Legal Tech • September 2026

Probable Cause

Digital device search warrant affidavit requires showing a nexus with a crime.

Written by Pierre Grosdidier

In Fraser v. State, the texas court of criminal appeals reaffirmed that a warrant affidavit to search a digital device must “establish a nexus between the device and the offense” under investigation. Mere boilerplate allegations in the police officer’s affidavit regarding a criminal’s use of a digital device, such as a phone, during the commission of a crime are insufficient to establish the probable cause required to search the device.1 Because Marian Fraser’s criminal conviction relied, in part, on cellphone text messages secured through a warrant based on a nexus-free affidavit, the court held there was error and remanded to determine whether it was harmless.2

Daycare owner Fraser was twice tried and convicted for felony murder for the death of a 4-month-old infant under her care. A postmortem autopsy revealed that the infant’s fluids and muscle tissues contained lethal concentrations of diphenhydramine, the active ingredient in medications such as Benadryl, which Fraser is alleged to have administered to the infant.3

Three months after the infant’s death, authorities executed a search warrant at Fraser’s home and seized various digital devices. A second warrant subsequently authorized the devices’ forensic analysis. That second warrant’s affidavit averred, in relevant parts, that:

Affiant knows that it is common for persons to access the internet for the purpose of obtainingdrug information and reactions to various drugs. Affiant believes that a Forensic Search of the [seized devices] may reveal that Marian Fraser may have searched the internet after the death of [the infant] to obtain information on the side effects of diphenhydramine (Benadryl) on infants and young children. Affiant also believes that a Forensic Search of these devices may reveal [Fraser digital communications and social media posts] that may contain information about the death of [the infant].4

At her second trial, Fraser objected to this language as “boilerplate” and sought to suppress numerous text messages she exchanged with her daughter shortly after the infant’s death. The trial court denied Fraser’s motion and the 7th Court of Appeals in Amarillo affirmed. It held that “‘[t]he affidavit contained sufficient particularized facts supporting a search of Appellant’s devices which would be “likely to produce evidence in the investigation” of [the infant]’s death.’”5

The Texas Court of Criminal Appeals disagreed. It reiterated that even though “[p]robable cause is a flexible, nondemanding standard,” it “requires more than mere conclusory statements of an affiant’s belief.” The affidavit must present facts that enable the “magistrate to independently determine probable cause.” The magistrate must not merelyratify the affiant’s beliefs; it must conclude that the affidavit’s four corners, reasonably read, provide a “substantial basis for issuing the warrant.”6

Here, the court held, nothing in the affidavit’s four corners established a nexus between the devices and Fraser’s alleged crime. The only tangible allegation linking the devices to the alleged crime was the affiant’s statement that it was “common” for a person to use digital devices to communicate and search the internet. The affiant’s allegation that he “believes” that the seized devices “may reveal that [Fraser] may have searched the internet after” the infant’s death to learn about diphenhydramine’s side effects on infants and young children was merely speculative and the basis for “a fishing expedition for information.” It is black letter law that personal belief or suspicion are insufficient to support a search warrant. The court sustained Fraser’s objection to the admissibility of the text messages and remanded to the 7th Court of Appeals in Amarillo to decide whether the error was harmless or warranted the reversal of her conviction.7

Notes

  1. 726 S.W.3d 253, 269 (Tex. Crim. App. 2025) (citing State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim. App. 2022)).

  2. Id. at 273.

  3. Id. at 260-63.

  4. Id. at 268-69.

  5. Id. at 266 (citing Fraser v. State, No. 07-23-00131-CR, 2024 WL 4363741, at **5-8 (Tex. App.— Amarillo Oct. 1, 2024) (mem. op., not designated for publication)).

  6. Id. at 266-67 (internal quotations and citations omitted).

  7. Id. at 270-73 (citations omitted) (emphasis in original).

PIERRE GROSDIDIERPIERRE GROSDIDIER is a litigation attorney in Houston. He is certified in construction law by the Texas Board of Legal Specialization. Prior to practicing law, Grosdidier worked in the process control industry. He holds a Ph.D. from Caltech and a J.D. from the University of Texas. Grosdidier is a member of the State Bar of Texas and the Texas Bar College, a fellow of the Texas Bar Foundation and the American Bar Foundation, and a registered P.E. in Texas (inactive). He was chair of the State Bar of Texas Computer & Technology Section for 2022-2023. Grosdidier served as medium section representative to the State Bar of Texas (2023-2026) and currently serves as a director to the State Bar of Texas (2026-2029).