

Opinion issued August
11, 2011
 


In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-10-00788-CR,
01-10-00789-CR
————————————
HOMER
CLARK STEELE, Appellant
V.
The State of Texas,
Appellee

 

 

On Appeal from 338th
District Court
Harris County, Texas
Trial Court Cause Nos.
1200859, 1200952
 

 
 
DISSENTING OPINION
          I
respectfully dissent.  The affidavit
supporting the warrant to search the home of appellant, Homer Clark Steele, was
based entirely on hearsay information taken at unspecified times from two
informants of unknown credibility and reliability who reported appellant’s
activities at similarly unspecified times and places in the past.  I would hold that probable cause was not
shown on the face of the warrant under which appellant’s home was searched, providing
the evidence upon which he was arrested and convicted of possession of child
pornography and indecency with a child. 
I would hold that the trial court erred in denying appellant’s motion to
suppress.  I would, therefore, reverse
appellant’s conviction and remand for a new trial.
          As the majority states, on January 26,
2009, Officer Brinson swore to an affidavit supporting a warrant to search appellant’s
apartment for, among other things, “images of persons who appear to be under
the age of 18, engaged in sexual acts or posed in a manner to elicit sexual
response or otherwise engaging in sexual conduct.”  The warrant was executed the next day.
In his affidavit, Officer Brinson averred that he was
assigned to investigate appellant after Anthony Thumann, a person about whom no
details were given in the affidavit, reported to the Pasadena Police Department
on an unspecified date that he had reason to believe that appellant had been
sexually assaulting young boys over the course of the preceding forty years.  Thumann reported that appellant was currently
living with a young male named “C.S.” and that, when he was inside appellant’s
residence several years before his report, he had seen nude photographs
depicting C.S. at eleven years old.  The
affidavit stated that C.S. was born in June 1987, making him twenty-one years
old at the time of Officer Brinson’s affidavit. 
Thumann also reported that appellant was currently living with an eighteen-year-old
male named “K.A.,” born in April 1990.  
The affidavit also contained the hearsay statements of
Grattan Broderick, who represented that appellant has been a friend of Broderick’s
family for the preceding forty years, but whose reliability and credibility was
not otherwise established.  Broderick
made general statements accusing appellant of pursuing and sexually assaulting
young boys.  Broderick represented that C.S.
had lived with appellant since C.S. was ten years old and was currently living
with appellant and that appellant had told him that he had sexually assaulted
C.S. during that time, i.e., at some unspecified time or times during the
preceding eleven years.  Broderick further
stated that, while cleaning appellant’s apartment several years before, he had found
photographs depicting nude young boys and that, five months before his
statement to police, appellant had shown him a photograph depicting a nude fifteen-year-old
boy, which appellant had removed from his wallet.  Appellant told Broderick that the boy in this
photograph was K.A.  No fact reported in
the affidavit was specifically dated or was within Officer Brinson’s personal
knowledge or based on any observation of his own.  The only activity alleged to be ongoing by
the informants was appellant’s living with two young adult males, an activity
not in itself illegal.
          In his sole issue on appeal, appellant
contends that the trial court erred by denying his motion to suppress because
the affidavit supporting the search warrant was insufficient to show probable
cause and thus violated the Fourth Amendment to the United States Constitution,
section nine of article one of the Texas Constitution, and Code of Criminal
Procedure articles 18.01 and 18.02.  See U.S.
Const. amend. IV; Tex. Const.
art. I, § 9; Tex.
Code Crim. Proc. Ann. art. 18.01 (West Supp. 2010), art. 18.02 (West
2005).  I agree.
Texas law provides that “[n]o 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 that “[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); see also Illinois v. Gates, 462 U.S. 213, 238–39,
103 S. Ct. 2317, 2332 (1983) (holding that magistrate must have substantial
basis for concluding that probable cause exists).  “Probable cause for a search warrant exists
if, under the totality of the circumstances presented to the magistrate, there
is at least a ‘fair probability’ or ‘substantial chance’ that contraband or
evidence of a crime will be found at the specified location.”  Flores
v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Gates, 462 U.S. at 243 n.13, 103 S. Ct.
at 2335 n.13).  In reviewing the affidavit supporting the warrant, an
appellate court is limited to the “four corners” of the affidavit.  See Davis
v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992).  We interpret the supporting affidavit in a
commonsensical and realistic manner, drawing all reasonable interferences.  Davis,
202 S.W.3d at 154; Jones, 833 S.W.2d
at 124.
To issue a search warrant, a magistrate must “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, 547 U.S. 90, 96, 126 S. Ct. 1494, 1500 (2006) (emphasis
in original); see also Tex. Code Crim. Proc. Ann. art. 18.01(c)
(West Supp. 2010) (providing that search warrant may not issue unless sworn
affidavit sets forth sufficient facts to establish probable cause that items
constituting evidence to be searched for are at particular place to be
searched); Davis, 202 S.W.3d at 154 (“Probable cause to support the issuance
of a search warrant exists where the facts submitted to the magistrate are
sufficient to justify a conclusion that the object of the search is probably on
the premises to be searched at the time the warrant is issued.”); Jones v. State, 338 S.W.3d 725, 736
(Tex. App.—Houston [1st Dist.] 2011, pet. filed) (“A magistrate must be able to
ascertain from the affidavit the closeness of time of the event that is the
basis for probable cause sufficient to issue the warrant based on an
independent judgment of probable cause.”). 

A search warrant affidavit must have a sufficient “level of
specificity . . . as to [the] time” of an event supporting probable cause so that
the magistrate would have a “reasonable basis to infer that [the event] occurred at a time that would
substantiate a reasonable belief that the object of the search [is] on the
premises to be searched at the time the warrant . . . issue[s].”  See Davis,
202
S.W.3d at 155, 157 n.23; see Peltier
v State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981) (“The 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.”) (quoting Heredia v. State, 468 S.W.2d 833, 835
(Tex. Crim. App. 1971)); Jones, 338
S.W.3d at 736 (holding same) (quoting Sgro
v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)).
When the information in an affidavit fails to “give[] a time
frame that would corroborate the existence of [the item sought] on the premises
when the warrant was requested,” it is “insufficient to support the issuance of
a warrant.”  Davis,
202 S.W.3d at 155; see Sherlock v. State, 632 S.W.2d 604,
608 (Tex. Crim. App. 1982) (holding that affidavit is “inadequate if it fails
to disclose facts which would enable the magistrate to ascertain from the
affidavit that the event upon which the probable cause was founded was not so
remote as to render it ineffective”).  “The proper method to determine whether the
facts supporting a search warrant have become stale is to examine, in light of
the type of criminal activity involved, the time elapsing between the
occurrence of the events set out in the affidavit and the time the search
warrant was issued.”  McKissick v. State, 209 S.W.3d 205, 214
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  However, “[w]hen the affidavit recites facts indicating activity of a
protracted and continuous nature—i.e.,
a course of conduct—the passage of time becomes less significant.”  Id.
(citing Lockett v. State, 879 S.W.2d
184, 189 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d)).  
An
affiant may use hearsay to show probable cause so long as there is a
substantial basis for crediting it.  Wilkerson v. State, 726 S.W.2d 542, 545
(Tex. Crim. App. 1986) (quoting Hennessy
v. State, 660 S.W.2d 87, 91 (Tex. Crim. App. 1983)); Jones, 338 S.W.3d at 734–35 (holding that information from confidential
informant was reliable and credible where affidavit referred to previous
instances in which informant provided correct information to police, affiant’s
own investigation and controlled buy of contraband confirmed information, and
second informant supplied same information to police); McKissick, 209 S.W.3d at 212 (holding
task of magistrate in issuing search warrant “is to make a practical, common
sense decision whether, given all the circumstances set forth in the warrant’s
supporting affidavit, 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”).
However, when an affidavit in support of a search warrant
based on information obtained from an informant fails to state when the affiant
received the information from the informant, when the informant obtained his
information, or when the incident described took place, the affidavit is
inadequate to support the issuance of a search warrant.  See Schmidt v. State, 659
S.W.2d 420, 421 (Tex. Crim. App. 1983) (holding affidavit that failed to recite
when incident described took place insufficient to support issuance of search
warrant).
          Here, Officer Brinson’s affidavit supporting
the search warrant for appellant’s apartment is based entirely on information
received by the Pasadena Police Department from two informants, Thumann and
Broderick.[1]  The affidavit does not state when Thumann
filed his initial report with the Pasadena Police Department, when Officer
Brinson was assigned to the case, or when Officer Brinson interviewed Thumann
or Broderick.  Nor does it provide any
information about Thumann or Broderick, other than appellant’s alleged long-time
friendship with Broderick’s family.  Nor does
it establish any reason for believing the information of either informant to be
reliable and credible other than the confirmation of their information from the
results of execution of the search warrant itself.  And ex post facto confirmation of the reliability
of information in a search warrant affidavit cannot be used to establish
reliability for the purpose of establishing probable cause to obtain the
warrant in the first place.  There is,
therefore, no basis for the magistrate to have relied upon the credibility and
reliability of these informants.  See Wilkerson, 726 S.W.2d at 545
(holding that hearsay may be relied on to show probable cause when substantial
basis exists for crediting it); McKissick,
209 S.W.3d at 212 (including veracity and basis of knowledge of persons
supplying hearsay information in circumstances to be considered by magistrate
in issuing search warrant).  Therefore, because
the affidavit was based entirely on hearsay with no substantial basis provided
for crediting it, the affidavit was insufficient to support the issuance of a
search warrant.  See Schmidt, 659 S.W.2d at 421 (holding affidavit insufficient when
it failed to state when affiant received information from informant, when
informant obtained information, or when described incident took place).
Moreover, all the information recited in the affidavit
regarding indecency with a child was based on hearsay in the form of actions
taken or remarks allegedly made at unspecified times in the past by appellant
to the informants.  And both the references in Officer
Brinson’s affidavits to statements made by these informants regarding
appellant’s alleged activities and their statements regarding appellant’s possession
of child pornography referred to events “several years ago” and “approximately
5 months ago.”  The information on which
the affidavit was based thus lacked the specificity of time required of a
search warrant affidavit.  See id.; Jones, 338 S.W.3d at
736 (requiring facts in affidavit to be “closely related to the time of the
iss[uance] of the warrant”).
In addition, the information
provided by the informants referring to those remote times was stale, and, on that ground as
well, it provided no reason for the magistrate to believe that either
possession of pornography or indecency with a child was taking place at
appellant’s residence on the date the affidavit was issued.  See Sgro,
287 U.S. at 210, 53 S. Ct. at 140
(requiring proof in affidavit to be of facts “so closely related” to time of
issuance of warrant as to “justify a finding of probable cause at that time”); Davis, 202 S.W.3d at 157 n.23 (“It is
the officer’s identification of the chemical odor with the manufacture of
methamphetamine that lends sufficient specificity as to make reasonably
available the inference that such activity is going on at that particular
premises at that particular time.”); Peltier,
626 S.W.2d at 32 (holding affidavit insufficient to support probable cause when
one “cannot learn from [the affidavit] when the past activities occurred and
when the observations were made”).
The only facts referenced in the
affidavit referring to current activity—namely, that appellant was currently
living with an eighteen-year-old male, K.A., and a twenty-one-year-old male,
C.S.—provided neither information regarding appellant’s current possession of
child pornography nor information regarding appellant’s current commission of
indecency with a child.
Moreover, none of the cases relied
upon by the majority to support its finding that the information in the
affidavit was sufficiently specific and timely to support the search warrant support
such a conclusion in this case.  See Flores, 319 S.W.3d at 703 (holding
that magistrate had substantial basis for determining that probable cause
existed where affidavit, which recited information received from anonymous tip
from informer in February 2007 regarding “narcotic activity” on unspecified
date, included several details about defendant and residence that were later
confirmed; officer found residue that field-tested positive for marihuana in
garbage can located on street directly in front of residence on March 1, 2007; officer
found marihuana stems, seeds, and residue in garbage can on March 5; and search
warrant was issued on March 6 and executed on March 7); McKissick, 209 S.W.3d at 215 (holding
that information in affidavit was not stale where defendant whose camera was
seized admitted taking photographs of buttocks of young girls on beach on day
of his arrest and facts on which warrant was based occurred primarily between
March 29 and April 2, 2002, when affidavit was subscribed and sworn to); Morris v. State, 62 S.W.3d
817, 819, 823–24 (Tex. App.—Waco 2001, no pet.) (finding probable cause to
issue warrant to search for child pornography on defendant’s computer where, on
April 7, 2000, defendant’s former lover informed Wal-Mart loss-prevention
officer investigating theft of electronic equipment that defendant had child
pornography on his computer; loss prevention officer informed police, and
police interviewed informant on same day, April 7, 2000; informant said that he
had seen photographs of nude children on defendant’s computer at end of
February 2000, some dated November and December 1999 and January 2000, and he
said that defendant had told him in March 2000 that he had downloaded more
photographs onto computer; and search warrant was issued and executed on same
day, April 7, 2000); Burke v. State,
27 S.W.3d 651, 654–56 (Tex. App.—Waco 2000, pet. ref’d) (finding information
regarding child pornography on computer not stale where search warrant dated
November 23, 1998, was based on information from November 19, 1998 interview
with child sexually assaulted by defendant on November 9, 1998, during which
child had stated that defendant had shown her photos of nude females with her
head pasted on them and child had also stated that defendant “keeps nude photos
on his dark gray laptop computer” and that he had assaulted her little sister;
and where affidavit was further based on follow-up interview of child’s little
sister on same day, November 19, 1998, in which child stated that defendant had
sexually assaulted her in September or October of 1997 and had shown her sexually
explicit photos of children and adults at that time).
None of these
cases are remotely like the instant case in approving the issuance of a search
warrant supported by an affidavit based on nothing more than the hearsay
statements of two witnesses of unknown reliability and credibility regarding
vague allegations of possession of child pornography and indecency with
children reported as having taken place at unspecified times over forty years.  The allegations of child abuse were reported
at a time when both of the only two specifically identified alleged victims
were adults and when no observation of pornographic material had occurred more
recently than five months prior to Officer Brinson’s interview with Broderick.
Under these
circumstances, I cannot agree that the criteria for a finding of probable cause
for issuance of a search warrant were met. 
Therefore, I would conclude that issuance of the search warrant violated
appellant’s constitutional and statutory rights, and I respectfully dissent.


 
Conclusion
          I would hold that the trial court erred
in denying appellant’s motion to suppress. 
I would therefore reverse and remand the case for a new trial.  
 
                                                                   
 
                                                                   Evelyn
V. Keyes
                                                                   Justice
 
Panel consists of
Justices Keyes, Higley, and Bland.
 
Justice
Keyes, dissenting.
 
Publish. 




[1]           Officer
Brinson’s statements in the affidavit regarding his belief that contraband
would be found in appellant’s apartment based on his experience in
investigating the possession of child pornography are not factual statements
regarding contraband to be found on appellant’s premises or of activity
occurring on appellant’s premises.  They
are, instead, expert opinion testimony based on the affiant’s assumption of the
truth of the informants’ statements and of the truth of appellant’s status as a
person in possession of child pornography. 
They are, therefore, irrelevant to the establishment of probable
cause.  See Tex. Code Crim. Proc.
Ann. art. 18.01(b)–(c) (West Supp. 2010); Davis v. State, 202 S.W.3d 149, 155, 157–58 (Tex. Crim. App. 2006).


