In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-23-00053-CR ________________
GREGORY LAMAR HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 22-01-00117-CR ________________________________________________________________________
MEMORANDUM OPINION
Appellant Gregory Lamar Henderson appeals his conviction for deadly
conduct by discharge of a firearm. See Tex. Penal Code Ann. § 22.05(b)(2). In his
sole issue, Henderson complains the trial court erred in denying his Motion to
Suppress Evidence Seized Without a Warrant. Henderson argues that the contents
of his cell phone should be suppressed because the seizure of his cell phone without
1 a particularly described warrant was unconstitutional. See U.S. CONST. amend. IV.
For the reasons explained below, we affirm the trial court’s judgment.
PERTINENT BACKGROUND
Henderson filed a Motion to Suppress Evidence Seized Without a Warrant,
asking the trial court to suppress all cell phone evidence seized from his vehicle.
Henderson argued that the warrant to search his home authorized the police to search
for and seize the following property and items:
[]Photographs of the inside and outside of the residence and premises. Any and all firearms, firearm magazines, ammunition, gun carrying cases, gun cleaning kits, receipts for purchases of firearms, and bills of sale for firearms, any indicia of firearm ownership or possession of firearms.[]
Henderson argued the police seized two cell phones without a warrant, exigent
circumstances, or an exception to the search warrant requirement in violation of the
Fourth Amendment. The record shows that the day after the police executed the first
search warrant, the police obtained a second warrant to search a silver LG cell phone
and a black BLU cell phone, which were located at the Conroe Police Department.
The trial court conducted a hearing on Henderson’s Motion to Suppress. The
State explained that the complainant and a witness reported that Henderson was
responsible for a shooting and linked to a blue Volkswagen. The State explained that
Detective Bret Irvine of the Conroe Police Department and his team executed a
search warrant of Henderson’s residence, which included any associated vehicles,
2 and Crime Scene Investigator Cassondra Cunningham collected cell phones from
the blue Volkswagen based on her belief that they potentially belonged to Henderson
and contained evidence of the offense. The State argued that Investigator
Cunningham collected the cell phones, despite the first warrant not specifically
including cell phones, because she was concerned the evidence would be destroyed
if left at the scene. The State explained that after the first warrant was executed,
Henderson told Detective Irvine that he was communicating with people the night
of the offense, and that admission led police to obtain a second search warrant
specific to the cell phones. The police then downloaded and searched the cell phones.
The Defense argued that the items to be seized needed to be particularly
outlined, the first search warrant did not include electronics or phones, every seized
item not on the list is fruit of the poisonous tree, and there were no exigent
circumstances involving the threat of destruction. The trial court admitted the
affidavits and search warrants for the residence and cell phones and considered
testimony.
Detective Irvine testified he obtained and executed a warrant that gave him
probable cause to search Henderson’s residence and vehicle, and he explained that
based on statements from the victim and a witness, the warrant noted that Henderson
drove a blue Volkswagen. When Detective Irvine executed the warrant, he observed
a blue Volkswagen outside of Henderson’s apartment, and Henderson’s wife
3 confirmed it was her car. Detective Irvine testified that Investigator Cunningham
searched the car and collected two cell phones that she believed belonged to
Henderson. Detective Irvine explained that based on his investigation and review of
surveillance footage, he believed the cell phones could have been involved or used
in the crime. Detective Irvine explained that two people approached the shooter’s
car, a red Lexus, immediately before and after the shooting, and it was likely they
used cell phones to communicate. After executing the warrant, Detective Irvine
interviewed Henderson, who stated that on the night of the offense he received a call
informing him the police were at his residence. Detective Irvine testified that
Henderson’s statement gave him probable cause to believe that the cell phones could
have been part of the crime, so he obtained a second search warrant to download the
contents of the cell phones. Detective Irvine also testified that the Volkswagen was
not involved in the shooting, the first warrant did not include cell phones or
electronics, and there was no indication of evidence tampering.
Investigator Cunningham explained that when she helped execute the warrant,
she learned that the warrant included a blue Volkswagen linked to Henderson, and
she searched the Volkswagen and collected two cell phones to safeguard until she
received a warrant authorizing the search of the contents. Investigator Cunningham
testified that based on her experience, she believed the cell phones could contain
evidence of the offense, including phone calls, text messages, images, and
4 geographical location data. Investigator Cunningham explained that it was important
to safeguard the cell phones and obtain a warrant for the contents because it is easy
to delete data from a cell phone and deleted data is not immediately recoverable.
Investigator Cunningham testified that she could have towed the Volkswagen to the
police department to search for the items listed in the warrant, which she agreed did
not include electronics or cell phones.
After presenting testimony, the State argued that the probable cause in the first
search warrant along with reasonable and articulable facts and circumstances
allowed Investigator Cunningham to temporarily seize and maintain control of the
cell phones, which she believed were related to the crime, until she obtained a
warrant to search the contents. The defense argued the seizure of the cell phones
should be suppressed because there were no exigent circumstances to justify the
seizure under the first search warrant. The trial court denied Henderson’s Motion to
Suppress. The trial court stated that the cell phone “in and of itself is irrelevant,”
except for the “indicia of firearm ownership[,]” and the first search warrant listed a
blue Volkswagen and “it seems reasonable to assume that they seized the phone to
hold until they got a warrant because it was in the blue Volkswagen.”
ANALYSIS
In his sole issue, Henderson complains the trial court erred in denying his
Motion to Suppress the contents of his cell phone because the seizure of his cell
5 phone without a particularly described warrant was unconstitutional. See U.S.
CONST. amend. IV.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-23-00053-CR ________________
GREGORY LAMAR HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 22-01-00117-CR ________________________________________________________________________
MEMORANDUM OPINION
Appellant Gregory Lamar Henderson appeals his conviction for deadly
conduct by discharge of a firearm. See Tex. Penal Code Ann. § 22.05(b)(2). In his
sole issue, Henderson complains the trial court erred in denying his Motion to
Suppress Evidence Seized Without a Warrant. Henderson argues that the contents
of his cell phone should be suppressed because the seizure of his cell phone without
1 a particularly described warrant was unconstitutional. See U.S. CONST. amend. IV.
For the reasons explained below, we affirm the trial court’s judgment.
PERTINENT BACKGROUND
Henderson filed a Motion to Suppress Evidence Seized Without a Warrant,
asking the trial court to suppress all cell phone evidence seized from his vehicle.
Henderson argued that the warrant to search his home authorized the police to search
for and seize the following property and items:
[]Photographs of the inside and outside of the residence and premises. Any and all firearms, firearm magazines, ammunition, gun carrying cases, gun cleaning kits, receipts for purchases of firearms, and bills of sale for firearms, any indicia of firearm ownership or possession of firearms.[]
Henderson argued the police seized two cell phones without a warrant, exigent
circumstances, or an exception to the search warrant requirement in violation of the
Fourth Amendment. The record shows that the day after the police executed the first
search warrant, the police obtained a second warrant to search a silver LG cell phone
and a black BLU cell phone, which were located at the Conroe Police Department.
The trial court conducted a hearing on Henderson’s Motion to Suppress. The
State explained that the complainant and a witness reported that Henderson was
responsible for a shooting and linked to a blue Volkswagen. The State explained that
Detective Bret Irvine of the Conroe Police Department and his team executed a
search warrant of Henderson’s residence, which included any associated vehicles,
2 and Crime Scene Investigator Cassondra Cunningham collected cell phones from
the blue Volkswagen based on her belief that they potentially belonged to Henderson
and contained evidence of the offense. The State argued that Investigator
Cunningham collected the cell phones, despite the first warrant not specifically
including cell phones, because she was concerned the evidence would be destroyed
if left at the scene. The State explained that after the first warrant was executed,
Henderson told Detective Irvine that he was communicating with people the night
of the offense, and that admission led police to obtain a second search warrant
specific to the cell phones. The police then downloaded and searched the cell phones.
The Defense argued that the items to be seized needed to be particularly
outlined, the first search warrant did not include electronics or phones, every seized
item not on the list is fruit of the poisonous tree, and there were no exigent
circumstances involving the threat of destruction. The trial court admitted the
affidavits and search warrants for the residence and cell phones and considered
testimony.
Detective Irvine testified he obtained and executed a warrant that gave him
probable cause to search Henderson’s residence and vehicle, and he explained that
based on statements from the victim and a witness, the warrant noted that Henderson
drove a blue Volkswagen. When Detective Irvine executed the warrant, he observed
a blue Volkswagen outside of Henderson’s apartment, and Henderson’s wife
3 confirmed it was her car. Detective Irvine testified that Investigator Cunningham
searched the car and collected two cell phones that she believed belonged to
Henderson. Detective Irvine explained that based on his investigation and review of
surveillance footage, he believed the cell phones could have been involved or used
in the crime. Detective Irvine explained that two people approached the shooter’s
car, a red Lexus, immediately before and after the shooting, and it was likely they
used cell phones to communicate. After executing the warrant, Detective Irvine
interviewed Henderson, who stated that on the night of the offense he received a call
informing him the police were at his residence. Detective Irvine testified that
Henderson’s statement gave him probable cause to believe that the cell phones could
have been part of the crime, so he obtained a second search warrant to download the
contents of the cell phones. Detective Irvine also testified that the Volkswagen was
not involved in the shooting, the first warrant did not include cell phones or
electronics, and there was no indication of evidence tampering.
Investigator Cunningham explained that when she helped execute the warrant,
she learned that the warrant included a blue Volkswagen linked to Henderson, and
she searched the Volkswagen and collected two cell phones to safeguard until she
received a warrant authorizing the search of the contents. Investigator Cunningham
testified that based on her experience, she believed the cell phones could contain
evidence of the offense, including phone calls, text messages, images, and
4 geographical location data. Investigator Cunningham explained that it was important
to safeguard the cell phones and obtain a warrant for the contents because it is easy
to delete data from a cell phone and deleted data is not immediately recoverable.
Investigator Cunningham testified that she could have towed the Volkswagen to the
police department to search for the items listed in the warrant, which she agreed did
not include electronics or cell phones.
After presenting testimony, the State argued that the probable cause in the first
search warrant along with reasonable and articulable facts and circumstances
allowed Investigator Cunningham to temporarily seize and maintain control of the
cell phones, which she believed were related to the crime, until she obtained a
warrant to search the contents. The defense argued the seizure of the cell phones
should be suppressed because there were no exigent circumstances to justify the
seizure under the first search warrant. The trial court denied Henderson’s Motion to
Suppress. The trial court stated that the cell phone “in and of itself is irrelevant,”
except for the “indicia of firearm ownership[,]” and the first search warrant listed a
blue Volkswagen and “it seems reasonable to assume that they seized the phone to
hold until they got a warrant because it was in the blue Volkswagen.”
ANALYSIS
In his sole issue, Henderson complains the trial court erred in denying his
Motion to Suppress the contents of his cell phone because the seizure of his cell
5 phone without a particularly described warrant was unconstitutional. See U.S.
CONST. amend. IV.
We review the trial court’s denial of a motion to suppress under a bifurcated
standard of review. Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023);
Dugar v. State, 629 S.W.3d 494, 497 (Tex. App.—Beaumont 2021, pet ref’d). We
review the determination of whether a specific search and seizure was reasonable
under a de novo standard, but we give the trial court almost complete deference in
determining historical facts that depend on credibility and demeanor. Igboji, 666
S.W.3d at 612 (citations omitted); Gallagher v. State, Nos. 09-21-00307-CR, 09-21-
00308-CR, 09-21-00309-CR, 09-21-00310-CR, 2023 WL 3085768, at *4 (Tex.
App.—Beaumont Apr. 26, 2023, no pet.) (mem. op., not designated for publication).
When, as here, the trial court does not make explicit findings of fact, we review the
evidence in a light most favorable to the trial court’s ruling and assume the trial court
made implicit findings of fact supported by the record. Igboji, 666 S.W.3d at 612
(citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)). Generally, we
limit our review to the record of the suppression hearing. Id. (citation omitted).
The Fourth Amendment to the United States Constitution provides:
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.
6 U.S. CONST. amend. IV. “A warrantless search or seizure is per se unreasonable
under the Fourth Amendment unless it falls within a recognized exception to the
warrant requirement.” Igboji, 666 S.W.3d at 613. The existence of exigent
circumstances is one such exception. Id.; Gallagher, 2023 WL 3085768, at *5. This
exception permits law enforcement to handle situations that compel the “need for
official action and no time to secure a warrant.” Missouri v. McNeely, 569 U.S. 141,
149 (2013); Igboji, 666 S.W.3d at 613.
Once a defendant shows that a warrantless seizure has occurred, the burden
shifts to the State to prove an exception to the warrant requirement applies. Igboji,
666 S.W.3d at 613. Generally, the State must satisfy a two-step process to validate
a warrantless seizure based on exigent circumstances: (1) the existence of probable
cause, and (2) an exigency. See id. “[P]robable cause exists ‘when reasonably
trustworthy facts and circumstances within the knowledge of the officer on the scene
would lead a man of reasonable prudence to believe that the instrumentality . . . or
evidence of a crime will be found.’” Id. (quoting Estrada v. State, 154 S.W.3d 604,
609 (Tex. Crim. App. 2005)). An exigency requiring an immediate action by law
enforcement must exist, and one recognized category of exigent circumstances that
justifies a warrantless intrusion by law enforcement is preventing destruction of
contraband or evidence. Id. at 613-14.
7 To determine whether exigent circumstances exist, courts look to the totality
of the circumstances when the seizure occurred. Id. at 613; Gallagher, 2023 WL
3085768, at *6. There is no requirement that the record show affirmative conduct on
the part of the defendant. Igboji, 666 S.W.3d at 614. Rather, for exigent
circumstances to justify a warrantless seizure of a cell phone, the record must show
that officers reasonably believed the evidence would be imminently destroyed if they
waited to obtain a warrant to seize the cell phone. See id. at 616-17; Gallagher, 2023
WL 3085768, at *6 (upholding warrantless seizure of cell phone where trial court
could have reasonably found officer believed evidence of crimes would be found on
phone and there was imminent risk evidence would be destroyed); Rafiq v. State,
661 S.W.3d 827, 839-40 (Tex. App.—Beaumont 2022, pet. ref’d) (finding exigent
circumstances justified the warrantless seizure of cell phone to obtain a search
warrant and prevent destruction of evidence relevant to the crime).
Detective Irvine testified that based on his investigation, he believed the cell
phones Investigator Cunningham collected from the Volkswagen could have been
involved in the crime because it was likely the suspects used cell phones to
communicate. Cunningham had already determined that there were two shooters and
two vehicles potentially involved: the blue Volkswagen and a red Lexus.
Cunningham explained that these facts made it likely that the two parties had used
cell phones to communicate. Detective Irvine explained, based on his training and
8 experience, it is easy to destroy evidence of criminal activity recorded on a cell
phone and that is why it is important to safeguard the cell phone while seeking a
search warrant. In addition, Irvine explained that Henderson’s statement that he
received a call informing him the police were at his residence gave him probable
cause to believe the cell phones could have been part of the crime. Investigator
Cunningham testified that she believed the cell phones could contain evidence of the
offense, and that it was important to safeguard them because it was easy to delete
the data. Based on the testimony, the trial court could have reasonably believed that
there would be evidence on the cell phones relevant to the indictment. See Igboji,
666 S.W.3d 613, 616-17; Gallagher, 2023 WL 3085768, at *6; Rafiq, 661 S.W.3d
at 839-42. Accordingly, we conclude the trial court did not abuse its discretion in
finding that probable cause existed when Investigator Cunningham seized the cell
phones. After examining the totality of the circumstances when the seizure occurred,
we also conclude the trial court did not abuse its discretion in finding there was an
imminent risk the evidence on the cell phones would be destroyed had the phones
not been seized. See Igboji, 666 S.W.3d 613, 616-17; Gallagher, 2023 WL 3085768,
at *6; Rafiq, 661 S.W.3d at 839-42.
Having determined that the trial court did not abuse its discretion in finding
that there was probable cause and the need to prevent the imminent destruction of
evidence on the cell phones, we conclude the trial court did not err in denying
9 Henderson’s Motion to Suppress. We overrule Henderson’s sole issue and affirm the
trial court’s judgment.
AFFIRMED.
JAY WRIGHT Justice
Submitted on January 2, 2024 Opinion Delivered August 28, 2024 Do Not Publish
Before Johnson, Wright and Chambers, JJ.