DocketNumber： 10-03-00094-CR
Filed Date： 12/15/2004
Status： Precedential
Modified Date： 9/10/2015
IN THE
TENTH COURT OF APPEALS
No. 10-03-00094-CR
John Benjamin Pool,
Appellant
v.
The State of Texas,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 28,571
DISSENTING Opinion
A citizen reports a contraband drug manufacturing lab. Officers go to investigate. The officer that goes to the door is met by a man and a “chemical” smell. One of the officers prepares an affidavit which contains this information plus additional information. The affidavit is presented to a magistrate. A search warrant is issued. The house is searched. A meth lab is seized. The man is charged. The man is convicted.
When you boil it all down to its essentials, that is what is presented in this case. You can embellish it. You can identify certain things that could have been done better. You can identify some things that did not need to be done. You may even be able to say some things that were done, were done wrong. But what really matters is that an officer smelled the chemical odors generated by a meth lab coming from a location which a citizen had reported was being used as a drub lab, and the officer obtained a search warrant. This is not an unreasonable search and seizure in violation of the Fourth Amendment.
The analysis by the majority is the polar opposite of a proper application of the standard of review, a review giving deference to the trial court’s determination of probable cause. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. 2004); see also Ornelas v. U.S., 517 U.S. 690, 698, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Illinois v. Gates, 462 U.S. 213, 234-37, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). I may have even been misguided into such an elemental analysis in the past. But here, in this case, it is apparent that a review of a search warrant, and giving appropriate deference to the trial court, is not done the way the majority has performed it. Our review is not performed by an analysis of each phrase and giving it weight in favor of the issuance of the warrant or not. Done in this fashion, things that are each individually legal would never add up to probable cause. How many times have we been told that things that are legal, when reviewed in context of the situation in which they occur, may lead a person to the conclusion that there is a reasonable basis upon which to conclude that illegal activity is occurring? This is particularly true of the observations by trained law enforcement officers, and even more so of those working with a specialization in contraband drug manufacturing.
If we step back from an over-analysis of the details of the affidavit, it is entirely logical for a magistrate to conclude that illegal activity related to the manufacture of drugs was occurring at the location. We sit in our offices, pouring over case books and briefs for hours to conduct this review. In the real world, the one where this decision was made, officers waited around a house they suspect contains a meth lab. No officer knows, and the magistrate certainly does not know, whether the lab, if any, was left cooking, or whether it was stabilized and/or stopped before the people exited the house.
We make the classic mistake of taking the affidavit apart one sentence, one phrase, one word at a time. That is not what it means to conduct a deferential review of a magistrate’s determination of probable cause.
Thus, this case is not as complex as the court makes it. The legal issue presented is whether there was probable cause upon which to base the issuance of the search warrant. The only factor which adds any complexity is that the defendant is arguing that some of the information included in the affidavit was illegally obtained and therefore could not properly be included in the affidavit to obtain the search warrant. The first, simple, and direct analysis is to remove from the affidavit the challenged information and determine whether what remains would support the issuance of the warrant. See Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991). I would hold that it would, affirm the trial court’s denial of the motion to suppress the evidence, and affirm the conviction. Because the Court reverses the judgment of conviction, I respectfully dissent.[1]
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed December 15, 2004
Publish
[1] There is little doubt that on another day I will have to revisit the expansive discussion on other issues, including further analysis of the standard of review. But I will conserve my resources until those issues could make the difference in a particular case. In this one, they should not.