short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.
To begin, the quantity of drugs Morton possessed can best be described as personal-use: a single small bag of marijuana and a few ecstasy pills. Further, Morton did not have scales, weapons, or individual plastic bags that are usually associated with those who sell drugs. It is also significant that the officers arrested Morton for possession of marijuana and ecstasy but not distribution of these drugs. Compare Tex. Health & Safety Code §§ 481.121, 481.116 with id. §§ 481.120, 481.113.[1] In sum, indications of drug trafficking were lacking: no significant amount of drugs; paraphernalia for personal use, not sale; and no large amounts of cash. Or precisely: there was no evidence supporting drug trafficking.
Nevertheless, Trooper Blue relied on his knowledge of the behavior of drug traffickers to support a search of Morton’s photos. Again, we emphasize that the only times Morton’s photographs are mentioned in the affidavits are in connection with statements about the behavior of drug traffickers: that “criminals often take photographs of co-conspirators as well
- ↑ Cf. Moreno v. State, 195 S.W.3d 321, 325–26 (Tex. App. 2006) (collecting cases showing that proving “delivery” under Texas law requires the consideration of factors including the quantity of contraband possessed, the presence and type of drug paraphernalia, and whether the defendant possessed a large amount of cash); see also United States v. Le, 512 F.3d 128, 137 (5th Cir. 2007) (Texas statutory references to “delivery” are equivalent to “possession with intent to distribute”).
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