State v. Marli Shealyn Elrod

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00517-CR
The State of Texas, Appellant
v.
Marli Shealyn Elrod, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2011-633, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING
OPINION
The State of Texas appeals a pretrial order granting, in part, Marli Shealyn Elrod’s
motion to suppress. In two points of error, the State contends that the trial court erred by concluding
that Elrod had standing to contest the searches conducted by investigating detectives and by
suppressing the evidence resulting from two of the complained-of searches. We affirm the trial
court’s order of suppression.
BACKGROUND1
On March 17, 2011, deputies and emergency personnel responded to a 911 call
concerning an infant child who had stopped breathing. Upon responding to the location, the
“Yorkshire residence,” deputies made contact with Elrod who indicated that she was babysitting the
1
As this is a pretrial interlocutory appeal, the record is limited. We obtain this background
information from the record of the suppression hearing and the exhibits admitted at this hearing.
child, P.E., while the child’s mother was away from the residence. She explained to the deputies that
earlier in the day she had accidentally dropped P.E. as she was putting P.E. down for her nap when
a dog bit her in the ankle. She said the child struck her head on the railing of the crib before falling
to the floor where she landed on a stuffed animal toy. Elrod informed the deputies that she picked
P.E. up and calmed her. She indicated that after P.E. stopped crying she was happy and even played
with Elrod’s 14-month old daughter. Elrod said she later put P.E. back down for her nap. When she
subsequently checked on her, she discovered the child was having difficulty breathing so she called
for emergency help.
During the course of their investigation, sheriff’s deputies obtained four separate
search warrants. The first search warrant (SW2011-079) was issued that same day, March 17, 2011,
and authorized a search of the Yorkshire residence. During the execution of this search warrant,
officers seized a laptop from the Yorkshire residence and took photographs, measurements, and a
video recording of the inside of the home. The second search warrant (SW2011-080) was issued the
following day, March 18, 2011, and authorized a search of the laptop seized from the home on
March 17th. A third search warrant (SW2011-091) was issued March 29, 2011, and authorized an
additional search of the Yorkshire residence. During the execution of this search warrant, officers
seized a baby crib and wooden chairs with booster seats attached, and took photographs of those
items within the home. The fourth search warrant (SW2011-092) was also issued March 29, 2011,
and authorized a search of Elrod’s cell phone.
Prior to trial, Elrod filed a motion to suppress all of the evidence obtained as a result
of the execution of the four search warrants. At the pretrial hearing on the motion, the State argued
2
that Elrod lacked standing to contest the searches. After hearing testimony from Elrod and argument
from both parties, the trial court concluded that Elrod had standing. No further testimony was
presented at the hearing. Elrod argued that the first search warrant lacked sufficient probable cause
both to show that a crime had been committed or that evidence of a crime would be found at the
residence. She next argued that, as a result of the invalidity of the first search warrant, the search
of the laptop pursuant to the second search warrant was the fruit of the poisonous tree. She further
argued that the second search warrant lacked sufficient probable cause that a specific crime had been
committed or that there was evidence of such crime on the laptop. Elrod also argued that the third
search warrant lacked probable cause that a specific offense had been committed. Finally, she
argued that the fourth search warrant lacked probable cause that a specific offense had been
committed or that her cell phone contained evidence of a crime. The trial court made no ruling at
the conclusion of the hearing, but took the matter under advisement.
Subsequent to the hearing, prior to trial, the trial court granted Elrod’s motion to
suppress as to the first two search warrants (SW2011-079 and SW2011-080) and suppressed the
evidence recovered from the searches pursuant to those warrants. The court concluded that the
affidavit in support of the first search warrant lacked sufficient probable cause and, consequently,
the second search warrant was “tainted by the fruit of the poisonous tree” because the laptop was
recovered during the execution of the first search warrant. The trial court denied Elrod’s motion
as to the last two search warrants (SW2011-091 and SW2011-092). The State appeals the trial
court’s order.
3
DISCUSSION
In its first point of error, the State contends, as it did below, that Elrod lacks standing
to contest the search of the Yorkshire residence because she failed to demonstrate a legitimate
expectation of privacy in the residence. In its second point of error, the State argues that the trial
court erred in suppressing the evidence recovered from the search of the Yorkshire residence and the
laptop seized from the residence because the affidavits in support of those search warrants
sufficiently set forth probable cause.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its
discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.
Crim. App. 2005). The trial court’s ruling on the motion to suppress will be affirmed if it is
reasonably supported by the record and is correct under any theory of law applicable to the case.
Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).
In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated
standard of review. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); Carmouche
v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to
the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s
application of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327.
We afford almost total deference to the trial judge’s rulings on mixed questions of law and fact when
the resolution of those questions depends on an evaluation of credibility and demeanor. State
4
v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). We review de novo mixed questions of law and fact that do not depend on an
evaluation of credibility and demeanor. Johnson, 336 S.W.3d at 657; Guzman, 955 S.W.2d at 89.
All purely legal questions are reviewed de novo. Johnson, 336 S.W.3d at 657; Kothe v. State,
152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).
At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge
of the credibility of the witnesses and the weight to be given to their testimony. St. George v. State,
237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. Unless the trial court
abuses its discretion by making a finding unsupported by the record, we defer to the trial court’s
findings of fact and will not disturb them on appeal. Johnson, 336 S.W.3d at 657; Guzman,
955 S.W.2d at 89; Miller v. State, 335 S.W.3d 847, 854 (Tex. App.—Austin 2011, no pet.). When,
as here, the trial court makes no findings of fact and conclusions of law, and none are requested, we
review the evidence in the light most favorable to the trial court’s ruling and assume that the trial
court made implicit findings of fact that support its ruling so long as those findings are supported
by the record. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche, 10 S.W.3d
at 328.
Standing
The State first urges that the trial court erred by concluding that Elrod had standing
to contest the search of the Yorkshire residence or the laptop seized from the residence and thus to
complain about the search warrants issued by the magistrate in this case.
5
Expectation of Privacy in Residence
The Fourth Amendment to the United States Constitution and Article I, Section 9 of
the Texas Constitution protect individuals against unreasonable searches and seizures. See
U.S. Const. amend. IV; Tex. Const. art. I, § 9; Mincey v. Arizona, 437 U.S. 385, 390 (1978); Luna
v. State, 268 S.W.3d 594, 603 (Tex. Crim. App. 2008). The rights secured by the Fourth
Amendment and Article I, Section 9 are personal. Emack v. State, 354 S.W.3d 828, 834 (Tex.
App.—Austin 2011, no pet.); see Rakas v. Illinois, 439 U.S. 128, 139 (1978); Richardson v. State,
865 S.W.2d 944, 948–49 (Tex. Crim. App. 1993). A defendant seeking to suppress evidence on the
ground that it was obtained in violation of the Fourth Amendment or Article I, Section 9 must show
that he personally had a reasonable expectation of privacy that the government violated. Emack,
354 S.W.3d at 834; see Rakas, 439 U.S. at 139–40; Handy v. State, 189 S.W.3d 296, 299 (Tex.
Crim. App. 2006); see also Kothe, 152 S.W.3d at 59 (standing under Fourth Amendment);
Richardson, 865 S.W.2d at 948–49 (standing under Article I, § 9); Fuller v. State, 829 S.W.2d 191,
202 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex.
Crim. App. 1995) (standing requirement of Article 38.23, Texas statutory exclusionary rule). The
defendant bears the burden of demonstrating standing to challenge the legality of the search by
showing that he had a subjective expectation of privacy in the place invaded that society is prepared
to recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002);
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1992).
In considering whether an appellant has demonstrated an objectively reasonable
expectation of privacy, we examine the totality of the circumstances surrounding the search,
6
including whether: (1) the defendant had a property or possessory interest in the place invaded;
(2) he was legitimately in the place invaded; (3) he had complete dominion or control and the right
to exclude others; (4) prior to the intrusion, he took normal precautions customarily taken by those
seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent
with historical notions of privacy. Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138. This
list of factors is not exhaustive, nor is any one factor dispositive of an assertion of privacy.
Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138–39.
An “overnight guest” has a legitimate expectation of privacy in his host’s home.
Luna, 268 S.W.3d at 603 (citing Minnesota v. Olson, 495 U.S. 91, 98 (1990)). However, the
legitimate privacy expectation of an overnight guest does not extend to a casual visitor or guest who
is merely present with the consent of the homeowner. Minnesota v. Carter, 525 U.S. 83, 90 (1998).
The State contends that Elrod lacked standing because she was only a babysitter and,
as such, was simply a casual visitor or guest without the expectation of privacy of an overnight guest.
However, Elrod’s testimony at the suppression hearing established that she kept clothing and other
personal property at the Yorkshire residence and that she and her daughter “often” spent the night
in the home, “every weekend” from Friday through Sunday or sometimes Monday. In fact, she
testified that the room where she and her daughter slept on those occasions was considered by her
and those living in the home to also be “their” room.2 Her testimony also established that she had
spent the night at the residence on March 16th, the night before she called for emergency help for
2
It appears that Elrod was romantically involved with the adult son of the homeowners. The
room that she and her daughter stayed in was his room.
7
P.E., and that when she called for help she was in the home caring for P.E. and her child. Thus, the
record reflects that as a frequent overnight guest and caretaker for children in the home, Elrod had
a possessory interest in the residence and was legitimately in the home. Further, as the babysitter,
Elrod had dominion and control over the residence and had the right, perhaps even the duty, to
exclude others from the home.
In its argument, the State focuses on evidence that, according to the State, contradicts
Elrod’s testimony. First, Elrod previously lived full time at this residence but moved out over a year
before this incident and expressed to detectives that she had no desire to move back in with her
boyfriend. Second, she told investigating deputies that she had moved back in with her parents in
Austin, Texas and on March 17th her parents’ Austin residence was where she was receiving her
mail and was the address listed on her driver’s license.3 The State also asserts that Elrod was
inconsistent in her testimony because she admitted on cross-examination that she told deputies that
she and her daughter only spent the weekends at the Yorkshire residence on those weekends that the
homeowners’ son, her boyfriend, did not work.
None of this evidence, however, negates the fact that Elrod was a frequent overnight
guest in the residence, with clothing and personal property in the home. At best, this testimony
creates a conflict in evidence that the trial court was permitted to resolve in Elrod’s favor. The trial
judge is the sole trier of fact and exclusive judge of credibility of the witnesses and the weight to be
given to their testimony. St. George, 237 S.W.3d at 725. We defer to the trial court’s factual
3
The State acknowledges that the evidence showed that the Yorkshire residence was the
address listed on Elrod’s voter registration.
8
findings and view them in the light most favorable to the prevailing party, although we review the
legal issue of standing de novo. Kothe, 152 S.W.3d at 59; see Parker v. State, 182 S.W.3d 923, 925
(Tex. Crim. App. 2006). When the trial court fails to make explicit findings of fact, we imply fact
findings that support the trial court’s ruling so long as the evidence supports these implied findings.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Examining all the circumstances,
the trial court could reasonably find that Elrod was a resident of the Yorkshire residence, at least
part-time, or a regular overnight guest with a legitimate expectation of privacy in where she and her
child frequently and routinely spent the night. Under the circumstances, the trial court could
reasonably conclude that Elrod had a subjective expectation of privacy in the home that was
objectively reasonable.
Expectation of Privacy in Room with Crib
The State additionally argues that while Elrod may have standing in the Yorkshire
residence, she had no reasonable expectation of privacy in the room containing the crib or the other
property described in the first search warrant because she called for emergency aid. Relying on a
combination of the emergency doctrine and plain view doctrine, the State contends that Elrod
essentially waived her expectation of privacy because she invited emergency responders into the
home and those individuals saw, in “plain view,” the evidence later sought in the search warrant.4
4
We note that there is no evidence in the record before us that the emergency responders
actually entered the Yorkshire residence when responding to Elrod’s call for help or that they saw
any of the evidence the deputies later sought to search for and seize pursuant to the subsequent
search warrant.
9
The emergency doctrine is a recognized exception to the warrant requirement. Laney
v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003) (citing Mincey, 437 U.S. at 392).
The emergency doctrine allows police officers to make warrantless entries and searches when
they reasonably believe that a person within is in need of immediate aid. Shepherd v. State,
273 S.W.3d 681, 683–84 (Tex. Crim. App. 2008) (citing Mincey, 437 U.S. at 392); Laney,
117 S.W.3d at 861. The emergency doctrine is limited. It applies when the police are acting, not
in their “crime-fighting” role, but in their limited community caretaking role to “protect or preserve
life or avoid serious injury.” Laney, 117 S.W.3d at 861. The officer’s “actions [must be] totally
divorced from the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” Id. (quoting Mincey, 437 U.S. at 392). “[T]here is a difference between rendering
emergency aid and investigating the possibly criminal cause of the emergency. The emergency
doctrine justifies the former, but it does not always justify the latter.” Bray v. State, 597 S.W.2d 763,
768 (Tex. Crim. App. 1980). The emergency doctrine does not apply when the police are carrying
out their “crime-fighting” role by conducting a search based on probable cause to gather evidence
of a crime. Shepherd, 273 S.W.3d at 684; Laney, 117 S.W.3d at 858. If the emergency doctrine
applies, the police may seize evidence that is in plain view during the course of their legitimate
emergency activities. Shepherd, 273 S.W.3d at 684; Laney, 117 S.W.3d at 862.
The “plain view” seizure doctrine is another exception to the warrant requirement.
See Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). It allows an officer to seize an
item during a warrantless search if (1) the officer sees an item in plain view at a vantage point where
he has the right to be, and (2) it is immediately apparent that the item seized constitutes
10
evidence—that is, there is probable cause to associate the item with criminal activity. Miller v. State,
No. PD-0705-11, 2012 WL 5869416, at *8 (Tex. Crim. App. Nov. 21, 2012) (citing Martinez
v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000)); Ramirez v. State, 105 S.W.3d 730, 745 (Tex.
App.—Austin 2003, no pet.). Because such an officer is legitimately on the private premises, and
so long as he has not exceeded the authority granted him by the warrant or the exigency that
legitimizes his presence in the first place, he may seize any item in plain view that probable cause
tells him is contraband. State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010). He may seize
this item, just as he would be permitted to seize any item in public that it was “immediately
apparent” to him was contraband, without first obtaining a warrant. Id.
Neither the emergency doctrine nor plain view doctrine addresses the issue of
standing. They do not create, diminish, or even measure a person’s legitimate expectation of
privacy. Nor do they suggest the waiver of any expectation of privacy. Rather, these doctrines serve
to justify or excuse the governmental intrusion upon a person’s legitimate expectation of privacy
under certain circumstances. These doctrines do not support the State’s assertion that Elrod waived
her expectation of privacy by calling for emergency aid for P.E. and thus lacked standing to contest
the subsequent search of a particular room within the home. We reject the State’s contention that
by inviting emergency personnel into a residence to protect or preserve life, a person somehow
relinquishes her expectation of privacy in the home.
Moreover, the State is procedurally defaulted from asserting that the trial court’s
ruling should be reversed on this additional legal theory. An appellate court may affirm a trial
court’s decision on a legal theory not presented to the trial court because the ordinary notions of
11
procedural default do not require a prevailing party to list or verbalize in the trial court every possible
basis for upholding its decision. Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002)
(citing State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)); State v. Huddleston,
164 S.W.3d 711, 716 (Tex. App.—Austin 2005, no pet.). However, an appellate court may not
reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining
party because the ordinary notions of procedural default do not permit a trial court’s decision to be
reversed on a theory the trial court did not have an opportunity to rule on and upon which the
non-appealing party did not have an opportunity to develop a complete factual record. Hailey,
87 S.W.3d at 122; Huddleston, 164 S.W.3d at 716. The ordinary notions of procedural default apply
equally to the defendant and the State. Mercado, 972 S.W.2d at 78; Huddleston, 164 S.W.3d at 716.
Here, the State raises this argument—that pursuant to the emergency and plain view doctrines Elrod
waived her expectation of privacy and consequently lacks standing—for the first time on appeal.
The record does not reflect that it was raised or argued at the suppression hearing. Because the State
did not raise this contention below, it is waived. See Miller, 335 S.W.3d at 858.
Conclusion Regarding Standing
We conclude that the trial court did not abuse its discretion in finding that Elrod had
standing to challenge the first two search warrants and the subsequent searches of the Yorkshire
residence and the laptop seized from that residence. We overrule the State’s first point of error.
12
Probable Cause
The State next argues that the trial court erred by concluding that the magistrate
lacked probable cause to issue the search warrants for the Yorkshire residence and the laptop seized
from that residence. Consequently, the State contends that the trial court abused its discretion in
suppressing the evidence recovered from those searches.
Probable Cause Affidavit
No search warrant may issue unless a sworn affidavit is first presented to the
magistrate setting forth sufficient facts to show that probable cause exists for its issuance. Tex. Code
Crim. Proc. Ann. art. 18.01(b) (West Supp. 2012). The sworn affidavit must set forth facts sufficient
to establish probable cause:
(1) that a specific offense has been committed, (2) that the specifically described
property or items that are to be searched for or seized constitute evidence of that
offense or evidence that a particular person committed that offense, and (3) that the
property or items constituting evidence to be searched for or seized are located at or
on the particular person, place, or thing to be searched.
Id. art. 18.01(c) (West Supp. 2012). Probable cause for a search warrant exists if, under the totality
of the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial
chance” that contraband or evidence of a crime will be found at the specified location. Flores
v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213, 238,
243 n.13 (1983)).
When reviewing a decision by a judge or magistrate to issue a search warrant,
we apply a deferential standard of review because of the constitutional preference for law
13
enforcement officials to obtain warrants rather than conduct warrantless searches. State v. McLain,
337 S.W.3d 268, 271 (Tex. Crim. App. 2011). The facts submitted for the magistrate’s probable
cause determination are those contained within the four corners of the affidavit and are to be read
in a common-sense and realistic manner. McLain, 337 S.W.3d at 271; Rodriguez v. State,
232 S.W.3d 55, 61 (Tex. Crim. App. 2007). A magistrate may draw reasonable inferences from the
facts stated in the affidavit. Rodriguez, 232 S.W.3d at 61; Hedspeth v. State, 249 S.W.3d 732, 737
(Tex. App.—Austin 2008, pet. ref’d). When in doubt about the propriety of the magistrate’s
conclusion, we defer to all reasonable inferences the magistrate could have made. Rodriguez,
232 S.W.3d at 61; see McLain, 337 S.W.3d at 271. Our inquiry, then, is whether there are sufficient
facts stated within the four corners of the affidavit, coupled with inferences from those facts, to
establish a fair probability that evidence of a particular crime will likely be found at a given location.
See Rodriguez, 232 S.W.3d at 62.
The affiant in this case was Detective Wayne E. Lehman. The affidavit filed by the
detective in support of his request for a search warrant for the Yorkshire residence asserted his belief
that evidence used in the commission of aggravated assault would be found at that location. To
support this belief, the detective first included a description of Elrod’s account of how P.E. sustained
her injuries. According to Lehman, Elrod explained that she accidentally dropped the child when
she was putting her down for a nap because the dog bit her on the ankle. She further explained that
P.E.’s head struck the railing of the crib as she fell to the floor where she landed on top of a stuffed
animal toy. The detective then stated in his affidavit that he looked at photographs taken by a
colleague at the hospital where, according to the detective’s recitations, the child was “conscious and
14
alert.” The photos, attached to his affidavit, depict several bruises on the child’s face. The detective
then opined that the bruises on the child’s face “did not appear to be consistent with [Elrod’s]
account of the incident.”
There was no information in the affidavit about the detective’s training and
experience, his general knowledge of child abuse crimes, or his familiarity with injuries sustained
in such crimes based on his training and experience. Nor did he detail the facts on which he based
his belief that Elrod, or someone else, had somehow intentionally inflicted serious bodily injury to
P.E. Simply put, the information the detective provided in the affidavit merely asserted that he did
not believe Elrod’s story. A mere conclusory statement will not suffice to show probable cause.
Gates, 462 U.S. at 239.
Although the detective stated in the affidavit that he sought evidence in connection
with the offense of aggravated assault, the affidavit did not provide any basis from which it could
be inferred that P.E. was the victim of an aggravated assault. Nor did the affidavit contain any
information indicating that Lehman would have any reason to believe that evidence relating to an
aggravated assault would be found in the residence. There were no facts articulated to form a basis
of belief that P.E.’s injuries were sustained in an aggravated assault, other than the detective’s
disbelief of Elrod’s account based on his viewing of the photographs of the child. While the
detective sought evidence of objects that “could cause blunt force trauma to an infant child’s head,”
there were no facts set forth in the affidavit indicating that P.E. suffered blunt force trauma to the
head. The only information concerning the child’s medical condition was the attached photographs
depicting bruises on her face along with the recitation that these photographs were taken at the
15
hospital where the child was conscious and alert. The detective also sought evidence of items that
“could be used to suffocate or strangle an infant child,” yet nowhere in the affidavit are there any
facts suggesting that P.E. was strangled or suffered injuries consistent with strangulation or
suffocation. Finally, the detective also sought computer and digital evidence “which could be used
for internet searches that could be researched to conceal or attempt to conceal said offense.”
However, the affidavit set forth no facts from which to infer that Elrod had used any such devices.
The detective’s belief that a computer device could be used for such purposes does not set forth facts
from which to believe or infer that a computer device had been so used on this occasion.
Given the paucity of facts in the affidavit, we conclude that the magistrate did not
have a substantial basis for determining that probable cause existed to search the Yorkshire
residence. The affidavit lacked a substantial basis for determining that there was probable cause to
believe that the offense of aggravated assault had been perpetrated or that there was evidence related
to the commission of such offense in the Yorkshire residence. Accordingly, we hold that the trial
court did not abuse its discretion in granting Elrod’s motion to suppress the evidence obtained during
the search of the Yorkshire residence pursuant to the first search warrant.
The “fruit of the poisonous tree” doctrine serves to exclude as evidence not only the
direct products of Fourth Amendment violations, but also the indirect products. Wong Sun v. United
States, 371 U.S. 471, 484, 487–88 (1963) (explaining that exclusionary rule applies to evidence
“obtained either during or as a direct result of” Fourth Amendment violation); State v. Iduarte,
268 S.W.3d 544, 550–51 (Tex. Crim. App. 2008) (citing Armstrong v. State, 550 S.W.2d 25, 31
(Tex. Crim. App. 1976)). The evidence recovered from the laptop seized during the first search of
16
the Yorkshire residence was the indirect product of an illegal search. Therefore, that evidence was
properly subject to suppression based on the taint of the illegal search through which the laptop was
obtained. Moreover, the affidavit in support of the search warrant for the laptop, while adding the
offense of injury to a child as an offense believed to be committed, contained the same information,
or lack thereof, as the first search warrant. It too failed to set forth sufficient facts from which a
magistrate could determine that an offense had been perpetrated against P.E. or that there was
evidence related to the commission of such offense on the laptop. Again, the detective’s mere
suspicion that the laptop could have been used to research how to conceal a crime does not suffice
to show probable cause. Accordingly, we hold that the trial court did not abuse its discretion in
granting Elrod’s motion to suppress the evidence obtained pursuant to the search of the laptop.
Good Faith Exception
The State contends that, in the alternative, even if the search warrants at issue lacked
probable cause, the evidence is still admissible because the officers conducting the searches relied
on the search warrants in good faith. There is some dispute among the parties as to whether the State
is asserting a generic “good faith” exception under United States v. Leon, 468 U.S. 897, 924 (1984),
if such exception exists, or is limited to the statutory good faith exception contained in
Article 38.23(b) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann.
art. 38.23(b) (West 2005).
Texas law provides that evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of
the United States, shall not be admitted in evidence against the accused on the trial of any criminal
17
case. Id. art. 38.23(a) (West 2005). Pursuant to Article 38.23(b), “[i]t is an exception to the
provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement
officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based
on probable cause.” Id. art. 38.23(b). Under its unambiguous language, the statutory good faith
exception requires an initial finding of probable cause.
The State contends that because Elrod failed to verbally argue the statutory ground
for exclusion at the suppression hearing, it is not now limited by the statutory good faith exception.
Elrod argues that the statutory ground for exclusion was presented to the trial court because the
motion the trial court ruled on explicitly articulated Article 38.23 as a ground for exclusion.
However, we need not resolve this dispute because the State is procedurally defaulted from asserting
this “good faith” argument as a basis for reversing the trial court’s ruling. Again, an appellate court
may affirm a trial court’s decision on a legal theory not presented to the trial court, but it may not
reverse a trial court’s decision on a legal theory not presented to the trial court. Hailey, 87 S.W.3d
at 121–22; Huddleston, 164 S.W.3d at 716. Here, the State raises this good faith argument for the
first time on appeal. Because the State failed to raise this contention to the trial court below at the
suppression hearing, it is waived. See Miller, 335 S.W.3d at 858.
Conclusion Regarding Probable Cause
We conclude that the trial court did not err in finding that the magistrate lacked
probable cause to issue the first search warrant of the Yorkshire residence and that the ensuing search
warrant for the laptop was tainted by the illegality of the first search. Therefore, we hold that the
trial court did not abuse its discretion in suppressing the evidence obtained from the illegal search
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of the Yorkshire residence or the subsequent illegal search of the laptop recovered from the home.
We overrule the State’s second point of error.
CONCLUSION
We conclude that the trial court did not abuse its discretion in finding that Elrod had
standing to challenge the complained-of searches or in finding that the first two search warrants
lacked sufficient facts to show that probable cause existed for their issuance. Accordingly, we affirm
the trial court’s order of suppression.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Goodwin and Field
Affirmed
Filed: February 27, 2013
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