*1 satisfy it. displeased If he is diligently access, may
with he ask the court to modi- order, or
fy or enforce the visitation contempt parent
hold the custodial
viоlating it. See Tex. Fam.Code 157.001(a)-(b). 156.001,
§§ he is If unable may seek a pay, he modification
support § See id. If he order. 156.401. rights support
believes his and his obli- terminated,
gations been he have should
ensure a order See court reflects that. id. 161.206; E.R., § In re of. (Tex.2012) parent “a (recognizing that respect vigilant
must remain to her welfare”). except very
child’s But for the recognized
narrow circumstance law— obligee’s relinquishment obligor’s provision support12—
and the rely
he may parent’s on the other extinguish duty.
actions to support his To differently,
the extent other cases hold we
disapprove of them.
IV. Conclusion judg-
We reverse court of appeals’ judg-
ment and reinstate the trial court’s Tex.R.App. 60.2(c). P.
ment. Ray BONDS, Appellee
Michael
The STATE of Texas.
No. PD-0039-12.
Court of of Texas. Appeals Criminal
March
Dissenting Opinion on Denial of
Rehearing May 157.008(a). §
12. Tex. Fam.Code *3 Bratton, III, Dallas, A. TX,
William for Appellant. McMinn,
Lisa State Prosecuting Attor- Austin, TX, ney, for State.
OPINION KEASLER, J., the opinion delivered Court, KELLER, P.J., in which WOMACK, JOHNSON, HERVEY, COCHRAN, JJ„ ALCALA, joined. Michael Bonds suppress moved to pursuant evidence seized search war- by contesting rant validity. the warrant’s judge The trial overruled his motion find- ing the errors in the of the location to be searched did not invalidate warrant. The court of ap- peals found the warrant lacked cause and reversed. Finding the war- supported rant by probable cause and sufficiently particular, we reverse court of appeals’s judgment. Background I. 5th, 2008, August Department On Texas Safety Ashburn, of Public Jeff Sergeant upon presenting his sworn sought and obtained a search warrant au- search thorizing “[djrugs for and/or kept, prepared, chemicals or manufactured violation the law of the State of Texas, wit: Possession Controlled (Metham- Penalty Group Substance (Cocaine)” phetamine) drug and various paraphernalia associated with the distribu- methamphetamine tion of and cocaine from a location described as story Department Safety, residence located 401 as of Public single [a] Bowie, Street, Montague Coun- listed his address as Bowie, County, residence is a white Texas. Fur- ty, Montague Texas. Said ther, a grey criminal-history residence with wooden framed Ashburn conducted shingle roof with the front arrest composition revealing prior Bonds’s for Said resi- possession marijuana possession south. and for (2) substance, to- рenalty-group dence has windows of a controlled addition, multiple wards Barker Street. arrests has a detached north- 1 controlled ana- penalty-group substance *4 27th, 2008, 15th, garage July west of residence. The has logue. May said On 5th, 2008, large utility a door towards Bark- August and Ashburn con- garage east garbage er Street. Parked ducted searches and “obtained camper a small white and blue trailer. control of custody care and refuse had and left collection been discarded In Ashburn supporting his de- residence, Street, the said 401 Barker suspected and the items scribed the Bowie, County, Montague Texas.” These as stated above. His affidavit seized produced searches a number of melted investigation also his as described follows. glass smoking pipes containing drug resi- peace with As a commissioned officer positive due which tested for cocaine and Department Safety of Public for over ten methamphetamine, plastic bags containing years, twenty-six months of which past methamphetamine residue, and cocaine Service, assigned he was to the Narcotics application and a MasterCard addressed to that he in Ashburn stated is trained Bowie, Bonds at Barker Texas violations, investigation of narcotics 76230. With the assistance of other offi- witnesses, handling of search warrant cers, Ashburn executed the warrant and preparation, per- investigation and methamphetamine, seized other controlled sons who income derive substantial from substances, drug paraphernalia, Unit- manufacture, illegal importation, distribu- ed States currency. tion, and illegal sale of controlled sub- began stances. investigation A. In Trial Court when a credible confidential informant told pre-trial sup- him in Bonds filed a motion to November 2007 that he had seen press claiming in methamphetamine Bonds evidence was pursuant and had in seized to an methamphetamine also seen invalid due Bonds’s to the lack of home “located at Texas State cause Bowie, items Highway sought they and Barker in were where Street were support motion, claimed to Montague County, Texas.” Ashburn be. of his then and the transported the confidential informant offered trial court admitted home, motion-to-sup- several in photographs Bonds’s identified Ashburn as Street, Bowie, Montague prеss hearing purporting “401 prove war- rant’s County, Texas.” The location to confidential infor- mant in photographic partially identified Bonds from a searched was inaccurate de- scribing as line-up person as the he the address 401 Barker and the whom “con- grey. a roof color purchase ducted controlled of metham- as phetamine.” perspec- Taken several different that, tives,
Ashburn further determined ac- the photographs depict two resi- cording relatively records maintained the Tex- close proximity dences to one (which camрer another the same street small white and blue mentioned in Street) not appear was Barker the warrant does Ashburn testified photographs. located behind both residences. that was Ashburn identified the residence Ashburn described the resi- show actually photographs white, as a dence wood-framed residence following it characteristics: to have the south-facing with two windows previ- (cid:127) brown roof. He conceded that his residence; single-story ous roof as location’s (cid:127) wood-framed; presumably grey Drawing was mistake. a distinction (cid:127) exterior; a white residеnces, between the Ashburn testified (cid:127) south-facing; that the “premanu- other residence was a (cid:127) windows; south-facing factured,” home, opposed trailer to a (cid:127) roof; shingle a brown wood-framed house. Ashburn testified (cid:127) detached, south-facing garage that, when he referred to 401 his this *5 appears which to be behind resi- white, he was referring to the large utility dence and has a door. wood-framed residence with the brown roof, not the manufactured home the photographs The also showed that res- grey roof. He further that he testified displayed idence that plаcard searched no difficulty had Cowan,” identifying the location according read “422 but to Ash- intended to be the in- searched that burn, placard during was not there his tended location was fact searched. investigation the search exe- warrant’s cution. Ashburn testified were there no testimony, After hearing Ashburn’s markings of kind on the residence judge trial denied Bonds’s motion and en- searched. findings tered of fact and conclusions of them, among judge law. Notable the trial photographs
Two of the in closer show found: detail the characteristics of the other resi-
dence which wаs located to the east of the by authority The residence searched residence searched: of the search warrant close
(cid:127) proximity buildings. to other residence; a single-story buildings One of the is a residence (cid:127) home; manufactured or trailer visibly bears the house num- (cid:127) (or perhaps light grey) a white exte- Street;” bers “401 Barker this resi- rior of separate dence is East (cid:127) south-facing; actually by the residence searched (cid:127) displayed the numbers “401” next to warrant. authority of door; the front Both residences face South. The (cid:127) windows; south-facing six authority residence of searched] (cid:127) roof; grey shingle the search warrant has two windows (cid:127) ramp leading up large to a wooden Street. resi- by a porch front surrounded wooden of dence situated to the East railing. windows searched residence has six facing Barker Street. clearly A garage large can be seen with utility although by authority door The residence searched white, of photographs’ perspective restricts our the search warrant is a ability residence reddish garage’s to determine the direction- wood frame with a al garage. to the two residences. The brown roof and detached relationship located affidavit all linked to 401 Barker just north- burn’s
There is a
up”
searched and
“match
with the location
residence
did not
west
[the]
the East of the resi-
In
conclu-
actually
reaching
house
searched.3
its
sion,
assumed,
searched.1
deciding,
dence
the court
without
that
intend-
the location
found
further
that Ash-
judge
The trial
ed to
“was sufficient to enable
be searched
errors in the de-
contained
burn’s affidavit
executing the warrant to locate the
officers
color and the address
scription of the roоf
However,
target
distinguish
and to
it from
residence
property
community.”4
other
places
that
judge
the trial
concluded
Ashburn’s
probable cause for
affidavit established
assuming
that
issuance because the
adequate
to be searched was
the correct number
actually searched had
unnecessary
disposition
officer,
and,
the executing
of windows
case,5
recog-
appeals implicitly
the court of
knowledge
personal
permitted
particu-
nized
cause and
identify
him to
the correct location to be
larity
Amend-
components
the Fоurth
pursuant
to the search warrant.
ment,
related,
subject
may
while
sup-
After the
of his motion to
denial
analyses.
distinct
We think the court’s
guilty plea
pos-
press,
entered
However,
implication
we
is correct.
find
of a penalty-group
session
controlled
holding
the affidavit’s facts
intent to deliver and was
substance with
up’
“do not ‘match
with the location that
*6
years’
twenty-five
sentenced to
confine-
was actually searched” the court conduct-
ment.
hybrid analysis
incorporated
ed a
which
probable
particularity
both a
cause and
Appeals
B.
of
the Court
simultaneously.
determination
While a
appeal,
again
On
contended that
single analysis consisting of both Fourth
due to Ashburn’s misidentification of
war-
requirements may
Amendment
be
affidavit,
location to be
involving facially
in cases
a
ranted
invalid
supported
warrant was
probable
warrant,
require
the instant case’s facts
appeals agreed
cause. The
and
court
separate analyses. We
address
issues
totality
concluded that “the
of the circum-
probable
particularity
cause and
turn.
stances set
in Ashburn’s
fail
forth
affidavit
to
a
or
probability
indicate
fair
a substan-
Analysis
II.
tial chance that the items identified in the
at the
warrant would be found
A. Probable Cause
searched.”2 The court held that the affi-
The Fourth
to
“object-place
davit failed to establish the
Amendment
nexus”
facts
because the
stated
Ash- United States Constitution mandates that
(citing
Findings
Appel
Fact and
Court's
Conclusions of
5.Id.
at 907-908
Texas Rule of
2-3,
(97th
47.1,
Law at
No. 2009-0000103M-CR
provides
late Procedure
Court, Montague County,
District
Nov.
Tex.
opinions
necessary
must address
to fi
issues
2010).
holding
disposition
appeal,
nal
and
adequa
therefore need not address the
"[w]e
2. Bonds v.
cy
the search
warrant's
2011).
App.-Fort Worth
place
now
to be searched—the residence
placard
bearing
422 Co
the address
for
3. Id. at 909
wan.”).
4. Id. at 908.
issue,
upon proba-
“no Warrants shall
but
from the facts and circumstances con-
cause,
by Oath
supported
or affirma-
ble
tained
within
four
affidavit’s
corners.13
tion,
particularly describing
Appellate courts should not invalidate a
searched,
persons
things
be
or
to
warrant by interpreting the affidavit in a
seized.”6 Probable cause exists
hypertechnical,
rather
a
than
common-
when,
totality
under the
of the circum-
sense,
doubt,
manner.14
inWhen
the ap-
stances, there
a fair
sub-
probability
pellate court should defer to all reasonable
chance
evi-
stantial
that contraband or
that the magistrate
inferences
could have
dence of a crime will be
found at
made.15
specified location.7 It
is a
flexible
nondemanding standard.8
solely
Based
on the affidavit’s four
corners,
find that
magistrate
we
had a
appellate
typical
While an
court
substantial basis for concluding probable
judge’s motion-to-sup
a
ly reviews
trial
cause
existed
search the location de
standard,9
a
ruling under
bifurсated
press
scribed in the affidavit and warrant. The
a trial court’s determination whether prob
affidavit
established
sufficient nexus be
support
cause
war
able
exists to
tween
activity,
things
criminal
solely
rant’s issuance is constrained
seized,
the place
to be searched.
affidavit’s four corners.10 When we review
From
text of
warrant,
magistrate’s
decision to issue a
magistrate could find that Ashburn was
apply
highly
we
deferential
standard
employed by
Department
the Texas
review because of the
pref
constitutional
Safety
Public
as a
peace
commissionеd
for
pursuant
erence
searches conducted
officer
over ten years,
for
for the past
over
searches.11
warrantless
twenty-six
assigned
months he was
magistrate
Provided the
had a substantial
Service
Sergeant.
Narcotics
as a
concluding
basis
cause
magistrate
existed,
could further find that Ashburn
we will
uphold
magistrate’s
*7
is
investigation
trained
narcotics
probable-cause
mag
determination.12 The
violations,
witnesses,
the
may interpret
handling
istrate
the affidavit in a
non-technical,
preparation,
common-sense manner and
and the inves
may
solely
draw
tigatiоn
persons
reasonable inferences
who derive substantial
("It
(1964)
U.S.
IV.
elementary
passing
6.
Const. amend.
723
warrant,
validity
reviewing
on
of a
the
the
State,
697,
(Tex.
7. Flores v.
319 S.W.3d
702
may
only
brought
court
consider
information
Gates,
(citing
Crim.App.2010)
Illinois v.
462
attention.").
magistrate’s
to the
13,
213, 238,
2317,
U.S.
244 n.
103
76
S.Ct.
(1983));
State,
Rodriguez
L.Ed.2d 527
v.
232
State,
808,
Swearingen
11.
143 S.W.3d
810-
55,
(Tex.Crim.App.2007).
S.W.3d
60
(Tex.Crim.App.2004).
11
Rodriguez,
income distribution, ture, illegal sale of con- controlled substance. substances.
trolled
the face of Ashburn’s
From
find,
magistrate had a substantial basis to
Bonds
Pertaining
investigation,
directly
through
either
reasonable infer-
(1)
the following:
could find
magistrate
ence,
cause that contraband or
probable
infor-
a confidential
in November
crime
found at
evidence of a
will be
(Cl),
provided
who has
Ashburn
mant
satisfactorily
location and
described
estab-
past
informаtion in the
and knows
truthful
activity,
lished a nexus between criminal
like,
methamphetamine looks
saw a
what
seized,
things
“Mike
who the
knew as
Bonds”
man
Cl
Therefore,
cause ex-
probable
methamphetamine,
penal-
isted
search the location described in
(2)
substance;
the Cl
ty-group controlled
repeated
affidavit
verbatim the
possess methamphet-
Mike
saw
Bonds
single story,
A
white
warrant:
wood-
house,
in his
known
the Cl to be
amine
framed, south-facing
located
residence
at
Highway
State
59 and
located
Texas
Street, Bowie, Montague
401 Barker
Street, Bowie, Montague Cоunty;
Texas, a
County,
grey composite-shingle
(3)
Mike
transported
Ashburn
Cl to
roof,
and two windows
County,
in Bowie
Bonds’s residence
Street,
garage
a detached
located north-
reasonably
magistrate
could
infer was
residence,
west of the
the location
observed Bonds
where
Cl
large utility
door
towards Barker
possess methamphetamine
identi-
was
had a
white and
small
blue
(4)
residence;
fied
the Cl
Bonds’s
as
camper
garage.
parked
trailer
east of
from a
line-
photo
the Cl identified Bonds
Having
supported by
found the warrant
up
person
possess
as the
he saw
metham-
cause,
whether the search
(5)
phetamine;
according
Texas De-
in fact
was
constitu-
records,
Safety
partment
Public
tionally permissible
ques-
now becomes
himself identified his address on his driv-
tion
of whether
Street, Bowie,
er’s license
401 Barker
sufficiently particular within
de-
(6)
Texas;
Montague County,
from these
mands of the Fourth Amendment.
records,
reasonably
could
magistrate
infer that Ashburn identified Bonds’s resi-
Particularity
B.
*8
Street;
(7) May
dence
401
on
2008,
27th, 2008,
15th,
July
August
prevention
and
In addition to the
of
5th, 2008,
searches,
general
searched trash left for
Fourth
Ashburn
the
Amend
collection
401 Barker Street —which
particularity requirement
ment’s
“assures
the
reasonably
property
could be
understood as the
individual whose
is searched
authority
house the Cl
as Mike Bonds’s or
of the
of
identified
seized
lawful
the
officer,
search,
drug parapher-
executing
residence—and discovered
his need to
and
nalia
the
containing methamphetamine
powers
and co-
limits of his
to search.”16 The
objectives
caine residue
applica-
requiring
and a MasterCard
constitutional
Bonds,
“particular”
tion
description
place
addressed to Michael
401
of the
(1)
Street, Bowie,
76230;
ensuring
Tеxas
include:
that
searched
the
(8)
(2)
Bonds had
the
prior
right place;
a number
arrests
officer searches
con
is,
fact,
drug possession
previous
in
firming
probable
convic-
that
cause
Ramirez,
551, 561,
1284,
(2004).
16. Groh v.
540 U.S.
124
S.Ct.
875
for the
described in the
place
weaponry, including
established
stock
an automatic
(8)
warrant;
rife,
limiting
grenades,
the officer’s discre-
weapons,
and similar
were
search;
narrowing
scope
the
of his
on
tion
located
the Ramirezes’ ranch.22 De-
(4)
minimizing
danger
mistakenly
spite Agent
application,
Groh’s
which par-
searching
property
the person
ticularly
or
of an
place
described the
to be
owner;
bystander
property
seized,
innocent
or
searched and the items to be
(5)
of the
informing
owner
officer’s warrant itself
failed to describe
of the
authority
specific
to search that
location.17
that
items
intended
seize.23
[Groh]
In-
stead
describing
stockpile of fire-
A
sufficiently
warrant
par
is
arms Groh intended to seize in
portion
if it
ticular
enables the officer to locate the
warrant form that required a de-
it from
distinguish
other
scription or
person
property to be
places
community.18
particular
The
seized,
typed only
Groh
a description of
ity requirement
probable
is
related
the Ramirezes’
The
house.24
Court held
requirement
cause
it enables
plainly
warrant was
invalid and
magistrate
determine whether
concluded that “the warrant did not de-
requested
cause exists for the
search.19
scribe the items to be seized at all.”25
However, the Fourth Amendment does not
continued,
The Court
“In this respect the
require perfection in
warrant’s descrip
obviously
warrant was so
deficient that we
of the place
tion
to be searched.20 A war
regard
must
the search as ‘warrantless’
may
rant
be invalid
its issuance
upon
be
within the
our
meaning of
case law.”26
its
place
cause
to be
Similarly,
argument
there can be little
or the
person
things
to be
obviously
a warrant
that so
fails to de-
is
seized
insufficient on its face. Alterna
searched,
scribe
and as a
may
it
tively,
prove insufficiently particu
result does
meaningfully
define the
lar as
result of subsequently discovered
search,
boundaries of the
is facially invalid.
Supreme
opinion
facts.21 The
Court’s
However,
v.
Groh
Ramirez illustrates the former.
the warrant’s de
Agent Groh sought
scription
a search warrant
case
present
does not suf
Ramirezes’
based on in
infirmity;
home
fer
the same
it is clearly
from an
large
facially particular.
formation
informant that a
con-
State,
See,
Garrison,
Long
e.g., Maryland
447
480 U.S.
V.
79, 85-86,
Crim.App.2004).
107 S.Ct.
Considering the four corners “pink be as a wood frame build- searched facts and the additional adduced ing having white trim located 2134 Har- motion-to-suppress hearing, we find that dy Taylor County, Holding Texas.”27 description of the location to valid, that the was search warrant we not sufficiently particular was searched only that the warrant described the noted within the Fourth Amendment’s command. address, street house be searched its location to be color, state, type, county, and construction actually the location searched described but we fact that considered the the war- degree searched to a sufficient that en- just rant-executing officers had been to the distinguish to locate abled the officers they Bridges, location had arrested where intended to be warrant, obtained the and returned to the community. judge another in the The trial same location.28 held that there was We found the warrant’s of the loca- probability no reasonable the officers only tion tо be searched erroneous other any place the color of the would search than the respects: the roof and remaining fac- intended Our consideration of the descriptive address. The house.29 *10 State, 560, Bridges 27. 29. Id. at v. 574 S.W.2d 562 562. Crim.App.1978). Id. at 561-62.
877 knowledge accords with a number the where officer’s Cl identified he observed Bonds of appeals federal courts of and several in methamphetamine. appeals that our intermediate courts Through investigation, his additional Ash- particularity require- have addressed the been burn had to the location searched when with a warrant’s ment confronted three times the additional over course of not entirely that is accurate.30 four to in months search the trash front of knowledge the Factoring the officer’s into the being day location—the last time the especially analysis appro- particularity the warrant’s issuance and execution. when the to priate warrant’s authorization Most significantly, Ashburn testified that applies reasonably to limited search the location intended to be searched was locations, mitigating number of the fear of the actual location searched. authorizing general a warrant search. Bearing mind the constitutional ob- argument the thrust of Bonds’s While jectives a particular description, we find support suppression of the evidence’s was the risks an address an error and incor- cause, lack of probable the evidence rect potentially roof color are pose absent motion-to-suppress admitted in the hear- here. significant familiarity Ashburn’s ing suggested descrip- that if warrant’s (and with the location to be searched actu- ambiguous tion was as to what residence searched) аlly be au- leave little chance that the could searched under warrant’s thority, only it was an issue of which one officers search mistakenly would two be searched. was residences could It wrong location and property of an argued, nor the evidence support, does innocent owner. There is also purportedly permitted that the warrant potential little under the facts of this case any among the search of one location looking that knowledge officer’s al- potential targets. vast universe of lows limitless officer discretion in execut- ing ambiguity a warrant. Assuming exist- familiarity with the location ed, the warrant’s on its face that he searched and was both authority limited the one of affiant and participated houses—either the are execution circumstances which resolve the manufactured home labeled Be- ambiguity description’s created cause the warrant’s authorization to sufficiently errors and render the warrant narrow, substantially search was Ash- particular. quite Ashburn familiar burn’s with the location He discretion choose resi- had been that dence familiarity location a minimum of four times tо search based on his with before warrant’s execution. Ashburn the location intended to be searched first identified the location searched when was limited. appropriately See, Gamboa, 744, (1st Cir.2000) (same); e.g., v. F.3d United States 439 234 F.3d 756 796, (8th Cir.2006) Durk, 464, (6th (finding 806 "the v. 466 United States 149 F.3d Cir.1998) (same); Gordon, officers had conducted extensive surveillance United v. States 48, (5th (same); premises Cir.1990) Rogers exe- before warrant was 901 F.2d 50 cuted, State, 148, personal knowledge (Tex.App.- officers had v. 291 S.W.3d 154-55 search, 2009, they ref’d) (same); premises pet. intended to v. Texarkana Smith State, 178, premises they (Tex.App.-Hous- intended to search 962 S.W.2d 185 were, fact, searched.”); 1998, (same); ref'd) pet. Taylor v. Dist.] United States ton [1st Johnson, 69, (con- (D.C.Cir.2006) (Tex.App.-Hous- 437 F.3d 73 (same); sidering familiarity pet.) officer’s ton State, no Jones v. [14th Dist.] premise executing (Tex.App.-Amaril- officer when also obtained 914 S.W.2d warrant); (same). pet.) Vega-Figueroa, States v. United lo no *11 deci- tion and reconsider our rehearing
III. Conclusion appeals. reverse the court of sion to supported the warrant was We hold cause, and the location by probable
searched, part, was de- incorrect while Be- particularity. with sufficient
scribed was of Bonds’s residence
cause the search warrant, we by a valid search
supported judgment appeals’s court of
reverse the judgment of the trial court.
and affirm the J. and Jeneane CREMERS James J., PRICE, dissented. Party Jumpin’ Jaсk’s d/b/a Shack, Appellants MEYERS, J., participate. did not MOTION ON APPELLANT’S HALLMAN, Appellee. L. Morris FOR REHEARING No. 06-13-00011-CV. Rehearing denied. Texas, Appeals Court of J., MEYERS, filed a statement Texarkana. Appellant’s dissenting to the denial of rehearing. motion for May Submitted: 2013. right The it in this appeals got court of Decided: June supported by case. not The July Rehearing Overruled probable cause that the items identified En Banc Reconsideration Overruled listed would be found the residence Aug. the warrant did Additionally, the warrant. to be searched describe location to ensure that particularity with sufficient
the officer searched the correct location scope officer’s search was specific location listed
narrowed
the warrant. fa- majority discusses officer’s residence, but I would
miliarity with
think an officer was so familiar who get at least the residence would correct, he was
address even if unsure majority also notes roof color. The significance testimony of the officer’s hearing sup- on the motion to
press that the location intended to was the location searched. actual methamphetamine
I’m the fact that sure were found at the drug paraphernalia
actual searched factored into that location Appellant’s I would mo- grant
conclusion.