THE STATE OF TEXAS, Appellant v. RONALD ADOLPH MOORE, Appellee

REVERSE and REMAND; Opinion issued December 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01295-CR
............................
THE STATE OF TEXAS, Appellant
V.
RONALD ADOLPH MOORE, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F04-73145-TH
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OPINION
Before Chief Justice Thomas and Justices Moseley and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        In this interlocutory appeal, the State challenges the trial court's pretrial order granting a motion to suppress filed by appellee Ronald Adolph Moore. In its sole issue, the State contends the trial court erred because the allegations in the search warrant affidavit were sufficient to provide a magistrate with a substantial basis for concluding child pornography would be found in appellee's residence. We reverse and remand for trial on the merits.
Factual and Procedural Background
        On or about July 16, 2004, a search warrant was executed at appellee's residence at 6207 Fairway Avenue, Dallas, Texas, 75227, Dallas County, Texas. The search warrant was signed by a Dallas County municipal judge, sitting as a magistrate, on July 15, 2004. In twelve paragraphs, enumerated as a. through l., the warrant listed various items believed to be contained within the residence, including, among other things, computers, magnetic tape, hard disks, floppy disks, electronic communications, photographs, digital images of child pornography, phone numbers, address books, and all references to content, in any form, associated with a certain Yahoo user name and e-mail address set out in the warrant. The supporting affidavit stated that the enumerated items were implements or instruments used in the commission of a crime in violation of the laws of Texas, or were items constituting evidence of a criminal offense.
        The affiant on the search warrant affidavit is Detective Lori M. Rangel #7361 of the Dallas Police Department. Paragraph 4 of the affidavit states the affiant believes, “Ronald Adolph Moore, M/M, 02/09/46 and/or person or persons unknown to the Affiant, committed the offense: Violation of Texas Penal Code 43.26(e) (Possession or Promotion of Child Pornography).”
        Paragraph 5 of the affidavit reads:
 
        Affiant has probable cause for said belief by reason of the following facts: I, the Affiant, Detective Lori M. Rangel #7361 of the Dallas Police Department, am currently assigned to the Youth and Family Crimes Division, Child Exploitation Unit. I am responsible for the investigation of child molestation cases involving strangers, child sexual assault cases involving strangers, child pornography cases and the Internet solicitation of children for sexual purposes. I have been a police officer for 12 years and I am currently working as a member of the Dallas Internet Crimes Against Children Task Force.
 
        Paragraph 6 of the affidavit sets out the names of individuals, organizations and/or peace officers who provided information to affiant regarding the investigation, and information about each, together with information each provided. Included are National Center for Missing and Exploited Children (NCMEC); Yahoo! Inc.; Southwestern Bell Internet Services; Dallas Police Detective Steven A. Nelson #3704; Dallas Police Detective Gregory Dugger #6136; and retired Federal Bureau of Investigation (FBI) Special Agent Kenneth V. Lanning.
        Paragraph 7 defines certain words used in the affidavit, and sets out specific facts concerning the particular complaint in this case and the investigative trail creating probable cause to believe certain contraband was located on the premises at 6207 Fairway Avenue, Dallas, Texas, 75227.
        The search resulted in the seizure of the following items as reflected on the return and inventory: “Compaq CPU 2H07DCVGT6YR 7585 ”and “1 paper with passwords.” Appellee was charged with possession of child pornography on or about Juy 17, 2004.   See Footnote 2 
        On August 18, 2005, appellee filed a pretrial motion to suppress. In the motion, appellee claimed the search warrant was unlawful and violated his rights under the “Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 9, 10 and 19 of the Constitution of the State of Texas and under Article 38.23 of the Texas Code of Criminal Procedure.” More specifically, appellee contended the supporting affidavit failed to establish probable cause because it did not allege sufficient underlying facts to demonstrate there was a fair probability contraband or evidence would be found at the location to be searched. See Ellis v. State, 722 S.W.2d 192, 195 (Tex. App.-Dallas 1986, pet. ref'd). Appellee also noted that, to be sufficient, the supporting affidavit must establish a nexus between the house to be searched and the evidence sought.   See Footnote 3  On August 8, 2006, a hearing was held on the motion, at which the trial court considered argument of counsel and presentation of legal authorities, but no testimony was presented. The trial court granted the suppression motion on August 8, 2006.   See Footnote 4 
        On August 14, 2006, the State requested findings of fact and conclusions of law. Those findings and conclusions were not filed by the trial court until April 30, 2007, long after the State had given notice of appeal on August 23, 2006.   See Footnote 5  See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2007).
Standard of Review   See Footnote 6 
        The general rule is an appellate court reviews de novo probable cause determinations after we defer to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); see Ornelas v. United States, 517 U.S. 690, 697 (1996). Review of a magistrate's decision to grant a search warrant, however, is an exception to that general rule. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Such exception is “based on the Fourth Amendment's strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process.” Swearingen, 143 S.W.3d at 811.
Law
        The Fourth Amendment to the United States Constitution and article 1, section 9, of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const. amend. IV: Tex. Const. art. 1 § 9. The sufficiency of the affidavit in support of a search warrant is determined by considering the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates, 462 U.S. 213, 238 (1983); Swearingen, 143 S.W.3d at 811. An affidavit for a search warrant should be interpreted in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). A magistrate who reviews an affidavit is entitled to draw inferences from the facts contained in the affidavit. Gibbs, 819 S.W.2d at 830. The allegations in an affidavit are sufficient if they would “justify a conclusion that the object of the search is probably on the premises.” Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1198 (1997).
        The trial court, in determining whether an affidavit is sufficient to support a search warrant, examines the totality of the circumstances and gives great deference to the magistrate's decision to issue the warrant. Ramos, 934 S.W.2d at 362-63.
        Regarding the determination of probable cause, in Gates, the Supreme Court stated:
 
        The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
 
Gates, 462 U.S. at 231-32.
 
        Therefore, we review de novo the trial court's decision; however, in doing so, we must apply the standard required of the trial court. That standard is to consider the totality of the circumstances giving great deference to the magistrate's decision to determine whether the magistrate had a substantial basis for concluding probable cause existed. Lane v. State, 971 S.W.2d 748, 752 (Tex. App.-Dallas 1998, pet. ref'd). It is not the role of either the trial court or this court to substitute its opinion for the magistrate's. We may only determine if the magistrate had a substantial basis for deciding as he did and great deference should be given to the magistrate's decision. Gates, 462 U.S. at 236; Swearingen, 143 S.W.3d at 811.
Arguments on Appeal
        The State contends the trial court reversibly erred by not giving deference to the magistrate's reasonable conclusions and inferences and by examining the affidavit in a hypertechnical rather than commonsense manner, by isolating and discounting particular facts, and by not considering the totality of the circumstances presented in the affidavit. The State relies, in part, on Rodriguez v. State, 232 S.W.3d 55, (Tex. Crim. App. 2007) for its contention a court of appeals should give “deference to the magistrate's decision.” The State argues
 
under the totality of the facts presented, it was reasonable for the magistrate to infer that “paramour75227@yahoo.com,” “paramour56@hotmail.com,” and “ram55@swbell.net” were all screen names used by Ronald Adolph Moore, having a date of birth of 02/09/46, an address of 6207 Fairway Avenue, Dallas, Texas 75227, and a phone number of 214-388-4157[.] Because Ron Moore at this address had subscribed to Southwestern Bell Internet Services, and because the IP addresses provided by Yahoo were part of a block of IP addresses owned and controlled by the Internet Service Provider, Southwestern Bell Internet Services, it was reasonable for the magistrate to infer that Moore had a computer at his home. It was also reasonable for the magistrate to infer that because Yahoo is password-protected by a unique password created by the customer and that password is verified by Yahoo at the time the customer logs into the service, appellee Ronald Adolph Moore was the person who performed the affirmative act of posting these images of child pornography on his photo album, “http://photos.yahoo.com/paramour75227 ”from a computer at his home.
 
        Appellee responds that Rodriguez is more supportive of his argument that “this Court and the Trial Court should not defer to the point of abdication.” Appellee argues Rodriguez is factually distinguishable because, there, the warrant was based on a police officer's personal observations from which the magistrate could reasonably infer contraband at a specific location; whereas, here there were no personal observations from which the magistrate could reasonably infer contraband in a home computer.   See Footnote 7  Appellee argues the trial court's ruling is consistent with Rodriguez, noting that the Rodriguez court reiterated the importance of “an affidavit that allows the magistrate to independently determine probable cause and the magistrate's 'action[s] cannot be a mere ratification of the bare conclusions of others.' Rodriguez [, 232 S.W.3d at 61] quoting Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990).” Appellee concludes that “even in giving deference to the magistrate this Court like the Trial Court can find that the magistrate's erroneous finding of a sufficient nexus was not reasonable.”
        More specifically, appellee contends the affidavit is insufficient because it required the magistrate to infer (a) appellee owns a computer; (b) the computer is located at his residence; and (c) appellee used that computer to upload the images alleged. Appellee says “[t]he issues are not more complicated than that.” He then argues the trial court believed those were not reasonable inferences and the affidavit did not establish probable cause. Appellee characterizes the State's argument that “what is missing” from the affidavit cannot be considered as an “attempt at diversion.” Appellee says “what is missing are facts and circumstances within a police officer's knowledge, arising from a reasonably trustworthy source, which would warrant a person of reasonable caution to believe that items of contraband or evidence of a crime may presently be found in a specific place, [and] without those there is no probable cause to issue a search warrant[.]” Contending law enforcement “cut corners,” appellee points to the lack of an I.P. address which, according to appellee, cannot be reasonably inferred. He distinguishes the State's authorities because in those cases there were “traceable I.P. addresses, credit card numbers, AOL billing records or direct email transmissions.” Appellee notes the failure of Yahoo to verify information provided in setting up a free account. Appellee contends the affidavit
 
established that the Appellee had internet access at his home, that someone used his name to set up an Yahoo account, and that images were uploaded to that account, but [it] never established and it was unreasonable for the magistrate to infer that those images come [sic] from a computer at his home. Without more the affidavit is deficient and a search warrant based on it is invalid.
 
Appellee contends the State could have, but did not, “meet its burden of establishing probable cause that the images found on Yahoo were in [a]ppellee's residence in Dallas” and, further, that the magistrate ratified law enforcement's “conscious decision” to take short cuts by granting a search warrant. He then applauds the trial court for stopping them.
Analysis
         Applying the above standards, and after reviewing de novo the facts set out in the four corners of the affidavit, we hold that the affidavit was sufficient to allow the magistrate to have independently determined probable cause without merely ratifying the bare conclusions of others. See Rodriguez, 232 S.W.3d at 61 (citing Johnson, 803 S.W.2d at 288 (Tex. Crim. App. 1990) (quoting Gates, 462 U.S. at 238-39)). More specifically, we hold that, considering the totality of the circumstances, the magistrate could have reasonably inferred from the facts set out in the affidavit the following: appellee had internet access at his home; appellee, using his name, set up a Yahoo account; pornographic images were uploaded to that account; and the pornographic images were uploaded from a computer located in appellee's home. We further hold, therefore, the magistrate could have reasonably concluded a probability existed that child pornography would be found at appellee's residence.
        In our review, we have given great deference to the magistrate's decision to issue the warrant, as we must. Gates, 462 U.S. at 236; Swearingen,143 S.W.3d at 811. Because the trial court did not give such required deference to the magistrate's decision, it reversibly erred.
        We reverse the trial court's written order of August 8, 2006, granting appellee's motion to suppress. We remand this case to the trial court for further proceedings.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
061295F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The indictment alleged, in relevant part, that appellee on or about the “17th day of July A.D., 2004 in the County of Dallas and said State, did then and there intentionally and knowingly possess visual material, to-wit: a disk that allows an image to be displayed on a computer, namely, a computer hard drive, that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to-wit: sexual contact and lewd exhibition of the genitals . . . .”
Footnote 3 During arguments to the trial court appellee also argued “staleness” as being interrelated to the lack of probable cause; appellee makes the same argument on appeal.
Footnote 4 To correct a typographical error in the address, appellant amended his motion to suppress in February 2006. The amended motion appearing in the appellate record is not file-marked and appears in the index as “Amended Motion to Suppress (Not File Marked).” The difference in the original and amended motions can be found in paragraph II: the original motion sought suppression of evidence obtained in a search of “639 West Kaufman, Apt. A, Paris, Lamar County, Texas” and the amended motion sought suppression of evidence obtained in a search at “6207 Fairway Ave., Dallas, Texas, 75227.”
Footnote 5 The April 30, 2007 findings of fact and conclusions of law appear in the appellate record in a supplemental clerk's record filed on June 1, 2007. The clerk's record in this case was filed in this court on March 2, 2007, and contains a certification by the clerk dated February 22, 2007. The reporter's record in this case was filed in this court on December 20, 2006.
 
Rule 25.2(g) of the Texas Rules of Appellate Procedure provides, “Effect of Appeal. Once the record has been filed in the appellate court, all further proceedings in the trial court - except as provided otherwise by law or by these rules - will be suspended until the trial court receives the appellate-court mandate.” Thus the trial court's written findings of fact and conclusions of law, not being properly before this court, will be disregarded.
Footnote 6 We note initially that appellee's brief sets out an improper standard of review. Appellee cites Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) and Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006) in support of his argument that the standard of review is one of deference to the trial court's determination. It is not. It is de novo review giving great deference to the magistrate's decision.
Footnote 7 Appellee gives what he terms a “good analogy”: finding drugs during a traffic stop and inferring that there are more drugs at the person[']s residence by looking at his driver's license.