: digital photos and/or video files stored on said cell phone's internal or removeable memory, at least one of which is an image of an 8 year old female taken while the female was undressed, in her restroom prior to or just after showering.
The warrant affidavit included the information that the alleged offense occurred on or about August 5, 2020; the warrant itself did not contain a date.
Campos testified that Sauceda requested "all video clips, photos, downloads, social media as well. In other words, he wants everything available on the phone, is the way I look at it." Campos stated he used the Cellebrite universal extraction device to download "the entire contents of the phone" and then used the Cellebrite physical analyzer to decode the data into a readable format. He explained that the report generated from the extracted data "allows me to specify only to bring up certain dates" so "I can eliminate everything else from the report if I have to or if I was requested to." But he did not use the limiting parameters here, because "no specification was made here." Campos looked for the videos, found and tagged the two videos with the child, and provided the report containing "everything that came off of that phone" to Sauceda.
"Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Riley v. California, 573 U.S. 373, 393 (2014). "The potential for invasion of privacy . . . is enormous." State v. Granville, 423 S.W.3d 399, 409 (Tex. Crim. App. 2014). As a result, in Texas, cell phones require special warrants that may only be issued by a judge. Tex. Code Crim. Proc. Ann. art. 18.0215. The warrant here complied with the statute; no one argues otherwise. But, as Professors Dix and Schmolesky point out, the statute does not set out "how specific the warrant must be or in what ways the warrant must be specific. Nor does it address how officers must go about executing the warrant or whether the warrant must limit the search in such a way as to minimize the intrusion upon information beyond the scope of the warrant." George E. Dix & John M. Schmolesky, Search Warrants for Cellular Telephones and Other Wireless Communications Devices, 40 Tex. Practice, Criminal Practice And Procedure § 9:17.50 (3d ed. 2011 & Supp. 2022). The Court of Criminal Appeals recently commented on article 18.0215, stating that "generic, boilerplate language about cell phone use among criminals" is not "sufficient to establish probable cause to search a cell phone[.]" State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim. App. 2022). But if the language is coupled with "other facts," the affidavit may satisfy article 18.0215(c)(5)'s requirement that the "affidavit offered in support of a warrant to search the contents of a cell phone to 'state the facts and circumstances that provide the applicant with probable cause to believe . . . searching the telephone or device is likely to produce evidence in the investigation of . . . criminal activity.'" Id. (quoting Tex. Code Crim. Proc. art. 18.0215(c)(5)).
While probable cause is not the issue before us, Baldwin is instructive to our determination of whether the officers acted reasonably in this case. See also Diaz, 604 S.W.3d 606-07 (rejecting overbreadth challenge to warrant that permitted search of "computer files or fragments of files" because "the limitation on the search to evidence of specific crimes or specific types of materials" cured any "ambiguity or potential overbreadth in the phrase").
We agree with the trial court that there are no grounds for exclusion here. Even if the boilerplate language about cell phone use among sex offenders did not authorize the officers to search the phone unconstrained by the August 5, 2020 offense date, the officers here acted in good faith reliance upon a warrant by a judge based on probable cause. And the Texas exclusionary rule does not apply when the challenged "evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." Tex. Code Crim. Proc. art. 38.23(b). We therefore overrule Villegas's appellate complaints.
Conclusion
We affirm the judgment of the trial court.