State v. Robert Leahy Powell ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-477-CR
THE STATE OF TEXAS STATE
V.
ROBERT LEAHY POWELL APPELLEE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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OPINION
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The State appeals from the trial court’s grant of Appellee Robert Leahy
Powell’s motion to suppress. In four points, the State argues that the trial
court erred by granting the motion because (1) the detective’s affidavit set forth
sufficient circumstances from which the magistrate could find probable cause
to issue the search warrant; (2) the trial court failed to give great deference to
the magistrate’s determination of probable cause; (3) the police officers did not
exceed the scope of the search warrant; and (4) the police officers were not
required to obtain an additional search warrant before opening the two safes
that they seized from the premises to be searched, took with them to the police
station, and opened the following day. Because the trial court did not err by
granting Powell’s motion to suppress, we affirm the trial court’s suppression
order.
B ACKGROUND F ACTS
On January 27, 2004, someone from Hurst TV & Appliance (Hurst TV)
reported that a customer had purchased a big-screen television with a forged
check. Someone was supposed to pick up the television before the end of that
day. Hurst Police Officers James Hobbs and Terry Tabor went to the store to
wait for the person to pick it up. Although a woman called about it, no one
came for the television.
The next day, North Richland Hills (NRH) Police Detective Billy Daniels
called Hobbs to say that the NRH police had arrested a woman named Lisa
Lowery who had a receipt from Hurst TV for a big-screen television. Hobbs
went to the NRH jail and met with Daniels, and the two officers interviewed
Lowery in connection with the forged check she passed at Hurst TV. In all,
Hobbs interviewed her once at the NRH jail and twice at the Hurst jail and
secured three separate statements from her.
2
Lowery denied that she had stolen or made the checks she had passed
and claimed that she had bought the checks and identification from different
locations. One of the addresses that she gave Hobbs was 6919 Hardisty Street
in Richland Hills (the Premises). Hobbs used the information provided by
Lowery to prepare an affidavit to support the arrest and search warrant signed
by Judge Ken Whiteley, municipal judge for the City of Hurst.
According to Hobbs’s affidavit in support of the warrant at issue, Lowery
had told him that she had received the check she passed at Hurst TV from Leia
McGee and Powell. Lowery told Hobbs that Powell had called and asked her
to buy the television for “them”; in exchange, Powell and McGee would pay her
$200.00. Lowery told Hobbs that she had gone to the Premises on January
27, 2004 and that McGee had handed her the check and a Texas identification
card, both in the name of Augustine Terrell. Hobbs swore that Lowery had told
him that McGee and Powell had stolen the checks from the counter next to a
cash register at Cingular Wireless and that they were making forged checks on
a computer in the back room of the Premises near the garage. Lowery also told
Hobbs that she saw some counterfeit twenty-dollar bills there on January 26,
2004.
Lowery additionally told Hobbs that she had bought a big-screen
television from Sam’s Furniture in Haltom City for Powell and McGee with
3
another forged check in the name of Augustine Terrell on January 22, 2004.
According to Hobbs, Lowery said that the television she had bought from Sam’s
Furniture was located at the Premises, which she claimed was the residence of
Powell, McGee, and McGee’s grandmother, who was not involved in the
criminal activity. According to Hobbs, Lowery also told him that she had used
another forged check to buy a safe from Home Depot for Powell and McGee
and that the safe was at the Premises. Lowery also told Hobbs that on January
27, 2004, she had seen at the Premises approximately fifty checks in the name
of Stanley E. Rush and that there were guns and drugs at the Premises.
Hobbs ran a computer check on Powell and learned that he was in jail,
not at the Premises. Hobbs also “was able to identify Leia McGee’s
grandmother as Roberta Halie McGee, a white female with a date of birth of
August 20, 1920.” He also confirmed that a white female had passed a forged
check in the name of Augustine Terrell to purchase a Lexmark printer, mouse,
and repair work on a laptop from Express Computer Repair. Hobbs additionally
confirmed through the Texas and National Crime Information centers (TCIC and
NCIC) that Leia Michelle McGee, a white female with a date of birth of October
2, 1967, had been arrested for theft and DWI.
On January 29, 2004, Hobbs submitted the affidavit described above to
the municipal judge to obtain an arrest warrant for McGee and a search warrant
4
for the Premises. The affidavit accused McGee of stealing checks and
possessing stolen property purchased with forged checks and listed the
following property as “concealed and kept in violation of the laws of Texas” at
the Premises:
• “Numerous customers’ checks stolen from Cingular Wireless.”
• “Checks and materials to make forged checks.”
• “Computers, printers and scanners for forging checks.”
• a big-screen television purchased with a counterfeit check.
• and a printer purchased with a counterfeit check.
The affidavit listed neither drugs nor safes as property to be seized, despite
Lowery’s statements that she had bought a safe with a forged check, that the
safe she had bought was at the Premises, and that she had seen drugs at the
Premises.
That same day, the magistrate issued the warrant to arrest McGee and
to seize the specifically designated property, and Hobbs and other police
officers executed the warrant.
Hobbs was the sole witness testifying at the hearing on Powell’s motion
to suppress. He testified that when the officers executed the warrant, they
took two safes back to the police station. The next day, the police called a
locksmith, who drilled into the safes at their request. Hobbs testified that
5
officers found methamphetamine in one of the safes. The officers did not
obtain a second search warrant before seizing or opening the safes.
Based on the methamphetamine found in the safe, a grand jury indicted
Powell on two counts—possession with intent to deliver methamphetamine of
4 grams or more but less than 200 grams, including any adulterants or
dilutants, and possession of methamphetamine of 4 grams or more but less
than 200 grams, including any adulterants or dilutants. Powell filed a motion
to suppress the methamphetamine, alleging that (1) there was not probable
cause on the face of the affidavit to support issuance of the search warrant,
and (2) the police exceeded the scope of the search warrant by seizing the two
safes, taking them to the police station, keeping them overnight, and then
having them drilled open the next day.
After a hearing, the trial court granted Powell’s motion to suppress in its
entirety after “having considered the evidence and the credibility of the
witnesses.” The State then timely filed a notice of appeal.
S TANDARD OF R EVIEW
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. 1 In reviewing the trial court’s decision, we do
1
… Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
6
not engage in our own factual review. 2 The trial judge is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony.3 Therefore, we give almost total deference to the trial court’s
rulings on (1) questions of historical fact, even if the trial court’s determination
of those facts was not based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor. 4
When the trial court grants a motion to suppress without filing findings
of fact or any other explanation, and the only evidence presented in the
suppression hearing is the search warrant and testimony of the arresting
officer—which, if believed, clearly constitutes probable cause—there is not a
“concrete” set of facts that can be implied from such a ruling.5 In those cases,
there is a mixed question of law and fact that turns on an evaluation of the
credibility and demeanor of the sole witness whom the trial court obviously
2
… Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
3
… State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v.
Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
4
… Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);
State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort Worth 2004, pet. ref’d).
5
… Ross, 32 S.W.3d at 856.
7
chose not to believe.6 In such cases, we view the evidence in the light most
favorable to the trial court’s ruling, giving it almost total deference. 7
The party bringing the motion to suppress bears the burden of
establishing all of the elements of his Fourth Amendment claim, including
establishing his privacy interest in the premises searched. 8 Once a defendant
has established the basis for a Fourth Amendment claim, however, the burden
shifts to the prosecution to establish the validity of the search under the
applicable theory of law.9 In this case, the State therefore bears the burden of
proving the trial court erred by granting the motion to suppress.10
When the record is silent on the reasons for the trial court’s ruling, or
when there are no explicit fact findings and neither party timely requested
findings and conclusions from the trial court, we imply the necessary fact
findings that would support the trial court’s ruling if the evidence, viewed in the
6
… Id. at 856–58; Guzman, 955 S.W.2d at 89.
7
… Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Guzman, 955 S.W.2d at 89; see also Ross, 32 S.W.3d at 856.
…
8
See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998).
…
9
See id.
…
10
See id. at 77.
8
light most favorable to the trial court’s ruling, supports those findings. 11 We
then review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling.12 We must
uphold the trial court’s ruling if it is supported by the record and correct under
any theory of law applicable to the case even if the trial court gave the wrong
reason for its ruling.13
In the case now before this court, the trial court entered no findings of
fact, but the record is not silent on the reasons for the trial court’s ruling. The
trial court stated that his ruling was based on the evidence he heard and his
determination of “the credibility of the witnesses.” We are not in a position to
secondguess the trial judge’s determination of the credibility of the witnesses
but must view the evidence deferentially in support of the trial court’s ruling.14
11
… State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
12
… Id. at 819.
13
… Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003),
cert. denied, 541 U.S. 974 (2004); Ross, 32 S.W.3d at 855–56; Romero, 800
S.W.2d at 543.
14
… See Estrada, 154 S.W.3d at 607; Guzman, 955 S.W.2d at 89; see
also Ross, 32 S.W.3d at 856.
9
S COPE OF THE W ARRANT
In its third point, the State contends that the trial court erred by granting
the motion to suppress because the seizure and opening of the two safes did
not exceed the scope of the warrant. The warrant incorporated the affidavit
that “particularly described” the property to be seized as:
2. THERE IS AT SAID SUSPECTED PLACE AND PREMISES
PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE
LAWS OF TEXAS AND DESCRIBED AS FOLLOWS:
Numerous customers’ checks stolen from Cingular Wireless.
Checks and materials to make forged checks.
Computers, printers and scanners for forging checks.
Big Screen JVC 32 inch flat screen Television Serial Number
16837227 JVC TV Stand model #RKC32DF4AS purchased
with a counterfeit check Dated 01-22-04 for $974.15 [f]rom
Sam’s Furniture.
Lexmark Print Trio color jet printer purchased on January 24,
2004 for $99.99 with counterfeit check #4957 from Express
Computer Repair.
A safe is mentioned in the affidavit, not as property to be seized, but as part
of Hobbs’s basis for probable cause: “Lisa Lowery also told me that Robert
Powell and Leia McGee gave her another check #4961 in the name of
Augustine Terrell for $199.14 to go to Home Depot to purchase a safe for
them. Lisa Lowery advised that the safe is at [the Premises].”
10
Powell points out that there is a recognized distinction between search
and seizure, citing Horton v. California: 15 “A search compromises the individual
interest in privacy; a seizure deprives the individual of dominion over his or her
person or property.” 16
The warrant did not specifically permit search or seizure of any safe, nor
did the underlying affidavit list any safe as “property concealed and kept in
violation of the laws of Texas.” The supporting affidavit referred to a single
safe, but it did not indicate what the safe would be used for, its size, its color,
its brand, or anything else that would distinguish the safe from all other safes.
One of the most basic and fundamental requirements for a warrant is that
it must “particularly describ[e] the place to be searched, and the persons or
things to be seized.” 17 “The requirement that warrants shall particularly
describe the things to be seized makes general searches under them impossible
and prevents the seizure of one thing under a warrant describing another.” 18
“As to what is to be taken, nothing is left to the discretion of the officer
15
… 496 U.S. 128, 110 S. Ct. 2301 (1990).
16
… Id. at 133, 110 S. Ct. at 2306.
17
… U.S. C ONST. amend. IV.
18
… Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76
(1927).
11
executing the warrant.” 19
The State argues that “a search warrant authorizing the search of a
defined premises also authorizes the search of containers found on that
premises which reasonably might conceal items listed in the warrant, regardless
of whether separate acts of entry or opening may be required.” The State relies
on an Eighth Circuit case, United States v. Johnson, 20 to support its argument
that the police were authorized to seize, remove, and later open a safe not
named in the warrant.
James Wayne Johnson was indicted on three counts of receiving firearms
previously shipped or transported in interstate commerce while a convicted
felon and on one count of possessing firearms in or affecting commerce while
a convicted felon.21 Johnson waived a jury trial, and the district court tried the
case on the basis of stipulated facts. 22
On appeal, Johnson argued, among other things, that the officers
searching his residence had no authority to remove a floor safe from his
19
… Id.
20
… 709 F.2d 515 (8th Cir. 1983) (per curiam).
21
… Id. at 516.
22
… Id.
12
bedroom and later open it at the police station without his consent.23 Johnson
was present when the officers found the safe and refused to open it for them
at the time of discovery. 24 That safe contained two of the weapons used to
convict Johnson.25
The Eighth Circuit rejected Johnson’s contention, pointing out that “[a]
search warrant authorizing the search of defined premises also authorizes the
search of containers found on that premises which reasonably might conceal
items listed in the warrant.” 26 Because the officers were authorized to open the
safe under the warrant when they discovered it at the house, the court held
that they did not need a second warrant to complete the search of the safe at
the police station later. 27
Unlike Powell, Johnson stipulated to the evidence before the trial court,
including the location of the floor safe within the premises described by the
warrant.28 Johnson complained of the sufficiency of the evidence, the propriety
23
… Id.
24
… Id.
25
… Id.
26
… Id.
27
… Id.
28
… Id.
13
of taking without his consent a safe that was properly discovered pursuant to
a warrant to the police station before opening it, and the adequacy of the
affidavit supporting the warrant.29
Unlike the trial court in the case before us, the Johnson court ruled that
Johnson’s possession of each of the weapons listed in the
indictment reasonably could be inferred from the stipulated facts
considered by the district court. In particular, the California
informant would have testified that she saw Dale Nelson,
Johnson’s nephew, “return” a weapon similar to that listed in
Count I to Johnson during the informant’s visit at the Johnson
residence in February of 1982. During that same visit, she saw
Johnson exercise personal control over the floor safe in which the
officers found the weapons listed in Counts II and III.30
Unlike the evidence in the Johnson case, nothing in the evidence in the
case before us shows that Powell exercised control over either safe seized by
the police. No evidence showed where the safes were found, that the safes
were connected to Powell, that either safe was the safe referred to in the
affidavit, or the age or size of the safes. Consequently, we cannot say that the
trial court erred by concluding that the seizure and opening of the safes
exceeded the scope of the warrant. We overrule the State’s third point.
29
… Id.
30
… Id. at 516–17.
14
D ID AN E XCEPTION TO THE W ARRANT R EQUIREMENT A PPLY?
In its fourth point, the State contends that the trial court erred by granting
Powell’s motion to suppress because the police were not required to get
another warrant before opening the seized safes. As we held above, the
original warrant did not justify the seizure. But law enforcement officers may
seize property that has not been “particularly described” in the warrant if the
State can show an exception to the warrant requirement. 31 As the Texas Court
of Criminal Appeals has explained,
It has been very well settled that items in “plain view” may be
seized by law enforcement personnel if each of the three conditions
set forth in Coolidge v. New Hampshire are met. These conditions
include: 1) the initial intrusion must be proper, in other words, that
the police have a right to be where they are when the discovery is
made; 2) the discovery of the evidence must be inadvertent; and
3) it must be “immediately apparent” to the police that they have
evidence before them (i.e. probable cause to associate the property
with criminal activity). However, the United States Supreme Court
has recently modified the criteria in that “inadvertence” is no longer
a necessary condition of a legitimate “plain view” seizure. 32
Consequently, to fall within the plain view warrant exception, the State
must show that (1) the police officer had legal authority to be in the place
31
… Marron, 275 U.S. at 196, 48 S. Ct. at 76; see also Horton, 496 U.S.
at 139–40, 110 S. Ct. at 2309.
32
… State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App 1991)
(citations omitted).
15
where he viewed the safes and was legally able to access them; (2) the safes
were in plain view; and (3) the incriminating character of the safes was
immediately apparent. 33
Hobbs testified that Lowery “mentioned the safes and that she believed
that some of the checks were possibly kept in the safe.” He also testified,
Q. The two safes that you talk about, Lisa Lowery talked about
those and you included some of the information on those in the
affidavit, didn’t you?
A. Yes, sir.
Q. And, in fact, the safes that she refers to, as you put in the
affidavit, those were stolen, right?
A. Yes, sir.
At a hearing on a motion to suppress, “the trial judge is the exclusive
judge of the credibility of the witnesses and the weight to be given their
testimony. He is authorized to believe or not believe any or all testimony of
witnesses for either the State or the defendant.” 34 If the State had prevailed
below, we would presume that the trial court took Hobbs’s testimony as true.
But in the case now before this court, we make no such presumption, especially
33
… See Horton, 496 U.S. at 136–37, 110 S. Ct. at 2308.
34
… Dalgleish v. State, 787 S.W.2d 531, 534 (Tex. App.—Beaumont
1990, pet. ref’d) (citing Mattias v. State, 731 S.W.2d 936, 939 (Tex. Crim.
App. 1987)).
16
in light of the fact that the trial court noted that its ruling was based on the
evidence and credibility of the witnesses. Because the trial court announced
that the suppression ruling was based on the credibility of the witnesses, we
do not presume that the trial court found the sole witness credible.
As Powell reminds us, although the State repeatedly used the plural,
“safes,” in questioning Hobbs, only a single safe is mentioned in his affidavit.
Thus, Hobbs’s testimony about two safes directly conflicted with his affidavit.
When, therefore, Hobbs testified that Lowery had told him that she believed
that some of the checks were possibly kept in the safe, it is entirely plausible
that the trial court found this testimony not credible, especially in light of the
fact that it appears nowhere in the affidavit.
Perhaps the trial court did not believe that Lowery had spoken of two
safes, especially because Hobbs mentioned only one safe in his affidavit.
Perhaps the trial court did not believe that Lowery had said that “some of the
checks were possibly kept in the safe,” especially because Hobbs did not
mention this important information in his affidavit. Perhaps the trial court did
not believe Hobbs’s additional testimony that, in his experience, people who are
making forged checks have safes, especially because the officer did not
mention this information in his affidavit and did not list a safe as property that
he sought to seize.
17
Although Hobbs testified that he seized the safes when he executed the
warrant, he did not testify that they were in a place that the warrant authorized
him to search. Perhaps the trial court was not convinced that the State had
sustained its burden to prove by a preponderance of the evidence that the
officers were lawfully in the place where they actually found the safes. Hobbs
did not testify where or under what circumstances he found the safes. We do
not know how large, how old, or what brand the safes were. We, therefore,
cannot know that the trial court believed that it was immediately apparent that
either of the safes was the one that Lowery had claimed to have purchased and
was, therefore, considered stolen. It is possible that at least one of the safes
was the right size to hold checks because Hobbs testified that the police found
checks in one, but because of the trial court’s ruling, we cannot know whether
the trial court believed that the police did find checks there.
Consequently, based on the standard of review that we must follow, we
hold that the trial court could have properly found that the State did not prove
that the “plain view” exception applied. As a result, the seizure and later
search of the safes were illegal; a new warrant would have been necessary to
justify them. The trial court therefore did not err by suppressing the evidence
on this ground. We overrule the State’s fourth point and do not reach its first
18
two points.35
C ONCLUSION
Having overruled the State’s third and fourth points without reaching its
first two points, we affirm the trial court’s order suppressing the evidence.
LEE ANN DAUPHINOT
JUSTICE
PANEL A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
PUBLISH
DELIVERED: June 5, 2008
35
… See T EX. R. A PP. P. 47.1.
19