Elrod, Gordon Heath , 538 S.W.3d 551 ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0704-16, PD-0705-16, PD-0706-16
THE STATE OF TEXAS
v.
GORDON HEATH ELROD, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
R ICHARDSON, J., delivered the opinion for a unanimous Court.
OPINION
Appellee, Gordon Heath Elrod, was charged with fraudulent use or possession of
identifying information1 and with two offenses of tampering with a governmental record.2
1
T EX. P ENAL C ODE § 32.51(b)(1) provides, “A person commits an offense if the person, with
the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying
information of another person without the other person’s consent.”
2
T EX. P ENAL C ODE § 37.10(a) provides, “A person commits an offense if
he: . . . (4) possesses, sells, or offers to sell a governmental record or a blank governmental record form
with intent that it be used unlawfully . . . .” T EX. P ENAL C ODE § 37.10(c)(2) provides, “An offense
Elrod — 2
Appellee filed a motion to suppress evidence seized by Mesquite police officers after they
executed a search warrant at his hotel room. The trial court granted Appellee’s motion to
suppress, finding that the affidavit in support of the search warrant did not establish probable
cause. The Fifth Court of Appeals agreed and affirmed the trial court’s order.3 We granted
the State’s petition for discretionary review.
We hold that the affidavit contained enough particularized facts given by a named
informant to allow the magistrate to correctly determine that there was probable cause to
issue a search warrant. The court of appeals erred by affirming the trial court’s order
granting Appellee’s pretrial motion to suppress. We reverse the judgment of the Fifth Court
of Appeals, vacate the trial court’s order granting the motion to suppress, and remand the
case to the trial court for proceedings consistent with this opinion.
under this section is a felony of the third degree if it is shown on the trial of the offense that the
governmental record was: (A) . . . a license . . . or similar document issued by government . . . , unless
the actor’s intent is to defraud or harm another, in which event the offense is a felony of the second
degree.”
3
State v. Elrod, Nos. 05-15-01219-CR, 05-15-01221-CR, 05-15-01222-CR, 2016 WL 3194808
(Tex. App.—Dallas May 27, 2016).
Elrod — 3
THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT
Affiant, Investigator Smith with the Mesquite Police Department, provided the
affidavit in support of the application for a search warrant to search Room 119 at the
Executive Inn and Suites, located at 3447 E. Hwy 30, Mesquite, Texas. Smith attested to
the following events in his affidavit presented to the magistrate that are pertinent to this
appeal:
On Monday, April 27, 2015 at approximately 17:23 hours [5:23 p.m.]
Officer Mobley, Officer McCloud, Officer Everett, and Officer Berg were
dispatched to 4050 Gus Thomasson Rd (One Star Food Mart), Mesquite,
Dallas County, Texas in reference to a Forgery.
Upon arrival officers observed a heavy male subject walk out of the
store towards a 1995 white Cadillac dev (TXLP: FKH2476). Officers then
observed the store clerk who was later identified as Kasumbi, Ahmed (W/M
5/31/80) come out of the business and state to officers “that’s them” and
pointed at the vehicle . . . .
While officers were out with the three suspects, Kasumbi called
dispatch and advised there was a female suspect involved and she was still at
the location. Officer[s] Everett, Mobley, and McCloud arrived at the location.
Kasumbi stated the female who was identifying herself as Bazan,4 Elizabeth
with a paper ID was trying to cash a check. Kasumbi advised the female had
been at the location on Saturday 04/25/15 trying to cash the same check.
Kasumbi stated he told the female that he couldn’t cash the check on that day.
Kasumbi advised the female came in today and was trying to cash the check.
4
The affidavit spelled this name “Bazan” and “Bazen.” It is not clear which is the correct
spelling.
Elrod — 4
Kasumbi stated the check was suspicious and he believed it was fictitious.
Kasumbi provided officers with the check that the female was trying to cash.
The check appeared to be a payroll check from Texas Family Dental
(10233 East Northwest Hwy Ste 510, Dallas, TX). The check showed to be
paying a Monica Bazen the amount of $1,012. Officer Mobley made contact
with the dental office which had the name of American Family Dental. Officer
Mobley spoke with a Linda Dutton who advised they have a part time doctor
with the name of Monica Bazen. Dutton advised they had not issued any
payroll checks to Dr. Bazen recently. Dutton provided a phone number for Dr.
Bazen.
Officer Mobley then made contact with Bazen, Monic [sic] by phone
who advised she didn’t have a payroll check from American Family Dental.
Bazen advised she had not given anyone permission to cash a check with her
name. Bazen stated she did wish to press charges against anyone using her
person [sic] information.
Officers placed the female who identified herself as Stovall, Marsha
(W/F 09/20/86) into custody. While searching Stovall’s purse officers located
a paper ID with Stovall’s information. Officers located a paper ID with the
name Bazan, Elizabeth (W/F 02/08/87), and a note book with several names,
id [sic] numbers, social security numbers, and address[es]. Officers also
located several credit cards inside Stovall’s purse. . . Officers also located [a]
clear glass pipe believed to be used for smoking methamphetamines. Stovall
also provided officers with a TX driver license for Andricka, Lindsay (B/F
08/19/91) as well as a social security card with the same name, and a social
security card with Monica Bazan on it in her back pocket.
***
Officers transported Stovall to Mesquite City Jail where she was
booked in for Forgery with financial instrument and Fraudulent
Use/Possession of Identifying Information without incident.
Elrod — 5
Officer Mobley placed the ID’s Stovall had in her possession as well as
the note book with social security numbers, ID’s, names, addresses, the check,
and credit cards into Mesquite Police Department property room as evidence.
On 4-28-15 at approximately 0830 hours [8:30 a.m.] Inv. Smith
proceeded to the Mesquite Jail to interview Stovall. Prior to the interview
Stovall was read her Miranda Warning to which she advised she understood.
Stovall went on to advise that she had been staying in room #119 at the
Executive Inn located at 3447 E Hwy 30 Mesquite, TX 75150 for the last few
days prior to being arrested. Stovall advised that the counterfeit check, driver
license and social security card bearing the name of Monica Bazan were all
printed in the motel room. She advised that there are two desk top computers
and four printers in the room. She advised that the occupants of the room were
Alisha Davis,5 her husband Gordon, and their two kids Jacob and Jeremiah.
Stovall advised that they were printing counterfeit checks, driver licenses, and
social security cards when she left the room on 4-27-15 at 1700 hours [5:00
p.m.]. Stovall advised that Gordon and Alisha are mail thieves and the
information they counterfeited came from stolen mail which was also inside
the motel room.
On 4-27-15 at approximately 1900 hours [7:00 p.m.] Officers Walzel
and Berg 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.
Your Affiant believes that there is further evidence inside the dwelling
at 3447 E Hwy 30 #119 Mesquite, TX 75150. It is believed that the residence
contains evidence of the offense of Forgery Financial Instrument, a violation
of section 32.21 of the Texas Penal Code.6
The magistrate issued the search warrant at approximately 10:35 a.m. on April 28,
5
This person’s name has been spelled “Alisha,” and “Alicia” in various court documents. It
is not clear which is the correct spelling.
6
Affidavit For Search Warrant, Exhibit A.
Elrod — 6
2015, and it was executed that day. Appellee was arrested the following day on April 29,
2015, pursuant to an arrest warrant.7 Appellee filed a Motion to Suppress on or about July
31, 2015.
On August 28, 2015, the trial court held a hearing on Appellee’s motion to suppress.
Appellee testified regarding only the issue of standing to bring the motion. Appellee testified
that he and his wife and children were renting room 119 in the Executive Inn, on Highway
30, in Mesquite, Texas. Defense counsel then offered into evidence the search warrant
affidavit, urging the trial court to rule on the motion to suppress based on the four corners
7
The Arrest Narrative incorporated within the arrest warrant affidavit, which was signed on
April 29, 2015, listed the items found in the motel room as a result of the search:
Upon searching the room investigators located five computers, two hard drives and
four printers/scanners. Investigators located a Citi Bank bag in the night stand. Inside
the bag investigators located six fictitious TX driver licenses. Five of the driver
licenses possessed Elrod’s picture and the identifying information belonging to Don
Deakin, Shane Potter, Allen Ward, Alejandro Valdes, and Rapplan Krockitt. There
was one which possessed Davis’ photo the identifying information belonging to Nickie
Cumichael. All of the names appeared to coincide with names that were on checks
also inside the bank bag. None of the checks belonged to Elrod or Davis and appeared
to have been stolen. Located on the door to the bathroom was a blank blue piece of
cardboard taped to the top of the door. It appeared to be the backdrop for taking
counterfeit driver license photos. Investigators located several other pieces of
identifying information belonging to other victims. The identifying information was
located on mail, checks, and a computer generated employee list from an unknown
business which possessed hundreds of employee’s [sic] names, dates of birth and social
security numbers. Also located in the room was identifying info [sic] belonging to
Alicia Davis and Gordon Elrod. Investigators located over one thousand pieces of
identifying information in the hotel room.
Elrod — 7
of the affidavit. There were no other witnesses presented, and there was no additional
evidence offered.
ARGUMENTS OF THE PARTIES
Appellee claimed in his motion to suppress that the search warrant, under which
tangible evidence was seized, was in violation of his rights under the Texas and United States
Constitutions and thus invalid because the supporting affidavit did not reflect probable cause.
Appellee urged in his motion that probable cause was lacking because (1) the affidavit lacked
sufficient underlying facts which would lead a neutral and detached magistrate to conclude
that the alleged contraband was at the designated location, and (2) the affidavit failed to state
sufficient underlying information to establish the credibility of the facts alleged by the
affiant.
At the motion to suppress hearing, Appellee argued that, looking at the four corners
of the affidavit, nothing Stovall said was corroborated by any independent investigation by
the police. He argued that Stovall was not a credible nor reliable informant, and that a tip by
an informant of unknown reliability standing alone is insufficient to support probable cause
for an affidavit.
The State responded that there was probable cause to support the magistrate’s decision
to issue the search warrant because (1) the tip came from a named informant, not an
Elrod — 8
anonymous or confidential one, (2) it was made against Stovall’s penal interest, (3) it was a
detailed first-hand account of criminal activity, and (4) it was consistent with information the
officers had observed for themselves.
For the reasons discussed below, we hold that the search warrant affidavit established
sufficient probable cause to support the magistrate’s decision to issue the search warrant.
ANALYSIS
“The core of the Fourth Amendment’s warrant clause and its Texas equivalent is that
a magistrate may not issue a search warrant without first finding ‘probable cause’ that a
particular item will be found in a particular location.”8 In determining whether a warrant
sufficiently establishes probable cause, this Court is bound by the four corners of the
affidavit.9 “[I]n interpreting affidavits for search warrants courts must do so in a common
sense and realistic manner.”10 “[P]robable cause exists when the facts and circumstances
shown in the affidavit would warrant a man of reasonable caution in the belief that the items
8
State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) (first citing Rodriguez v. State,
232 S.W.3d 55, 60 (Tex. Crim. App. 2007); and then citing U.S. C ONST. amend IV; T EX. C ONST. art.
I § 9).
9
Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Lopez v. State, 535 S.W.2d
643, 647 (Tex. Crim. App. 1976) (first citing T EX. C ONST. art. I, § 9; then citing T EX. C ODE C RIM .
P ROC. art. 18.01; then citing Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1975); and then
citing Carvajal v. State, 529, S.W.2d 517 (Tex. Crim. App. 1975)).
10
Lopez v. State, 535 S.W.2d at 647.
Elrod — 9
to be seized were in the stated place.”11 “A magistrate, in assessing probable cause, may
draw inferences from the facts.”12 Therefore, although the magistrate’s determination of
probable cause must be based on the facts contained within the four corners of the affidavit,
the magistrate may use logic and common sense to make inferences based on those facts.
A magistrate’s decision to issue a search warrant is subject to a deferential standard
of review, even in close cases.13 The rationale behind the rule requiring that we give great
deference to a magistrate’s determination that a warrant should issue was explained by the
11
Id.; Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996) (stating that the
allegations in the affidavit are sufficient if they would “justify a conclusion that the object of the search
is probably on the premises.”).
12
Lopez v. State, 535 S.W.2d at 647; see also Lagrone v. State, 742 S.W.2d at 661 (noting that,
“Rather than requiring a determination to be made within the framework of a factual vacuum, the
reviewing magistrate is permitted to draw reasonable inferences from the facts supporting the
averments.”).
13
See Rodriguez, 232 S.W.3d at 59–60 (“[I]n a doubtful or marginal case of [probable cause]
a search under warrant may be sustained where one without one would fail.” (quoting United States
v. Ventresca, 380 U.S. 102, 106 (1965)); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App.
2004) (rejecting a de novo standard of review in reviewing a magistrate’s probable cause
determination). In State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012), we noted that the
Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964) stated that a review “of the constitutionality
of a search warrant should begin with the rule that ‘the informed and deliberate determinations of
magistrates empowered to issue warrants . . . are to be preferred over the hurried action of
officers . . . who may happen to make arrests.’” Duarte, 389 S.W.3d at 354 (quoting Aguilar, 378 U.S.
at 110–11 (quoting United States v. Lefkowitz, 285 U.S. 452, 464 (1932))). Therefore, even in close
cases we give “great deference” to a magistrate’s determination of probable cause to encourage police
officers to use the warrant process rather than make warrantless searches and later attempt to justify
their actions by invoking consent or some other exception to the warrant requirement. Duarte, 389
S.W.3d at 354 (first citing Omelas v. United States, 517 U.S. 690, 699 (1996); and then citing Illinois
v. Gates, 462 U.S. 213, 236 (1983)).
Elrod — 10
United States Supreme Court in Illinois v. Gates:
[The process of determining probable cause] does not deal with hard
certainties, but with probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain common-sense
conclusions about human behavior; jurors as factfinders are permitted to do the
same—and so are law enforcement officers. Finally, the evidence thus
collected must be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of law enforcement.14
We will therefore uphold a magistrate’s decision to issue a search warrant “so long as he or
she has a substantial basis for concluding” that probable cause exists.15
A. State v. Duarte 16
Appellee urges that our holding in State v. Duarte supports his position that there were
insufficient facts contained in the affidavit to support a finding of probable cause. In State
v. Duarte, we addressed the issue of whether a tip by a first-time confidential informant of
unknown reliability, standing virtually alone, provides a sufficient basis for a magistrate’s
probable cause determination. The affidavit at issue in Duarte recited that the affiant
“receive[d] information from a credible individual who is currently facing pending criminal
charges and provided the information with the expectation that his/her cooperation with law
14
Illinois v. Gates, 462 U.S. 213, 231–32 (1983).
15
Rodriguez, 232 S.W.3d at 59–60.
16
389 S.W.3d 349 (Tex. Crim. App. 2012).
Elrod — 11
enforcement would, if proven valid, be called to the attention of authorities, for the possible
dismissal of charges, or a favorable plea bargain sentence.”17 The affiant in Duarte
represented that the informant was familiar with cocaine; had told the affiant that he/she had
observed Gilbert Duarte in possession of cocaine within the past 24 hours at a certain
address; and the affiant had confirmed that Duarte did in fact live at that same address.18 The
trial court granted the motion to suppress on the basis that the affidavit in support of the
search warrant did not contain sufficient information to support the magistrate’s finding of
probable cause.19
This Court upheld the trial court’s decision to grant Duarte’s motion to suppress. We
summarized the proper standard for reviewing whether an affidavit provides sufficient
information that would support a finding of probable cause for the issuance of a warrant:
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.20 Probable cause exists when, under the totality of the
circumstances, there is a “fair probability” that contraband or evidence of a
17
Id. at 352.
18
Id.
19
Id. at 353.
20
Id. at 354 (first citing Massachusetts v. Upton, 466 U.S. 727, 733 (1984); and then citing
Rodriguez, 232 S.W.3d at 60).
Elrod — 12
crime will be found at the specified location.21 This is a flexible,
nondemanding standard.22 Neither federal nor Texas law defines precisely
what degree of probability suffices to establish probable cause, but a
magistrate’s action cannot be a mere ratification of the bare conclusions of
others.23 A magistrate should not be a rubber stamp. “In order to ensure that
such an abdication of the magistrate’s duty does not occur, courts must
continue to conscientiously review the sufficiency of affidavits on which
warrants are issued.” 24
We noted in Duarte that probable cause exists if the information given by the
informant “is corroborated, is a statement against penal interest, is consistent with
information provided by other informants, is a detailed first-hand observation, or is coupled
with an accurate prediction of the subject’s future behavior.”25 In Duarte, we emphasized
that the informant’s tip “contained no particular level of detail regarding appellee’s premises
or his criminal activity.”26 We also distinguished the facts of that case from a situation where
“there is a tip about a methamphetamine lab, or marijuana-growing operation, or crack-
21
Id. (first citing Gates, 462 U.S. at 238; and then citing State v. McLain, 337 S.W.3d 268,
272 (Tex. Crim. App. 2011)).
22
Id. (citing McLain, 337 S.W.3d at 272).
23
Id. (first citing Gates, 462 U.S. at 239; and then citing Rodriguez, 232 S.W.3d at 61).
24
Id. (citing Gates, 462 U.S. at 239).
25
Id. at 356 (emphasis added) (internal citations omitted).
26
Id. at 359 (citing Long v. State, 137 S.W.3d 726, 730–31 (Tex. App.—Waco 2004,
pet. ref’d)).
Elrod — 13
cocaine dealing,” or where “criminal activity is ongoing.”27 In Duarte, it was significant that
there was nothing in the affidavit that suggested Duarte was engaged in drug-dealing. Thus,
despite giving deference to the magistrate in Duarte, this Court held that the officer’s
“boilerplate affidavit” contained insufficient particularized facts about Duarte’s alleged
possession of cocaine to allow the magistrate to realistically determine probable cause to
issue the search warrant.28
B. This case is sufficiently distinguishable from State v. Duarte to support the
finding of probable cause here
The magistrate judge in this case and the one in Duarte each had a close call to make
regarding the issue of whether the affidavit supporting the search warrant provided sufficient
probable cause. However, there are key differences between the facts of this case and those
in Duarte. The affidavit in this case was not “boilerplate.”
Significantly, this case does not involve an unnamed confidential informant or an
anonymous tip. Citing to Duarte, the court of appeals held that “informants ‘from the
criminal milieu’ do not enjoy any presumption of reliability.”29 However, Stovall was a
named informant who was an eyewitness to criminal activity in which she was involved.
After her arrest, Stovall gave a detailed statement to Investigator Smith that contained
27
Id. at 357.
28
Duarte, 359 S.W.3d at 357.
29
State v. Elrod, 2016 WL 3194808 at * 3.
Elrod — 14
specific information regarding alleged ongoing criminal activity at a specified
location—Room 119 at the Executive Inn. “We have held that when 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.”30 Investigator Smith’s affidavit is sufficiently detailed
to suggest direct knowledge on Stovall’s part. Stovall was able to give details about the
alleged criminal activity because she was participating in it, and she had first-hand
knowledge of the alleged counterfeit and mail and identity theft operation she was
describing. The magistrate did not have to rely upon a presumption of reliability, but rather
was able to assess Stovall’s reliability based upon the details she provided. Pursuant to our
decisions in Matamoros v. State and Wilkerson v. State, regarding named informants, we
conclude that, under these facts, the magistrate did not err by not requiring more information
to support Stovall’s credibility or reliability.31 The search warrant affidavit in this case
contains more particularized facts than did the one in Duarte—enough to tip the scale the
other way and support a finding of probable cause. Unlike Duarte, where the unnamed
informant did not give particularized facts about Duarte’s alleged possession of cocaine,
30
Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995) (emphasis added) (citing
Wilkerson v. State, 726 S.W.2d 542, 545 (Tex. Crim. App. 1986)).
31
Id. (“[The named informant’s] statement that appellant had confessed to him shows direct
knowledge of appellant’s culpability justifying a warrant to test appellant’s blood.”); Wilkerson v.
State, 726 S.W.2d at 545 (“The information related by Winn suggests personal and direct knowledge
on her part and is also entitled to credibility.”).
Elrod — 15
Stovall, a named person, gave specific facts about Appellee’s alleged ongoing counterfeit
operation and mail theft scheme.
In addition, the information Stovall gave to Investigator Smith was not being traded
for leniency, as it was in Duarte. Stovall’s information was in the context of her statement
to the police related to her own pending charges for an offense directly connected to the
ongoing one she described to police as taking place in Room 119. Stovall revealed that the
counterfeit check she used at the Food Mart was printed in the motel room, and that she had
been in the motel room when counterfeit checks were being printed by Appellee and his wife.
Her “tip” was more akin to a detailed confession surrounding her own involvement in the
alleged counterfeit operation, which could be viewed as being against her penal interest.
Moreover, the trial court and the court of appeals disregarded facts contained in the
affidavit which provided “independent” corroboration of Stovall’s information. In
Investigator Smith’s affidavit he avers that, “On 4-27-15 at approximately 1900 hours [7:00
p.m.] Officers Walzel and Berg 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.” That encounter at the motel on April 27, 2015, has never been
challenged, and the validity of that encounter is not before us. However, the timing of the
officer’s visit to the Room 119 on the night before Stovall’s interview, and the lack of
Elrod — 16
explanation in the affidavit regarding that visit, was bothersome to the trial court32 and to the
court of appeals33 such that they discounted its significance. Nevertheless, we must review
the affidavit realistically, and with common sense.34 Reasonable inferences may be drawn
from the facts contained in the affidavit.35 “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.”36 We look to whether the magistrate’s determination was based
upon all reasonable and common sense inferences and conclusions that the affidavit facts
support.37 Reading these facts from a common sense perspective and not in a “factual
vacuum,”38 the magistrate could have reasonably and logically deduced that, although
Investigator Smith did not literally refer to the motel visit by Officers Walzel and Berg as a
“knock and talk,” that was exactly what it was. This inference is based upon “certain
common-sense conclusions about human behavior . . . [as] understood by those versed in the
32
State v. Elrod, 2016 WL 3194808 at * 2.
33
Id. at * 4.
34
Duarte, 389 S.W.3d at 354 (first citing Gates, 462 U.S. at 236; and then citing Jones v. State,
364 S.W.3d 854, 857 (Tex. Crim. App. 2012)).
35
Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987).
36
Duarte, 389 S.W.3d at 354–55.
37
Rodriguez, 232 S.W.3d at 64.
38
Lagrone v. State, 742 S.W.2d at 661.
Elrod — 17
field of law enforcement.”39 Therefore, the information the two officers gained from going
over to Room 119 on April 27, the same evening the offense occurred, independently
corroborated the facts Stovall gave in her detailed statement to Investigator Smith on
April 28. Given these facts, the chronology of this independent corroboration is
understandable.
The extensive and detailed statement given by Stovall, a named informant and
witness to the ongoing criminal activity, showed that she had personal and direct knowledge
of the matters she asserted.40 That, not any presumption of reliability, is what made her a
reasonably trustworthy source. The magistrate, therefore, correctly determined that the facts
that Stovall gave established a “fair probability” that evidence of a particular crime would
likely be found in Room 119 of the Executive Inn.41
39
Illinois v. Gates, 462 U.S. 213, 231–32 (1983).
40
Wilkerson v. State, 726 S.W.2d at 545.
41
State v. Duarte, 389 S.W.3d at 354; Rodriguez v. State, 232 S.W.3d at 60. The following
narrative accompanying the arrest warrant is dated April 29, 2015. Although it could not have been
considered with the search warrant affidavit, since it was drafted the day after the search warrant
affidavit, it confirms the logical inference that the police went to the motel that same evening to
investigate after arresting Stovall:
On 4-27-15 Marsha Stovall w/f 9-20-86 was arrested after attempting to cash a forged
check at One Star Food Mart. . . . At the time of her arrest Stovall was in possession
of a counterfeit TX driver license, social security card and check. The patrol officers’
investigation led Officers Walzel and Berg to room #119 at Executive Inn and Suites
located at 3447 Hwy 30 in Mesquite. There officers contacted Gordon Elrod w/m 12-
29-70 and Alicia Davis w/f 6-16-73 who were occupants in the room. Officers
observed several computers and printers in the room. There was no action taken at that
time and officers left the location.
Elrod — 18
CONCLUSION
Giving deference to the magistrate’s decision in issuing the search warrant, we hold
that the search warrant affidavit contained enough particularized facts about Appellee’s
alleged fraudulent use or possession of identifying information and alleged tampering with
a governmental record to support a finding of probable cause to issue the search warrant.
The court of appeals erred by affirming the trial court’s order granting Appellee’s motion to
suppress. We reverse the judgment of the Fifth Court of Appeals, vacate the trial court’s
order granting the motion to suppress, and remand the case to the trial court for proceedings
consistent with this opinion.
DELIVERED: October 25, 2017
PUBLISH