Lead Opinion
OPINION ON REHEARING
Appellant Rio Shareese Jones has filed motions for rehearing and for reconsideration en banc. We grant rehearing and withdraw our majority opinion and judgment of January 31, 2011, issuing the following in their stead. Our disposition of the appeals remains unchanged. Because we are issuing a new majority opinion, the motion for en banc reconsideration of our prior opinion is moot. See Brookshire Bros., Inc. v. Smith,
Jones was convicted by a jury of the offenses of (1) possession of a firearm by a felon,
Background
In September 2007, Officer A. Bjerke of the Texas City Police Department Special Crimes Unit met a confidential informant from whom he received information about “crack cocaine being sold” at a home located at 219 North Pine Road in Texas City, a residence occupied by appellant Rio Shareese Jones. The informant had been to the house numerous times, the latest time being about two nights prior to the meeting. Bjerke began a narcotics investigation and learned from another Texas City police officer that a City of Dickinson police officer had information from a second confidential informant about crack cocaine being sold at that address. On November 5, 2007, Bjerke arranged a meeting with the second confidential informant and, that same night, set up a “controlled buy” at the home, using the second informant. Bjerke witnessed the controlled buy and saw Jones come to the door to make the sale. The informant returned with a rock of crack cocaine weighing 0.8 grams. Just after midnight on November 6, Bjerke made statements under oath in an affidavit in support of a search warrant for 219 North Pine Road. The affidavit described the initial contact with the first informant and the subsequent controlled buy, but it did not specify the dates of the described events. The affidavit also requested authorization for a no-knock entry into the home on the basis that Bjerke had received information from a confidential informant that Jones kept handguns and long guns in the house and because he had past arrests for evading and resisting arrest. At 12:24 a.m. that same day, the magistrate issued a no-knock-entry search warrant, and Texas City police executed the warrant.
When the police arrived at 219 North Pine, there were two men and one woman in the driveway. One of the men was Jones. The woman, later identified as Ta-misha Thomas, remained in the driveway as the police approached, but the two men ran into the house. One team of police followed the men into the house and found them in one of the bedrooms along with a third man. A .22 caliber rifle was seen in plain view, leaning against a dresser. In the closet, the police found women’s clothing and shoes, men’s and women’s toiletries, a bag containing powder cocaine, a large bottle of cough syrup containing codeine, and a woman’s bag, containing a letter to “Misha Thomas” at a Dickinson, Texas address. In that same room, police also found a shirt with a crack pipe in the pocket, a letter from the Social Security Administration addressed to Jones at a La Marque, Texas address, and a receipt for transmission service from a Texas City business, made out to Jones, dated October 24, 2007, and listing an address for Jones of “219 Pine, TC, Texas.”
Jones was captured in the bedroom containing the rifle and the letter addressed to him. Police found $199 in his pocket. According to Texas Workforce Commis
The second bedroom in the two-bedroom home had no beds, only a counter with drawers, a television, a computer, a small coffee table, and a reclining chair. Police found ecstasy tablets in a bag in the closet and a notebook ledger on the coffee table listing names and amounts. On the counter and in drawers under the counter, police found “three to four” digital scales, a “cookie” of crack cocaine, crack cocaine in a plastic bag, powder cocaine, a bottle of codeine cough syrup, various kinds of pills, and some currency taped together in stacks of one hundred dollars. On the counter also was Jones’s wallet, which contained his driver’s license. The license had an expiration date of July 28, 2012 and a La Marque, Texas address. In a box on the counter near the wallet were some prescription medicines in Jones’s name, filled at a clinic in Texas City. Police also found some insulin for Jones and a glu-cometer used to measure blood sugar. In a small black cabinet full of movie DVDs and video games, located on the same counter and near Jones’s wallet and medicine, were two digital scales and a loaded .38 Special handgun. Also found in the house were numerous baby bottles, razor blades, many measuring cups, a bag containing bullets, a bag containing $1,150, and a videocamera by the front door, pointing toward the roadway. Nothing other than the baby bottles suggested the presence of a child in the house, and officers testified that codeine is often found, stored, and transported in baby bottles. Police also found a baby bottle with a spoon with what was thought to be codeine in it.
Analysis
I.Probable cause to support search warrant
Jones’s first issue challenges the trial court’s denial of his motion to suppress evidence from the search of his home based on an alleged lack of probable cause. He filed a motion in each case to suppress the evidence seized as a result of the search warrant. He alleged that his federal constitutional rights and his state constitutional and statutory rights were violated because the supporting affidavit did not reflect sufficient probable cause in that it: (1) failed to show that the act or event upon which probable cause was based occurred within a reasonable time period prior to making the affidavit; (2) failed to state sufficient underlying circumstances to establish the credibility and reliability of the confidential informants; and (3) lacked sufficient underlying circumstances which would permit the conclusion that the alleged contraband was at the location claimed.
At the hearing on the motions to suppress, no evidence other than the search warrant was offered by either the State or Jones. Both sides tendered argument on the issues raised in Jones’s motions. The trial court denied the motions to suppress, and, on the request of Jones, entered findings of fact, including, in relevant part, the following:
1. Affiant Officer [A.] Bjerke submitted a Search Warrant with Affidavit for Search Warrant to Judge Darrell Apffel on Novembér 6, 2007.
2. Judge Apffel signed the Search Warrant and Affidavit at 12:24 am on said date, indicating that probable cause had been satisfied.
3. Officer Bjerke and other police officers executed the search warrant onNovember 6, 2007 and seized 17 items including illegal narcotics, guns, and U.S. currency.
4.Officer Bjerke and other police officers arrested Rio Shareese Jones for the offense of Possession of Firearm by Felon, POCS: Cocaine With Intent to Deliver; POCS: Codeine with Intent to Deliver, and POCS: MDMA with Intent to Deliver.
The trial court also entered the following conclusions of law:
1. The Affidavit for Search Warrant does reflect sufficient probable cause to justify the issuance of the Search Warrant.
2. The Affidavit for Search Warrant contains sufficient underlying circumstances to establish the credibility and reliability of the confidential informant.
8. The Affidavit for Search Warrant contains sufficient underlying circumstances which would permit the conclusion that the alleged contraband was at the location in which it was claimed.
4. The Affidavit for Search Warrant contains sufficient information to show that the act or event upon which probable cause was based occurred within a reasonable time pri- or to making the affidavit.
5. The Affidavit for Search Warrant contains sufficient information to establish probable cause that the alleged contraband would be at the location at the time the search warrant was signed and executed.
6. Therefore, since Probable Cause was found by Judge Apffel and sustained by this Court, the results of the Search Warrant are admissible as a matter of law and fact in trial and were not obtained in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution, or Article 38.23 of the Texas Code of Criminal Procedure. Thus, Rio Shareese Jones was arrested with probable cause and not in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10, or 19 of the Texas Constitution.
Before the start of voir dire, Jones’s trial counsel objected to the admission at trial of any evidence obtained as a result of the search warrant. The trial court granted Jones a running objection to this evidence.
a. Standard of review
We review a trial court’s decision to deny a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court’s determination of historical facts that depend on credibility, and reviewing de novo the trial court’s application of the law to those facts. Hubert v. State,
When a defendant raises a complaint that a search should have been suppressed because the magistrate had no
In Illinois v. Gates, the United States Supreme Court reaffirmed the traditional totality-of-the-circumstances analysis for Fourth Amendment probable-cause determinations:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.
Gates,
The Supreme Court has explained how we must review determinations of probable cause:
[A]fter-the-faet scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” “A grudging or negative attitude by reviewing courts toward warrants” is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; “courts should not invalidate warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.”
Gates,
b. Location
Jones’s first contention is that the affidavit was insufficient because it did not adequately describe the premises to be searched. This argument was not made in Jones’s written motion to suppress. The affidavit describes the residence at 219 North Pine Road in considerable detail, but at the hearing on the motion to suppress, Jones’s counsel argued that the affidavit was inadequate because it made no mention of the fact that the residence consisted of a duplex and a garage apartment. Jones, however, provided no evidence of this at the hearing.
On appeal, Jones does not claim that the argument of his counsel was evidence, but instead states that this argument was “recounted without contradiction.” It is axiomatic that the argument of counsel is not evidence. See Hutch v. State,
c. Credibility and reliability of informant
Jones next contends that the affidavit was insufficient to show probable cause because the affidavit’s description of the initial confidential informant contains no statement about his reliability or credibility and because Bjerke had no personal knowledge about the second confidential informant’s reliability or credibility.
The affidavit stated that the Dickinson Police Department had established that the second confidential informant was reliable and credible. There is no bar on the use of hearsay in determining probable cause. See Jones v. United States,
While Bjerke testified at trial that there was no basis for the initial informant’s reliability or credibility, the second informant supplied the same information to the police, i.e., that Jones was selling crack cocaine. The failure of the affidavit to establish the first informant’s reliability or credibility is therefore not fatal. See Lowery v. State,
On appeal, Jones also argues for the first time that the affidavit contains “double hearsay” regarding that second confidential informant. Because this issue was not raised in the trial court, it has not been preserved for review and any error has been waived. See Tex.R.App. P. 33.1(a)(1) (requiring party to raise specific ground in trial court as prerequisite for appellate complaint).
d. Staleness of information
Jones’s third, and in his description, most critical contention is that the affidavit was insufficient to show probable cause because it did not state a specific date on which the controlled buy took place. He argues this information is the “linchpin for a finding of probable cause.” This is a complaint about the “staleness” of the information, because “[p]robable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place.” McKissick,
In relevant part, the affidavit provides the following temporal references related to the controlled buy:
... 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....
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Affiant arranged to make a narcotics buy from the suspect location, 219 North Pine Road ... [the controlled buy and field testing are then described in the past tense].
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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.
Subscribed and sworn to before me by said Affiant on this the 6th day of November, 2007.
The affidavit includes several direct and indirect references to the timing of the controlled buy. First, Bjerke described his contact with the first confidential informant as having occurred “recently.” After that meeting, Bjerke “began a narcotics investigation” into the suspected ongoing criminal activity of “crack cocaine being sold.” The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring “after” Bjerke “recently” met with the first confidential informant. In addition, Bjerke attested that based on in
In order to issue a warrant, a magistrate is required “to determine (1) that it is now probable that (2) contraband ... will be on the described premises (3) when the warrant is executed.” United States v. Grubbs,
We begin our analysis by noting that the failure to include specific dates and times of relevant events described in the affidavit in this case is not a model demonstration of the basis of the affiant’s knowledge of circumstances suggesting a fair probability that contraband or evidence of a crime will be found in a particular place, something the State conceded during oral argument. The question before us, however, is whether the lack of a specific date or time is fatal in this case or whether the totality of the affidavit nonetheless justified the magistrate’s finding of probable cause.
Bjerke’s affidavit recited facts that indicated a continuing drug operation was occurring: (1) the first confidential informant told Bjerke that crack cocaine was being sold at 219 North Pine; (2) after speaking to the first confidential informant, Bjerke then began his own investigation; (3) he arranged a controlled narcotics buy at the house using the second confidential informant, who told Bjerke he purchased what he believed to be a rock of crack cocaine; and (4) the rock tested positive for cocaine in a field test. The affidavit also indicated that the information from the two informants and Bjerke’s field test was closely related in time to the request for the issuance of the warrant. Bjerke stated that he “recently” received information from the first confidential informant. He then initiated an investigation and arranged a controlled buy. The controlled buy occurred even more “recently” because it happened after Bjerke received that initial tip and conducted an independent investigation. As a result of the original tip and his own independent investigation, Bjerke believed that a violation of the Texas Controlled Substances Act was “currently” taking place at 219 North Pine.
“The amount of delay which will make information stale depends upon the particular facts of the case, including the nature of the criminal activity and the type of evidence sought.” United States v. Allen,
e. Adequacy of affidavit
Having considered all of Jones’s contentions that the affidavit was inadequate and applying standard of review set out in Illinois v. Gates, we hold that the affidavit provided the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing at 219 North Pine Road. In so doing, we follow the example of Davis v. State, an analogous circumstance in which the affidavit at issue was “far from exemplary.”
When too many inferences must be drawn, the result is a tenuous rather than substantial basis for the issuance of a warrant. Best practice is for the affi-ant expressly to include an officer’s experience, background information, and previous associations with contraband so that little is left to inference, and the magistrate has specifically articulated facts to evaluate. Otherwise, the officer/affiant risks denial of his warrant, suppression of evidence at trial, or reversal on appeal because the warrant lacks a substantial basis. But the law requires that we defer to a magistrate’s reasonable, common sense conclusions in assessing whether to issue a search warrant. Appellate courts must allow for any reasonably available inferences and provide magistrates appropriate deference.
Id. For the same reason in this case, we overrule Jones’s first issue.
II. Franks motion
In his second issue, Jones contends the trial court erred in denying his motion pursuant to Franks v. Delaware,
Instead of seeking an evidentiary hearing and ruling on the Franks motion before trial, Jones waited until after the State rested in the guilt-innocence phase
We review a trial court’s decision on a Franks suppression issue under the same standard that we review a probable-cause deficiency, a mixed standard of review. See Fenoglio v. State,
The only evidence offered by Jones was in the form of a reference to the previous testimony of Bjerke. Jones did not testify, so he did not offer evidence for the statements in his Franks motion offer of proof. Jones offered the previous testimony of Bjerke to show that he “had just made generalizations and has not been able to specifically specify when this particular transaction occurred” and “could not provide detailed specific information and specifically left out information about the source and about how he conducted this information.” None of the referenced testimony is direct evidence that Bjerke’s affidavit was false. In addition, the trial court had the opportunity to weigh Bjerke’s credibility and demeanor, and we defer to the trial court on that determination. See Johnson,
We overrule issue two.
III. Article 38.23 charge
In his third issue, Jones contends that the trial court erred in failing to give an instruction to the jury, pursuant to Code of Criminal Procedure article 38.23(a). See Tex.Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The statute provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has areasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Id. A defendant’s right to the submission of an instruction under article 38.23(a) “is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Madden v. State,
Before a defendant is entitled to the submission of a jury instruction under article 38.23(a), he must meet three requirements:
(1) the evidence heard by the jury must raise an issue of fact;
(2) the evidence on that fact must be affirmatively contested; and
(3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
Madden,
Accordingly, there was no error in the jury charge from the absence of any article 38.23(a) instruction regarding custody because there was no conflict in the evidence. We overrule Jones’s third issue.
IV. Request to identify confidential informant
In his fourth issue, Jones contends that the trial court erred in not disclosing the identity of the State’s initial confidential informant under Rule 508(c)(3) of the Texas Rules of Evidence:
Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity.
Tex.R. Evid. 508(c)(3). At trial, Jones moved for disclosure of the identity of the first confidential informant, specifically arguing that Bjerke had no basis to believe that the first informant was reliable or credible. The State objected, and the trial court sustained the objection.
On appeal, Jones contends the trial court erred on two grounds he did not preserve at trial: (1) the affidavit did not
Jones’s argument about the reliability or credibility of the first informant fails for the same reason it did not support suppression of evidence from the search. The second confidential informant supplied the same information to the police, i.e., that Jones was selling crack cocaine. Because the failure of the affidavit to establish the first informant’s reliability or credibility did not affect the legality of the search warrant, the trial court committed no error in refusing to direct the disclosure of the first confidential informant’s identity. See Tex.R. Evid. 508(c)(3); Lowery,
V. Sufficiency of the evidence of possession of firearm by a felon
Jones’s fifth and sixth issues challenge the legal and factual sufficiency of the evidence to support his conviction for possession of a firearm by a felon. Jones stipulated at trial that he had been convicted of a felony less than five years before the date of the charged offense. On appeal he specifically attacks the sufficiency of the evidence to show “links” between himself and the weapons found. See Evans v. State,
a. Standard of review
In assessing legal sufficiency, we must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense. Jackson v. Virginia,
For challenges to the factual sufficiency of the evidence, we also apply the Jackson v. Virginia standard of review in the light most favorable to the verdict. See Brooks v. State,
“If the firearm is not found on the defendant or is not in his exclusive possession, the evidence must affirmatively link him to the firearm.” Id. at 218-19. The State may establish possession by proving links which demonstrate that the defendant “was conscious of his connection with the weapon and knew what it was.” Id. at 219. This rule protects the innocent bystander — such as a relative, friend, or even stranger to the actual possessor — from conviction merely because of his fortuitous proximity to a firearm belonging to someone else. See Evans,
A nonexclusive list of factors that may establish a link between a defendant and firearms found inside a house which was not in the defendant’s exclusive control includes whether: (1) the defendant was present at the time of the search; (2) the defendant was the owner of or had the right to control the location where the firearm was found; (3) the firearm was in plain view; (4) the defendant was in close proximity to and had access to the firearm; (5) firearms or other contraband was found on the defendant; (6) the defendant attempted to flee; (7) conduct by the defendant indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (8) the defendant had a special connection or relationship to the firearm; (9) the place where the firearm was found was enclosed; and (10) affirmative statements connected the defendant to the firearm, including incriminating statements made by the defendant when arrested. See Williams v. State,
b. Legal sufficiency
Jones contends that the evidence was legally insufficient to link him to the firearms found at 219 North Pine. In this regard, he emphasizes that he never admitted owning the firearms and his fingerprints were not found on them. He was not inside the house at the time of the search, and at least three other people had access to the house. Also, a woman’s handbag and clothing were found in the bedroom where the rifle was found.
But viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Jones possessed a firearm. See Jackson,
Jones refers us to Wynn v. State,
Considering Jones’s legal-sufficiency arguments and all of the evidence in the light most favorable to the verdict, the jury could have found the essential elements of possession of a firearm by a felon. We overrule Jones’s fifth issue.
c. Factual sufficiency
In addition to the arguments made in support of his legal-sufficiency argument, Jones argues that the evidence was not factually sufficient based upon the following factors: (1) neither firearm was conveniently accessible to him at the time of his arrest; (2) he made no furtive gestures; and (3) he had no special connection to the firearms. Nevertheless, as previously noted, the undisputed evidence at trial showed that Jones was living at 219 North Pine and was paying rent there; the rifle was located in plain view in the same room where he was found by police and in the same room in which mail addressed to him and a receipt to him at that address was located; and his wallet and prescribed medication were located near the pistol.
Reviewing Jones’s factual-sufficiency arguments under the legal-sufficiency standard and considering all of the evidence in the light most favorable to the verdict, the jury could have found the essential elements of possession of a firearm by a felon. Accordingly, the evidence is sufficient. See Jackson,
We overrule Jones’s sixth issue.
We affirm the judgments of the trial court.
Justice SHARP, dissenting.
Notes
. See Tex. Penal Code Ann. § 46.04(a)(1), (e) (West Supp. 2010) (third-degree felony) (trial court case number 07CR3567, appellate case number 01-08-00828-CR).
. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. §§ 481.102(a)(3)(D), 481.112(a), (d) (West 2010) (first-degree felony) (trial court case number 07 CR 3568, appellate case number 01-08-01015-CR).
. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. §§ 481.103(a)(1), 481.113(a), (d) (West 2010) (first-degree felony) (trial court case number 07CR3569, appellate case number 01-08-01016-CR).
. See State v. Walston,
Dissenting Opinion
dissenting.
While I join with the majority opinion’s resolution of appellant’s legal-sufficiency issue, I dissent to the Court’s judgments as I would grant appellant’s first issue and reverse and remand for a new trial.
In its analysis of appellant’s first issue, the majority confuses and conflates two related — but distinct — legal concepts: staleness and specificity. Specificity and staleness are interrelated concepts, but involve different questions, and are applicable to different points in a review of a search-warrant affidavit.
Specificity relates to the adequacy of the affidavit: whether the affidavit recites sufficiently specific information to determine probable cause. Under Texas law, “no search warrant shall issue for any purpose ... unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance” and “a sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.” Tex.Code Crim. PROC. Ann. art. 18.01(b) (West Supp. 2010) (emphasis added); see also Illinois v. Gates,
Staleness, on the other hand, relates to whether the information contained in the affidavit shows probable cause. In order for the information in an affidavit to show probable cause, “[t]he facts attested to must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time.” Peltier v. State,
Thus, before a magistrate can determine probable cause, the magistrate must necessarily first have sufficiently specific information for an evaluation. In the case of a timeliness issue, in order to determine whether the information in the affidavit is stale — whether too much time has passed between the events in the affidavit and the time of the issuance of the warrant to make it reasonable to presume that the items remain at the suspected place — the magistrate must first be able to determine how much “time [has lapsed] between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” See id.
Specificity and staleness are therefore interrelated, but distinct. An affidavit that contains sufficiently specific information to satisfy constitutional and statutory specificity requirements may or may not establish probable cause. Whether the totality of the information in the affidavit justifies a finding of probable cause is not the salient question. Rather, the question to be answered in a specificity review on appeal is: “Is there enough sufficiently specific information in this affidavit to provide a magistrate a substantial basis for determining whether there is probable cause?” Staleness, by contrast, deals with whether the information in the affidavit shows that the item sought is still likely to be found at the suspected place. Such a review asks, “Based on information in the affidavit, was the warrant timely? Was the magistrate justified in concluding that it was likely that the items would still be present, i.e., that the information that provided the basis for probable cause was not too remote in time?”
The majority has mixed up these two legal concepts, relying largely on legal theories related to the question of staleness. The majority states that “the question before us ... is whether the lack of a specific date or time is fatal in this case or whether the totality of the affidavit nonetheless justified the magistrate’s finding of probable cause ” and concludes that “we hold that the affidavit provided the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing.” Majority op. at 736, 738.
In the appeals before us, appellant does not attack the information in the affidavit as being stale, nor does he ask for his convictions to be reversed on that basis. Indeed, the words “stale” or “staleness” never appear in appellant’s discussion of his contention regarding the defectiveness of the affidavit. Rather, appellant’s complaint on appeal is to the statutory and constitutional defectiveness of the affidavit for failing to provide the magistrate with sufficiently specific information from which the magistrate could make a determination about the timeliness of the warrant.
Unlike the cases at hand, all of the affidavits in the out-of-state cases relied upon by the majority included some other more specific temporal reference in the affidavit to which the term “recently” could be related (Walston — “past five months”; Jones — “past [2] two months”; Huff — 11 weeks”).
I agree that where an affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time is less significant for the purposes of determining staleness and, thus, probable cause. See Lockett v. State,
But the question before us is not whether the information in the affidavit was stale and so the “protracted and continuance nature” principle is not applicable to the question at hand. The question before us is whether the information in the affidavit is sufficiently specific as to the time of the incident that provides the basis for probable cause — the controlled buy — to provide the magistrate with a substantial basis for determining probable cause. I would hold that it is not.
In the affidavit at issue, the only direct temporal reference is the word “recently,” used in reference to Bjerke’s contact with the first confidential informant. The only temporal reference to the date of the controlled buy forming the basis for probable cause is the term “after,” placing the controlled buy at some period in time after Bjerke “recently” met with the first confidential informant. I disagree with the majority’s assertion that Bjerke’s statement that he “believes that [an offense] is currently taking place” supplies a temporal reference on which the trial court could rely.
Further, we may not consider any external sources of information that may have come to the magistrate’s attention, such as the circumstances of the presentation of the affidavit, the time that the affidavit was presented to the magistrate, any haste or immediacy that may have been displayed by the officers, or any comments made by the officers at the time of the presentation. Just as we are not permitted to review these factors in determining whether the affidavit establishes probable cause, see Massey v. State,
Reviewing the four corners of this affidavit in light of the standards set out by Davis, Schmidt and Peltier, I conclude that the affidavit fails to recite with sufficient specificity the time of the controlled buy such that the magistrate was provided a reasonable basis to infer that the buy “occurred so close in time” to his issuance of the warrant to substantiate a belief that the cocaine was at the residence when the warrant issued. See Davis,
Because the error involved implicates the right to be free of unreasonable searches and seizures and is constitutional in dimension under both the U.S. and Texas constitutions, we must conduct a constitutional-harm analysis. See Hernandez v. State,
I recognize that the Texas Court of Criminal Appeals granted petitions for discretionary review in at least three cases last fall to address the question of the specificity required in search warrant affidavits as to the time factor.
Accordingly, I join only in the portion of the majority opinion disposing of appellant’s legal-sufficiency issue. As I believe that appellant’s first issue should be sustained, the judgments reversed, and the cases remanded for a new trial, I dissent to the affirmance of appellant’s convictions.
Reconsideration en banc denied.
. This complaint was preserved below in appellant’s motion to suppress, in which appellant specifically asserted that the magistrate who issued the search warrant did not have a substantial basis for concluding that probable cause existed because the affidavit failed to recite when any of the events upon which probable cause was based took place. The trial court made one conclusion of law related to specificity, to-wit:
4. The Affidavit for Search Warrant contains sufficient information to show that the act or event upon which probable cause was based occurred within a reasonable time prior to making the affidavit[ ]
and one conclusion of law related to staleness:
5. The Affidavit for Search Warrant contains sufficient information to establish probable cause that the alleged contraband would be at the location at the time the search warrant was signed and executed.
. The majority also cites generally to 2 Wayne R. LaFave, Search and Seizure § 3.7(b) (4th ed. 2004). LaFave himself concedes the problems attendant upon reliance upon the word "recently” and his cautious admonition that the use of the word "recently” "might be tolerated when the reported facts establish so clearly a continuing course of conduct that the present probable cause could be found to exist even if these facts had been specifically identified as being several months old.” (Emphasis added). LaFave cites no Texas cases regarding the required specificity of search warrant affidavits in this discussion. Moreover, the events underlying the affidavit at issue here — which consist of one "tip” and one "buy” — can hardly be characterized as fitting into the category of "so clearly a continuing course of conduct” that probable cause would exist even if these facts were identified as several months old.
. The majority also cites to a pr e-Gates, pre-Schmidt, pre-Sherlock, pre-Davis Texas case which is factually distinguishable. In Sutton v. State, the court of criminal appeals held that the use of the term "recently,” as used with other references to time in the affidavit, including the term "now,” were sufficient to warrant the conclusion that the event relied upon as a basis for probable cause "occurred within a reasonable time before the making of the affidavit.”
. The majority emphasizes the use of the phrase "currently.” LaFave criticizes reliance on the use of the present tense to establish that the facts are sufficiently timely, and sets out that the "better view” is that timely probable cause should not turn on the tenses used in the affidavit. He speaks with approval of courts that have rejected the use of the present tense to establish timeliness, and
. It is the date of the illegal event, the event forming the basis for the probable cause, which is significant, not the date that an informant spoke to the police. See Schmidt v. State,
. The Texas Court of Criminal Appeals recently issued an opinion in one of those cases. See State v. McLain,
. I also do not join with the majority's resolutions of appellant’s second, third, fourth, and sixth issues as I believe that they are unnecessary dicta. Because appellant is entitled to have his convictions reversed and the cases remanded for a new trial based on his first issue, we need not reach any of any of his other issues apart from legal sufficiency.
Dissenting Opinion
dissenting from the denial of en banc consideration.
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-Ó8-01015-CR, and 01-08-01016-CR (Tex.App.-Houston [1st Dist.] Jan. 31, 2011), withdrawn and substituted opinion at Jones v. State,
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 Affidavit
The facts pertinent to the motion to suppress evidence of appellant, Rio Shar-eese 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. Alco-cer 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
Probable Cause
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,
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,
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^] the existence of [contraband or evidence] on the premises [to be
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,
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;
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.
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
In contrast, the affiant in Sutton v. State clearly testified, as a statement of fact, that “narcotic drugs are now concealed by” the defendant.
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
Conclusion
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 HIGLEY and SHARP join Justice JENNINGS’S opinion dissenting from the denial of reconsideration en banc.
. The Texas Court of Criminal Appeals has recently opined that a magistrate may infer when an informant actually saw a defendant with contraband at a specific location from language in an affidavit stating the specific time the informant communicated the information to the affiant. State v, McLain,