James David Harrison v. The State of Texas--Appeal from 22nd District Court of Hays County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-177-CR
JAMES DAVID HARRISON,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 89-339, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

Appellant Harrison appeals his conviction for possession of cocaine in an amount of less than twenty-eight grams. Appellant entered a plea of nolo contendere to the indictment in a bench trial after waiving trial by jury. The trial court deferred adjudication of guilt and placed appellant on probation for a period of five years subject to certain conditions. Appellant gave notice of appeal under Tex. R. App. P. 40(b)(1). An appeal from a judgment or order granting a deferred adjudication is now permissible. See Dillehey v. State, 819 S.W.2d 623 (Tex. Crim. App. 1991).

Appellant advances six points of error. In three points of error, appellant contends that the trial court erred in failing to grant his motion to suppress evidence in light of the Fourth and Fourteenth Amendments, United States Constitution; Article I, section 9, Texas Constitution; and Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 1993), "as there was no probable cause established in the affidavit in support of the search warrant." In his fourth point of error, appellant urges that the trial court erred in failing to grant the suppression motion because the search warrant was based upon an affidavit which included false or recklessly misleading information. In his last two "points," appellant contends that the good faith exception of United States v. Leon, 468 U.S. 897 (1984), and the good faith exception of article 38.23 of the Texas Code of Criminal Procedure (1) do not apply in the instant case. These "points" are supporting arguments, not points of error.

Appellant filed two pretrial motions to suppress evidence. The first motion sought to suppress all evidence seized as a result of the execution of the search warrant based on an affidavit that did not reflect probable cause. The second motion was a Franks v. Delaware, 438 U.S. 154 (1978), motion alleging falsehood and reckless disregard for the truth by the affiant. See Dancy v. State, 728 S.W.2d 772, 781 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 975 (1987); Ramsey v. State, 579 S.W.2d 920, 922 (Tex. Crim. App. 1979). After an evidentiary hearing, the motions were overruled. Appellant subsequently entered his nolo contendere plea in accordance with a plea bargain agreement.

An affidavit in support of a search warrant must contain sufficient information to support the magistrate's finding of probable cause. Keen v. State, 626 S.W.2d 309, 312 (Tex. Crim. App. 1981); Mayfield v. State, 800 S.W.2d 932, 934 (Tex. App.--San Antonio 1990, no pet.). This is a requirement of the federal and state constitutions and Texas statutory law. See Fourth and Fourteenth Amendments, United States Constitution; Article I, section 9, Texas Constitution; Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 1993). Thus, search warrants properly issue only when predicated on probable cause. Article 18.02(a)(10) of the Texas Code of Criminal Procedure provides:

 

A search warrant may be issued to search for and seize:

 
* * * * *

(10) property or items, except the personal writings of the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense . . . . [emphasis supplied]

 

Tex. Code Crim. Proc. Ann. art. 18.02(a)(10) (West Supp. 1993).

Before a search warrant may issue to search for property or items as set forth in article 18.02(a)(10), the provisions of article 18.01(c) and (d) of the Texas Code of Criminal Procedure must be considered. These sections provide:

 

(c) A search warrant may not be issued pursuant to Subdivision (10) of Article 18.02 of this code unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts 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. Except as provided by Subsection (i) of this article, only a judge of a municipal court of record who is an attorney licensed by the State of Texas, statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants pursuant to subdivision (10), Article 18.02 of this Code.

 

. . . .

 

(d) Only the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 of this code . . . may be seized. Subsequent search warrants may not be issued pursuant to Subdivision (10) of Article 18.02 of this code to search the same person, place, or thing subjected to a prior search under Subdivision (10) of Article 18.02 of this code.

 

Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp. 1993) and (d) (West 1977).

In reviewing the sufficiency of the affidavit, we use the "totality of the circumstances" analysis. Illinois v. Gates, 462 U.S. 213 (1983); Bower v. State, 769 S.W.2d 887, 903 (Tex. Crim. App.), cert. denied, 492 U.S. 927 (1989); Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App.), cert. denied, 488 U.S. 848 (1988); Mayfield, 800 S.W.2d at 934. Moreover, in determining the sufficiency of an arrest or search warrant, a reviewing court is limited to the "four corners of an affidavit." Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992); Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Mayfield, 800 S.W.2d at 934. This determination, however, is not meant "to place legalistic blinders on the process where a neutral and detached magistrate must decide whether there are sufficient facts stated to validate issuance of a proper warrant." Lagrone, 742 S.W.2d at 661. The affidavit for a warrant should be interpreted in a common sense and realistic manner. The magistrate is permitted to draw reasonable inferences therefrom. Id.

The search warrant in the instant case dated September 30, 1989, was based on an affidavit of the same date. The affiant, Sergeant Carl Deal of the San Marcos Police Department, sought authority to search the premises at 1602-A Mill Street in San Marcos for the bank records of James David Harrison [appellant] and Jill Byler "and persons unknown residing at said location." In addition, Officer Deal sought permission to search, inter alia, for bank statements, records of canceled checks, loan applications, cashier's checks, money orders, rental contracts for safety deposit boxes, certificates of deposit, wire transfers, as well as real estate records including deeds, records of the purchase or sale of stock, copies of federal income tax returns, airline tickets, passports, computer and telephone records, and all video and audio records "made by the named persons" of violations of the Texas Controlled Substances Act. (2)

The affidavit did not seek authority to search for cash or contraband, (3) but was directed principally to securing a warrant to search for financial records.

We examine the sufficiency of the affidavit to see if it establishes that a specific offense has been committed and whether it specifically describes the property or items that constitute evidence of the specific offense or evidence that a particular person committed the offense. Further, the affidavit must establish that the property or items to be searched for or seized are located at the place to be searched. See State v. Cantu, 785 S.W.2d 181, 184 (Tex. App.--Houston [14th Dist.] 1990, no pet.).

With regard to the specific offense requirement, the affidavit alleges:

 

On or about the 29th day of September, A.D. 1989, the said JAMES DAVID HARRISON and JILL BYLER and persons unknown to Affiant, in Harris County, Texas, did then and there violate the Texas Controlled Substances Act, and it is the belief of the affiant that criminal instruments used in the commission of this offense are contained in the above described place.

 

The Texas Controlled Substances Act, Tex. Health & Safety Code, Chapters 481-85 (West 1992), contains many penal provisions. The above allegations alone do not establish that a specific offense was committed. Much of the affidavit is devoted to a description of the activities of one Mark Northcutt, a known drug dealer. Affiant Deal alleged that on September 26, 1989, he became "aware" that Northcutt had made arrangements to purchase twenty-five kilos of cocaine in Houston for which he was to pay $337,500.00. This information apparently came from an unidentified informant for the Drug Enforcement Agency. Affiant alleged that on September 29, 1989, Northcutt and an associate, Craig Allen, were arrested in Houston while in possession of twenty-five kilos of cocaine. Affiant then asserted, as if it was his first hand observation, that appellant was present in his automobile at the place of arrest and within sight of the drug transaction and that appellant fled the scene "and is believed to have been in possession of the $337,500 in cash." At the evidentiary hearing, Officer Deal admitted that, while he was present, he did not see appellant or his automobile at the scene of the arrest in Houston. Deal acknowledged that another San Marcos police officer had seen the appellant "driving his Trans Am coming off the Interstate in front of the hotel" where the arrest of Northcutt and Allen occurred. Deal could not recall the distance from which the other officer had observed appellant in an automobile. The fact that this information came from another officer was not revealed to the magistrate who issued the warrant. This was one of the Franks complaints made by appellant in his second motion to suppress evidence, and which fact appellant claims, because of the misstatement, should have been deleted from the affidavit in any assessment of probable cause. See Hass v. State, 790 S.W.2d 609, 611 (Tex. Crim. App. 1990).

The affidavit is lengthy and imprecise. At one point affiant alleges that appellant, Jill Byler and "persons unknown to affiant" committed an unspecified violation of the Texas Controlled Substances Act in Houston on September 29, 1989. Later, affiant alleges that on the same date, Northcutt, about whom affiant had received information for four years, and one Craig Allen were arrested in possession of cocaine. While affiant alleged appellant was present in the area or place of arrest, no mention is made of Byler or "persons unknown to affiant" being present or involved. Whether affiant was referring to the same offense is not clear from the affidavit. We conclude that the affidavit fails to establish that a specific offense has been committed within the contemplation of article 18.01(c).

Even if there is probable cause to believe that a person has committed a specific offense, this does not automatically supply probable cause to search that person's house for evidence of the crime. Lindley v. State, 773 S.W.2d 579, 584 (Tex. App.--Tyler 1989, pet. ref'd). The affidavit must set forth sufficient circumstances to enable the magistrate to judge, independently, the validity of affiant's belief that the evidence sought is at the place to be searched. Tolentino v. State, 638 S.W.2d 499, 502 (Tex. Crim. App. 1982); see also Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983). The instant affidavit does not set forth substantial facts which established probable cause to believe the items sought would be located at 1602-A Mill Street in San Marcos. See Johnson v. State, 722 S.W.2d 417, 422 (Tex. Crim. App. 1986). In a series of conclusory statements without sufficient underlying facts to support the statements, the affiant asserted that appellant was a business associate, employee, and runner for Northcutt, for which services he was rewarded. Affiant then alleged that based on his experience and training he was "aware" that individuals involved in the trade of illegal drugs and narcotics maintain detailed records of drug and financial transactions; that Northcutt had "been documented" as having had difficulty in hiding cash profits from his drug trade; and that this often results in maintenance of records beyond those normally documented by "standard and legal procedures." Affiant then asserted that he was "aware" that individuals who rendered services as appellant did as an employee for Northcutt would maintain records of transactions, payments, rewards, bank books, safety deposit boxes, etc. Mere conclusory information in an affidavit will not, however, support a finding of probable cause. Ramsey v. State, 675 S.W.2d 517, 519 (Tex. Crim. App. 1984); see also Jones v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992); Green v. State, 615 S.W.2d 700, 706 (Tex. Crim. App. 1980), cert. denied, 454 U.S. 952 (1981). Likewise, mere affirmation of belief or suspicion is not enough to sustain the issuance of a search warrant. Tolentino, 638 S.W.2d at 502.

Under any circumstances, the affidavit does not establish probable cause that specifically described property or items that are to be searched for and seized constitute evidence of a specific offense or evidence that a particular person committed that offense. Drousche v. State, 651 S.W.2d 883, 885 (Tex. App.--Austin 1983, no pet.). The second requirement of article 18.01(c) was not met. See Mulder v. State, 707 S.W.2d 908, 916 (Tex. Crim. App. 1986).

Moreover, appellant was not connected in any way with the address in question. See Cassias, 719 S.W.2d at 588 n.2. The assertions in the affidavit that the "premises are in charge of and controlled" by appellant or that he resided at the location are conclusory statements, the source of which is not given nor the reliability vouched for. Id. Affiant made no claim that he checked city or telephone directories, drivers' license records or determined to whom the utilities at the house were registered, nor does he assert that he had personal knowledge or a report of surveillance which tied appellant to the particular address.

Viewing the affidavit from its four corners and in light of the totality of the circumstances, we find that the affidavit was deficient in that it did not establish a specific offense, failed to show that the items and property to be searched for and seized could be found on the premises in question, and failed to connect appellant with the address. We sustain appellant's first three points of error.

In view of our disposition of the first three points of error, we do not reach the fourth point of error that the doctrine of Franks v. Delaware was violated and that certain statements in the affidavit should be excluded before making an assessment of probable cause. Furthermore, we do not find the "good faith" exception to the exclusionary rule found in article 38.23(b) of the Texas Code of Criminal Procedure and the "good faith" exception of United States v. Leon, 468 U.S. 897 (1984) to be applicable. The statutory exception enacted as article 38.23(b) is not co-extensive with the federal "good faith" exception of Leon but applies only if the supporting affidavit states probable cause. Curry v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991); Gordon v. State, 801 S.W.2d 889, 912-13 (Tex. Crim. App. 1990); Flores v. State, 827 S.W.2d 416, 418 (Tex. App.--Corpus Christi 1992, pet. ref'd.); Eatmon v. State, 738 S.W.2d 723, 724-25 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd) (statutory good faith exception inapplicable where search warrant not supported by probable cause). The exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer's belief in probable cause is reasonable. Gordon, 801 S.W.2d at 912-13; Curry v. State, 815 S.W.2d 263, 265 (Tex. App.--Houston [14th Dist.] 1991, no pet.). When a defendant objects on state grounds as in the instant case, article 38.23(b) is automatically invoked. Polk v. State, 738 S.W.2d 274, 276 (Tex. Crim. App. 1987), and the less restrictive good faith exception of Leon may have no application. See Polk v. State, 704 S.W.2d 929, 933-34 (Tex. App.--Dallas 1986), aff'd Polk, 738 S.W.2d at 276. Even if the Leon exception can be said to be applicable to the instant case, we find that the affidavit was so lacking in facts to support a finding of probable cause that no good faith reliance by the officers was manifested. See Davis v. State, 831 S.W.2d 426, 441 (Tex. App.--Austin 1992, pet. ref'd).

The judgment is reversed and the cause is remanded.

 

John F. Onion, Jr., Justice

[Before Justices Powers, B. A. Smith and Onion*]

Reversed and Remanded

Filed: January 20, 1993

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

1. Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 1993).

2. The Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit general warrants which fail to particularly describe the property to be seized and "allow general exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 480 (1976); Walthall v. State, 594 S.W.2d 74, 78 (Tex. Crim. App. 1980).

3. The return on the search warrant reflects that the officers found, inter alia, a "pill bottle with white powder field tested as cocaine." This was the basis of the instant prosecution. The evidentiary hearing revealed that appellant was not present at the time of the search.