Arnold v. State

47 S.W.3d 757, 2001 Tex. App. LEXIS 3191, 2001 WL 520795
CourtCourt of Appeals of Texas
DecidedMay 17, 2001
DocketNos. 14-00-00627-CR, 14-00-00681-CR
StatusPublished
Cited by7 cases

This text of 47 S.W.3d 757 (Arnold v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. State, 47 S.W.3d 757, 2001 Tex. App. LEXIS 3191, 2001 WL 520795 (Tex. Ct. App. 2001).

Opinion

OPINION

WITTIG, Justice.

Appellants were arrested for manufacture of a controlled substance. After the [758]*758trial court denied their motion to suppress, they pled nolo contendere. The court assessed each appellant 25 years’ confinement and gave permission to appeal. In this consolidated appeal, appellants contend the police obtained the search warrant by providing deceptive information in the supporting affidavit. We determine whether the court erred in denying the motion to suppress. We affirm.

Background

On or about November 2, 1999, Texas DPS Sergeant Lewis Hodges, a narcotics investigator, received a tip from a confidential informant (Cl) that appellants operated a methamphetamine lab in a remote location in Burleson County. On November 17, after conducting an investigation, Hodges swore out an affidavit in support of a request for a warrant to search the property. The affidavit stated, in part:

Affiant has obtained information from a[CI]. The Cl has provided information in the past, which has proven to be true and correct. The Cl has provided directions to said residence, a description of said residence, and a description of the curtilage around said residence that has been confirmed through independent investigation by Affiant. In the past seventy-two hours, the Cl has provided information that resulted in the seizure of methamphetamine from said residence by the Affiant.
The Cl advised that the Cl has witnessed the Arnolds selling marihuana at said residence. The Cl advised that within the past fifteen days the Cl witnessed the Arnolds manufacturing and distributing methamphetamine at said residence. The Cl advised that most of the chemicals and equipment used to manufacture the methamphetamine are being stored in a dark green tent located to the north and west of the said residence. The Cl advised that the Cl saw two shotguns and two rifles at said residence. The Cl advised that the Arnolds have six guard dogs on the property.

A magistrate granted the warrant and it was executed the following day. The police found contraband and appellants were arrested and charged with manufacture of a controlled substance. Appellants moved to suppress the evidence obtained as a result of the search, contending, among other things, the officer inserted false statements in the supporting affidavit about (1) the manner in which he seized the contraband and (2) his knowledge of the Cl’s having provided true and correct information in the past. The court denied the motion and appellants bring this appeal of that ruling.

Standard of Review

Appellants couch the hearing on the motion to suppress as a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). While it is not clear that the court agreed to hear the evidence under the auspices of Franks, we will review it as such. In Franks, the Supreme Court held that if a defendant established by a preponderance of the evidence that a falsehood made knowingly, intentionally, or with reckless disregard for the truth was included in a probable cause affidavit, and if it was material to establish probable cause, it must be excised from the affidavit. See Janecka v. State, 937 S.W.2d 456, 462 (Tex.Crim.App.1996) (citing Franks, 438 U.S. at 156, 98 S.Ct. 2674). If the abridged affidavit is insufficient to establish probable cause, the warrant must be voided and its fruits excluded from evidence. Id. The Franks Court explained, however, that the requirement of a truthful showing of probable cause does not mean “truthful” in the [759]*759sense that every fact recited in the warrant affidavit is necessarily correct. Rather, it must be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. Id. (citing Franks, 438 U.S. at 164-65, 98 S.Ct. 2674).

This appeal is based in part on testimony and findings from a hearing with testimony of a live witness. Though we review issues of law de novo, the trial court, as the sole factfinder and judge of the witnesses’ credibility and weight of the evidence, is owed great deference, and its ruling on such issues will be overruled only if outside the bounds of reasonable disagreement. See Janecka, 937 S.W.2d at 462.

Discussion

In a single issue, appellants contend their Fourth Amendment right to be free of illegal searches and seizures was violated when contraband was seized under authority of a search warrant that had been illegally obtained from a magistrate by deception. Appellants do not clearly specify which statements they wish to have excised from Hodges’ affidavit. However, it appears the challenged portions are (1) “[t]he Cl has provided information in the past, which has proven to be true and correct,” and (2) “[i]n the past seventy-two hours, the Cl has provided information that resulted in the seizure of methamphetamine from said residence by the Affi-ant.” For reasons stated below, we find that the first statement was not deceptive or material under Franks. We need not address the second statement because its inclusion in the affidavit is immaterial to the existence of probable cause.

Hodges was the only witness called at the hearing. Pertinent testimony regarding whether the Cl had provided true and correct information in the past was as follows:

Q Now you indicate that the Cl had previously been one that you’d received information in the past which had proven to be true and correct.
A Yes, sir.
Q Had he been a confidential informant for you personally?
A Not for me.
Q Had he been a confidential informant for somebody else?
A Yes, sir.
Q Okay. So at least with respect to you when you say he gave you information in the past that had been proven true and correct, is that correct?
A Yes, sir, it is.
Q Okay. Was it in regards to narcotics trafficking?
A Yes, sir.

In his affidavit, Hodges stated the Cl had given true and correct information in the past. Appellants do not raise a claim that the Cl did not provide true and correct information to police in the past. Nor do they raise a claim that Hodges did not know this. Rather, it appears their complaint only goes to whether Hodges deceived the magistrate by omitting to whom the Cl had related the past information.1 Thus, in light of the manner in which the affidavit is couched and Hodges’ testimony, the relevant issue is properly stated as whether Hodges misled the magistrate by failing to disclose that the Cl had not [760]*760provided the true and correct information directly to him in the past. However, our review of caselaw following Franks indicates that the manner in which an officer receives information from a Cl is not material as it pertains to probable cause. See Janecka,

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Bluebook (online)
47 S.W.3d 757, 2001 Tex. App. LEXIS 3191, 2001 WL 520795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-state-texapp-2001.