Swearingen, Rodney

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 2004
• Docket: PD-0110-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 110-03 RODNEY SWEARINGEN, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TOM GREEN COUNTY

Holcomb, J., delivered the opinion of the Court, in which Keller, P.J., Womack, Keasler, and Hervey, JJ., joined. Cochran, J., filed a dissenting opinion in which Meyers, Price, and Johnson, JJ., joined.

O P I N I O N

Appellant, Rodney Swearingen, was convicted and sentenced to eighteen years' confinement for the felony offense of possession of methamphetamine with intent to deliver. See Tex. Health & Safety Code § 481.102(6) & 481.112(a), (d). He appealed the trial court's denial of his pre-trial motion to suppress, which alleged that the drugs found in the search of the residence were the fruits of an illegal search, undertaken pursuant to a search warrant unsupported by probable cause. Appellant argued that the information in the warrant affidavit was stale. The Third Court of Appeals, applying a deferential standard of review, affirmed the judgment of the trial court.

We granted review to resolve a split between the courts of appeals regarding the appropriate standard for reviewing a magistrate's determination that probable cause existed to issue a search warrant. ⁽¹⁾ See State v. Bradley, 966 S.W.2d 871 (Tex. App.- Austin 1998, no pet.)(great deference); Daniels v. State, 999 S.W.2d 52 (Tex. App. - Houston [14th Dist.] 1999, no pet.)(deference); Ramos v. State, 31 S.W.3d 762 (Tex. App. - Houston [1st Dist.] 2000, no pet.)(de novo).

Relevant Facts

On January 10, 2001, the Honorable Eddie Howard, a Justice of the Peace in Tom Green County, signed a search warrant based on a probable-cause affidavit prepared by San Angelo Police Sergeant David Howard. The warrant authorized the search of a house described by the sergeant in the affidavit as being under appellant's control. According to the affidavit, a confidential informant told Sgt. Howard that he had been inside the house within the previous fifty-two hours and had personally seen appellant in possession of "a quantity" of methamphetamine. The affidavit goes on to state that the confidential informant: (1) had provided Sgt. Howard with reliable information on three occasions in the preceding two months, and (2) was familiar enough with methamphetamine to recognize it as the substance possessed by appellant. Later that day, officers of the Rio Concho Drug Task Force executed the search warrant and found a bag containing over forty grams of methamphetamine in plain view two feet from a desk where appellant had been sitting when the officers entered the residence.

Appellant filed a pre-trial motion to suppress the evidence obtained under the search warrant. He argued that the affidavit submitted in support of the search warrant failed to comply with the requirements of Article 18.01 of the Texas Code of Criminal Procedure, that the evidence obtained pursuant to the warrant was, therefore, obtained in violation of the laws of the State of Texas and inadmissible under Article 38.23 of the Code. Appellant argued further that the affidavit stated only that the informant observed appellant in possession of "a quantity" of methamphetamine, without quantifying the amount observed or providing facts from which a quantity could be inferred, such as whether the drugs were being held for sale or for personal use. He also argued that the affidavit was void of any other information that would support an inference that the methamphetamine would still be located in the house more than two days after the informant observed it.

The trial court denied appellant's motion. Appellant was convicted, his motion for new trial was denied, and he appealed, claiming, among other things, that the trial court erred in denying his motion to suppress. Appellant argued that the affidavit supporting the search warrant did not "set forth sufficient facts to establish probable cause 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," as required by Article 18.01(c)(3). Appellant recognized the split between the courts of appeals regarding the standard to apply in reviewing a magistrate's determination of probable cause. Appellant argued that the court should review the issue de novo, without deference to the magistrate's determination.

The court of appeals, applying a deferential standard of review, held that: (1) the lack of specificity regarding the quantity of methamphetamine observed did not foreclose the conclusion that methamphetamine would likely still be in the house; (2) the issuing magistrate had a substantial basis for concluding that a search of the house would uncover evidence tending to show that appellant possessed methamphetamine; and (3) the trial court, therefore, did not err in overruling appellant's challenge to the adequacy of the affidavit. Swearingen v. State, No. 03-02-00227-CR (Tex. App. - Austin 2002)(unpublished). The court of appeals affirmed the judgment of the trial court.

Appellant sought review from this Court on the grounds that the court of appeals applied an improper standard in reviewing the magistrate's probable cause determination which resulted in an erroneous conclusion that the warrant affidavit set forth facts sufficient to establish probable cause. We granted review to consider whether the court of appeals applied the correct standard of review.

Discussion

What standard of review is required in a court of appeals reviewing a magistrate's determination of probable cause is a question of law; one that we review de novo.

Appellant's probable clause claim is based on Article 18.01, a state statute. In Johnson v. State, addressing a probable cause claim based not only on the Fourth Amendment to the United States Constitution but also on both state constitutional and statutory law, we recognized the deferential standard required by Gates. Johnson, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990)(disapproved in part by Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991)).

In Illinois v. Gates, 462 U.S. 213, 234-37 (1983), the Supreme Court had reaffirmed the traditional standard for reviewing an issuing magistrate's probable cause determination: "so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." In explaining why "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review," the Supreme Court stated that the deference paid to the magistrate's determination of probable cause was based on "the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Id.

Our subsequent opinion in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), discussing the standard of review regarding a determination of probable cause in a warrantless search situation, caused some confusion regarding the standard of review that applies to a magistrate's determination of probable cause. Some courts of appeals have continued to apply the deferential standard articulated in Johnson. See State v. Bradley, 966 S.W.2d 871. Others have held that where credibility is not an issue, i.e., where probable cause is simply a question of law, a de novo review should be conducted. Ramos v. State, 31 S.W.3d 762.

In Guzman, we relied in part on Ornelas v. United States, 517 U.S. 690 (1996). In Ornelas, a case involving a warrantless 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. 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.

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.

The court of appeals stated and applied the standard of review set forth in Johnson. Although we are not reviewing the correctness of the court of appeals' ultimate conclusion, we can tell by the court's language that it did apply the correct standard in reaching that conclusion. The court of appeals found that the absence of facts from which a quantity of drugs could be inferred was not fatal to the magistrate's finding of probable cause because, considering the affidavit as a whole and the reasonable inferences it supports, a substantial basis existed to support a finding of probable cause. The court reasoned that, although the magistrate may not have been able to rule out the possibility that the methamphetamine had already been consumed or moved, the magistrate was not foreclosed from concluding that it was reasonably likely that a search of the house would uncover evidence tending to show that Appellant was guilty of possession of methamphetamine.

We hold that the court of appeals applied the correct standard of review. We affirm the judgment of the court of appeals.

DELIVERED: June 23, 2004

PUBLISH

1. Only the first of appellant's two grounds for review was granted: "Whether the court of appeals applied an improper standard of review of a warrant which resulted in an erroneous conclusion that the warrant affidavit set forth facts sufficient to establish probable cause." That single issue was then recast, on this Court's public list of granted PDRs, into two separate issues: (1) Is great deference the proper standard of review of a magistrate's finding of probable cause to issue a warrant, and (2) Did the recitation in the search warrant affidavit that "a quantity of methamphetamine" had been seen on the premises within the past 52 hours provide probable cause to believe that methamphetamine would be on the premises when the search warrant issued? The only argument appellant provides in his brief to support his claim that the court of appeals erred in concluding that the affidavit did establish probable cause is that the court evaluated the affidavit under an improper standard. Thus, we address only whether the court of appeals applied the correct standard of review.