Smith v. State , 1998 Tex. App. LEXIS 323 ( 1998 )

OPINION

COHEN, Justice.

Appellant pleaded not guilty to possession of cocaine weighing between one and four grams, and not true to two prior felony convictions for possession of cocaine. The trial judge found him guilty, found one enhancement paragraph true, and assessed punishment of 16 years in prison. We affirm.

FACTS

An informant told Officer MacNaul that a suspect named “Gene” sold cocaine from his house at 2400 Brooks Street. After confirming the location, MacNaul used the informant for a controlled buy. He saw the informant enter and leave the house. MacNaul then made an affidavit for and obtained a search and arrest warrant, which he executed the next day. Appellant was arrested in the house, and cocaine found there was used to obtain his conviction.

POINTS OF ERROR

In his first point of error, appellant contends the search was illegal because the warrant did not accurately describe the premises, as required by Tex.Code CrimP.Ann. art. 18.04(2) (Vernon 1981) and by U.S. Const. amend. TV and Tex. Const, art. 1, § 9. In his second point of error, appellant contends that Tex. Const, art. I, § 9, affords greater protection than the Fourth Amendment and “does not permit the consideration of supplemental knowledge_” Specifically, appellant contends the trial judge erred by holding that the description errors in the warrant were cured because the same officer who conducted the investigation also executed the warrant, thus eliminating the possibility that the wrong house would be searched.

THE GENERAL STANDARD OF REVIEW

At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). He may believe or disbelieve any or all of any witness’s testimony. Id.

A search warrant must describe the target location in sufficient detail that the officer can locate and distinguish it from other places in the community. Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978). Minor discrepancies will not vitiate a warrant if it sufficiently describes the premises. Id.

THE SEARCH WARRANT

The search warrant described the target residence as follows:

2400 Brooks, Houston, Harris County, Texas, more fully described as a one story white wood framed residence with black trim. This residence is positioned on the south side of Brooks facing north. The numbers are not visible on this structure. This target residence is located on the west side of the last residence positioned on the south side of Brooks Street. The nearest cross street is West Street to the west. Brooks Street dead ends to the east.

FACTS FOUND AT TRIAL, ADMITTED AT TRIAL, AND ADMITTED ON APPEAL

Appellant contends the warrant was defective because it misstated the house’s address and general location, and because the physical description failed to differentiate it from other nearby houses. Appellant presented evidence supporting these allegations, and the record shows that the trial court judge was persuaded by that evidence.

Appellant contended the correct address for his house was not 2400 Brooks, as stated in the warrant, but 2417 New Orleans Street. He presented an electricity bill in his name for the address of 2417 New Orleans Street and an investigator’s testimony that the house searched had the numbers 2417 on it and that its correct address was 2417 New Orleans. The investigator testified he could find no location whose address was 2400 Brooks, that if he had gone to the location described in the warrant, he would have been at 2406 Brooks, and that it took “not much” effort to determine the accurate address, 2417 New Orleans. The State conceded at trial that “there is actually no 2400 Brooks St.,” but claimed this favored admitting the evidence because “there’s no possibility that another house would be mistakenly searched.”

Appellant’s motion to suppress was heard simultaneously with his nonjury trial. After hearing all evidence, the judge heard legal arguments and engaged the attorneys in discussion. During these discussions, the judge stated:

Address for me the issue of diligence on behalf of the police officer. Before we start allowing law enforcement to break into citizens’ homes, so the street sign was lying on the ground, so there was a tree out there.¹ The slightest amount of effort would have shown the correct address including the utility bills which are shown to be on Orleans Street or New Orleans Street and not on the street where the house was located. When do we stop allowing police officers just to break into any house they want to without showing at least due diligence on their part?

[[Image here]]

Of course, the evidence does show us the real street number of the house was on the appropriate front of the house, not on the rear of the house that your officers saw.

In the context of this discussion, in which the parties were discussing whether the correct address was that in the warrant, 2400 Brooks, or that alleged by appellant, 2417 New Orleans, it is clear that the judge believed appellant’s evidence that the correct address was 2417 New Orleans and resolved that issue in appellant’s favor. On appeal, the State concedes that the warrant recites the wrong address.

Appellant also argued that while the warrant stated the street numbers on the house were not visible, the number 2417 was displayed over his front door, which faced New Orleans Street, not Brooks Street. The errors in the warrant were apparently due to Officer MacNaul’s mistaken belief that the house faced Brooks Street, rather than New Orleans Street. MacNaul believed this because there was no barrier between the house and Brooks Street, there was a well worn path from the house to Brooks Street, and MacNaul had seen people entering the house from and departing toward Brooks Street. The trial judge, however, found that the house faced New Orleans Street. The judge’s statement shows he believed that “2417” was visibly displayed on the front of appellant’s house, ie., the side facing New Orleans Street.

Appellant also presented evidence that the warrant’s description of the house “as a one-story white wood frame residence with black trim,” although accurate, did not distinguish the house because all the houses nearby, “shotgun houses,” met this description. The trial judge resolved this issue in appellant’s favor, stating, “Every house on the street was a white house with black trim,” and the prosecutor agreed.

Appellant finally contends that the warrant erroneously stated the house was facing north on Brooks Street, when, in fact, it faces south on New Orleans Street. The trial judge’s statements showed he resolved this issue in appellant’s favor and believed that the house faced south on New Orleans Street. On appeal, the State concedes that the house faced south on New Orleans Street and that the warrant was wrong in that respect. .

Of the remaining description quoted below from the warrant, the following was correct:

1. The residence was “positioned on the south side of Brooks.” However, it was “facing north,” only if one believed, as Officer MacNaul mistakenly did, that the back door was ,the front door. The trial judge found that the rear of the house faced north, while the front faced south. Thus, the house faced south, although Officer Mac-Naul’s error is easy to understand for reasons stated above.

2. The house was “located on the west side of the last residence positioned on the south side of Brooks Street,” if one counts the “last residence” as the easternmost residence, as Officer MacNaul did.

3. “The nearest cross street is West Street to the west.”

4. “Brooks Street dead ends to the east.”

Thus, all the errors in the warrant, except one, flowed from MacNaul’s mistaken belief that the back of the house was the front. The address error, 2400 Brooks, resulted from Officer MacNaul uncritically taking that statement as true from his confidential informant.

We have attached as an appendix a drawing showing the location of appellant’s house in relation to Brooks Street, to New Orleans Street, and to other houses nearby.

THE TRIAL JUDGE’S CONCLUSION OF LAW

The record thus establishes that the trial judge found the warrant contained errors that could have significantly impaired an officer executing the warrant from locating the house correctly.² Nevertheless, the trial judge denied the motion to suppress, expressly citing and relying exclusively on United States v. Gordon, 901 F.2d 48 (5th Cir.1990).

In Gordon, the court held that a search conducted under a warrant containing a wrong address was valid. 901 F.2d at 50. In upholding the search, the Gordon court considered evidence outside the warrant that arose after the warrant was issued, i.e., that the officer who executed the warrant had previously investigated the location and signed the affidavit. Id. at 50; accord Jones v. State, 914 S.W.2d 675, 678 (Tex.App.—Amarillo 1996, no pet.) (following Gordon). The Fifth Circuit held that even though the warrant might have led other officers to the wrong house, there was no possibility of mistake there because the officer executing the warrant knew from his investigation — not from the warrant — exactly which house to search. Gordon, 901 F.2d at 50. The Gordon court relied on a number of other facts and factors that are also present here. For example, the erroneous address on the warrant in Gordon did not actually exist. That fact supported affirmance, the court concluded, because “there was no possibility that the wrongly noted location could have been searched.” Id. at 50 n. 3. Moreover, the court relied on several other facts, also present here, to conclude there was no evidence of bad faith. First, the warrant was not invalid on its face. The defect would be apparent only to one who knew the correct address, which was obviously not common knowledge. Id. at 50. Second, only one location — the intended location — was searched. Id. Finally, it “obviously could not serve any law enforcement, or other, purpose to intentionally state a nonexistent address on a warrant plainly intended to be executed at the specific place it was executed and for which there was probable cause to search.” Id.

THE PARTICULAR STANDARD OF REVIEW, OR IS GORDON CONTRARY TO TEXAS LAW?

A The Conflicting Authorities

There are two conflicting lines of authority that affect the disposition of this case. One would lead to reversal. It consists of four recent court of appeals decisions, backed by several older Court of Criminal Appeals decisions. These cases hold that the description is good or bad based on the warrant alone, and description errors cannot be cured by the fact that the officer executing the warrant knew, not solely from the warrant but also from his investigation, which house to search and searched only that house. These cases hold that the warrant, on its face, must describe the premises sufficiently to allow any officer to locate and distinguish the property, thus avoiding the risk of mistaken execution.

Another line of cases, supported by more recent authority from the Court of Criminal Appeals, the federal courts of appeals, and several Texas courts of appeals, holds the opposite. They hold that description errors are cured if, despite the erroneous description, the officer who executed the warrant actually knew, based on his investigation, which house to search and searched only that house. They hold that the officer’s personal knowledge can cure the description errors because it eliminates the risk that the wrong premises will be searched.

These two lines of authority cannot be reconciled, at least by us. If we follow the first, we will reverse. If we follow the second, we will affirm. Given the importance of the issue, its dispositive effect on this case, the considerable authorities on both sides, and the apparent absence of recognition of any conflict in the cases, we will set out the conflict in detail.

B. Cases Holding That Courts Cannot Consider the Executing Officer’s Personal Knowledge to Cure Description Errors or Omissions in the Warrant

When a warrant does not state who resided in the targeted premises, that omission cannot be cured by evidence outside the warrant that the executing officer knew, in fact, that the defendant resided there. Miller v. State, 134 Tex.Crim. 118, 114 S.W.2d 244, 246 (1938). In Miller, the warrant did not state that Mr. Miller lived in the “certain private dwelling” to be searched. Id. The court stated:

It is true the officers testified that they knew the house searched was appellant’s residence, but such testimony would not supply the omission of such averment in the description of the property in the affidavit and warrant.

Id.; accord Ervin v. State, 165 Tex.Crim. 391, 307 S.W.2d 955, 956 (1957) (trial testimony that house belonged to appellant was not available to aid the description in the warrant).³

A search warrant must be sufficient on its face to enable “any” officer, not just the officer who conducted the investigation, to locate and distinguish the property, thus avoiding a reasonable probability of mistaken execution. Olivas v. State, 631 S.W.2d 553, 556 (Tex.App.—El Paso 1982, no pet.) (emphasis in original); accord Lindley v. State, 855 S.W.2d 723, 725 (Tex.App.—Tyler 1990), vacated and remanded on other grounds, 838 S.W.2d 257 (Tex.Crim.App.1992);⁴ Mason v. State, 838 S.W.2d 657, 660 (Tex.App.—Corpus Christi 1992, pet. ref'd); Williams v. State, 928 S.W.2d 752, 754 (Tex.App.—Houston [14th DistJ 1996, pet. granted on other grounds).

In Olivas, the court stated:

For many years, the Texas test for the sufficiency of the description was whether the officer executing the warrant could, with reasonable effort, locate the premises and distinguish it from others in the community.

While this continues as an element of search warrant review, the test has been fleshed out by later opinions addressing the goals of the warrant requirements. The first of these is to insure an adequate showing of probable cause. The second is to protect the privacy of innocent parties from mistaken execution of a defective warrant.

The present constitutional test in federal court is the same. If the warrant is sufficient to enable the executing officer to locate and identify the premises intended to be searched, and the deficiencies in the description do not give rise to a reasonable probability that mistaken execution will take place at an unintended site, then the warrant is valid.

631 S.W.2d at 556 (emphasis added) (citations omitted).

The Olivas court went on, however, to hold emphatically that the executing officer must be able to identify the premises from the warrant alone, not from his knowledge outside the warrant based on his prior investigation. In distinguishing a different case, the Olivas court stated:

Only the officer previously acquainted with the defendant could have effectively located the premises he intended to search. This is not sufficient under the Texas and federal standard set out above. The warrant must be sufficient on its face to enable any executing officer to locate and distinguish the property, avoiding a reasonable probability of mistaken execution. The validity of the warrant cannot depend on the individualized supplementary knowledge of one officer.

631 S.W.2d at 656 (emphasis added).

The Olivas court emphasized its holding that the executing officer’s personal knowledge outside the warrant must not be considered. It did so by referring to “the hypothetical officer,” by referring to “any executing officer” (emphasis in original), and by stating that the officer must be able to identify the house “from the warrant.” Id. at 557-58. The court then applied that holding as follows:

To test the sufficiency of the warrant, we must eliminate the special knowledge of Detective Dodson, and consider whether any officer, exercising reasonable diligence, could locate the intended site, distinguish it from others in the community and avoid mistaken execution against an innocent third party.

Id. at 558 (emphasis added).

The principles stated in Olivas and the intermediate court holdings following it, Williams, Mason, and Lindley, as well as the Court of Criminal Appeals holdings in Ervin and Miller, are consistent with general principles of search and seizure law used to decide whether there was probable cause to search. For example, probable cause must be stated within the four comers of the affidavit, not supplied by information outside the affidavit but within the affiant’s knowledge. McFarland v. State, 928 S.W.2d 482, 509 n. 26, 510 (Tex.Crim.App.1996) (“We must ignore ... assertions ... that are based on evidence outside the affidavit.”); Jones v. State, 568 S.W.2d 847, 855 n. 9 (Tex.Crim.App.1978). A search warrant is good or bad when issued. Byars v. United States, 273 U.S. 28, 29, 47 S.Ct. 248, 248, 71 L.Ed. 520 (1927). It cannot be justified by what the search produces. Id.; Brawn v. State, 481 S.W.2d 106, 112 (Tex.Crim.App.1972) (warrantless search); Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 1633 n. 12, 10 L.Ed.2d 726 (1963). Thus, it is not surprising that Olivas et al. would hold that a warrant’s validity cannot depend on who executed it, ie., the description in the warrant cannot be good if executed by one officer but bad if executed by another. Olivas, 631 S.W.2d at 556-58.

All of the cases cited in the previous paragraph, as well as many others on the same point, deal with whether there was probable cause to search. The law is well established that probable cause to search must be contained in the affidavit for the search warrant and cannot be supplied from any other source. We do not hold to the contrary. That is not an issue in this case. The issue here is whether the description of the place to be searched was sufficiently specific. As set out next, courts have adopted a different approach to that issue.

C. Cases Holding That a Court May Consider the Executing Officer’s Personal Knowledge of the Location to Be Searched to Cure Description Errors in the Warrant

One court of appeals has expressly followed the holding in Gordon, observing that the same rule is followed in the the United States Court of Appeals for the Eighth, Ninth, and Eleventh Circuits, and in Idaho, Kentucky, Louisiana, Massachusetts, Minnesota, and South Dakota. Jones v. State, 914 S.W.2d 675, 678 (Tex.App.—Amarillo 1996, no pet.). The Jones court emphasized that the officer who was the affiant also executed the warrant, that the informant had pointed out to him the specific location of the premises to be searched, and that the officers searched only the correct premises. Id. at 678-79.

Two other courts of appeals in decisions before Gordon used the same rationale as Gordon to uphold the searches, finding in each case that the officer’s knowledge of the exact premises to be searched cured the description error. Mansell v. State, 756 S.W.2d 95, 97-98 (Tex.App.—San Antonio 1988, pet. ref d) (emphasizing that the affiant also executed the warrant and the informant had pointed it out to him.); Staines v. State, 659 S.W.2d 50, 52 (Tex.App.—Houston [14th Dist.] 1983, pet. ref d) (‘We know of no rule which requires the informant or complainant to give a detailed description of the premises, especially where the premises may be personally observed by the affiant himself.”) Yet another court of appeals has cited Olivas for the proposition that a warrant is sufficient if it enables “the officer executing same” — not any officer — to locate the premises while avoiding a reasonable probability of mistaken execution. State v. James, 848 S.W.2d 258, 261 (Tex.App.—Beaumont 1993, no pet.).

We have found no Court of Criminal Appeals decision that prohibits a court from considering the executing officer’s personal knowledge of the targeted location to cure description errors. We have found no Court of Criminal Appeals case requiring, as Olivas did, that the warrant’s description of the premises be sufficient to allow “any” officer to locate the premises. On the contrary, many cases from the Court of Criminal Appeals state that the description is sufficient if “the officer” — not “any officer” — executing it can locate the premises. For example, “Where the warrant describes a multi-unit dwelling, the description therein must contain sufficient guidelines to apprise the officers executing that warrant of the particular unit to be searched.” Haynes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App.1971) (emphasis added); see also Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978); Maxon v. State, 507 S.W.2d 234, 235 (Tex.Crim.App.1974); Smith v. State, 478 S.W.2d 518, 521 (Tex.CrimApp.1972); Ex parte Flores, 452 S.W.2d 443, 444 (Tex.Crim.App.1970); Rhodes v. State, 134 Tex.Crim. 553, 116 S.W.2d 395, 396 (1938).

Several Court of Criminal Appeals cases have applied the rule and specifically considered the personal knowledge of the particular officers executing the warrant. Two of those reversed upon finding that the warrant plus the knowledge of the executing officer was insufficient because in each case, before searching the right location, the officers first searched the premises of an innocent third party. Morales v. State, 640 S.W.2d 273, 275 (Tex.Crim.App.1982); Aguirre v. State, 109 Tex.Crim. 584, 7 S.W.2d 76, 77 (1928); see also State v. Chavarria, No. 01-96-01389-CR, slip op. at 5-6, — S.W.2d-,- -, 1997 WL 745751 (Tex.App.—Houston [1st Dist.] Nov.25, 1997, pet. filed)(affirming motion to suppress where police had never been to the targeted premises or had it pointed out to them, the description was seriously deficient, and there was no way for them to know if they were searching the targeted premises until after they had entered one of the two units of a duplex).⁵

After considering all of this conflicting law, general statements of principle, and specific applications, we conclude that the controlling case is Bridges v. State, 574 S.W.2d 560 (Tex.Crim.App.1978). The Bridges court considered the knowledge of the officers executing the warrant and used it to uphold the search. The court stated:

Our law concerning search warrants has two goals: to ensure that there is adequate probable cause to search and to prevent the mistaken execution of the warrant against an innocent third party. This second goal is met when the warrant identifies the place to be searched sufficiently so that the officers who execute the warrant, acting as reasonable men, can locate that place and identify it from other places in the community. This goal is not furthered by rigid application of rules requiring a warrant to contain certain descriptive elements such as the name of the city.⁶ Article 18.04, V.A.C.C.P., does not set forth a list of required descriptive elements. We are convinced that the rights of society and of the innocent third party can best be protected by evaluating each search warrant individually.

Id. at 562 (emphasis added).

The Bridges court then applied the above general rule to uphold the search, emphasizing that the police officers knew from their investigation exactly which house to search and in fact searched that house. The court stated:

In the instant case, the appellant was arrested in his house. The police officers made observations which gave them probable cause to suspect physical evidence was present in the house. The officers took this information to a magistrate who issued a search warrant that described the house to be searched by its street address, color, type of construction, county and state. The officers then returned to that house, conducted a search and seized the complained of items. There was no reasonable probability that the officers would search any place other than the intended house. The warrant was sufficient.

Id. at 562.

The case at bar is similar. Officer MacNaul, who conducted the investigation and made the affidavit for this search warrant, had the house pointed out to him by a confidential informant, and he watched the informant enter and leave that house. Officer MacNaul was present to execute the warrant and searched one house only, which was the house intended and targeted for the search.

CONCLUSION

We elect to follow the line of authority that includes Bridges, Morales, Aguirre, Haynes, Maxon, Smith, Etchieson, Rhodes, Jones, Mansell, Staines, and Gordon. We decline to follow Miller, Ervin, Olivas, Lindley, Mason, and Williams.

We hold that the trial judge was entitled to consider not only the description in the warrant but also the knowledge of the particular officers executing the search. The two, taken together, adequately describe the premises and are sufficient to prevent the mistaken execution of the warrant against an innocent third party. We conclude that Gordon is consistent with the greater weight and better reasoned authority of the Court of Criminal Appeals decisions. We doubt that the Court of Criminal Appeals will approve the rule in Olivas, which requires that a warrant be able to direct any officer, even one completely ignorant of the investigation, to the place to be searched. We consider that requirement to be unnecessarily strict, in view of our judicial knowledge that it is a rare search warrant that would be executed in the total absence of every officer with knowledge of the underlying investigation.

We believe there is a good reason for courts to judge probable cause to search solely based on the affidavit. We also believe there is good reason for courts to consider evidence at the motion to suppress to determine whether the premises were adequately described. The facts claimed to show probable cause to search will be developed before the search. They will be known and, therefore, able to be stated in an affidavit, which a neutral magistrate can review and rule on. Generally, any errors in the description of the premises will not then be known to the police or the magistrate. The police may discover the error when they execute the warrant; the magistrate will not know until the motion to suppress. Thus, the risk of searching the wrong premises (much less the legal effect of such a search actually occurring) cannot then be determined. Consideration of those facts depends on something yet to occur — the execution of the warrant. A decision on whether the description was sufficient, therefore, must depend on evidence outside the warrant.⁷

All points of error are overruled.

The judgment is affirmed.

O’CONNOR, J., concurs from the vote denying en banc consideration. NUCHIA, J., joins O’CONNOR’S, J., concurring opinion.

[[Image here]]

1 . This was a reference to State’s evidence that the address was hard to determine because the street sign was on the ground and shrubbery interfered with the view.

2 . In this case, findings of fact were neither requested nor filed. In deciding a motion to suppress, a judge has no duty to file findings of fact, even upon request. However, when the record plainly shows what facts a judge believed and found and also what legal theories he employed, Texas and federal appellate courts reviewing Texas criminal convictions have accepted the judge’s oral statement concerning the facts he found, and they have conducted their appellate review based on these facts. See Ex parte Tarver, 695 S.W.2d 344, 345 (Tex.App.—Houston [1st Dist.] 1985), affirmed, 725 S.W.2d 195, 196, 198, 200 (Tex.Crim.App.1986); see also Childress v. State, 845 S.W.2d 377, 380, 381, 384 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd) (Cohen J., dissenting), judgment vacated sub nom. Childress v. Johnson, 103 F.3d 1221, 1224, 1225-26 (5th Cir. 1997) (granting "a high measure of deference” to state trial judge’s oral statements showing what facts he believed). Here, as in Tarver and Childress, the trial judge's statements show what facts he found to be true.

3 . Here, unlike in Miller and Ervin, the affidavit, which was incorporated in the warrant, stated that "Gene” controlled the premises. In Ervin, the court stated, "Had the warrant and affidavit alleged that appellant occupied the premises a different rule might well be applied.” 307 S.W.2d at 956.

4 . On remand, Ae Tyler court adhered to its original holding on Ae search issue. Lindley v. State, 855 S.W.2d 729, 731 (Tex.App.—Tyler 1993, no pet.).

5 . In the instant case, the police had been to the premises, the informant pointed it out to them, and the house was not a duplex.

6 . The appellant in Bridges contended the description was inadequate because it did not specify the town in which 2134 Hardy Street was located.

7 . An exception might arise in the rare case where a magistrate, having personal knowledge of the targeted premises, can recognize the erroneous description based on the affidavit alone. The affidavit itself will not normally reveal its own erroneous description.