Pool v. State

157 S.W.3d 36, 2004 Tex. App. LEXIS 11311, 2004 WL 2903853
CourtCourt of Appeals of Texas
DecidedDecember 15, 2004
Docket10-03-00094-CR
StatusPublished
Cited by34 cases

This text of 157 S.W.3d 36 (Pool 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
Pool v. State, 157 S.W.3d 36, 2004 Tex. App. LEXIS 11311, 2004 WL 2903853 (Tex. Ct. App. 2004).

Opinions

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Based upon an informant’s tip and suspicious activities observed at John Pool’s residence, officers obtained a search warrant and found methamphetamine and items used in the manufacture of methamphetamine. Pool was arrested and filed a motion to suppress the evidence alleging that an illegal warrantless search provided the basis for the search warrant. Pool’s motion was denied, and he pleaded guilty, subject to the appeal of his motion. Because the officers engaged in an improper warrantless search, and because the affidavit for the search warrant does not establish probable cause once the facts gained from the warrantless search are omitted, we reverse.

BACKGROUND

An unknown confidential informant told Captain Jimmy Spencer that he had observed several people walking around Pool’s house, along with several propane tanks in Pool’s yard. The confidential informant also told Spencer that Pool was “probably cooking methamphetamine.”

Spencer and officers Todd Henkle, Michael Turner, and Brad Gannon decided to commence a “knock and talk” with Pool, where they would knock at Pool’s door and initiate a conversation with him in an attempt to corroborate the informant’s information. Upon arriving at Pool’s, Turner walked to the front door, knocked, and Pool answered. Turner told Pool about the information they had received concerning the manufacturing of methamphetamine and asked if they could search the premises. Pool initially gave his consent to search, yet immediately retracted it. While at the front door, Turner smelled a “chemical” odor.

After Pool answered the door, Spencer and Gannon traversed around a sixteen-foot-long partial fence attached to the side of Pool’s mobile home and entered Pool’s backyard. Once in the backyard, Spencer faintly smelled anhydrous ammonia, a chemical used in the manufacture of methamphetamine.1 At the back of the house, the officers noticed four propane tanks. A hose was attached to one of the tanks with blue oxidation around the valve, indicating to the officers the presence of anhydrous ammonia. Also, the officers could smell anhydrous ammonia emanating from the tanks. Meanwhile, Turner observed in plain view coffee filters, a cooler with duct tape, and a container with an unknown liquid next to a beige travel trailer. At this point, Spencer left to obtain a search warrant.

A search warrant was granted, and after finding methamphetamine and items used in the manufacture of methamphetamine, [40]*40the officers arrested Pool. Pool filed a motion to suppress the evidence alleging that it was obtained in violation of his constitutional privilege to be free from unreasonable searches and seizures. After the trial court denied Pool’s motion, Pool pleaded guilty, subject to the appeal of the denial of his motion and was sentenced to six years’ incarceration.

Pool argues that the trial court erred in denying Pool’s motion to suppress because (1) the affidavit for the search warrant does not establish probable cause; (2) the search warrant was based on information gained from a prior illegal warrantless search in violation of the Fourth Amendment to the United States Constitution; and (3) in violation of article I, section 9 of the Texas Constitution.

THE WARRANTLESS SEARCH

Pool argues in his second and third issues that the trial court erred in denying his motion to suppress because the search warrant was based on evidence obtained during a warrantless search in violation of the United States and Texas Constitutions, respectively. Pool argued these points to the trial court in his motion to suppress, and has preserved this issue for review. See Tex.R.App. P. 33.1(a)(1).

The Court of Criminal Appeals has recently clarified its position, as described in Guzman, on the standard of review applicable to motions to suppress.

In Guzman, we relied in part on Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In Ornelas, a case involving a warrant-less search, the Supreme Court held that appellate review of reasonable suspicion and probable cause should be conducted de novo. Ornelas, 517 U.S. at 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911. However, the Supreme Court went on to distinguish its prior holding in Gates, that a magistrate’s decision to issue a search warrant should be given deference and not reviewed de novo. The Supreme Court reiterated that the distinction between the standards of review applied to the determination of probable cause in warrant and warrantless searches was 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. Ornelas, 517 U.S. at 698, 116 S.Ct. 1657, 134 L.Ed.2d 911.
Guzman merely articulated a general principle for determining when an issue should be reviewed de novo and when it should be reviewed deferentially. The standard to be applied to the review of a magistrate’s determination of probable cause in issuing a search warrant is an exception to the general rule set out in Guzman. It is an exception mandated by the Fourth Amendment.
We recognize the distinction between the standards of review applicable to warrantless searches and searches pursuant to a warrant and reaffirm that a magistrate’s determination to issue a warrant is subject to the deferential standard of review articulated in Gates and Johnson.

Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004).

We interpret this language to mean that the de novo standard articulated in Guzman is appropriate when reviewing a warrantless search, while a deferential standard is used when reviewing a search pursuant to a warrant. Because Pool’s issues require review of both a warrantless search and a search pursuant to a warrant, we will review the issue of whether a warrantless search occurred using the Guzman standard and will give appropriate deference to the magistrate when re[41]*41viewing Pool’s first issue regarding the search warrant.

Therefore, in regards to Pool’s second and third issues, we review the denial of a motion to suppress giving almost total deference to the trial court’s determinations of historical facts and decisions involving mixed questions of law and fact if the resolution of those questions depends on an evaluation of credibility and demean- or. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). If the application of the law to facts is not dependent on an evaluation of credibility and demeanor, then our review is de novo. Id.; Brown v. State, 115 S.W.3d 633, 635 (Tex.App.-Waco 2003, no pet.).

The Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution protect against unreasonable searches and seizures. U.S. Const, amend. IV; Tex. Const, art. I, § 9. This protection includes both the home and the curtilage of the home. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984); Gonzalez v. State,

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Bluebook (online)
157 S.W.3d 36, 2004 Tex. App. LEXIS 11311, 2004 WL 2903853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pool-v-state-texapp-2004.