The State of Texas v. Steven Lane Skarritt ( 2023 )

Opinion issued June 22, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-22-00881-CR
01-22-00884-CR
01-22-00885-CR
01-22-00886-CR
———————————
THE STATE OF TEXAS, Appellant
V.
STEVEN LANE SKARRITT, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case Nos. 1695879, 1695881, 1731638, 1731640
MEMORANDUM OPINION
The right to be free from unreasonable government intrusion into one’s own
home is a fundamental liberty protected by the Fourth Amendment of the United
States Constitution and its Texas equivalent.1 This is a core tenet of American
freedom. In this case, the sole question before the Court is whether an affidavit
supporting a warrant to search a residence meets the required constitutional
threshold, and establishes probable cause, to justify the search.
Steven Lane Skarritt was charged with the offenses of (1) engaging in
organized criminal activity,2 (2) money laundering,3 (3) possession with intent to
deliver a controlled substance, namely, methamphetamine, weighing more than four
grams and less than 200 grams,4 and (4) possession with intent to deliver a controlled
substance, namely, heroin, weighing at least four grams but less than 200 grams.5
Before trial began, Skarritt filed a motion to suppress evidence obtained during a
search of his residence.
Skarritt maintained that the search of his residence violated state and federal
law6 because the search warrant did not establish probable cause. After an
1
U.S. CONST. amend. IV; TEX. CONST. art. I, § 9.
2
See TEX. PENAL CODE § 71.02. Trial court case number 1731638 is appellate cause
number 01-22-00881-CR.
3
See id. § 34.02. Trial court case number 1731640 is appellate cause number 01-22-
00884-CR.
4
See TEX. HEALTH & SAFETY CODE §§ 481.103, 481.113. Trial court case number
1695881 is appellate cause number 01-22-00885-CR.
5
See id. §§ 481.102, 481.112. Trial court case number 1695879 is appellate cause
number 01-22-00886-CR.
6
See U.S. CONST. amend. IV; TEX. CONST. art. 1, § 9; TEX. CODE CRIM. PROC. art.
38.23(a).
2
evidentiary hearing, the trial court granted Skarritt’s motion to suppress. The State
now challenges that ruling.7 We affirm.
Background
On October 28, 2020, a magistrate issued a warrant authorizing a search of
Skarritt’s residence in Katy, Texas. Texas Department of Public Safety (“DPS”)
Special Agent M. Moore authored the affidavit supporting the search warrant. The
entirety of Officer Moore’s affidavit is set forth as follows:
. . . . I have reason to believe and do believe that within the residence
located at [address], Katy, Harris County, Texas 77450 [“Skarritt’s
residence”] will be located evidence of the offense of Engaging in
Organized criminal activity (TPC 71.02) by committing the offense of
Theft $30,000–$150,000 (TPC 31.03) committed pursuant to a
continuing course of conduct on or about the dates of July May [sic]
06, 2020 continuing through October 28, 2020.
. . . . On May 28, 2020, [Harris County Constable Precinct 1] Deputy J.
Bowden[] contacted me about assisting him with a multi-agency
investigation into the theft and resale of tools and other merchandise
from Home Depot and other stores. The basic scheme involves a group
of shoplifters who sell the stolen goods to an individual who then resells
the goods to another individual who, in turn, sells the goods to the
public through various online platforms. I learned from [Bowden] that
the items were being stolen from Home Depot and other businesses in
Colorado and then transported to Katy, Harris County, Texas and
delivered to [Skarritt’s residence] for online sale. I further learned the
initial investigation originated from Home Depot Organized Retail
Crime [“HDORC”] Investigations and Thornton Police Department
[“TPD”], entities located in the State of Colorado. Below are the facts
learned from [TPD] and [HDORC] Investigations.
I reviewed a report that was prepared by [HDORC] Investigator [T.]
Hare and learned that in December 2018 Home Depot Senior Manager
7
See TEX. CODE CRIM. PROC. art. 44.01(a)(5).
3
of Asset Protection [V.] Rice received information about a suspicious
Amazon.com seller known as Painting SBS. The lead indicated that
Black & Decker vendor group had been reviewing resellers and
determined that Painting SBS was not an authorized reseller of their
products, specifically the DeWalt line of tools. I further learned from
[Hare’s] report that Black & Decker conducted a controlled buy of a
DeWalt 20v Max HR HD Impact Drill Driver Kit from Painting SBS
via Amazon.com. When Black & Decker received the item, they
determined through reviewing their records that the drill was sold to
Home Depot around July 6, 2018 and shipped to Home Depot Rapid
Distribution Center in Houston, TX on July 20, 2018. I further learned
from the report that the drill purchased by Black & Decker was new-
in-box and not purchased either second-hand or from Home Depot’s
Returns Logistics Centers, which indicates that the drill had likely been
trafficked through unauthorized channels.
I learned that [Hare] began investigating Painting SBS and found
through multiple online sources including but not limited to Facebook,
Yelp, and the Better Business Bureau that this business was owned by
[Skarritt], the resident and owner of the residence located at [address]
Katy, Harris County, Texas 77450. From the report, I learned [Hare]
reviewed Skarritt’s Amazon.com page and, based on his experience,
determined that in light of the specific items listed, the amounts of those
items, the frequency of those items being returned and the availability
in store, along with the fact that used and reconditioned items sold on
Amazon must be represented as such in the list made, it was unlikely
that Skarritt was purchasing his merchandise from Home Depot’s
Returns Logistics Centers and simply reselling it on Amazon.com.
[Hare] further discovered that Skarritt had an OfferUp account
[identified], which was being used to sell items similarly believed to
have been stolen from Home Depot stores.
I learned from [Hare] that [Skarritt] was a subject in an ongoing
investigation being conducted by [TPD,] being led by Detective [I.]
Ranshaw [“Ranshaw”], an officer with over 17 years of experience as
a peace officer who I found to be credible and reliable. I received
copies of [Ranshaw’s] investigation to review and learned that multiple
individuals were believed to be part of the scheme involving the theft
and resale of tools and other merchandise.
I reviewed the Colorado police reports in the file that were from [TPD]
which began on June 22, 2019. The first report in the file ([TPD]
4
Report: 2019009980) was a shoplifting report wherein the complainant,
Chase Stuckey, observed a suspect passing all points of sale with a cart
filled with Milwaukee and DeWalt power tools without attempting to
pay for the merchandise. The complainant chased the suspect who fled
in a white Kia bearing California License[] plate [number]. The report
mentions the driver of the vehicle was identified as Shawn Garcia [date
of birth]. I further learned that Home Depot Asset Protection Specialist
[Gardner] was able to identify the shoplifter as Michael Flores, [date of
birth] [“Flores”], from previous shoplifting incidents. [TPD] obtained
security video of the incident and filed a to-be arrest warrant [sic] on
[Flores]. The investigation was closed on October 23, 2019 after the
suspect was arrested pursuant to warrant.
I also reviewed [TPD] Report 2019016438 which was completed by
[Ranshaw]. This report was a follow-up on the arrestee [Flores] based
on Report 2019009980. I learned from Ranshaw’s report that [Flores]
had been identified in connection with several other shoplifting cases.
[HDORC Investigator B.] Cahill found that these thefts amounted in
aggregate to over $46,000 worth of stolen goods. [Ranshaw] was also
able to identify a female who was with [Flores] during several
shoplifting cases as Tiffany Longwolf [“Longwolf”], [date of birth]. I
learned that [Ranshaw] was able to locate Michael Flores and arrest him
for his warrant along with several others from the report mentioned
above. [Ranshaw] further investigated the case and learned from Steven
Gonzales that [Flores] was selling the stolen goods to someone named
“Brandon” who lived on Wolff St.
I learned from [Ranshaw] that he was contacted by [HDORC
Investigator A.] Foote in regards to a suspect who was listing large
quantities of new-in-box Home Depot tools on the resale platform
OfferUp. In an affidavit written by [Ranshaw], I learned that the owner
of that OfferUp account was Brandon Rose [“Rose”]. I further learned
[Ranshaw] did a police records search and found a [Rose], [date of
birth], with an address of [address], in Arvada, Colorado. Rose did not
own the residence but was renting it.
I further learned from an affidavit written by [Ranshaw] that on April
4, 2020, Westminster Police in Colorado were dispatched to a felony
theft case where a silver Kia bearing license plate [number] was the
suspect vehicle in the theft. [Ranshaw] notified Westminster Police
Department [“WPD”] of information that he had gathered previously
throughout his investigation in regards to that silver Kia. I learned from
5
that same affidavit written by [Ranshaw] that he knew this vehicle was
of interest because [Ranshaw] noted on April 3, 2020 that the same
silver Kia bearing Colorado license plate [number] was under
surveillance by [HDORC Investigators] Cahill and [T.] Purse and that
they had identified the driver and passenger as [Flores] and [Longwolf],
respectively. The vehicle was found to be stolen out of Colorado. I
learned from [Ranshaw] that [WPD] went to an apartment and made
contact with several people including Jared Mitchell [date of birth].
Mitchell spoke with Officer J. Hall who was employed by the [WPD].
During the interview Mitchell stated that Longwolf and Flores sell large
amounts of stolen goods to [Rose] who lives in Arvada, Colorado.
I learned from [Ranshaw] that he conducted surveillance on [Rose’s]
residence at [address], Arvada Colorado, on April 29, 2020. During
this surveillance, Ranshaw observed a silver Kia Sportage pulled up to
the residence and the driver exited the vehicle and walked to the
residence. I further learned that [Ranshaw] recognized and identified
the driver as [Flores] and also recognized [Longwolf] from the prior
shoplifting investigations described above. I learned from [Ranshaw]
that he observed the back of the silver Kia to have several yellow
DeWalt boxes which still had visible anti-theft devices on them.
I reviewed an affidavit for a court order for production of records
completed by [Ranshaw]. From that affidavit, I learned that [Rose] was
seen via electronic surveillance loading several boxes into a trailer that
was parked in his driveway on May 6, 2020. I spoke with [HDORC
Investigator] [Bourne] who informed me of a surveillance operation
involving [Rose] and the trailer on this date.
[Bourne] informed me that he was contacted by [Cahill] who was
conducting surveillance on [Rose’s] house and saw that Rose was in
possession of a double-axle, enclosed white trailer bearing TX license
plate [number]. [Bourne] informed me that it was believed by Denver
[HDORC Investigations] that the trailer would be used for delivering
various stolen property from Home Depot stores throughout the greater
Denver, CO area to somewhere in Texas. [Cahill] ran the license plate
on the trailer and told me that he found that it was registered to a
[Skarritt] with a registered address of [address] Katy, Harris County,
Texas. [HDORC Investigations (Denver)] created a plan to conduct
surveillance on [Rose] and any associates when they left with the
trailer. I learned from [Bourne] that on Thursday, May 7, 2020 just
before midnight, the surveillance observed that Rose finished loading
6
the trailer up with new-in-box items and pulled out of his residence.
[Cahill and Purse] followed the trailer and Rose as it drove to Wichita
Falls, Texas. When the trailer arrived in Wichita Falls, TX [Bourne]
and [HDORC Investigator Murphy] took over surveillance of the trailer
and Rose. I learned from [Bourne] that they followed the trailer to
[Skarritt’s address]. [Bourne] told me that they had enlisted the help of
HSI Special Agent R. Skidmore who arranged aerial surveillance over
the residence concentrating on the front of the house, especially the
driveway. I obtained a copy of the video that was recorded and saw
that several new-in-box items were being unloaded from the trailer and
taken into the residence, past the point of the curtilage where the
packages would leave camera view.
I learned from both [Bourne] and [Ranshaw] that on June 12, 2020, a
surveillance team observed [Rose] and another white male, later
identified as Reilly Hoffman depart from Rose’s residence in Colorado
in a Silver Chevrolet Suburban, pulling the white trailer belonging to
[Skarritt] after loading the trailer full of power tools and other items
suspected of being stolen Home Depot Merchandise. On June 13, I
along with [HDORC] investigators watched as the trailer was driven to
Skarritt’s residence . . . and suspected stolen merchandise was
unloaded from the trailer into Skarritt’s residence. On June 15, 2020,
1 received confirmation from [Bourne] and [Ranshaw] that Rose and
Hoffman had returned to Rose’s residence in Arva[d]a, CO, in the silver
Chevrolet Suburban towing the white trailer belonging to Skarritt.
Again on July 5, 2020, I received notification from [Bourne] and
[Ranshaw] that Rose and Hoffman were traveling from Rose’s
residence to Texas in a silver Chevrolet Tahoe towing Skarritt’s white
trailer. I was informed by that based on their internal reports of thefts
within the time frame of the transport from Colorado to Texas and
observations by the surveillance team, the trailer was believed to
contain between $20,000 and $50,000 of stolen Home Depot
merchandise. On July 6, 2020, 1 along with other DPS Investigators
and [HD] investigators observed Rose and Hoffman arrive at Skarritt’s
residence . . . and unload a significant number of power tools from the
trailer and store them in Skarritt’s residence.
I was notified that by [Bourne] and [Ranshaw] that on September 10,
2020, Rose once again travelled from Arvada, CO to Katy, TX towing
the trailer belonging to Skarritt which is believed to have contained
stolen power tools and other Home Depot merchandise. Upon Rose’s
7
arrival at [Skarritt’s residence], I conducted visual surveillance and
observed that Rose and Hoffman again unloaded a large amount of
power tools into Skarritt’s residence.
On October 27, 2020, I was notified by [Cahill] and [Ranshaw] that
[Rose] and another white male had loaded the trailer belonging to
[Skarritt] with a large quantity of new, in box, power tools, believed to
be stolen from Colorado Home Depot stores, and that they had begun
driving to Texas following their usual established route. Based on
previous instances of monitoring [Rose] and his accomplices as they
transport the stolen goods to Texas from Colorado, it is estimated that
they will arrive at [Skarritt’s residence] at approximately 3:00pm on
October 28, 2020.
Officer Moore stated in the affidavit that it was his “belief that [Skarritt was]
involved in Organized Retail Theft, specifically by purchasing large quantities of
stolen new in box merchandise from [Brandon Rose] and reselling it at a discounted
price under Manufacturer Suggested Retail Price,” and that “evidence relating to this
ongoing criminal enterprise” would be located at Skarritt’s residence.
Based on Officer Moore’s affidavit, a warrant was issued for a search of
Skarritt’s residence and the seizure of “any and all items constituting evidence of the
offense of Engaging in Organized criminal activity . . . by committing the offense of
Theft $30,000 – $150,000 . . . that may be found therein,” including, but not limited
to:
2. Any and all stolen property from the residence, garage, and any
other appurtenant structures taken from Home Depot or any other
stores specifically including, but not limited to the brands
De[W]alt, Makita, Echo, Ryobi, Milwaukee, Ridgid and Bosch
power tools.
8
3. Any cash money, credit/debit cards, gift cards, or other items that
appear to be proceeds of the sale of stolen goods.
4. Any surveillance footage from any other recording/photographic
recording devices located.
5. Any notes, ledgers, records, receipts or documents relating to any
stolen property located within the location to be searched or at
any other location.
6. Any vehicles located at or within the curtilage of the residence
that may have been used to store or transport stolen goods.
7. Any computers, phones, hard drives, USB storage devices,
Micro SSD Cards, or any other electronic device(s) capable of
recording data, which may be related to the stolen property or
contraband, or transactions relating to the disposition/sale of
stolen property.
8. Any and all items tending to indicate ownership including but
not limited to receipts, paperwork, mail, photographs, and
identifying information or documentation.
9. Any and all contraband subject to forfeiture under Chapter 59 of
the Texas Code of Criminal Procedure.
Officers searched Skarritt’s residence. They seized numerous boxes of tools
and merchandise, computers, cellular telephones, as well as controlled substances
that were found in a desk. Skarritt was arrested. During a custodial interrogation,
Skarritt explained his business and that his purchases were from Home Depot and
other retail sources. He also made allegedly inculpatory statements about the drugs
found and seized.
Before trial, Skarritt moved to suppress all the evidence obtained as a result
of the search on two grounds. First, Skarritt argued that the warrant affidavit
9
provided an insufficient basis for the magistrate to find probable cause. He asserted
that Officer Moore’s statements were conclusory―that Moore stated only beliefs
and suspicions that the items at issue were stolen, without any underlying basis or
facts showing that any stolen items were delivered to Skarritt.
Second, Skarritt argued that Officer Moore “intentionally, knowingly, or with
reckless disregard for the truth omitted material information from his affidavit that
vitiate[d] probable cause in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674 (1978).”
After conducting an evidentiary hearing, the trial court granted Skarritt’s
motion to suppress without stating a specific ground. It made findings of fact that
include the following:
5. The affidavit contains only conclusory statements that items in a
trailer taken to Skarritt’s house are “believed” to be stolen
without any explanation of the basis of that conclusion.
6. The affidavit relates that Colorado law enforcement, including
Detective [I.] Ranshaw of Thornton Police Department, had,
through reports from named Home Depot employees in 2019
identified a shoplifter to be “Michael Flores” who was
accompanied several times by a “Tiffany Longwolf.” Ranshaw
informed SA Moore, that an individual named Steven Gonzales
that [sic] Flores was selling stolen goods to someone named
“Brandon” on Wolff St. No description of who Gonzales is, his
history, or credibility, or when he gave this information is
included.
7. The affidavit further relates vague information from Detective
Ranshaw that an officer from another department, Westminster
Police, was told by another source, a “Jared Mitchell” who in
April, 2020, told a Westminster (CO) Police Department officer
10
that “Longwolf and Flores sell large amounts of stolen goods to
a Brandon Rose who lives in Arvada, Colorado.” There is no
description of the basis of Mitchell’s belief nor any description
of his history, nor reasons to find Rose credible.
8. The affidavit then relates that Colorado Detective Ranshaw saw
Longwolf in a vehicle at Brandon Rose’s house that contained
“several” DeWalt boxes “which still had visible antitheft devices
on them.” The affidavit does not state that these items were seen
moved either into Rose’s residence or a trailer at any time. It
does not state that the anti-theft devices should have been
removed, as opposed to merely de-activated, if they had been
purchased.
9. The affidavit reports that SA Moore . . . learned from an affidavit
of Detective Ranshaw that Brandon Rose was seen by electronic
surveillance loading boxes into a trailer on May 6, 2020. SA
Moore does not relate the affidavit indicated the items were
stolen.
10. The affidavit further reports that SA Moore was informed by
[Bourne] that his colleague, [Cahill], conducted surveillance on
Rose and observed him load “new-in box items” on May 7, 2020,
into a white box frailer registered to Skarritt, and drive it from
Colorado to [Skarritt’s residence] where it was unloaded. The
affidavit does not state the items in the trailer were believed to
be stolen or provide any basis to believe they were stolen.
11. The affidavit further reports that on June 12, 2020, SA Moore
learned from the same individuals that a “surveillance team”
observed Rose and Hoffman pull the white trailer full of
suspected stolen merchandise from Colorado to Skarritt’s
residence . . . , but does not state any basis for the belief that the
trailer contained stolen merchandise.
12. The affidavit relates that on July 5, 2020, the same individuals
informed SA Moore that [Rose] and a Reilly Hoffman were
travelling to Texas towing Skarritt’s trailer. The only stated basis
for this belief is a vague reference to “thefts within the time frame
of the transport from Colorado to Texas and observations by the
surveillance team that they believed the trailer contained $20,000
to $50,000 of stolen Home Depot merchandise.” The affidavit
contains no further information regarding thefts, including by
11
whom, or what observations were made, that supported that
belief. The Court finds that the statement that the surveillance
team “made observations . . . that they believed the trailer
contained” stolen merchandise is entirely subjective.
13. The affidavit further relates that on September 10, 2020, the same
individuals informed SA Moore that Rose was again travelling
to Texas towing Skarritt’s trailer, “which is believed to have
contained stolen power tools and other Home Depot
merchandise.” The affidavit contains no information regarding
the basis of that belief.
14. The affidavit further relates that on October 27, 2020, [Cahill]
and Detective Ranshaw informed SA Moore that Rose and
another white male [were] travelling to Texas towing Skarritt’s
trailer “with a large quantity of new, in box, power tools,
believed to be stolen from Colorado Home Depot stores.” The
affidavit contains no information regarding the basis of that
belief.
15. There is nothing in the affidavit supporting the stated suspicions,
beliefs, or contentions, that [] items placed into the trailer or
transported to Skarritt’s residence . . . at any time were stolen.
....
17. The information in the affidavit regarding a Black & Decker
investigation of Skarritt does not relate to theft.8
8
Additionally, the trial court found that, at the time of the affidavit, Officer Moore
had completed three reports, which the trial admitted into evidence at the hearing.
The trial court determined that the reports were not affidavits, were not otherwise
sworn, and none contained any factual basis supporting an allegation that the items
transported from Rose to Skarritt were stolen. Further, the July 8, 2020 report
described surveillance of Rose and Hoffman as they entered numerous Home Depot
stores in the Greater Houston area and exited empty-handed or with merchandise.
The report states:
By investigative means, it was determined ROSE and HOFFMAN
were purchasing clearance items from the Home Depot Stores. ROSE
was believed to be using his (ROSE’S) debit card to purchase the
12
The trial court also made the following conclusions of law:
1. The Search Warrant Affidavit, on its face, is wholly conclusory
and fails to state probable cause.
2. There was no probable cause to believe that the specific items
transported from Colorado to Texas were stolen.
3. There was no stated probable cause for searching the desk
drawers at [Skarritt’s residence].
4. There is no stated probable cause linking the defendant’s
computers and/or phones and/or other electronic devices to the
alleged offense for purposes of a search or a seizure.
Motion to Suppress Evidence
The State claims in its sole issue that Officer Moore’s affidavit established the
necessary probable cause to justify a search of Skarritt’s residence. According to
the State:
The allegations established in the affidavit supporting the warrant
established a theft and resale scheme engaged in by Skarritt, Rose and
others. The warrant [sic] established a pattern of behavior in trafficking
stolen goods from Colorado by Rose to Skarritt; even if not a pattern of
behavior, it established at least one instance of theft, transport and
receipt of stolen power tools to support probable cause for a warrant.
merchandise. ROSE was possibly using SKARRITT’S tax ID
number to apply towards the purchase of the merchandise.
. . . ROSE and HOFFMAN traveled back to SKARRITT’S residence
later that evening. . . .
Officer Moore testified that he was “not quite sure which [reports] were attached
to” his affidavit and not sure whether the magistrate reviewed any such reports.
13
Standard of Review
Generally, we review a trial court’s ruling on a motion to suppress evidence
under a bifurcated standard. Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App.
2019). We review the trial court’s determination of legal questions and its
application of the law to facts that do not turn upon a witness’s credibility de novo.
Id. We afford “almost total deference” to the trial court’s “findings of historical fact
and determinations of mixed questions of law and fact that turn on credibility and
demeanor . . . if they are reasonably supported by the record.” Id.When a trial court makes explicit findings of fact, as here, we determine
whether the evidence, viewed in a light most favorable to the trial court’s ruling,
supports the findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
“Whether we infer the fact findings or consider express findings, we uphold the trial
court’s ruling under any applicable theory of law supported by the facts of the case.”
Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013).
While this appeal involves our examination of the trial court’s ruling on the
motion to suppress, it also “involves our secondary appellate review of the
magistrate’s probable-cause determination in issuing the search warrant, which is a
similar, yet distinct, inquiry.” State v. Crawford, 463 S.W.3d 923, 928 (Tex. App.—
Fort Worth 2015, pet. ref’d).
14
Probable Cause
The Fourth Amendment to the United States Constitution provides that the
“right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated” and mandates that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
U.S. CONST. amend. IV. Similarly, the Texas Constitution provides that the “people
shall be secure in their persons, houses, papers and possessions, from all
unreasonable seizures or searches” and that no search warrant shall issue without
probable cause. TEX. CONST. art. 1, § 9.
At the core of the Fourth Amendment, and its Texas equivalent, is the
fundamental principle “that a magistrate shall not issue a search warrant without first
finding probable cause that a particular item will be found in a particular location.”
Foreman v. State, 613 S.W.3d 160, 163 (Tex. Crim. App. 2020) (internal quotations
omitted); see Illinois v. Gates, 462 U.S. 213, 238–39 (1983).
Based on this constitutional threshold, the Texas Code of Criminal Procedure
requires that a “sworn affidavit setting forth substantial facts establishing probable
cause shall be filed in every instance in which a search warrant is requested.” TEX.
CODE CRIM. PROC. art. 18.01(b). And no evidence obtained in violation of a
constitutional provision or law “shall be admitted in evidence against the accused on
the trial of any criminal case.” Id. art. 38.23(a).
15
Probable cause for a search warrant exists when, under the totality of the
circumstances presented in a peace officer’s affidavit, there is a “fair probability” or
“substantial chance” that contraband or evidence of a crime will be found at the
specified location. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012);
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). A magistrate’s
determination of probable cause “must be based on the facts contained within the
four corners” of the affidavit. State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App.
2017). However, the magistrate “may draw inferences from the facts.” Id.The duty of a reviewing court is “simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed based on the four corners
of the affidavit and reasonable inferences therefrom.” Moreno v. State, 415 S.W.3d
284, 287 (Tex. Crim. App. 2013) (quoting Gates, 462 U.S. at 238–39). “When in
doubt, reviewing courts should defer to all reasonable inferences a magistrate could
have made” and “should not invalidate a warrant by interpreting the affidavit in a
hyper-technical rather than commonsense manner.” State v. Baldwin, 664 S.W.3d
122, 130 (Tex. Crim. App. 2022) (“[R]eviewing courts give great deference to a
magistrate’s probable cause determination to encourage police officers to use the
warrant process.”).
But that deference is not unlimited. A reviewing court may not use this
deference to sidestep the issue and undermine the very essence of this fundamental
16
liberty. Indeed, “a magistrate may not baselessly presume facts that the affidavit
does not support.” Foreman, 613 S.W.3d at 164. While “[n]either federal nor Texas
law defines precisely what degree of probability suffices to establish probable
cause, . . . that probability cannot be based on mere conclusory statements of an
affiant’s belief.” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); see
also Jones v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992) (statement is
conclusory if it does not set forth underlying facts that led to conclusion).
“[S]ufficient information must be presented to the magistrate to allow that
official to determine probable cause; [the magistrate’s] action cannot be a mere
ratification of the bare conclusions of others.” Baldwin, 664 S.W.3d at 132 (quoting
Gates, 462 U.S. at 239). Similarly, “[s]uspicion and conjecture do not constitute
probable cause.” Id. at 135 (magistrate erred by substituting officer’s “generalized
belief” for required evidentiary nexus). Conclusory statements give a magistrate no
basis for making a judgment regarding probable cause. McKissick v. State, 209
S.W.3d 205, 216 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Gates,
462 U.S. at 239).
Stated differently, a reviewing court must ensure that the constitutional right
to be free from unreasonable government intrusion into one’s own home is not
trampled upon or diminished by mere conjecture, conclusory assertions, or rank
speculation.
17
Sufficiency of the Affidavit
Skarritt argued below that Officer Moore’s “affidavit contain[ed] only
conclusory statements that items in a trailer taken to Skarritt’s house [were]
‘believed’ to be stolen without any . . . basis [for] that conclusion.” Skarritt asserted
that such beliefs and speculation “cannot support probable cause.”
In determining whether Officer Moore’s affidavit provided a reasonable basis
to find probable cause to search Skarritt’s residence, we are “constrained to the four
corners of the affidavit.” See Baldwin, 664 S.W.3d at 130. We must determine
whether the recited facts demonstrate that: (1) a specific offense was committed,
(2) the property to be searched and the items to be seized constitute evidence of the
offense or evidence that a particular person committed it, and (3) the evidence sought
was located at or within the thing to be searched. See TEX. CODE CRIM. PROC. art.
18.01(c); Baldwin, 664 S.W.3d at 130. Additionally, the “facts stated in a search
affidavit must be so closely related to the time of the issuance of the warrant that a
finding of probable cause is justified.” State v. McLain, 337 S.W.3d 268, 272 (Tex.
Crim. App. 2011) (internal quotations omitted).
Officer Moore stated in his affidavit that he had reason to believe that within
Skarritt’s residence would be located “evidence of the offense of Engaging in
Organized criminal activity . . . by committing the offense of Theft
18
$30,000–$150,000 . . . pursuant to a continuing course of conduct on or about the
dates of July May [sic] 06, 2020 continuing through October 28, 2020.”
A person commits the offense of engaging in organized criminal activity if,
“with the intent to establish, maintain, or participate in a combination or in the profits
of a combination . . . , the person commits or conspires to commit . . . theft.” TEX.
PEN. CODE § 71.02(a)(1). Theft is an unlawful appropriation of property with the
intent to deprive the owner of the property. Id. § 31.03(a). Appropriation of property
is unlawful if, inter alia, the property is stolen and the actor appropriates the property
knowing it was stolen by another. Id. § 31.03(b)(2).
Thus, in order to support the search of Skarritt’s residence, Officer Moore had
to present facts supporting a conclusion that evidence of the underlying offense of
theft would be found there. See Baldwin, 664 S.W.3d at 130; Jackson v. State, 314
S.W.3d 118, 124–25 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (establishing
offense of engaging in organized criminal activity requires proof of commission of
underlying offense with intent to act in combination).
We are mindful that our role in reviewing Officer Moore’s warrant affidavit
is to apply a totality-of-the-circumstances analysis, not to conduct a hyper-technical
examination. See Baldwin, 664 S.W.3d at 130. We are likewise mindful that “courts
must continue to conscientiously review the sufficiency of affidavits on which
warrants are issued.” Duarte, 389 S.W.3d at 354 (quoting Gates, 462 U.S. at 239).
19
Here, Officer Moore stated in his affidavit that he was involved in a multi-
agency investigation into the theft and resale of tools and other merchandise from
Home Depot and other stores. Throughout the affidavit, Officer Moore relied in
large part on facts supplied by other officers and investigators. Observations
reported to the affiant by others engaged in an investigation can constitute a reliable
basis for issuing a warrant. See Davis v. State, 202 S.W.3d 149, 156 & n.20 (Tex.
Crim. App. 2006). But the underlying circumstances must indicate a substantial
basis for crediting the observations at each level. See Serrano v. State, 123 S.W.3d
53, 60 (Tex. App.—Austin 2003, pet. ref’d) (“Hearsay-upon-hearsay may be utilized
to show probable cause if the underlying circumstances indicate a substantial basis
for crediting the hearsay at each level.”).
As applied here. Officer Moore asserted that HDORC (Colorado) Investigator
T. Hare, at some point, “began investigating” Skarritt. According to Moore’s
affidavit, Hare reviewed Skarritt’s Amazon.com page and opined it was “unlikely”
that the merchandise he was selling was used or had been purchased through Home
Depot Returns Logistics Centers. Also, according to Moore, Hare reviewed
Skarritt’s OfferUp account and opined that Skarritt was selling “items similarly
believed to have been stolen from Home Depot stores.” (Emphasis added.)9
9
Officer Moore actually began with a 2018 complaint by Black+Decker that Skarritt,
through his business, Painting SBS, was an “unauthorized reseller” of
20
Officer Moore did not include in his affidavit when such events occurred. See
Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983) (holding that affidavit
that failed to indicate when unlawful act occurred was insufficient to support
issuance of search warrant). Instead, Moore simply stated a “belie[f]” that non-
descript “items” were “stolen” based on it being “unlikely” that such items were
used or purchased specifically through “Home Depot Returns Logistics Centers.”
To surmise that “items” are “stolen” merely because they are not used or specifically
acquired from a Home Depot Returns Logistics Center is a bridge too far. Such
items could certainly have been purchased from another retailer.
Moreover, Officer Moore stated in his affidavit that, based on his review of a
police report from the TPD (Colorado), he learned about a 2019 shoplifting incident
in Colorado, involving Michael Flores. Flores was arrested and the case was closed.
Officer Moore noted that, in another TPD report, a tipster, Steven Gonzales, who is
not otherwise identified and whose connection to the case or basis for personal
knowledge are not stated, told Ranshaw, on a date not stated, that Flores was selling
“stolen goods” to a “‘Brandon’ who lived on Wolff St.” A conclusory tip with no
shown basis of knowledge and temporal difficulties does not contribute to a finding
of probable cause. See Serrano, 123 S.W.3d at 62.
Black+Decker products on Amazon.com. Setting aside that such complaint
preceded the issuance of the warrant in this case by two years, there is not an
allegation of theft stated.
21
Officer Moore further noted that Detective Ranshaw stated in another
affidavit that, on April 4, 2020, WPD (Colorado) investigated “a felony theft case”
in which a stolen vehicle was involved, and Flores was identified as the driver. At
some point, WPD “went to an apartment and made contact with several people
including [a] Jared Mitchell.” Mitchell stated that Flores “sell[s] large amounts of
stolen goods” to “Brandon Rose who lives in Arvada, Colorado.” Mitchell is not
identified, apart from his birthdate, and his connection to the case or basis for
personal knowledge are not stated. Again, no timeframe for the tip is stated. See id.Officer Moore’s affidavit further states that he learned from Detective
Ranshaw that, during surveillance of Rose’s residence in Colorado on April 29,
2020, Flores was seen “pulling up to the residence” in a silver Kia and “exiting the
vehicle and walking to the residence.” Ranshaw “observed the back of the silver
Kia to have several yellow DeWalt boxes which still had visible anti-theft devices
on them.” However, as the trial court concluded, Officer Moore did not state that
Ranshaw provided any facts from any source that such items were unloaded from
the Kia or delivered to Rose.
Additionally, Officer Moore noted that Detective Ranshaw stated in an
affidavit that seven days later, on May 6, 2020, Rose “was seen via electronic
surveillance loading several boxes into a trailer that was parked in his driveway.”
22
(Emphasis added.) Again, as the trial court below concluded, Moore did not present
any factual basis for concluding that the boxes contained stolen items.
Officer Moore further concluded that unidentified individuals “believed” or
“suspected” that Rose was delivering “stolen” property or tools to Skarritt as
follows:
. . . . [HDORC Investigator] Bourne informed me that it was believed
by Denver [HDORC Investigations] that the trailer would be used for
delivering various stolen property from Home Depot stores throughout
the greater Denver, CO area to somewhere in Texas. [Cahill] ran the
license plate on the trailer and told me that he found that it was
registered to a [Skarritt] with a registered address of [address] Katy,
Harris County, Texas. [HDORC Investigations (Denver)] created a
plan to conduct surveillance on [Rose] and any associates when they
left with the trailer. I learned from [Bourne] that on Thursday, May 7,
2020 just before midnight, the surveillance observed that Rose finished
loading the trailer up with new-in-box items and pulled out of his
residence. . . . I learned from [Bourne] that they followed the trailer to
[Skarritt’s address]. . . . I obtained a copy of the video that was recorded
and saw that several new-in-box items were being unloaded from the
trailer and taken into the residence, past the point of the curtilage where
the packages would leave camera view.
I learned from both [Bourne] and Detective Ranshaw that on June 12,
2020, a surveillance team observed [Rose] and another white male, later
identified as Reilly Hoffman depart from Rose’s residence in Colorado
in a Silver Chevrolet Suburban, pulling the white trailer belonging to
[Skarritt] after loading the trailer full of power tools and other items
suspected of being stolen Home Depot Merchandise. On June 13, I
along with [HDORC] investigators watched as the trailer was driven to
Skarritt’s residence . . . and suspected stolen merchandise was
unloaded from the trailer into Skarritt’s residence. . . .
Again on July 5, 2020, I received notification from [Bourne] and
[Ranshaw] that Rose and Hoffman were traveling from Rose’s
residence to Texas in a silver Chevrolet Tahoe towing Skarritt’s white
trailer. I was informed by that based on their internal reports of thefts
23
within the time frame of the transport from Colorado to Texas and
observations by the surveillance team, the trailer was believed to
contain between $20,000 and $50,000 of stolen Home Depot
merchandise.
I was notified that by [Bourne] and [Ranshaw] that on September 10,
2020, Rose once again travelled from Arvada, CO to Katy, TX towing
the trailer belonging to Skarritt which is believed to have contained
stolen power tools . . . .
On October 27, 2020, I was notified by [HDORC Investigator] Cahill
and [Ranshaw] that [Rose] and another white male had loaded the
trailer belonging to [Skarritt] with a large quantity of new, in box,
power tools, believed to be stolen from Colorado Home Depot stores,
and that they had begun driving to Texas . . . .
(Emphasis added.)
Once again, as the trial court found, Officer Moore did not provide any basis
to reasonably believe that the items placed in the trailer and transported to Skarritt’s
residence were stolen. Instead, the affidavit only provides generalized, unsupported
statements that are insufficient to establish probable cause under Texas law. See
Baldwin, 664 S.W.3d at 132, 135.
Nevertheless, the State contends that the magistrate could have reasonably
inferred from the statements in the affidavit, showing a “transfer of a large quantity
of new-in-box merchandise with the security devices still attached,” that “there was
a large scale theft and resale scheme occurring.” But the record does not support the
State’s contention. At no point does Moore’s affidavit demonstrate that any item
with a “security device[] still attached” was transferred to Rose or Skarritt. And it
24
provides no factual basis for inferring that items that are new or numerous are
necessarily stolen.
Although a magistrate may make reasonable inferences from the facts recited
in the affidavit, he or she may not baselessly presume facts that the affidavit does
not support. Foreman, 613 S.W.3d at 164. “When too many inferences must be
drawn, the result is a tenuous rather than substantial basis for the issuance of a
warrant.” Davis, 202 S.W.3d at 157. “It is one thing to draw reasonable inferences
from information clearly set forth within the four corners of an affidavit. . . . It is
quite another matter to read material information into an affidavit that does not
otherwise appear on its face.” Cassias v. State, 719 S.W.2d 585, 590 (Tex. Crim.
App. 1986).
In Cassias, the affiant sought a warrant to search a residence for contraband.
719 S.W.2d at 586–87. In his affidavit, the affiant stated that, based on a tip,
surveillance was set up at the defendant’s residence. Id. at 587. At some unspecified
time, “activity [wa]s taking place in the garage area, where these people back their
cars all the way into the garage, where a storage [sic] is visibly seen directly in back
of the garage area.” Id. And an individual was seen carrying “brick type packages
believed to be marijuana.” Id.The Texas Court of Criminal Appeals held in Cassias that backing cars into a
garage and the presence of storage described “only innocent facts.” Id. at 589. That
25
“brick type packages believed to be marijuana” were seen at the premises was
insufficient to support probable cause because the affiant did not state “who believed
the packages to be marijuana, nor the basis for this belief.” Id. The court held that
“the pieces in the . . . affidavit [did] not fit neatly together to provide a substantial
basis to support the magistrate’s determination of probable cause.” Id. at 590(internal quotations omitted).
Similarly, here, Officer Moore’s affidavit stacks inference upon inference and
does not connect any theft or stolen property to Skarritt’s residence. See id.10 A
nexus between property that Flores may have stolen in Colorado in April 2020 and
boxes at Skarritt’s Texas residence in October 2020 cannot just simply be inferred,
as the State asks us to do. Rather, as in Cassias, any such inference in this case is
too attenuated and thus fails to meet the constitutional threshold of probable cause.
Accordingly, having carefully considered the substance of the statements
contained within the four corners of Officer Moore’s affidavit, and the affidavit in
its totality, we conclude that it fails to provide a substantial basis for reasonably
concluding that stolen property would be located at Skarritt’s residence. See Gates,
10
See, e.g., State v. Klendworth, No. 12-09-00409-CR, 2010 WL 3003624, at *6 (Tex.
App.—Tyler July 30, 2010, no pet.) (mem. op., not designated for publication)
(concluding that officer’s suspicion that stolen property would be located at
residence was insufficient to support probable cause because there were no facts
placing stolen property at residence or showing that stolen property was taken to
residence).
26
462 U.S. at 238–39; Davis, 202 S.W.3d at 157; Cassias, 719 S.W.2d at 590. The
statements in Officer Moore’s affidavit are therefore insufficient to establish
probable cause―leaving no reasonable basis for a search of Skarritt’s residence as
required by the Fourth Amendment and its Texas equivalent. See Foreman, 613
S.W.3d at 163.
We therefore hold that the trial court did not err in granting Skarritt’s motion
to suppress all the evidence obtained as a result of the improper search warrant. See
Sims, 569 S.W.3d at 640.
Material Omissions from the Affidavit
Even if we were to conclude that Officer Moore’s affidavit supported a finding
of probable cause, we would still be required to uphold the trial court’s order
granting Skarritt’s motion to suppress because the warrant affidavit is also violative
of Franks v. Delaware, 438 U.S. 154 (1978).
As explained above, we must uphold the trial court’s ruling if it is reasonably
supported by the record and correct on any theory of law applicable to the case. See
Alford, 400 S.W.3d at 929 (“[A]lthough the trial court made a conclusion of law
denying appellant’s motion to suppress under the community-caretaking exception
to the warrant requirement, the appellate court was not limited to consideration of
that legal theory and could uphold the trial court’s ruling under any legal theory
supported by the facts.”).
27
In Franks v. Delaware, the Supreme Court of the United States held that a
warrant is invalid under the Fourth Amendment if an affiant makes an affirmative
misrepresentation in a warrant affidavit and the misrepresentation is material and
necessary to establishing probable cause. Islas v. State, 562 S.W.3d 191, 196–97
(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (citing Franks, 438 U.S. at155–56).
Although the Texas Court of Criminal Appeals has not expressly applied
Franks to material omissions, this Court and other courts of appeals in Texas have
extended the Franks analysis as such. See Diaz v. State, 632 S.W.3d 889, 892 (Tex.
Crim. App. 2021) (“We have assumed that Franks applies to material omissions, but
we have not decided the issue.”); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—
Houston [1st Dist.] 2003, no pet.) (“[T]he Fifth Circuit, along with other Texas
Courts of Appeals, has concluded that allegations of material omissions are to be
treated essentially the same as claims of material misstatements.”); see also Darby
v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); Melton v.
State, 750 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (“Such
omissions are treated essentially the same as claims of material misstatements.”).11
11
The State notes in its response to Skarritt’s motion to suppress that the Franks
“concept has been extended in both Texas and Federal law to extend to material
omissions of fact from affidavits supporting search warrants.” The State does not
challenge this concept on appeal.
28
In deciding a Franks motion, we apply the same mixed standard of review
applicable to an alleged probable-cause deficiency; however, we may look beyond
the four comers of the warrant affidavit and consider evidence offered by the movant
because this attack on the sufficiency of the affidavit arises from claims of falsity.
Jones v. State, 338 S.W.3d 725, 739 (Tex. App.—Houston [1st Dist.] 2011), aff’d,
364 S.W.3d 854 (Tex. Crim. App. 2012).
This Court has held that a warrant is invalid under Franks if a defendant
establishes by a preponderance of the evidence that (1) omissions of fact were made
in executing a warrant affidavit, (2) such omissions were made knowingly,
intentionally, or with a reckless disregard for the truth, and (3) the omitted facts
would vitiate probable cause if included in the affidavit. Volk v. State, No. 01-07-
00265-CR, 2008 WL 2854166, at *4 & n.4 (Tex. App.—Houston [1st Dist.] July 24,
2008, pet. ref’d) (mem. op., not designated for publication) (noting that Texas Court
of Criminal Appeals has applied this reasoning in unpublished cases, e.g., Ward v.
State, No. AP-74,695, 2007 WL 1492080, at *4 (Tex. Crim. App. May 23, 2007)).
Skarritt challenged Officer Moore’s warrant affidavit below on the basis that
Officer Moore omitted critical information, that he was personally aware of, based
on his own surveillance and documents from Home Depot employees in the months
prior to executing his affidavit, that Skarritt operated an online business as a tool
reseller; that his company was registered with the State of Texas; and that Skarritt
29
and Rose had, using Skarritt’s tax identification number, purchased hundreds of
thousands of dollars in merchandise from Home Depot stores around the country
and online during the relevant period. Skarritt argued that the omitted information
was material because it led the magistrate to believe that Skarritt had no legitimate
source of merchandise to supply his online business and, thus, that the items Rose
shipped to Skarritt’s address were stolen.
The State conceded in its response that this information was omitted from the
warrant affidavit―but contended that it was “simply not relevant that some items
may have been purchased lawfully.”
However, Officer Moore admitted at the evidentiary hearing that when he
executed his affidavit, in October 2020, he was aware that Skarritt’s tax
identification number had been on file at Home Depot since 2016 and listed him as
a tool reseller; that it was Skarritt’s business model to purchase clearance and
“special buy” products and to sell them online; and that Skarritt had purchased
$403,297.35 in products from Home Depot in 2019 and $268,670.36 in products
from Home Depot in 2020.12
Moore also testified he was aware that, in an email dated July 7, 2020,
HDORC Investigator Bourne had stated that Rose was seen buying clearance items
12
The record contains copies of Home Depot’s records; including a list of sales
receipts from Home Depot Credit Services showing approximately $5,800.00 in
purchases on July 7, 2020 alone.
30
in Home Depot stores located in Colorado, Wyoming, and Texas. In another email
to Moore, dated July 13, 2020, Bourne again stated that clearance items were
purchased at a Home Depot store in Key West, Florida. And, in an email to Moore
dated September 22, 2020, DPS investigator R. Wolf further stated that Colorado
investigators had followed Rose to several Home Depot and Lowe’s locations and
that “it appear[ed] that he was only buying clearance products.” And, “[a]ll appeared
to be legit purposes.”13
Taken together, the evidence demonstrates that Officer Moore was not just
aware, at the time he executed his affidavit, that Skarritt and Rose had purchased
“some items” from Home Depot. Rather, Moore was aware that, during the relevant
time, i.e., 2019 to 2020, Skarritt and Rose had actually purchased almost
$700,000.00 in items from Home Depot.
Officer Moore admitted that he chose to omit this important information from
his warrant affidavit, rather than allow the magistrate to weigh its importance in
determining probable cause. Officer Moore also conceded that “nowhere in [his]
affidavit” did he point to any stolen item being transported to Skarritt:
[Defense Counsel]: All right. So the judge had no information
available from you at the time you presented
the search warrant affidavit that Skarritt and
Rose were large purchasers of tools from
Home Depot or anywhere else?
13
The record includes copies of these emails as well.
31
[Moore]: No, sir.
[Defense Counsel]: The only information that she had from you
was that they were—and I’m going to
summarize this—was that Brandon Rose was
transporting tools that were believed to be
stolen to Steve Skarritt?
[Moore]: Yes, sir.
[Defense Counsel]: You would agree with me that nowhere in
your affidavit or report does it point to any
particular item seen loaded into a trailer and
transported to Skarritt as stolen, correct?
....
[Moore]: —(indiscernible) possibly, yeah. Possibly,
yeah.
Accordingly, based on all of the foregoing, we conclude that Skarritt
established that omissions of fact were made in executing the warrant affidavit and
that such omissions were made knowingly, intentionally, or with a reckless disregard
for the truth. See Volk, 2008 WL 2854166, at *4. Further, having concluded above
that the affidavit wholly relied on the transfer of a large quantity of new items to
establish probable cause to search Skarritt’s residence, supplementing the affidavit
with the omitted information would have vitiated any such probable cause. See id.;
see also State v. Verde, 432 S.W.3d 475, 486–87 (Tex. App.—Texarkana 2014, pet.
ref’d).
For this further reason, we hold that the trial court did not err in granting
Skarritt’s motion to suppress all the evidence obtained as a result of the search
warrant. See Sims, 569 S.W.3d at 640.
32
We overrule the State’s sole issue.
Conclusion
We affirm the trial court’s order granting Skarritt’s motion to suppress.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
33