JONES v. STATE, 01-08-00828-CR (Tex.App.-Houston [1st Dist.] 5-26-2011)

The relatively easy issue presented to the en banc court in this case is whether the use of the vague word "recently," without any reference to a specific time frame, in an affidavit made in support of a search warrant is sufficient to establish probable cause that the evidence to be searched for is, at the time the warrant is issued, located in the place to be searched. The panel majority's affirmative, and erroneous, answer to this straightforward question will come as a surprise to experienced law-enforcement officers and magistrates, who, familiar with the well-established law, recognize the need for such specific time frames to establish probable cause for a search. More important, the panel majority's opinion is in conflict with our fundamental constitutional and statutory protections against searches made without probable cause, and it stands in stark contrast to the well-established precedent of the United States Supreme Court and the Texas Court of Criminal Appeals.

Revealing the weakness of its reasoning, the panel majority, in its previous opinion, conceded that it did "not wish to express any sense of approval of the routine omission [from affidavits made in support of search warrants] of the specificity of the time at which [an] informant learn[s] of probable cause to conduct a search." See Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, and 01-08-01016-CR (Tex. App.-Houston [1st Dist.] Jan. 31, 2011), withdrawn and substituted opinion at Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, and 01-08-01016-CR, 2011 WL 1448147 (Tex. App.-Houston [1st Dist.] Apr. 14, 2011, no pet. h.). Although the panel majority, upon rehearing, has withdrawn this concession from its current opinion, the fact remains that, in affirming the trial court's judgment, the panel majority is, by fiat, expressly approving of the omission of specific time frames from search-warrant affidavits. The panel majority still admits that "the failure to include specific dates and times of relevant events described in [the search-warrant] affidavit in this case is not a model demonstration." Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, and 01-08-01016-CR (Tex. App.-Houston [1st Dist.] Apr. 14, 2011, no pet. h.) (emphasis added). However, given that the panel majority's opinion constitutes binding precedent on this Court, the panel majority's new, much lower standard will necessarily be followed. It will only serve to confuse, and not clarify, the law. And it will lead law-enforcement officers and trial courts into committing more serious errors that will eventually have to be corrected.

If allowed to stand as binding precedent, the panel majority's opinion will effectively eliminate the requirement that an affidavit made in support of a search warrant contain a specific time frame to corroborate the existence of evidence at the place to be searched at the time the warrant is issued. Thus, it would undermine the meaning of "probable cause" and render article 18.01(c)(3) of the Texas Code of Criminal Procedure meaningless. Accordingly, I respectfully dissent from the denial of en banc reconsideration of this case. See TEX. R. APP. P. 41.2(c).

The facts pertinent to the motion to suppress evidence of appellant, Rio Shareese Jones, are found in the "Affidavit for Search Warrant," in which a Texas City Police Officer testified, in pertinent part, as follows:

While assigned to the Texas City Police Special Crimes Unit Affiant recently received information from a confidential informant in reference to crack cocaine being sold out of the residence located at 219 North Pine Road.

After obtaining the information about 219 North Pine Road Affiant began a narcotics investigation. Officer C. Alcocer recalled being contacted by Dickinson Police Officer M. Henson, in reference to information about 219 North Pine Road. Officer Alcocer stated to Affiant that Officer Henson had information from a confidential informant about the selling of crack cocaine at 219 North Pine Road. Officer Alcocer contacted Officer Henson and arranged a meeting with the confidential informant, hereafter referred to as the "source." After the meeting members of the Texas City Police Department Special Crimes Unit elected to enlist the assistance of the source to assist in the narcotic investigation at the suspect location, 219 North Pine Road. . . .

Affiant arranged to make narcotics buy from the suspect location, 219 North Pine Road, with the assistance of the source. . . .

Upon the source's arrival at the suspect location the source was observed approaching the 219 North Pine Road, and walking onto the front porch and into the front door of the residence. The source remained inside the residence for approximately 2 minutes, and was then seen exiting the residence and leaving the area. . . .

Based on the information provided to Affiant by the source and other confidential informants, and my own independent investigation, Affiant believes that a violation of the Texas Controlled Substances Act is currently taking place at 219 North Pine Road, Texas City, Galveston County, Texas. . . .

(Emphasis added.)

As can be readily observed, and as conceded by the panel majority, the officer did not reference any specific dates and times in regard to the relevant events that he described in his affidavit. Importantly, the officer did not state the time that the informant had learned that narcotics were being sold out of the residence. Nor did the officer state the time that the informant had made the controlled buy of narcotics at the residence. In fact, each of the officer's other references to time relate back to his initial reference that he had "recently received information." And from this vague time reference, the officer stated his conclusory belief that narcotics were "currently" at the residence. Thus, from within the four corners of the affidavit, it is simply not possible to ascertain the specific time that narcotics were last observed to be at the residence other than at some indefinite point in time after the officer had "recently received information" and some indefinite point in time before the magistrate issued the search warrant.

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence because, among other reasons, the above affidavit, made in support of the search warrant in question, "is silent as to when [the informant's] controlled buy, the linchpin for probable cause, took place." He further argues that "[b]ecause the magistrate could not `read into the document material information that does not otherwise appear on its face,' the affidavit was fatally defective and could not have provided the magistrate with a substantial basis that probable cause existed to issue the warrant."

The United States Constitution guarantees the right to be secure from unreasonable searches and seizures, and it provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. The Texas Constitution makes the same guarantee, and also provides that no warrant shall issue "without probable cause, supported by oath or affirmation." TEX. CONST. art. I, § 9. Accordingly, in determining the existence of probable cause to search an identified location, a court looks only within "the four corners of the affidavit" made in support of a search warrant. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).

Probable cause to search for contraband or evidence exists only when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983) (emphasis added). As recent as 2006, the United States Supreme Court explained that "the probable-cause requirement looks to whether evidence will be found when the search is conducted. . . ." United States v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499 (2006) (emphasis in original). By statute, Texas provides that a search warrant may not be issued unless a sworn affidavit "sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) 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." TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon Supp. 2010) (emphasis added).

Thus, it is axiomatic that to support the issuance of a search warrant, the information in an affidavit made in support of the warrant must " give[] a time frame that . . . corroborate[s] the existence of [contraband or evidence] on the premises [to be searched] when the warrant [is] requested." Davis v. State, 202 S.W.3d 149, 155 (Tex. Crim. App. 2006) (emphasis added). Why? An affidavit that omits such "a specific time" frame necessarily cannot establish probable cause to conduct a search because a "magistrate would have had no reasonable basis to infer" that any events referred to in the affidavit "occurred at a time that would substantiate a reasonable belief that the object of the search was on the premises to be searched at the time the warrant was issued." Id. Nevertheless, in contradiction of well-established constitutional law and the sound reasoning of Davis, the trial court below concluded that the officer's affidavit testimony, as quoted above, established probable cause to justify the issuance of the search warrant in this case.

The panel majority, in its opinion prior to rehearing, admitted that the term "recently," as used by the officer in his affidavit, is `Vague." And, although the panel majority continues to acknowledge that the term "recently" can be "problematic in some cases," it, like the trial court below, still concludes that the "temporal references within the affidavit allowed the magistrate to determine there was a substantial basis for concluding that a search would uncover evidence of wrongdoing." It, thus, erroneously holds that "the affidavit provided the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing" upon the execution of the search warrant.

In its original opinion, the panel majority, in support of its holding, relied not upon United States Supreme Court or Texas Court of Criminal Appeals authority, but rather the out-of-state cases of State v. Walston, 768 P.2d 1387, 1390 (Mont. 1989); Commonwealth v. Jones, 668 A.2d 114, 118 (Pa. 1995); and Huff v. Commonwealth, 194 S.E.2d 690, 695-96 (Va. 1973). Although the panel majority has now moved its references to these opinions to a footnote, the fact remains that each of the affidavits in these out-of-state cases in fact included some other reference to a specific time frame from which the time necessary to establish probable cause could be reasonably inferred. See Walston, 768 P.2d at 1388 ("past five months"); Jones, 668 A.2d at 118 ("past two months"); Huff, 194 S.E.2d at 695 ("weeks"). Thus, the reasoning of these opinions does not support the panel majority's significant departure from United States Supreme Court and Texas Court of Criminal Appeals precedent.

In support of its assertion that there are several "temporal references" in the officer's affidavit that supported probable cause for the issuance of the search warrant, the panel majority emphasizes that the officer stated that (1) he had "recently" received information from a confidential informant, (2) "[a]fter that meeting," he "began a narcotics investigation," and (3) the investigation "culminated in the controlled buy forming the basis for probable cause, which was described as occurring `after' [the officer had] `recently' met with the first confidential informant." Although the panel majority relies upon these "temporal references" in support of its holding, the bottom line is that the only "temporal reference" with any significant meaning is the officer's use of the vague term "recently."

I do agree with the panel majority's previous characterization of the term "recently" as `Vague." However, the use of the term "recently," without any reference whatsoever to a specific time frame, is not sufficient to support probable cause in a search-warrant affidavit. "Recent" is defined as "having happened, begun, or been done not long ago or not long before; belonging to a past period of time, comparatively close to the present." NEW OXFORD AMERICAN DICTIONARY 1421 (2001). Because the term "recently" is by definition imprecise and not specific, it is not possible, without more specific information, to, from its use, ascertain insight as to specifically when pertinent events took place. "Recent" could mean a few minutes ago, a few hours ago, a few days ago, a few weeks ago, a few months ago, or even a few years ago. However, the law requires that an affidavit made in support of a search warrant provide, with sufficient specificity, facts that would allow a magistrate to determine that contraband or evidence will, in fair probability, be present when the warrant is requested. Grubbs, 547 U.S. at 95, 126 S. Ct. at 1499; Davis, 202 S.W.2d at 155; TEX. CODE CRIM. PROC. ANN. art. 18.01(a) (Vernon Supp. 2010). Here, from the four corners of the officer's affidavit, the time at which the events purportedly giving rise to probable cause actually occurred cannot be ascertained; rather, one is left to "guess, hope, and surmise" that the events occurred at a time sufficient to establish probable cause. See Lowery v. State, 98 S.W.3d 398, 402 (Tex. App.-Amarillo 2003, no pet.). In other words, "It is apparent that the magistrate could not ascertain the closeness of time sufficient to issue the warrant based on an independent judgment of probable cause." Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983) (quoting Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971)).

It is important to note that the time relevant to establishing probable cause is the time when an informant acquired the pertinent information, not the time when the informant conveyed the information to a police officer. Flores v. State, 827 S.W.2d 416, 419 (Tex. App.-Corpus Christi 1992, pet. ref d); see also Schmidt, 659 S.W.2d at 421 (affidavit failed to state when affiant received information from another and when the other obtained information); Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. 1982) (affidavit failed to convey "any definite idea as to when the alleged incident took place"). An affidavit that fails to state when the affiant received pertinent information from an informant, when the informant obtained the information, or when the described conduct took place is, as a matter of law, insufficient to support the issuance of a search warrant. Serrano v. State, 123 S.W.3d 53, 61 (Tex. App.-Austin 2003, pet. ref d) (citing Schmidt, 659 S.W.2d at 421; Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981); Heredia, 468 S.W.2d at 835)); see also State v. Davila, 169 S.W.3d 735, 739 (Tex. App.-Austin 2005, no pet.) (affidavit insufficient when it omitted time that tip was received and there was no point of reference for informant's claim that narcotics were being possessed).

Finally, the panel majority asserts that, here, the officer's affidavit "adequately suggested a continuing criminal operation" and "indicated that the information from the two informants and [his] field test was closely related in time to [his] request for the issuance of the warrant." It argues that the officer's statement of his conclusory belief that an offense was "currently taking place," in conjunction with his use of the term "recently," supports the trial court's finding of probable cause to support issuance of the search warrant. The Austin Court of Appeals considered a similar issue in State v. Jordan, in which a police officer, in his probable cause affidavit stated, "I have good reason to believe that heretofore, on or about the 6th day of June, 2008" the defendant did commit the offense of driving while intoxicated. 315 S.W.3d 660, 663 (Tex. App.-Austin 2010, pet. granted). As explained by the court, such a statement of a police officer's belief and conclusion that a crime has been committed does not give a magistrate a substantial basis for determining the existence of probable cause. Id. (citing Gates, 462 U.S. at 239, 103 S. Ct. at 2317). Thus, the court concluded that the officer's affidavit did not state, as a matter of fact, that an offense took place on June 6, and it could not be reasonably inferred that an offense had occurred on June 6 from the mere fact that the warrant was requested on that date. Id. (citing Schmidt, 659 S.W.2d at 421). As noted by the Austin Court of Appeals, the affiant in Schmidt, a police officer, stated his "belief," based upon information received from another, that a suspect possessed cocaine on a certain date. 659 S.W.2d at 421. However, because the affidavit failed to state when the events described therein "took place," the Texas Court of Criminal Appeals held the affidavit inadequate to support probable cause. Id. Here, likewise, the police officer's statement of his belief that an offense was "currently taking place" does not constitute a statement of fact, but is merely a conclusory statement that did not support probable cause. See id.

In contrast, the affiant in Sutton v. State clearly testified, as a statement of fact, that "narcotic drugs are now concealed by" the defendant. 419 S.W.2d 857, 860 (Tex. Crim. App. 1967) (emphasis added). Placing great emphasis on the officer's "statement `that said narcotic drugs are [ n] ow concealed by [the defendant],'" the court held that the use of the word "recently" with the "other references to time," including the reference to "[ n] ow," was "sufficiently definite and current to warrant the conclusion that the act or event relied upon as a basis for probable cause occurred within a reasonable time before the making of the affidavit, and authorized the magistrate to issue the search warrant." Id. at 860-61 (emphasis added). Critically, the affiant in Sutton also clearly testified to the fact that the informant had "recently" told the affiant that the defendant and co-defendant, in the present tense, " are living at [the location to be searched] and that they have a large quantity of marihuana in their possession at this location. The informant has been to these living quarters and has seen the marihuana recently:" Id. at 861 (emphasis added).

Here, again in stark contrast, the officer in his affidavit made no reference as to when the informant had learned that narcotics were being sold at the residence or when the informant made the controlled buy and, thereby, had last observed the presence of narcotics at the residence. Unlike the affiant in Sutton, the officer here used the term "recently" only to describe when he had "received information," and each of his other time references relate back to this initial, `Vague" reference. There is no present-tense reference to appellant being at the residence and having narcotics in his possession at the time the affidavit was sworn to by the officer. From within the four corners of the affidavit presented here, it is simply not possible to ascertain the time that narcotics were last observed to be at the residence other than at some indefinite point in time after the officer had "recently received information" and some indefinite point in time, not long before, the magistrate issued the search warrant. Thus, to the extent that the State and the panel majority rely upon Sutton to support their arguments, their reliance is not only problematic because Sutton was decided in 1967 prior to Gates, Grubbs and Davis, but their reliance is very much misplaced because the reasoning of Sutton, based upon its contrasting facts, actually undermines their arguments.

In his Motion for Reconsideration En Banc, appellant argues that en banc review of the panel majority's decision is necessary because the panel majority's opinion "sanctions a search spawned by an affidavit that failed to provide the magistrate with a substantial basis to find that probable cause existed," and, in doing so, it "considerably weaken[s] the Fourth Amendment protections against unreasonable governmental intrusions into constitutionally safeguarded areas of our lives." Indeed, as noted above, the panel majority itself seems to acknowledge how far afield it has gone, stating that "the failure to include specific dates and times of relevant events described in [the search-warrant] affidavit in this case is not a model demonstration." (Emphasis added.) This of course begs the question: if it sufficiently established probable cause to support the issuance of the search warrant, i.e., if it passed muster under the United States and Texas Constitutions, the Texas Code of Criminal Procedure, and the case law, why should it not, as the panel majority admitted in its prior opinion, serve as a model to be followed?

The bottom line is that the panel majority opinion cannot be reconciled with the well-established precedent of the United States Supreme Court and the Texas Court of Criminal Appeals as cited above. Indeed, although the panel majority has taken great pains to bolster its arguments on rehearing, it seems readily apparent that it is trying to fit a square peg into a round hole. As implicitly suggested in its current opinion, and even more so in its prior opinion, the panel majority's reasoning represents a significant departure from the most basic and fundamental legal principles concerning what is necessary to establish probable cause for the issuance of a search warrant. Accordingly, the panel majority's error in upholding the search-warrant affidavit in this case is of such importance to the jurisprudence of the State of Texas that it should be corrected. See TEX. GOV'T CODE ANN. § 22.001(a)(6) (Vernon 2004).

A majority of the justices of the Court voted to overrule the motion for reconsideration en banc.

Justices Jennings, Higley, and Sharp dissent from the denial of the motion for reconsideration en banc.

Justices Higley and Sharp join Justice Jennings's opinion dissenting from the denial of reconsideration en banc.