ACCEPTED 13-14-00588-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/2/2015 11:31:04 AM DORIAN RAMIREZ CLERK
NO. 13-14-00588-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH DISTRICT CORPUSOFCHRISTI/EDINBURG, TEXAS TEXAS 1/5/2015 8:00:00 AM AT CORPUS CHRISTI DORIAN E. RAMIREZ Clerk
THE STATE OF TEXAS, Appellant, v.
CHRISTOPHER ALEXSON PAPPILLION, Appellee.
On Appeal from the 377th District Court Victoria County, Texas Cause Number 13-2-27,162-D
BRIEF FOR THE STATE
STEPHEN B. TYLER Criminal District Attorney Victoria County, Texas
BRENDAN WYATT GUY Assistant Criminal District Attorney Victoria County, Texas 205 N. Bridge St. Ste. 301, Victoria, Texas 77901-6576 (361) 575-0468 (361) 570-1041 (fax) State Bar No. 24034895 (On Appeal)
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as follows:
APPELLANT The State of Texas
APPELLEE Christopher Alexson Pappillion
TRIAL JUDGE The Honorable Robert Cheshire 377th District Court Victoria, Texas
TRIAL PROSECUTOR Edward Paul Wilkinson State Bar No. 24052674 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria, Texas 77901-6576
TRIAL DEFENSE ATTORNEY Brent Andrew Dornburg State Bar No. 24003930 120 N. Main Street Victoria, Texas 77901
APPELLATE STATE’S Brendan Wyatt Guy ATTORNEY State Bar No. 24034895 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria, Texas 77901-6576
APPELLATE DEFENSE Brent Andrew Dornburg ATTORNEY State Bar No. 24003930 120 N. Main Street Victoria, Texas 77901
Brief of Appellant ii Victoria County Criminal District Attorney No. 13-14-00588-CR TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ........................................................................ iii
INDEX OF AUTHORITIES ................................................................ iv-v
STATEMENT OF THE CASE............................................................. 1-2
ISSUES PRESENTED.............................................................................. 2
STATEMENT OF THE FACTS .......................................................... 2-7
SUMMARY OF ARGUMENT ........................................................... 7-10
ARGUMENT ...................................................................................... 10-27
I. The trial court erred in overruling the magistrate’s finding that the search warrant affidavit established probable cause ....................................................................... 10-17
II. The trial court erred in finding a “reckless disregard for the truth”in the search warrant affidavit....................... 18-25
III. Even if there was a Franks violation, the trial court still erred by suppressing the evidence in this case ............. 25-27
PRAYER .................................................................................................. 28
SIGNATURE ........................................................................................... 28
CERTIFICATE OF COMPLIANCE ................................................... 29
CERTIFICATE OF SERVICE ............................................................. 30
Brief of Appellant iii Victoria County Criminal District Attorney No. 13-14-00588-CR INDEX OF AUTHORITIES
United States Supreme Court Cases
Franks v. Delaware, 98 S. Ct. 2674 (1978)......... 2, 9-10, 18-19, 22, 24-26
Illinois v. Gates, 103 S. Ct. 2317 (1983) ................................................. 22
Texas v. Brown, 460 U.S. 730 (1983) ...................................................... 12
Texas Cases
Harris v. State, 227 S.W. 3d 83 (Tex. Crim. App. 2007) ...................... 26
Flores v. State, 319 S.W. 3d 697 (Tex. Crim. App. 2010) ......... 11-14, 17
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .................... 20
Rodriguez v. State, 232 S.W. 3d 55 (Tex. Crim. App. 2007) ......... 11, 16, ........................................................................................................ 17, 23-24
State v. McLain, 337 S.W. 3d 268 (Tex. Crim. App. 2011) ............ 10-12, ............................................................................................................. 17, 22
Texas Statutes
TEX. CODE CRIM. PROC. ANN. art. 18.01 (West 2014) ................... 16
TEX. CODE CRIM. PROC. art. 38.141 (West 2005) ........................... 24
TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2014) ...... 25
TEX. HEALTH & SAFETY CODE § 481.112 (West 2010) ................. 25
Brief of Appellant iv Victoria County Criminal District Attorney No. 13-14-00588-CR Texas Rules
TEX. R. APP. 9.4..................................................................................... 29
TEX. R. APP. 38.1..................................................................................... ii
Brief of Appellant v Victoria County Criminal District Attorney No. 13-14-00588-CR NO. 13-14-00588-CR
IN THE COURT OF APPEALS FOR THE THIRTEEN DISTRICT OF TEXAS AT CORPUS CHRISTI
THE STATE OF TEXAS…………………………………………..Appelant
v.
CHRISTOPHER ALEXSON PAPPILLION,.……………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellant in the above numbered
and entitled cause, and files this the Appellant’s brief showing:
STATEMENT OF THE CASE
On April 3, 2014, Appellee was charged by indictment with one count
of Manufacture or Delivery of Substance in Penalty Group 1 in an amount of
four grams or more but less than 200 grams, one count of Manufacture or
Delivery of a Substance in Penalty Group 1-A in an amount of 80 abuse
units or more but less than 4,000 abuse units, one count of Manufacture or
Delivery of a Substance in Penalty Group 2 in an amount of 400 grams or Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 1 more, one count of Possession of Marihuana in an amount of five pounds or
less but more than four ounces, and one count of Manufacture or Delivery of
a Substance in Penalty Group 3 or 4 in an amount of 28 grams or more but
less than 200 grams. [CR-I-5-6]. On August 21, 2014 Appellee filed a
motion to suppress. [CR-I-20-24]. A hearing was held on that motion on
September 4, 2014. [RR-I-1]. On October 7, 2014, the Honorable Robert
Cheshire presiding, granted Appellee’s motion to suppress with a written
order that included findings of fact and conclusions of law. [CR-I-27]. The
State timely filed its notice of appeal on October 8, 2014. [CR-I-28-31].
ISSUES PRESENTED
1) Did the trial court err in overruling the magistrate’s conclusion that
the affidavit in this case provided probable cause to search Appellee’s
residence?
2) Did the trial court err in finding there was a reckless disregard for
truth in the search warrant affidavit?
3) If there was a Franks violation was suppression of the evidence the
appropriate remedy in this case?
STATEMENT OF THE FACTS
On January 16, 2014, officers of the Victoria Police Department
executed a warrant at Appellee’s residence. [CR-I-20]. That warrant was Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 2 issued by the Honorable Jack W. Marr, District Judge of the 24th Judicial
District Court on January 14, 2014. [DE-1]. Judge Marr reviewed a sworn
affidavit submitted by Detective Dennis Paine of the Victoria Police
Department on January 14, 2014 prior to issuing the search warrant. [DE-2].
Clause 7(a) of the affidavit stated that the Confidential Informant
(hereafter CI) who was providing the information to the investigating
officers has proven to be reliable and credible and had been verified by
officer observation and monitored recordings. [DE-2-pg.3].
Clause 7(c) of the affidavit confirmed that the CI was searched for
contraband by the investigating officers prior to conducting this operation
without any contraband being located on his person. Id. That clause also
stated that the investigating officers outfitted the CI with a body wire to
provide audio surveillance of the purchase. Id.
Clause 7(d) of the affidavit then described how the CI was given $300
of United States currency by the Victoria Police Department to purchase
Cocaine with and how the CI went to 201 Wearden Drive, where the
purchase of Cocaine took place. Id. This clause further stated that the CI
was monitored physically and through the body wire throughout the duration
of the purchase. Id. This clause then described how the CI’s vehicle was
parked in the driveway of the 201 Wearden Drive location for several Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 3 minutes and how after the purchase was complete the CI left the location.
Id. This recorded audio as well as the purchased contraband, constitute pre-
warrant evidence other than a statement of the person to whom the offer was
made.
Clause 7(g) of the affidavit attested that the 201 Wearden Drive
residence belonged to the Appellee and noted that the Victoria Police
Department had intelligence reports from multiple sources that Appellee was
a drug dealer. [DE-2-pg. 4].
Clause 7(h) of the affidavit declared that an anonymous source had
reported that Appellee had a safe full of illegal Steroids and other
contraband. Id.
Cluase 7(i) of the affidavit established that the residence at 201
Wearden Drive was owned by John and Lita Pappillion, the Appellee’s
parents. Id.
At no place in the affidavit is there any assertion that it was the CI
ever went inside the residence at 201 Wearden Drive or that the CI himself
purchased narcotics from someone inside the residence; nor is there
representations of manner and means of delivery (i.e. suggesting actual
rather than constructive transfer or transfer instead of possession with intent
to deliver). [DE-2]. Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 4 Appellee’s motion to suppress alleged that the search warrant in this
case was defective because the affidavit did not reflect sufficient probable
cause to justify the issuance of a search warrant. [CR-I-21-22]. Appellee
also alleged that the issuing magistrate had been misled by information in
the affidavit that the submitting officer knew was false or would have known
to be false if not for a reckless disregard for the truth. [CR-I-22].
At the suppression hearing, Appellee offered three documentary items
of evidence: the search warrant at issue in the case (Defense Exhibit 1), the
affidavit for that search warrant (Defense Exhibit 2), and the officer’s
returned inventory of the items obtained pursuant to the search warrant
(Defense Exhibit 3). [RR-I-6].
Appellee then called Detective Dennis Paine of the Victoria Police
Department to testify. [RR-I-7]. Detective Paine testified at this hearing
that the CI did not make the actual purchase (delivery by actual transfer) of
the cocaine but instead it was a third party (delivery by constructive transfer
or by parties) who went into the residence at 201 Wearden Drive and
purchased the cocaine. [RR-I-8]. Detective Paine that described how the CI
had first attempted to purchase cocaine from a man named Nathan but that
Nathan didn’t have any cocaine. [RR-I-9]. Detective Paine then described
how the CI and Nathan then met with a Mr. Jose Partida, who also did not Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 5 have any cocaine. Id. Detective Paine then described how the CI, Nathan,
and Mr. Partida then met with a Mr. Ivan Casas who also did not have any
cocaine. [RR-I-9-10]. Detective Paine then testified as to how Mr. Casas
took them to 201 Wearden Drive, went into the residence, and then returned
with the cocaine (demonstrative that Mr. Casas or persons within the
residence delivered and possessed with intent to deliver controlled
substances). [RR-I-10]. Detective Paine then acknowledged that he had
never worked with Mr. Casas before and could not attest to Mr. Casas’s
trustworthiness. [RR-I-11].
Detective Paine then testified that the CI did not witness the
transaction inside 201Wearden Drive, had not gone inside the residence, and
had purchased the drugs from Mr. Casas rather than from inside the
residence. Id. Detective Paine also stated, as heard in the CI’s covert audio
recording, that Mr. Casas had stated he had purchased the cocaine from
inside the residence from a friend of the Appellee’s. [RR-I-11].
On cross-examination Detective Paine explained that the reason he
did not put Nathan, Mr. Partida, or Mr. Casas’s names in the affidavit was to
help protect the identity of the CI. [RR-I-13]. (The combination of naming
all persons present but the CI, the uniqueness that grouping of persons at the
residence and the shortness of time before the warrant execution eliminates Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 6 alternative identities for the CI). Detective Paine also confirmed that the
police were monitoring what was being said in the CI’s vehicle throughout
this entire episode. Id. Detective Paine also established that from where the
CI was parked he would have been able to see Mr. Casas go into the
residence at 201 Wearden Drive. [RR-I-14]. Detective Paine then
confirmed there was no reason to believe that the CI had not obtained the
cocaine from that location. Id.
The trial court found the information in the affidavit was conclusory
and lacked sufficient underlying facts to establish probable cause. [CR-I-
27]. The court specifically noted that there was nothing in the affidavit
indicating that the contraband obtained at the 201 Wearden address could
only have been obtained from inside the residence. Id. The trial court also
concluded that the affidavit contained a reckless disregard for the truth since
it created an inference that the CI went inside the residence and purchased
the cocaine while inside the residence. Id. Accordingly, the trial court
ordered the evidence obtained pursuant to the search warrant for Appellee’s
residence be suppressed. Id.
SUMMARY OF THE ARGUMENT
The affidavit stated the specific facts that caused the affiant officer
and issuing magistrate to reasonably believe a crime probably had or would Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 7 soon occur. Mere fair probability in fact as measured by a reasonable issuing
magistrate is the benchmark of sufficiency. Implicit in the trial court’s
finding is a narrowing of the statutory definition of delivery and increasing
of the states statutory burden. Issuance of a search warrant and
determination of probable cause does not oblige the adjudicative
requirement of corroboration, the elimination of all alternative persons and
explanations, proof beyond all reasonable doubt of each element or
recitation of all known information. The affiant officer and issuing
magistrate rightly formed a reasonable belief in probable criminality.
The issuing magistrate had a substantial basis for concluding there
was probable cause to search Appellee’s residence. The magistrate had
information that a drug deal occurred at Appellee’s residence and that the
police had intelligence reports that Appellee himself was a drug dealer.
Based on those facts, it was reasonable for the magistrate to infer that
Appellee was involved in the drug transaction and that Appellee had
additional narcotics in his residence.
Furthermore, the trial court was required to give great deference to the
issuing magistrate’s conclusions when reviewing the legality of the search
warrant. The trial court failed to do so and thus committed reversible error
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 8 in finding there was no probable cause to support the issuance of a search
warrant in this case.
The trial court also erred by finding a “reckless disregard for the
truth” in the information provided in the affidavit. Every statement made in
the affidavit was a true statement and thus there was no justification for
finding a Franks violation. Nor could the trial court infer such a violation
based on information omitted from the affidavit. As a factual matter there
was no basis for concluding the affidavit made a false inference, and as a
matter of law it was inappropriate for the trial court to make a Franks
determination on the basis of information being left out of the affidavit,
since there is no basis in Texas law for finding a Franks violation based on
an omission, and in fact the Court of Criminal Appeals has cautioned courts
to judge affidavits by the facts contained within them rather than on what
was omitted from the affidavit.
In the alternative, even if the trial court was correct that there was a
Franks violation, it still erred by ordering the suppression of the evidence
obtained under this search warrant. The remedy for a Franks violation is
only to remove the false statement from the affidavit. In this case the only
portion of the affidavit that was deemed false by the trial court was the trial
court’s own inference about what the affidavit was asserting. Even if the Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 9 trial court’s inference was removed from the affidavit though, the remaining
undisputed, truthful portions of the affidavit were still sufficient to establish
probable cause. As such the warrant would still be valid even after an
adverse Franks ruling which means the evidence obtained pursuant to that
warrant should not have been suppressed.
ARGUMENT
I. The trial court erred in overruling the magistrate’s finding that the search warrant affidavit established probable cause
The appellate courts normally review a trial court’s ruling on a motion
to suppress by applying a bifurcated standard of review where they give near
total deference to the trial court’s findings as to historical facts while
reviewing de novo the trial court’s application of the law. State v. McLain,
337 S.W. 3d 268, 271 (Tex. Crim. App. 2011). However, the legal analysis
is different when the suppression hearing concerned the trial court
determining whether there was probable cause to support the issuance of a
search warrant. In such circumstances there is no credibility determination
for the trial court to make, since the trial court’s review is restricted to the
four corners of the affidavit. Id. Therefore reviewing courts are to apply a
highly deferential standard when evaluating a magistrate’s decision to issue
a warrant. Id. As long as the issuing magistrate had a substantial basis for
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 10 concluding that probable cause existed, the issuing magistrate’s finding of
probable cause must be upheld. Id.
Accordingly, the reviewing court must refrain from interpreting the
affidavit in a hyper-technical manner and must instead interpret the affidavit
in a commonsensical and realistic manner that recognizes that the issuing
magistrate is entitled to make reasonable inferences when reviewing the
affidavit. Id. Additionally, when in doubt the reviewing court must defer to
all reasonable inferences that the issuing magistrate could have made. Id.
Furthermore, the issuing magistrate’s decision should carry the day in
doubtful or marginal cases, even if the reviewing court might have come to a
different conclusion itself. Flores v. State, 319 S.W. 3d 697, 702 (Tex.
Crim. App. 2010). Giving great deference even in close cases to the
findings of the magistrates is vital as it helps promote the Constitution’s
preference for warrants by encouraging police officers to utilize the warrant
process rather than to try and find an exception to the warrant requirements.
See Rodriguez v. State, 232 S.W. 3d 55, 59 (Tex. Crim. App. 2007). This
obligation to give great deference to the issuing magistrate falls on both trial
courts and appellate courts. McLain, 337 S.W. 3d at 271-272.
With that legal framework in mind, it is clear the trial court erred in
overruling District Court Judge Marr’s determination of probable cause in Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 11 this case. Probable cause exists when under the totality of circumstances
there is a fair probability that contraband will be found at a specific location.
Id. at 272. This is a non-demanding standard. Id. It does not require
certainty that contraband will be found at that location to establish probable
cause. It does not even require a preponderant probability that contraband
will be found there. See Texas v. Brown, 460 U.S. 730, 742 (1983). There
just has to be a “fair probability”, and the affidavit in this case provided
more than sufficient basis to establish a fair probability that there was
contraband at the 201 Wearden address.
Clause 7(d) of the affidavit established that a controlled purchase of
cocaine took place at the 201 Wearden address. [DE-2-pg. 3]. Now it is
true that Clause 7(d) did not clearly state whether the purchase took place
inside the residence or on the outside of the residence, but it did not need to
do so to establish probable cause in this case. Even if the purchase of the
narcotics took place outside of the residence there would still be sufficient
grounds for District Court Judge Marr to make a reasonable inference that
there was contraband inside the residence or within the curtilage given the
other information in the affidavit.
The Flores case provides key insight on this point. In that case the
State’s affidavit relied on two essential points: 1) that the police had Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 12 received anonymous tips about drug activity at the Flores residence and 2)
that on two occasions the police found marihuana residue in the garbage in
front of the residence. Flores, 319 S.W. 3d at 703. This was found to be
enough to support the magistrate’s finding of probable cause. Id.
The facts of this case are similar to Flores. Both cases involve
evidence of narcotic activity on the property but not necessarily direct
evidence of narcotics in the suspect residence itself. In Flores the evidence
was marihuana residue in the trash in front of the property while in the
present case it was the sale of narcotics at that location but not inside the
residence. In both circumstances it is clearly possible to envision innocent
explanations for those suspect facts. In Flores, maybe the marihuana residue
was left by a neighbor smart enough not to leave an illegal substance in his
own trash, just like here maybe the drug dealers pick innocent driveways to
sell their narcotics so they don’t tip the police off to their main stash of
drugs. But while it is possible to envision scenarios that could explain away
the suspicious facts, that does not negate probable cause, and that is where
the trial court made its fundamental error. The trial court’s findings state
that the affidavit failed to show the contraband could only have been
obtained from inside the suspected place. [CR-I-27]. But there was no
requirement for the affidavit to do so. The State is not required to exclude Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 13 all other possibilities to establish probable cause to search a location. And
again the State does not even have to show it is more likely than not that the
contraband came from inside the residence. All the State has to show is that
there is a fair probability that there was contraband inside the residence.
Evidence of a drug sale at that residence is strong evidence by itself to
support such a conclusion.
Nor was the evidence of the drug purchase the only evidence the State
presented in its affidavit to support a claim of probable cause for there being
contraband at the 201 Wearden residence. Clause 7(g) of the State’s
affidavit likewise stated that the Victoria Police Department Special Crimes
Unit had police intelligence from multiple sources that the Appellee was a
drug dealer. [DE-2-pg. 4]. Clauses 7(h) likewise described an anonymous
tip that the Appellee had recently possessed contraband material. Id. And
Clauses 7(g) and 7(i) together created a logical inference that Appellee lived
or at least had access to the residence at 201 Wearden. Id.
An anonymous tip by itself may be insufficient to establish probable
cause to search. Flores, 319 S.W. 3d at 703. However, in conjunction with
other evidence it is a factor that can be considered to determine whether
there was probable cause. Id. Thus just as the magistrate in Flores was able
to utilize the information from the anonymous tips in his affidavit to support Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 14 his finding of probable cause, so would District Court Judge Marr be
permitted to consider that the Victoria Police Department had intelligence
reports stating that the Appellee was a drug dealer.
Thus District Court Judge Marr, in evaluating the affidavit, had
information that: 1) the Appellee was a drug dealer, 2) that Appellee lived at
the 201 Wearden Drive residence, and 3) that the sale of narcotics took place
at the 201 Wearden address. Based on those facts, it was reasonable for
District Court Judge Marr to infer that there was a fair probability that there
were narcotics inside the 201 Wearden residence. It is not an absolute
certainty that there were narcotics in that residence, but certainly it is logical
to infer that if a drug transaction takes place on the property of an individual
who has been reported to be a drug dealer that said individual was most
likely involved in the drug transaction. (It would be a remarkable
coincidence after all for Mr. Casas to pick a driveway at random to conduct
his narcotic sale in that just happened to be the driveway of a different,
completely uninvolved drug dealer.) And if it was reasonable for District
Court Judge Marr to infer that drug transactions involving the Appellee are
taking place at 201 Wearden then it would also be reasonable for District
Court Judge Marr to infer that additional narcotics could be found at that
residence. Where there is smoke (in this case a drug transaction occurring at Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 15 the property of a reported drug dealer) it is reasonable to infer fire
(additional drugs located inside the residence.) See Rodriguez, 232 S.W. 3d
at 63.
Therefore it was reasonable for District Court Judge Marr to conclude
that the information presented to him in the search warrant affidavit
combined with the reasonable inferences that flow from those facts
established probable cause that there could be contraband inside the
residence at 201 Wearden Drive. The inferences he drew were not based on
conclusory statements but rather on specific, true facts provided by the
police (that a drug purchase took place at 201 Wearden Drive, that the
Appellee lived there, and that anonymous sources had reported that the
Appellee sold drugs.). Perhaps a different magistrate considering these same
facts would have come to a different conclusion, but that does not justify
overturning District Court Judge Marr’s issuance of the search warrant. The
facts that were in the affidavit, combined with the reasonable inferences
District Court Judge Marr made from those facts, were sufficient to establish
a fair probability that contraband would be found at the 201 Wearden Drive
residence. That is all that is legally required to support the issuance of a
warrant. Id. at 64; Tex. Crim. Proc. Code Ann. art. 18.01(b) (West).
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 16 Reviewing courts are obligated to defer to the issuing magistrate and
uphold his determinations based on all reasonable and commonsense
inferences and conclusions that the affidavit’s facts support. Rodriguez, 232
S.W. 3d. at 64. Even in the marginal cases where the reviewing court itself
might have ruled differently on the affidavit, it must still accept the issuing
magistrate’s determination. Flores, 319 S.W. 3d at 702. Only if the
magistrate lacked a substantial basis for his determination of probable cause
can that determination be overruled. McLain, 337 S.W. 3d at 271.
The trial court failed to provide the highly deferential standard to
which District Court Judge Marr, as the issuing magistrate in this case, was
entitled on his finding of probable cause. That failure to provide the
appropriate deference was plain error. District Court Judge Marr was
entitled to make reasonable inferences based off of the facts presented to
him in the affidavit, and thus facts coupled with his inferences were
sufficient to establish a substantial basis that there was probable cause to
support the issuance of a search warrant. District Court Judge Marr had a
substantial basis to decide there was probable cause, and thus the warrant
should have been upheld as valid, and the evidence obtained pursuant to that
warrant should not have been suppressed. To the extent the trial court ruled
otherwise, the trial court’s ruling was error and should be reversed. Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 17 II. The trial court erred in finding a “reckless disregard for the truth”in the search warrant affidavit.
The trial court did not justify its granting of the suppression motion
solely on a finding of lack of probable cause in the affidavit. Instead the
trial court also concluded that there was a “Franks” issue and found the
affidavit involved a “reckless disregard for truth” due to the affidavit
creating an impression that the CI had purchased cocaine from inside the
residence at 201 Wearden Drive when in actuality it was a different person
who purchased the cocaine inside the residence and then the CI purchased
the cocaine from that person. [CR-I-27]; Franks v. Delaware, 98 S. Ct.
2674 (1978). The trial court’s conclusion is unsupportable because there
was no false statement in the affidavit in this case.
Clause 7(d) of the affidavit states, “The CI #254 responded to 201
Wearden Dr., where the controlled Purchase took place.” [DE-2-pg. 3].
That statement is absolutely truthful. The CI did travel to 201 Wearden
Drive and the controlled purchase took place at that address. [RR-I-10-12].
The trial court made no findings saying it did not believe the testimony at
the suppression hearing concerning that the CI traveled to 201 Wearden
Drive and that drugs were purchased at that location. Quite the contrary in
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 18 fact: the trial courts Suppression Order acknowledges that that is exactly
what happened. [CR-I-27].
Nothing in the affidavit states that the CI ever went inside
201Wearden Drive, that the CI witnessed the drug transaction that occurred
inside 201 Wearden Drive, or that the CI personally purchased drugs from
the Appellee. [DE-2]. Therefore there was no false statement in the
affidavit. A Franks violation requires showing that either a false statement
intentionally and knowingly or with a reckless disregard for the truth was
included by the affiant in the warrant affidavit. Franks, 98 S. Ct. at 2675.
As such the challenged statement must be false to constitute a Franks
violation. Here there simply was no false statement, and as such there can
be no Franks violation.
Notably the trial court’s own findings of fact do not allege any
statement in the affidavit that was actually false. [CR-I-27]. Instead the trial
court attempts to create a false statement by claiming the affadvit “creates an
inference that CI #254 went inside the residence at 201 Wearden and
purchased the cocaine.” Id. This claim of false statement by inference is
flawed both as a factual matter and as a matter of law.
As a question of fact the trial court’s inference regarding the
affidavit is to be reviewed de novo. A trial court in a Franks hearing is Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 19 entitled to almost total deference on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor. Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App.
2002). However, application of law to fact questions that do not turn on
credibility and demeanor are instead reviewed de novo. Id. at 653. The
question of what kind of inference can reasonably be drawn from the
undisputed statements of fact in the affidavit is not a question that depends
on credibility or demeanor. Thus it is to be reviewed de novo, and under
such an interpretation it is clear the trial court’s interpretation of the affidavit
as creating an inference that the CI purchased the drugs himself inside the
residence at 201 Wearden is simply not a plausible interpretation of the facts
in the affidavit.
The affidavit specifically states in Clause 7(d) that “Throughout the
duration of the controlled purchase the CI #254 was monitored physically
and through the body wire.” [DE-2-pg. 3]. (emphasis added.) The note that
the CI was monitored physically logically makes it impossible to credibly
believe that he was inside the residence when the purchase took place. The
investigating officers would have had to be able to see through the residence
walls or have accompanied CI #254 inside the residence to have physically
monitored him inside the residence. Thus obviously by the plain language Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 20 of the affidavit, the CI was not inside the building when the controlled
purchase took place, but was rather in or near his vehicle, where he was able
to be physically monitored by the investigating officer.
It should also be noted that Clause 7(d) also specifically comments
on how the CI’s vehicle “was parked in the driveway of 201 Wearden for
several minutes.” [DE-2-pg. 3]. There is no logical reason to include this
fact if the purchase did not actually take place in or near that automobile.
The location of the vehicle would be irrelevant if the police were describing
a purchase that took place inside a building. The automobile’s exact
location is only important if it was involved in the purchase of the narcotics.
Therefore the logical interpretation of the affidavit is that the purchase of
narcotics occurred in or near that automobile, while it was sitting in the
driveway at 201 Wearden Drive, which is exactly what the testimony at the
suppression hearing shows is what happened since that was the location
where Mr. Casas sold (actual transfer) the cocaine he had acquired
(constructive transfer) to the CI. [RR-I-10-11].
For the trial court to divine a false inference from the affidavit as
written thus required the trial court to twist the affidavit until it was nearly
unrecognizable, while ignoring the clear statements in Clause 7(d) that make
it obvious that the CI was not inside the residence during the purchase of the Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 21 narcotics. Affidavits are supposed to be interpreted in a realistic,
commonsensical manner. McLain, 337 S.W. 3d at 271. The trial court
failed to do that. Instead the trial court interpreted the affidavit in exactly
the sort of hyper-technical, unrealistic manner that both the United States
Supreme Court and the Court of Criminal Appeals have warned courts
against doing. Illinois v. Gates, 103 S. Ct. 2317, 2359 (1983); McLain, 337
S.W. 3d at 271. The trial court’s hyper-technical interpretation, which
ignores key facts in the affidavit to reach its conclusion, is without merit and
should be rejected in favor of the common sense interpretation that the
affidavit never claimed the CI was inside the residence during the purchase.
And as such there was even by omission, no basis for finding a Franks
violation.
In the alternative though, it is not even necessary to consider
whether or not the trial court was wrong as a matter of fact in deciding that
the affidavit created a false inference, because as a matter of law the trial
court should never have considered whether or not the affidavit created any
inferences.
The trial court was unable to cite any case law in its findings,
supporting its contention that a Franks violation can be found due to the
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 22 omission of facts from an affidavit. [CR-I-27]. This is because no such law
exists.
In fact the Court of Criminal Appeals has made it very clear that
courts should not be considering whether facts were left out of an affidavit.
Rather the Court of Criminal Appeals wants the review of search warrant
affidavits to turn on what facts are in the affidavit. See Rodriguez, 232 S.W.
3d at 64. Indeed the Court of Criminal Appeals specifically cautioned that,
“it is not necessary to delve into all of the facts that were omitted by the
affiant, facts that could have been included in the affidavit, or contrary
inferences that could have been made by the magistrate.” Id. The Court of
Criminal Appeals then concluded that “the only issue is whether the facts
that actually were in the affidavit, combined with all reasonable inferences
that might flow from those facts” establish probable cause. Id. (emphasis
added.)
As such it is clear the Court of Criminal Appeals does not want
magistrates and reviewing courts considering what additional facts could
have been placed in an affidavit. Rather the affidavit must stand or fall
based on what is in the affidavit (and the reasonable inferences that can be
drawn from those facts.) By finding a “reckless disregard for the truth” not
based on what was in the affidavit but rather based on what was missing Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 23 from the affidavit, the trial court acted improperly. The trial court went
beyond the scope of authority and by doing so was disregarding the Court of
Criminal Appeals’s guidance from Rodriguez. This was improper and
should not stand.
Any Franks hearing about the truthfulness of an affidavit should be
based solely on the truthfulness of the statements in the affidavit itself, and
thus as a matter of law it was error for the trial court to find a Franks
violation based on information not being included in the affidavit.
Further, the trial court’s finding of falsity relies upon: 1) twisting the
plain meaning of the affiant officer’s words, 2) requiring the exclusion of
alternative explanation, and 3) increasing the burden beyond sufficient facts
to conclude only probable cause by defining veracity as including all known
or knowable information. This trial court’s finding also suggest that only
direct transfers corroborated (Tex. Crim. Proc. Code art. 38.141 (West)) by
direct observation constitutes delivery and that anything different requires
explanation.
As to corroboration, “A defendant may not be convicted,” clearly
refers to an adjudicative burden of proof. Tex. Crim. Proc. Code art. 38.141
(West). The statute more broadly defines delivery: “‘Deliver’ means to
transfer, actually or constructively, to another a controlled substance … Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 24 regardless of whether there is an agency relationship. The term includes
offering to sell a controlled substance.” Tex. Health & Safety Code Ann. §
481.002(8) (West). The suspected criminal activity is Delivery of a
Controlled Substance, Penalty Group 1. Further, the offense of delivery
involves “a person commits an offense if the person knowingly
manufactures, delivers, or possesses with intent to deliver a controlled
substance.” Tex. Health & Safety Code § 481.112 (West).
The trial court’s finding of insufficiency ignores statutory definitions
and requirements, as well as court precedence of the same, while it
contemptuously treats the issuing magistrate findings. In support of that
finding, the trial court found falsity by omission when viewing the affidavit
only after twisting the language used, ignoring again the law applicable and
through tortured logic. This finding of falsity is nothing more than imagined.
III. Even if there was a Franks violation, the trial court still erred by suppressing the evidence in this case.
In the alternative again, even if we assume that a Franks violation
can be created by evidence being left out of an affidavit, and even if we
assume on the specific facts of this case, the omitted material created a false
inference that the CI personally purchased the narcotics from inside the
residence at 201 Wearden Drive, the trial court still erred by setting the
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 25 remedy for that supposed violation as being the suppression of the evidence
obtained by the search warrant.
The mere finding of a Franks violation does not by itself
automatically require suppression of the evidence in the accompanying
warrant. Rather the remedy for a Franks violation is simply to have the false
material excised from the warrant. See Harris v. State, 227 S.W. 3d 83, 85
(Tex. Crim. App. 2007).
In the present case by the trial court’s own findings the only false
information in the warrant would be the “inference that CI#254 went inside
the residence at 201 Wearden and purchased the cocaine.” The remainder of
the affidavit would still be perfectly valid since the trial court found no other
portion of it to be untruthful.
As such even on an adverse Franks finding the only thing the State
would lose would be an inference created by the trial court itself. An
inference it must be remembered that the State itself has never asserted in
this case, and an inference that the State is not relying upon to support its
claim of probable cause.
As was discussed in Section I of the Argument section of this brief,
the State does not need the CI to have purchased the cocaine from inside the
residence to establish probable cause to search the residence. The fact that Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 26 the CI purchased cocaine in the driveway at 201 Wearden (asserted in the
affidavit and not disputed by the trial court), coupled with the fact that the
Appellee lives or at least has access to 201 Wearden (asserted in the affidavit
and not disputed by the trial court), couple with the fact that the police have
had multiple intelligence reports that the Appellee was dealing drugs
(asserted in the affidavit and not disputed by the trial court) is enough for the
magistrate to have found probable cause even without the trial court’s
special inference. [DE-2-pgs. 3-4; CR-I-27]. Thus even if the trial court’s
inference is removed from the warrant, the remaining material in the
affidavit still establishes probable cause. Accordingly, there was no legal
justification for the trial court to invalidate the entire warrant and suppress
the evidence obtained by the warrant, and to the extent the trial court’s
ruling did so, that ruling should be reversed.
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 27 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court reverse the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 Telephone: (361) 575-0468 Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLANT, THE STATE OF TEXAS
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 28 CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellant’s Brief submitted on
January 2, 2015, excluding those matters listed in Rule 9.4(i)(3) is 5,624.
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 Telephone: (361) 575-0468 Facsimile: (361) 576-4139
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 29 CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
Brent Dornburg, Attorney for the Appellee, by depositing same in the United
States Mail, postage prepaid on the day of January 2, 2015.
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 Telephone: (361) 575-0468 Facsimile: (361) 576-4139
Brief of Appellant Victoria County Criminal District Attorney No. 13-14-00588-CR 30