Affirmed and Opinion filed September 20, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00452-CR

                       SEBASTIAN DRAYTON, Appellant
                                         V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 174th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1469229

                                   OPINION

      A jury found appellant guilty of capital murder, and the trial court sentenced
appellant to life imprisonment without parole. Appellant challenges his conviction
in a single issue, contending that the trial court erred by denying his motion to
suppress evidence obtained from the warrant searches of several cell phones and
historical cell site data. We affirm.
                               I.     BACKGROUND

      During the investigation of an aggravated robbery, Officer Jose Mora of the
Houston Police Department obtained a warrant to search a car registered to
appellant’s girlfriend. One of the complainants had identified the car by license
plate number. Appellant was later observed with the car, and a complainant
identified appellant as one of the robbers. The property taken during the robbery
included documents, cash, and cell phones. The search warrant for the car states
the following:

      YOU ARE THEREFORE COMMANDED to forthwith search the
      place therein named, to wit: [description of the car], and any and all
      containers and compartments within said vehicle . . . with the
      authority to search for and seize any and all items constituting
      evidence of Aggravated Robbery or that a particular person
      committed the offense of Aggravated Robbery, including, but not
      limited to firearms, magazines, and bullets; items that may contain
      biological material; fingerprints; hair fiber(s); documents establishing
      identity of additional suspect(s) such as paper(s), license(s), cell
      phone(s); and property belonging to the complainants such as cell
      phones.

During a search of that car, officers seized five cell phones, two of which were the
subject of appellant’s motion to suppress: a “white LG” phone and a “Metro PCS”
phone.

      Officer Mora applied for a warrant to search for data on the white LG phone
with a five-page affidavit. In the affidavit, Officer Mora testified about the
investigation leading to appellant being a suspect in the robbery and the search of
the car, including that (1) a complainant identified the car as the robbers’ vehicle
by license plate number; (2) a complainant identified appellant as one of the
robbers; (3) appellant was linked to the car because it was registered to appellant’s
girlfriend, and an officer saw appellant with the car; and (4) five cell phones,

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including the white LG phone, were found during the search of the car. Officer
Mora described what he did next:

      Your affiant took custody of all five recovered phones . . . as part of
      the investigation into this and other incidents. Affiant attempted to
      turn on all of the phones, in an attempt to ascertain their ownership,
      and observed that the owner profile for the white LG [phone] listed
      [appellant] as the owner, with the number for the phone . . . was the
      same number that [appellant]’s girlfriend . . . reported as being
      [appellant]’s phone number.

Officer Mora testified further that persons using cellular telephones utilize
electronic and wire communications daily, and that the contents of the stored
communications were probably relevant and material to the investigation.

      Based on this affidavit, a magistrate issued a search warrant for the data on
the white LG phone. A subsequent search of that phone revealed incriminating
information. Another officer applied for a search warrant for the Metro PCS phone
and, in the warrant affidavit, the officer testified about similar facts recited in the
affidavit related to the search warrant for the white LG phone. Additionally, the
officer referred to some information that had been discovered during the warrant
search for the data on the white LG phone.

      A magistrate issued a search warrant for the data on the Metro PCS phone. A
search of the Metro PCS phone revealed incriminating evidence related to the
capital murder in this case, and the evidence was admitted at appellant’s trial. The
State obtained additional search warrants for historical cell site data related to the
two phones, and some of this evidence was admitted at appellant’s trial.

                                  II.    ANALYSIS

      Appellant contends that the trial court abused its discretion by overruling the
motion to suppress evidence discovered from the warrant searches of the phones

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and additional evidence subsequently derived from the warrant searches. Appellant
does not contend that Officer Mora lacked authority to seize the cell phones
pursuant to the car search warrant, that the car search warrant was not supported by
probable cause to seize the cell phones, or that Officer Mora lacked probable cause
to search the white LG phone. Rather, appellant contends that Officer Mora
conducted an illegal warrantless search of the white LG phone by opening it to
determine ownership, and this unconstitutional search tainted the subsequent
search warrants for data on each phone.

      The State contends, among other things, that Officer Mora legally searched
the white LG phone under the authority of the car search warrant because the
warrant authorized Mora to seize “documents,” which can be stored on a cell
phone.

      We hold that the trial court did not abuse its discretion by finding that
Officer Mora’s brief search of the white LG phone to determine ownership was
authorized by the car search warrant. Thus, the subsequent search warrants for the
cell phones’ data and historical cell site information were not tainted by an illegal
warrantless search.

A.    Standard of Review

      Appellate courts review a trial court’s ruling on a motion to suppress by
giving almost total deference to the historical facts found by the trial court and by
analyzing de novo the trial court’s application of the law. State v. Cuong Phu Le,
463 S.W.3d 872, 876 (Tex. Crim. App. 2015). Whether a search in this case
exceeded the scope of the warrant is a question of law because resolution of the
issue depends solely on an examination of the warrant and the affidavit. Cf. State v.
Powell, 306 S.W.3d 761, 765–66 & n.8 (Tex. Crim. App. 2010) (whether seizure
exceeded scope of warrant was question of law).
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B.     Legal Principles
       Under the Fourth Amendment to the United States Constitution, a search
warrant may not issue without a finding of probable cause to believe that a
particular item will be found at a particular location. Flores v. State, 319 S.W.3d
697, 702 (Tex. Crim. App. 2010). The Fourth Amendment’s particularity
requirement is primarily meant to prevent “general searches” and the seizure of
one thing under a warrant that describes another thing to be seized. Powell, 306
S.W.3d at 765. The scope of a search is governed by the terms of the warrant, and
the scope includes spatial restrictions as well as the items to be seized. See
Zarychta v. State, 44 S.W.3d 155, 166 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied); see also Powell, 306 S.W.3d at 765–66, 768–69 & n.13 (items to be
seized); Long v. State, 132 S.W.3d 443, 453–54 (Tex. Crim. App. 2004) (spatial
restrictions).

       When a search is conducted pursuant to a warrant, the search may be “as
extensive as is reasonably required to locate items described in the warrant.”
Zarychta, 44 S.W.3d at 166. Thus, even if a warrant does not authorize the seizure
of a particular item or container, officers sometimes may open that item or
container while conducting a search. See Powell, 306 S.W.3d at 767.

       A lawful search of a premises, for example, “generally extends to the entire
area in which the object of the search may be found and is not limited by the
possibility that separate acts of entry or opening may be required to complete the
search.” United States v. Ross, 456 U.S. 798, 820–21 (1982). Similarly, a warrant
to search a vehicle “would support a search of every part of the vehicle that might
contain the object of the search.” Id. at 821. “When a legitimate search is under
way, and when its purpose and its limits have been precisely defined, nice
distinctions between closets, drawers, and containers, in the case of a home, or

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between glove compartments, upholstered seats, trunks, and wrapped packages, in
the case of a vehicle, must give way to the interest in the prompt and efficient
completion of the task at hand.” Id.

      An officer exceeds the scope of a valid search if the officer takes action
“unrelated to the objectives of the authorized intrusion,” and the officer exposes to
view concealed portions of the premises or its contents. See Arizona v. Hicks, 480
U.S. 321, 324–26, 328 (1987) (holding that officer’s moving of stereo equipment
to check serial number was an unreasonable search under the Fourth Amendment,
unsupported by probable cause, when the initial purpose of the intrusion onto the
premises was to search for people or weapons).

      In determining whether a search went beyond the scope of a warrant, the test
is whether the search was unreasonable because only unreasonable searches are
prohibited by the Fourth Amendment. See Long v. State, 532 S.W.2d 591, 596
(Tex. Crim. App. 1975). What is reasonable within the meaning of the Fourth
Amendment depends on the circumstances of each case. Id. There is no rigidly
fixed formula. Id.

C.    Search Within the Scope of the Warrant
      The State contends that Officer Mora acted reasonably within the scope of
the car search warrant when he opened the white LG phone because the car search
warrant authorized him “to search through the cell phones for documents
establishing the identity of additional suspects,” citing United States v. Aguirre,
664 F.3d 606 (5th Cir. 2011). In Aguirre, the Fifth Circuit upheld the search of a
cell phone for text messages, the directory, and call logs although the search
warrant did not include cell phones among the items to be searched. See id. at 614–
15. The court reasoned that the data on the cell phone were “functional


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equivalents” of items listed in the search warrant, such as correspondence, address
books, and telephone directories. Id.

      It is unclear whether a cell phone discovered in a car is like a “container”
that may be rifled through pursuant to a warrant authorizing the seizure of
“documents.” See Riley v. California, 134 S. Ct. 2473, 2491, 2495 (2014) (holding
that although officers could seize a cell phone during a lawful search, officers
could not search the phone itself; “Treating a cell phone as a container whose
contents may be searched incident to an arrest is a bit strained as an initial
matter.”). Usually, an affidavit offered in support of a warrant to search a cell
phone must include facts that a cell phone was used during the crime or shortly
before or after. Foreman v. State, Nos. 14-15-01005-CR, 14-15-01006-CR, 2018
WL 4183716, at *13 (Tex. App.—Houston [14th Dist.] Aug. 31, 2018, no pet. h.)
(en banc).

      However, we need not reach such a broad holding as the State advances. In
this case, the car search warrant authorized the seizure of not mere “documents.”
The warrant specifically referred to the seizure of “cell phone(s)” that would
establish “the identity of additional suspect(s)” and “property belonging to the
complainants such as cell phones.” For Officer Mora to determine whether the five
cell phones discovered in the car were cell phones particularly described in the
warrant, he necessarily would have been able to inspect the phones to determine
whether they were likely to establish the identity of additional suspects or were
property belonging to the complainants.

      Officer Mora’s opening of the phone to view the “owner profile” was not
excessive considering that he possessed authority to conduct a search as extensive
as was reasonably required to locate items described in the warrant. See Zarychta,
44 S.W.3d at 166. Officer Mora’s conduct was not “unrelated to the objectives of

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the authorized intrusion.” See Hicks, 480 U.S. at 325. The objective of the
authorized intrusion was to seize cell phones “belonging to the complainants” and
“establishing identity of additional suspect(s).” Thus, Officer Mora’s search of the
white LG phone’s “owner profile” was directly related to the objectives of the
authorized intrusion.

      Under the facts of this case, Officer Mora’s brief search of the white LG
phone was reasonable. Because Officer Mora did not conduct an illegal search of
the phone, we reject appellant’s contention that evidence obtained from the
subsequent warrant searches of the phones’ data and historical cell site information
should be suppressed as fruit of an illegal search. Appellant’s sole issue is
overruled.

                               III.   CONCLUSION

      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                      /s/       Ken Wise
                                                Justice


Panel consists of Justices Boyce, Donovan, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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