In an unpublished order, the Texas Court of Criminal Appeals affirmed the denial of a motion to suppress evidence in a possession of a controlled substance (methamphetamine) with intent to deliver prosecution.
The prosecution was initiated based on a traffic stop where the defendant was the passenger. The driver gave consent to search the vehicle where police found over 200 grams of methamphetamine inside the vehicle. The police also found a smartphone on the Defendant which was also seized.
The phone remained in police inventory until a warrant was issued where the contents of the phone could be searched. The focus of the suppression motion was about this search, and the defense argued: 1) the initial warrantless seizure of the phone was not supported by probable cause; (2) the delay between the seizure of the phone and the issuance of a second search warrant almost two years later was unreasonable; (3) the search-warrant affidavit did not establish probable cause to believe that the phone would contain evidence of a drug crime; and (4) the affidavit contained deliberate misstatements such that the court should hold a Franks hearing to determine the truth or falsity of the representations made in the affidavit.
The Court upheld the seizure of the phone because of the plain view doctrine to find the phone and since drug dealers often have transactional information on their phones, the seizure was warranted.
The court also upheld the warrant as being supported by probable cause because the affidavit established that: 1. Officer Wakim had initiated a traffic stop on the vehicle occupied by defendant; 2. defendant appeared very nervous, would not make eye contact with the officer, and that his hands trembled; 3. both vehicle occupants admitted past methamphetamine use; 4. the discovery of the methamphetamine, a small amount of marijuana, and drug paraphernalia; 4. a large sum of currency on the defendant’s person ($1,371.27); 5. the cell phone was in the possession of the defendant; 6. narcotic dealers keep baggies, measuring devices, spoons, and digital scales about their person in order to facilitate narcotics transactions along with large sums of U.S.C. and 7. typically phones contain information of drug buyers and sellers, text messages and emails arranging narcotics transactions, and photographic evidence of narcotics possession.
Regarding the delay, the Court held that the delay was reasonable due to the delay in filiing a motion to suppress as well as the lack of a request for the return of the phone. Finally, the defendant was not entitled to a Franks Hearing (based on an argument that the allegedly illegal search from the first warrant issued tainted the second warrant because he failed to provide the district court with any details as to the nature of that testimony or any information to suggest that their testimony might reveal that the challenged statement was either intentionally false or made with a reckless disregard for the truth.
The case is King v. State, 2018 Tex. App. LEXIS 8983 (3rd Dist. Ct of Appeals of Texas), November 2, 2018.