AR: When two plan a homicide, it’s reasonable to infer their cell phones have evidence of communications related to the crime, so nexus shown

Where two men were alleged to have planned a homicide, it was reasonable to infer that the cell phone of one of them would have calls between the two planning and executing the murder. Therefore, the affidavit reasonably showed a nexus between the phone and the murder. [Caution: This can almost be read as a per se rule: two people + cell phone + murder = they talked or texted. What about drug crimes? That, too, is almost a given these days.] Johnson v. State, 2015 Ark. 387 (Oct. 29, 2015):

First, the affidavit established that the victim had been shot and that two men were identified as suspects in the homicide. The affidavit also established that Johnson was one of the two suspects. Second, upon arrest for capital murder, approximately twenty-hours after the homicide, the phone was found on Johnson and seized and secured. Third, the affidavit established that after Johnson and Davis were arrested, during questioning at the police station, Davis implicated himself and Johnson in the homicide.

Here, because Johnson was working with at least one other person when the homicide was committed, it is reasonable to infer that the cell phone that was in his possession was used to communicate with others regarding the shootings before, during, or after they occurred. Further, because the confidential informant relayed information about Johnson’s involvement in the homicide to Detective Simpson on the same day that the homicide occurred, it is reasonable to infer that the cell phone in Johnson’s possession at the time of his arrest was used to communicate with some third party regarding his involvement in the homicide. See, e.g., United States v. Gholston, 993 F. Supp. 2d 704, 719 (E.D. Mich. 2014) (where codefendants were charged with robbery, the court denied codefendant Gholston’s motion to suppress a search warrant of the data on his cell phone and explained that a search of a cell phone was likely to reveal evidence of communication of criminal activity involving multiple participants.).

Based on these facts, it is reasonable to conclude that the phone may have been used as a communication device regarding the homicide. Accordingly, the record demonstrates that there was a nexus between the homicide and the phone. Further, the warrant is clear that the facts asserted in Detective Simpson’s affidavit were the basis for the magistrate’s finding of probable cause that evidence related to the Gaskins homicide would be located on the cell phone at issue.

Based on the facts of this case, we are satisfied that there was adequate probable cause to issue the search warrant and that the resulting search was proper.