THE STATE OF TEXAS v. GORDON HEATH ELROD, Appellee
NOS. PD-0704-16, PD-0705-16, PD-0706-16
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
October 25, 2017
RICHARDSON, J.
ON STATE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
RICHARDSON, J., dеlivered 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
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 grаnting the motion to suppress, and remand the case to the trial court for proceedings consistent with this opinion.
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 dispatсh 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, 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
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.
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 Moniсa 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,
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 сourt to rule on the motion to suppress based on the four corners
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 lаcking 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
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 wаrrant 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
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
[The process of determining probable cause] does not dеal 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 mаgistrate‘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. Duarte16
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 “receivе[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
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 probаble 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
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-
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 faсts 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
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 statemеnt 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.” Thаt 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
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
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 tо 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
Notes
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 liсenses 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 wаs 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 locаted 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.
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.