Michael Greene v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00011-CR
MICHAEL GREENE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Michael Greene pled guilty to possession of less than one gram of
methamphetamine pursuant to a plea bargain. In two points, he challenges the
denial of his pretrial motion to suppress and the trial court‟s failure to issue
written findings of fact and conclusions of law supporting its decision. See Tex.
R. App. P. 25.2(a)(2) (allowing appeal of matters raised by written and ruled upon
pretrial motion). We affirm.
Background
At the suppression hearing, Detective Steve Buchanan of the Denton
Police Department testified that Judge Richard Podgorski signed a search
warrant for appellant‟s residence, a mobile home, on September 25, 2009.
Detective Buchanan was present for the execution of the warrant. When asked if
the police gave appellant a copy of the warrant, Detective Buchanan testified that
they gave appellant a copy and that “[h]e would [also] have been given a copy of
all the items that were removed from his residence.” Detective Buchanan
explained that “[t]he inventory is usually on a separate sheet of paper [or] on the
back of the actual copy he was given.”
Detective Buchanan admitted that the address to be searched was not
shown on the face of the warrant but was instead included in the search warrant
affidavit, which he signed as the affiant. The warrant states that the affidavit is
“made part [of the warrant] for all purposes.”1 The police did not give appellant a
copy of the affidavit when they gave him the warrant.
The defense questioned Detective Buchanan about another warrant issued
that day for appellant‟s next-door neighbor‟s address that was exactly the same
on its face except for the time of issuance, and the trial court admitted both into
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The face of the warrant also does not list the items to be seized, nor does
it describe the limits of the search, but the affidavit includes such a description.
When asked if the warrant “clearly incorporates the affidavit,” Officer Buchanan
answered yes.
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evidence.2 Detective Buchanan was initially confused about which warrant was
which until he noticed the time of issuance; he explained that the magistrate
issued the warrant for appellant‟s residence at 2:05 p.m., which is shown on the
face of the warrant. Judge Podgorski signed the second warrant at 2:06 p.m.
Appellant testified that he only received the first page of the warrant and no
other documents. He did not know what the officers seized from his home. He
also confirmed that he was not allowed in the trailer while the police searched it;
he stood by the edge of the road on his lot.
Findings of Fact and Conclusions of Law
Appellant contends in his second point that the trial court violated his due
process rights by failing to file written findings of fact and conclusions of law.
Appellant orally requested findings and conclusions at the end of the suppression
hearing, and the trial court told him, “Okay. Put that in writing.” Although
appellant did file a written request for findings and conclusions, he did not do so
until twenty-four days after the hearing.
Because the trial court did not issue any written findings of fact and
conclusions of law, we would ordinarily abate the appeal for the trial court to
make such findings and conclusions. See State v. Cullen, 195 S.W.3d 696, 700
(Tex. Crim. App. 2006); Scheideman v. State, No. 02-10-00154-CR, 2011 WL
2682948, at *1 (Tex. App.––Fort Worth May 17, 2011, abatement order).
2
The affidavits for both warrants were also admitted into evidence.
3
However, before denying appellant‟s motion to suppress, the trial court dictated
into the record excerpts from the case it found controlling of the issue.
Appellant‟s proposed findings of fact and conclusions of law––which he filed after
the trial court‟s verbal ruling denying the motion to suppress––do not differ
significantly from the trial court‟s recitation in the record. Nor has appellant
claimed that he is entitled to additional findings or conclusions. We do not
believe that the lack of written findings and conclusions precludes us from being
able to decide this case. See Tex. R. App. 44.1(a)(2). The court of criminal
appeals held in Cullen that a trial court must make timely requested findings of
fact and conclusions of law within twenty days after its ruling on a motion to
suppress “if it has not already made oral findings on the record.” Cullen, 195
S.W.3d at 699–700. Thus, because the trial court made its findings and
conclusions on the record, we need not abate this appeal for it to commit those
findings and conclusions to writing. See id.; State v. Gerstenkorn, 239 S.W.3d
357, 358 n.1 (Tex. App.––San Antonio 2007, no pet.); Sawyer v. State, No. 03-
07-00450-CR, 2009 WL 722256, at *3 (Tex. App.––Austin Mar. 19, 2009, no pet.)
(mem. op., not designated for publication) (op. on reh‟g). We overrule appellant‟s
second point.
Validity of Search Pursuant to Warrant
In his first point, appellant contends that the search violated his federal and
state constitutional rights because it was pursuant to a facially defective warrant,
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which could not be cured by the incorporated affidavit because the police did not
give him a copy of the affidavit along with the warrant at the time of the search.
Standard of Review
We review a trial court‟s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court‟s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Applicable Law
In assessing the sufficiency of an affidavit for an arrest or a search
warrant, the reviewing court is limited to the four corners of the affidavit. Jones v.
State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921
(1993). The reviewing court should interpret the affidavit in a common sense and
realistic manner, recognizing that the magistrate was permitted to draw
reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App.
2006). To comply with the requirement that a warrant describe the place to be
searched, all that is required is that the affidavit or search warrant describe the
premises to be searched with sufficient definiteness to enable the officer
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executing the warrant to locate the property and distinguish it from other places
in the community. Ex parte Flores, 452 S.W.2d 443, 444 (Tex. Crim. App. 1970);
see Tex. Const. art. 1, § 9 (“[N]o warrant to search any place, or to seize any
person or thing, shall issue without describing them as near as may be . . . .”);
Tex. Code Crim. Proc. Ann. arts. 1.06, 18.04 (West 2005). A warrant that does
not contain the place to be searched, the items to be seized, or the person
alleged to be in charge of the premises is not invalid provided that the warrant
incorporates by reference a sufficiently specific affidavit to support it. See Green
v. State, 799 S.W.2d 756, 760 (Tex. Crim. App. 1990); Phenix v. State, 488
S.W.2d 759, 764 (Tex. Crim. App. 1972). The description contained in the
affidavit limits and controls the description contained in the warrant. Long v.
State, 132 S.W.3d 443, 446 n.11 (Tex. Crim. App. 2004); Riojas v. State, 530
S.W.2d 298, 303 (Tex. Crim. App. 1975); Ramirez v. State, 345 S.W.3d 631, 633
(Tex. App.––San Antonio 2011, no pet.).
Analysis
Appellant challenges the trial court‟s ruling under both the Texas and
federal constitutions.
Appellant relies on the United States Supreme Court‟s decision in Groh v.
Ramirez, in which that court held a search warrant invalid for lack of particularity.
540 U.S. 551, 557–58, 124 S. Ct. 1284, 1289–90 (2004). However, that case is
inapposite because the warrant in that case did not incorporate the application on
which it was based. Id. In fact, in the opinion, the Court specifically stated, “We
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do not say that the Fourth Amendment prohibits a warrant from cross-referencing
other documents.” Id. Although the Court noted that “most Courts of Appeals
have held that a court may construe a warrant with reference to a supporting
application or affidavit if the warrant uses appropriate words of incorporation, and
if the supporting document accompanies the warrant,” the Court did not reach the
issue of whether such a warrant must be delivered to the person whose premises
are being searched. Id.; United States v. Hurwitz, 459 F.3d 463, 471 (4th Cir.
2006) (“Groh simply acknowledges the approach generally followed by the
Courts of Appeals.”).
In denying the motion to suppress, the trial court stated that it was relying
on a Fifth Circuit district court‟s opinion in United States v. Silva, in which the
federal district court held that so long as a warrant incorporates an affidavit
satisfying the particularity requirement, it is not necessary for purposes of
determining the validity of the warrant that the affidavit actually be delivered to
the defendant. United States v. Silva, No. SA-09-CR-203-XR, 2009 WL
1606453, at *4-5 (W.D. Tex. June 8, 2009) (order) (citing Hurwitz, 459 F.3d at
471; United States v. Washington, 852 F.2d 803, 805 (4th Cir.), cert. denied, 488
U.S. 974 (1988); Baranski v. Fifteen Unknown ATF Agents, 452 F.3d 433 (6th
Cir. 2006), cert. denied, 541 U.S. 1321 (2007)). The trial court also found that
appellant had not shown prejudice due to the lack of presentation of a copy of the
affidavit and the lack of a return, “if that‟s true.”
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Although this court is not bound by Fifth Circuit precedent, we may
consider it persuasive as well as cases from other circuit courts in determining
Fourth Amendment issues. See Ex parte Evans, 338 S.W.3d 545, 555 (Tex.
Crim. App. 2011). In the post-Groh Hurwitz case cited in Silva, the Fourth Circuit
held,
[T]he Fourth Amendment is not offended where the executing officer
fails to leave a copy of the search warrant with the property owner
following the search, see United States v. Simons, 206 F.3d 392,
403 (4th Cir. 2000), or fails even to carry the warrant during the
search, see Mazuz v. Maryland, 442 F.3d 217, 229 (4th Cir. 2006).
“[T]he requirement of particular description does not protect an
interest in monitoring searches” or “engag[ing] the police in a
debate” about the warrant. United States v. Grubbs, 547 U.S. 90, --,
126 S. Ct. 1494, 1501, 164 L. Ed. 2d 195 (2006). Rather, “[t]he
Constitution protects property owners . . . by interposing, ex ante,
the deliberate, impartial judgment of a judicial officer” and “by
providing, ex post, a right to suppress evidence improperly
obtained.” Id. (internal quotation marks omitted). These protections
are sufficient to ensure that the officer‟s search is properly limited
and to provide assurance to the property owner that the executing
officer enjoys the lawful authority to search for specific items.
Hurwitz, 459 F.3d at 472 (footnote omitted); see also Baranski, 452 F.3d at 444
(distinguishing validity of warrant pursuant to Warrant Clause from
reasonableness of search under Reasonableness Clause and holding that while
failure to deliver incorporated affidavit may affect reasonableness of search, it
does not affect validity of warrant supported by incorporated affidavit); United
States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981) (“Failure to deliver a copy of
the search warrant to the party whose premises were searched until the day after
the search does not invalidate a search in the absence of a showing of
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prejudice.”). We believe the holdings of these courts to be persuasive, as did the
trial court, especially in light of Texas law addressing the same issue.
Texas law does not require that a copy of the affidavit be given to the
owner of the premises to be searched for the search to be valid, so long as the
warrant clearly incorporates the affidavit and the affidavit provides the necessary
particularity. See, e.g., Proctor v. State, No. 11-09-00327-CR, 2011 WL
4820088, at *5 (Tex. App.––Eastland Oct. 6, 2011, no pet. h.); Ramirez, 345
S.W.3d at 634 & n.3; Ashcraft v. State, 934 S.W.2d 727, 735–36 (Tex. App.––
Corpus Christi 1996, pet. ref‟d); State v. Tipton, 941 S.W.2d 152, 155–56 (Tex.
App.––Corpus Christi 1996, pet. ref‟d); Turner v. State, 886 S.W.2d 859, 864
(Tex. App.––Beaumont 1994, pet. ref‟d); Gonzales v. State, 743 S.W.2d 718, 719
(Tex. App.––Houston [14th Dist.] 1987, pet. ref‟d); see also Faulkner v. State,
537 S.W.2d 742, 744 (Tex. Crim. App. 1976) (holding that affidavit is made part
of warrant when incorporated by reference and two are stapled together). Article
18.06(b) of the code of criminal procedure, which incorporates article 1, section 9
of the Texas constitution, requires only that the warrant and a written inventory
be served upon the owner of the premises to be searched. Tex. Code Crim.
Proc. Ann. art. 18.06(b) (West 2005); Turner, 886 S.W.2d at 864; Gonzales, 743
S.W.2d at 720; see Tex. Const. art. 1, § 9. And the failure to provide a copy of
the warrant itself, an inventory, or both––required by article 18.06(b) to be
provided upon a search pursuant to a warrant––does not require suppression of
evidence absent a showing of prejudice. Tex. Code Crim. Proc. Ann. art.
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18.06(b); see Phenix, 488 S.W.2d at 766; Robles v. State, 711 S.W.2d 752, 753
(Tex. App.––San Antonio 1986, pet. ref‟d).
Here, the affidavit supporting the warrant was signed by Judge Podgorski
as well as Detective Buchanan; the return, dated four days after the search, was
signed by Detective Buchanan; and both were filed with the district clerk of
Denton County. See United States v. Allen, 625 F.3d 830, 838–39 (5th Cir.
2010) (distinguishing search pursuant to facially invalid warrant without
incorporation language from search in Groh because magistrate signed both the
warrant and the supporting affidavit and therefore the good faith exception
applied to validate search). The return states that officers seized a “Quantity of
methamphetamines” and “Drug paraphernalia.” Appellant does not dispute that
the affidavit and warrant were presented together to Judge Podgorski. The
“manifest purpose” of the particularity requirement is to prevent general
searches; this “requirement ensures that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79,
84, 107 S. Ct. 1013, 1016 (1987); see Allen, 625 F.3d at 839 (“[T]he magistrate
judge‟s signature on the affidavit reduces the concern that he did not agree to the
scope of the search as defined and limited therein.”). Additionally, a warrant
should also “assure[] the individual whose property is searched or seized of the
lawful authority of the executing officer, his need to search, and the limits of his
power to search.” Groh, 540 U.S. at 561, 124 S. Ct. at 1292 (quoting United
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States v. Chadwick, 433 U.S. 1, 9, 97 S. Ct. 2476, 2482 (1977)). Nothing in the
record about this particular search shows that officers ran afoul of the purpose of
the particularity requirement by failing to present the affidavit to appellant at the
time of the search.3 See Long, 132 S.W.3d at 447 (“The constitutional objectives
of requiring a „particular‟ description of the place to be searched include:
1) ensuring that the officer searches the right place; 2) confirming that probable
cause is, in fact, established for the place described in the warrant; 3) limiting the
officer‟s discretion and narrowing the scope of his search; 4) minimizing the
danger of mistakenly searching the person or property of an innocent bystander
or property owner; and 5) informing the owner of the officer‟s authority to search
that specific location.”). Nor is there any evidence that appellant was prejudiced
by the omission.4 Accordingly, we conclude and hold that the failure to provide a
copy of the affidavit with the search warrant did not render the search invalid
under either the federal or state constitutions. We overrule appellant‟s first point.
3
Detective Buchanan testified that the officers were only able to search a
six by six area of the trailer because of the condition inside. According to
appellant, the six by six area is his common area, but “the whole trailer is
functional.” The warrant specifically authorizes entry into the premises described
in the affidavit, which is a “single width mobile home,” described at length. Thus,
there is no evidence that the search exceeded the scope of the warrant.
4
For instance, appellant does not contend that the police exceeded the
scope set forth in the affidavit. The police did not arrest appellant the day of the
search; instead, they waited to arrest him until after they obtained lab results
confirming that they had seized methamphetamine.
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Conclusion
Having overruled both of appellant‟s points, we affirm the trial court‟s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DAUPHINOT, J. concurs without opinion in result only.
PUBLISH
DELIVERED: November 17, 2011
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