State v. Gordon Heath Elrod

Opinion

AFFIRMED; Opinion Filed May 27, 2016.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01219-CR No. 05-15-01221-CR No. 05-15-01222-CR

THE STATE OF TEXAS, Appellant V. GORDON HEATH ELROD, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F15-40913-I, F15-40914-I, and F15-40915-I

MEMORANDUM OPINION Before Justices Lang, Lang-Miers, and Brown Opinion by Justice Lang We withdraw our opinion and vacate our judgments of May 25, 2016. This is now the

opinion of the Court.

The State appeals the trial court’s order granting appellee Gordon Heath Elrod’s motions

to suppress. In a single issue, the State contends the trial court erred “when it overruled the

magistrate’s decision that probable cause existed to issue a search warrant.” We affirm the trial

court’s order. Because all issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.4.

1. FACTUAL AND PROCEDURAL CONTEXT

Appellee was charged with fraudulent use or possession of identifying information in

cause number F15-40913-I, and with two counts of tampering with a governmental record in cause numbers F15-40914-I and F15-40915-I. He filed a motion to suppress evidence in each

case. The motions were identical; each challenged the affidavit supporting a search warrant

issued at 10:35 a.m. on April 28, 2015, to search room 119 of the Executive Inn located at 3447

E. Highway 30 in Mesquite, Texas. The affidavit was signed by Investigator Smith of the

Mesquite Police Department.

In the affidavit Smith stated that on April 27, 2015 “at approximately 17:23 hours,” four

police officers were dispatched to a One Star Food Mart in Mesquite in reference to a forgery.

Most of the affidavit addresses the officers’ investigation of the forgery of a check presented at

that location. The affidavit details the officers’ identification of four suspects at the food mart.

Appellee was not one of the suspects. Only one of the suspects, Marsha Stovall, was taken into

custody in connection with the forgery. In Stovall’s purse and pockets, officers found two social

security cards and a driver’s license, as well as a notebook listing names, social security

numbers, and addresses.

Smith’s affidavit states that “at approximately 1900 hours” on the same day, two police

officers “made contact with Gordon in room #119 at the Executive Inn located at 3447 E Hwy 30

Mesquite, TX 75150. Officers advised they observed computers and printers in the room.” The

affidavit does not explain how the officers identified the location or “Gordon.”

According to the affidavit, Smith interviewed Stovall at the Mesquite jail at 8:30 a.m. the

following morning. During the interview Stovall explained that she had been staying at room

119 of the Executive Inn for the last few days before her arrest. She stated that a driver’s license

and social security card she used in attempting to cash a “counterfeit” check at the food mart

were printed in room 119, as was the check itself. She said that appellee, his wife Alisha Davis,

and their two children were occupying the room. According to Stovall, appellee and Davis were

mail thieves who were using information from stolen mail to print “counterfeit” checks, driver’s

–2– licenses, and social security cards. They used two desk top computers and four printers in room

119.

Smith’s affidavit was attached and incorporated by reference to an affidavit requesting a

search warrant for room 119 of the Executive Inn. A magistrate found that “the verified facts

stated by Affiant in said Affidavit show that Affiant has probable cause for the belief he

expresses herein and establishes the existence of proper grounds for the issuance of the warrant.”

The magistrate issued the search warrant at 10:35 a.m. on April 28, 2015. A warrant was issued

by the magistrate for appellee’s arrest the following day.

After a hearing on the State’s motion to reconsider the grant of appellee’s motions to

suppress, the trial court made written findings of fact, including the following findings:

 the search warrant was issued “a mere two hours” after Smith went to the Mesquite Jail to interview Stovall;  the affidavit “fails to provide any explanation for how or why the officers would be going to the Executive Inn to contact ‘Gordon’ on April 27, at 7:00 p.m. when Investigator Smith did not receive information concerning that location until the next day when he interviewed Marsha Stovall at some time after 8:30 a.m. in the morning”;  “Nothing in the affidavit indicates the officers had any information concerning Room 119 at the Executive Inn prior to Marsha Stovall’s statements on the morning of April 28, 2015”;  Marsha Stovall “was a named criminal informant. As such her information was inherently unreliable and required some measure of corroboration in order to provide probable cause for the issuance of a search warrant. A named criminal informant does not enjoy the same presumption of reliability that a named citizen informant does”;  “Without the portion of the affidavit describing Officers Walzel’s and Berg’s observations of the computers and printers in Room 119 and their contact with ‘Gordon’ on April 27, 2015, there is no independent corroboration of Marsha Stovall’s information”;  the warrant “fails to state any reason why Officers Walzel and Berg would go to Room 119 of the Executive Inn the day before Marshal Stovall informed Investigator Smith of the location of the room and the occupants of the room. The Court therefore finds that the portion of the affidavit referring to Officer Walzel’s and Officer Berg’s observations at the Executive Inn and their contact with ‘Gordon’ is not credible and should be excluded from the affidavit”;

–3–  “Without independent corroboration of Marsha Stovall’s information the Court finds that the affidavit fails to provide sufficient probable cause for the issuance of the search warrant.” The trial court signed an order granting appellee’s motions to suppress. This appeal followed.

2. STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give “almost total

deference” to a trial court’s determination of historical facts supported by the record, especially

when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Id.

(quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review de novo

mixed questions of law and fact that do not depend upon credibility and demeanor. Id.

3. APPLICABLE LAW

The federal and state constitutions require a magistrate to find “probable cause” that a

particular item will be found in a particular location before issuing a search warrant. State v.

Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). A totality of the circumstances test is

used when evaluating the question of probable cause to issue a warrant. Matamoros v. State, 901

S.W.2d 470, 478 (Tex. Crim. App. 1995) (citing Illinois v. Gates, 462 U.S. 213, 230–31 (1983)).

As the Duarte court explained, the test is whether a reasonable reading by the magistrate would

lead to the conclusion that the four corners of the affidavit provide a “substantial basis” for

issuing the warrant. Duarte, 389 S.W.3d at 354.

Probable cause exists when, under the totality of the circumstances, there is a “fair

probability” that contraband or evidence of a crime will be found at the specified location. Id.

This is a flexible, nondemanding standard. Neither federal nor Texas law defines precisely what

degree of probability suffices to establish probable cause. Id. However, a magistrate’s action

cannot be a mere ratification of the bare conclusions of others. Id.

–4– We give great deference to a magistrate’s determination of probable cause. Id. But we

must “conscientiously review the sufficiency of affidavits on which warrants are issued.” Id.

After reviewing the supporting affidavit “realistically, and with common sense,” we must uphold

the magistrate’s decision as long as the magistrate had a substantial basis for concluding

probable cause existed. Id. The focus is not on what other facts could or should have been

included in the affidavit; the focus is on the combined logical force of facts that are in the

affidavit. Id.

The reliability of the affiant and his sources of information are part of the totality of the

circumstances the magistrate should evaluate in making his probable cause determination. State

v. Coker, 406 S.W.3d 392, 396 (Tex. App.—Dallas 2013, pet. ref’d). “Citizen informants” who

witness criminal activity and thereafter report it as a matter of civic duty are considered

“inherently reliable.” Duarte, 389 S.W.3d at 355–357. Informants “from the criminal milieu”

do not enjoy any presumption of reliability, but may be considered reliable if their information is

corroborated by independent police work or if they have a successful “track record” of providing

true and correct information. Id.

4. APPLICATION OF LAW TO FACTS

The State contends the affidavit supported the magistrate’s finding of probable cause

because (1) the affidavit had a named informant; (2) the informant provided a “detailed, first-

hand account of criminal activity”; (3) the informant made the account against her own penal

interest; and (4) the police corroborated the informant’s tip, and in any event, corroboration is

not required. We address these contentions in turn.

First, although Stovall was named in the affidavit, she does not enjoy the same

presumption of reliability as a citizen informant. See id. at 356. Even if Stovall had not been

named, her information could have been considered reliable if coupled with other facts, such as a

–5– successful track record as an informant or corroboration by independent police work. See id. at

358. “[W]hen a probable cause affidavit specifies a named informant as supplying the

information upon which probable cause is based, the affidavit is sufficient if it is sufficiently

detailed to suggest direct knowledge on the informant’s part.” Matamoros, 901 S.W.2d at 478.

Identification of the informant alone is insufficient. See id. (named informant’s statement

sufficient where informant had direct knowledge of appellant’s culpability; statement was

corroborated by independent observation of police officers; and informant was not co-defendant

or suspect in investigation). The affidavit details how the interview with Stovall came about, but

does not provide any information about Stovall’s credibility or reliability. Instead, Stovall was

interviewed because she was attempting to cash a “counterfeit” check with “counterfeit”

identification.

Second, in her interview Stovall revealed that (1) she had been staying in the motel room

in question; (2) the “counterfeit” check, driver’s license, and social security card she used the

previous day at the food mart were printed in the motel room; (3) there were two desk top

computers and two printers in the room; (4) appellee and his family were occupying the room;

(5) when Stovall left the room on the previous day at 5:00 p.m., appellee and his wife were

printing “counterfeit” checks, driver’s licenses, and social security cards; and (6) appellee and

his wife were mail thieves and the information used on the “counterfeited” items came from

stolen mail which was also inside the motel room. While we agree with the State that Stovall

provided some detail of how she obtained the “counterfeit” check and identification, there is

nothing in the affidavit to assist the magistrate in determining the credibility of the information.

Although our focus “is not on what other facts could or should have been included in the

affidavit,” see Duarte, 389 S.W.3d at 354–55, we must “conscientiously review the sufficiency”

of the affidavit to ensure that the magistrate’s action is not “a mere ratification of the bare

–6– conclusions of others.” See id. at 354. Here, Smith concluded there was probable cause of

“further evidence inside the dwelling” at the address of the Executive Inn on the basis of

Stovall’s statements alone. Smith’s conclusions, and therefore the magistrate’s conclusions,

were based upon Stovall’s untested credibility.

Third, the affidavit does not reflect whether or not Stovall made the statements against

her own penal interest. The affidavit states that Stovall was given and understood the Miranda

warning. But the six statements from Stovall’s interview deflect blame to appellee and his wife

rather than further implicate Stovall in the events leading to her arrest. The “combined logical

force” of Stovall’s statements did not indicate any culpability on her part other than that already

observed by police on the previous day. See id.

Fourth, as the trial court’s findings reflect, the police did not corroborate the information

received from Stovall; instead, the affidavit states that officers visited the motel on April 27, the

evening before they received any information from Stovall. The officers “advised they observed

computers and printers in the room.” No activity was reported to support an inference of “‘fair

probability’ that contraband or evidence of a crime will be found at the specified location.” Id.

(quoting Gates, 462 U.S. at 238)). The warrant was issued shortly after Stovall’s interview the

following morning.

The State argues the officers’ visit could have taken place before the warrant was issued.

The State contends the magistrate could have reasoned that the officers would not have known to

go to room 119 of the Executive Inn before interviewing Stovall. Therefore, the magistrate

could have concluded that the date given in the affidavit for the officers’ visit (April 27) was a

typographical error, especially since the report of the visit was in the paragraph following the

details of Stovall’s interview on April 28 and the remainder of the affidavit was in chronological

order. However, if the date was a typographical error, then the time stated, “1900 hours” (7:00

–7– p.m.) for the officers’ visit to the motel was incorrect as well. The interview with Stovall took

place at “approximately 0830 hours” (8:30 a.m.) on April 28, and the warrant was issued at

10:35 a.m. on the same day. A search at 7:00 p.m. on April 28 would have taken place more

than eight hours after the warrant was issued. The reason for giving “great deference” to the

magistrate’s finding of probable cause is “to encourage police officers to use the warrant

process.” Id. at 354. “[T]he informed and deliberate determinations of magistrates . . . are to be

preferred over the hurried actions of officers” to ensure the constitutionality of search warrants.

Id. If indeed the affidavit contained errors regarding the sequence of events, then the magistrate

relied on the “hurried actions of officers” in proffering the affidavit less than two hours after

Stovall’s interview rather than any “informed and deliberate determinations.” See id.

The State also argues that in any event, “express corroboration is not a per se rule.”

However, it was not error for the trial court to consider the lack of corroboration as a factor in

determining Stovall’s credibility and the reliability of her information. The reliability of the

affidavit depended upon Stovall’s credibility. The magistrate’s and the trial court’s task was to

determine whether a “reasonable reading . . . would lead to the conclusion that the four corners

of the affidavit provide a ‘substantial basis’ for issuing the warrant.” Id. The existence or lack

of corroboration may be considered in determining the “totality of the circumstances” supporting

probable cause. See Matamoros, 901 S.W.2d at 478.

In sum, only two of the affidavit’s fourteen paragraphs contain information about either

appellee or the premises to be searched. One of the two paragraphs reports the interview with

Stovall; the other reports the visit by officers to the premises the previous evening. The

remainder of the affidavit explains the events surrounding the investigation of the forgery at the

food mart, detailing the activities of suspects other than appellee at locations other than the

Executive Inn. Much of the affidavit details Stovall’s culpability for forgery, not her credibility

–8– or reliability. After reviewing the supporting affidavit “realistically, and with common sense,”

we conclude the magistrate did not have “a substantial basis for concluding that probable cause

existed.” See Duarte, 389 S.W.3d at 354. The trial court did not err in so ruling. We decide the

State’s issue against it.

CONCLUSION

We affirm the trial court’s order granting appellee’s motions to suppress.

/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 151219F.U05

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-15-01219-CR V. Trial Court Cause No. F15-40913-I. Opinion delivered by Justice Lang; GORDON HEATH ELROD, Appellee Justices Lang-Miers and Brown, participating.

We WITHDRAW our opinion and VACATE our judgment of May 25, 2016. This is now the judgment of the Court.

Based on the Court’s opinion of this date, the trial court’s order granting appellee Gordon Heath Elrod’s motion to suppress is AFFIRMED.

Judgment entered this 27th day of May, 2016.

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-15-01221-CR V. Trial Court Cause No. F15-40914-I. Opinion delivered by Justice Lang; GORDON HEATH ELROD, Appellee Justices Lang-Miers and Brown, participating.

We WITHDRAW our opinion and VACATE our judgment of May 25, 2016. This is now the judgment of the Court.

Based on the Court’s opinion of this date, the trial court’s order granting appellee Gordon Heath Elrod’s motion to suppress is AFFIRMED.

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-15-01222-CR V. Trial Court Cause No. F15-40915-I. Opinion delivered by Justice Lang; Justices Lang-Miers and Brown, GORDON HEATH ELROD, Appellee participating.

We WITHDRAW our opinion and VACATE our judgment of May 25, 2016. This is now the judgment of the Court.

Based on the Court’s opinion of this date, the trial court’s order granting appellee Gordon Heath Elrod’s motion to suppress is AFFIRMED.

–12–