                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-05-477-CR


THE STATE OF TEXAS                                                        STATE

                                        V.

ROBERT LEAHY POWELL                                                    APPELLEE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

      The State appeals from the trial court’s grant of Appellee Robert Leahy

Powell’s motion to suppress. In four points, the State argues that the trial

court erred by granting the motion because (1) the detective’s affidavit set forth

sufficient circumstances from which the magistrate could find probable cause

to issue the search warrant; (2) the trial court failed to give great deference to

the magistrate’s determination of probable cause; (3) the police officers did not

exceed the scope of the search warrant; and (4) the police officers were not
required to obtain an additional search warrant before opening the two safes

that they seized from the premises to be searched, took with them to the police

station, and opened the following day. Because the trial court did not err by

granting Powell’s motion to suppress, we affirm the trial court’s suppression

order.

                                B ACKGROUND F ACTS

         On January 27, 2004, someone from Hurst TV & Appliance (Hurst TV)

reported that a customer had purchased a big-screen television with a forged

check. Someone was supposed to pick up the television before the end of that

day. Hurst Police Officers James Hobbs and Terry Tabor went to the store to

wait for the person to pick it up. Although a woman called about it, no one

came for the television.

         The next day, North Richland Hills (NRH) Police Detective Billy Daniels

called Hobbs to say that the NRH police had arrested a woman named Lisa

Lowery who had a receipt from Hurst TV for a big-screen television. Hobbs

went to the NRH jail and met with Daniels, and the two officers interviewed

Lowery in connection with the forged check she passed at Hurst TV. In all,

Hobbs interviewed her once at the NRH jail and twice at the Hurst jail and

secured three separate statements from her.




                                        2
      Lowery denied that she had stolen or made the checks she had passed

and claimed that she had bought the checks and identification from different

locations. One of the addresses that she gave Hobbs was 6919 Hardisty Street

in Richland Hills (the Premises).   Hobbs used the information provided by

Lowery to prepare an affidavit to support the arrest and search warrant signed

by Judge Ken Whiteley, municipal judge for the City of Hurst.

      According to Hobbs’s affidavit in support of the warrant at issue, Lowery

had told him that she had received the check she passed at Hurst TV from Leia

McGee and Powell. Lowery told Hobbs that Powell had called and asked her

to buy the television for “them”; in exchange, Powell and McGee would pay her

$200.00. Lowery told Hobbs that she had gone to the Premises on January

27, 2004 and that McGee had handed her the check and a Texas identification

card, both in the name of Augustine Terrell. Hobbs swore that Lowery had told

him that McGee and Powell had stolen the checks from the counter next to a

cash register at Cingular Wireless and that they were making forged checks on

a computer in the back room of the Premises near the garage. Lowery also told

Hobbs that she saw some counterfeit twenty-dollar bills there on January 26,

2004.

      Lowery additionally told Hobbs that she had bought a big-screen

television from Sam’s Furniture in Haltom City for Powell and McGee with

                                      3
another forged check in the name of Augustine Terrell on January 22, 2004.

According to Hobbs, Lowery said that the television she had bought from Sam’s

Furniture was located at the Premises, which she claimed was the residence of

Powell, McGee, and McGee’s grandmother, who was not involved in the

criminal activity. According to Hobbs, Lowery also told him that she had used

another forged check to buy a safe from Home Depot for Powell and McGee

and that the safe was at the Premises. Lowery also told Hobbs that on January

27, 2004, she had seen at the Premises approximately fifty checks in the name

of Stanley E. Rush and that there were guns and drugs at the Premises.

      Hobbs ran a computer check on Powell and learned that he was in jail,

not at the Premises.     Hobbs also “was able to identify Leia McGee’s

grandmother as Roberta Halie McGee, a white female with a date of birth of

August 20, 1920.” He also confirmed that a white female had passed a forged

check in the name of Augustine Terrell to purchase a Lexmark printer, mouse,

and repair work on a laptop from Express Computer Repair. Hobbs additionally

confirmed through the Texas and National Crime Information centers (TCIC and

NCIC) that Leia Michelle McGee, a white female with a date of birth of October

2, 1967, had been arrested for theft and DWI.

      On January 29, 2004, Hobbs submitted the affidavit described above to

the municipal judge to obtain an arrest warrant for McGee and a search warrant

                                      4
for the Premises.    The affidavit accused McGee of stealing checks and

possessing stolen property purchased with forged checks and listed the

following property as “concealed and kept in violation of the laws of Texas” at

the Premises:

      •     “Numerous customers’ checks stolen from Cingular Wireless.”

      •     “Checks and materials to make forged checks.”

      •     “Computers, printers and scanners for forging checks.”

      •     a big-screen television purchased with a counterfeit check.

      •     and a printer purchased with a counterfeit check.

The affidavit listed neither drugs nor safes as property to be seized, despite

Lowery’s statements that she had bought a safe with a forged check, that the

safe she had bought was at the Premises, and that she had seen drugs at the

Premises.

      That same day, the magistrate issued the warrant to arrest McGee and

to seize the specifically designated property, and Hobbs and other police

officers executed the warrant.

      Hobbs was the sole witness testifying at the hearing on Powell’s motion

to suppress. He testified that when the officers executed the warrant, they

took two safes back to the police station. The next day, the police called a

locksmith, who drilled into the safes at their request.   Hobbs testified that

                                      5
officers found methamphetamine in one of the safes.        The officers did not

obtain a second search warrant before seizing or opening the safes.

      Based on the methamphetamine found in the safe, a grand jury indicted

Powell on two counts—possession with intent to deliver methamphetamine of

4 grams or more but less than 200 grams, including any adulterants or

dilutants, and possession of methamphetamine of 4 grams or more but less

than 200 grams, including any adulterants or dilutants. Powell filed a motion

to suppress the methamphetamine, alleging that (1) there was not probable

cause on the face of the affidavit to support issuance of the search warrant,

and (2) the police exceeded the scope of the search warrant by seizing the two

safes, taking them to the police station, keeping them overnight, and then

having them drilled open the next day.

      After a hearing, the trial court granted Powell’s motion to suppress in its

entirety after “having considered the evidence and the credibility of the

witnesses.” The State then timely filed a notice of appeal.

                              S TANDARD OF R EVIEW

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. 1 In reviewing the trial court’s decision, we do


      1
     … Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

                                       6
not engage in our own factual review. 2 The trial judge is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony.3     Therefore, we give almost total deference to the trial court’s

rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility

and demeanor. 4

      When the trial court grants a motion to suppress without filing findings

of fact or any other explanation, and the only evidence presented in the

suppression hearing is the search warrant and testimony of the arresting

officer—which, if believed, clearly constitutes probable cause—there is not a

“concrete” set of facts that can be implied from such a ruling.5 In those cases,

there is a mixed question of law and fact that turns on an evaluation of the

credibility and demeanor of the sole witness whom the trial court obviously


      2
       … Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
      3
       … State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v.
Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
      4
       … Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);
State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort Worth 2004, pet. ref’d).
      5
          … Ross, 32 S.W.3d at 856.

                                         7
chose not to believe.6 In such cases, we view the evidence in the light most

favorable to the trial court’s ruling, giving it almost total deference. 7

      The party bringing the motion to suppress bears the burden of

establishing all of the elements of his Fourth Amendment claim, including

establishing his privacy interest in the premises searched. 8 Once a defendant

has established the basis for a Fourth Amendment claim, however, the burden

shifts to the prosecution to establish the validity of the search under the

applicable theory of law.9 In this case, the State therefore bears the burden of

proving the trial court erred by granting the motion to suppress.10

      When the record is silent on the reasons for the trial court’s ruling, or

when there are no explicit fact findings and neither party timely requested

findings and conclusions from the trial court, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the



      6
          … Id. at 856–58; Guzman, 955 S.W.2d at 89.
      7
     … Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Guzman, 955 S.W.2d at 89; see also Ross, 32 S.W.3d at 856.

…
      8
          See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998).

…
      9
          See id.

…
      10
           See id. at 77.

                                         8
light most favorable to the trial court’s ruling, supports those findings. 11 We

then review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.12 We must

uphold the trial court’s ruling if it is supported by the record and correct under

any theory of law applicable to the case even if the trial court gave the wrong

reason for its ruling.13

      In the case now before this court, the trial court entered no findings of

fact, but the record is not silent on the reasons for the trial court’s ruling. The

trial court stated that his ruling was based on the evidence he heard and his

determination of “the credibility of the witnesses.” We are not in a position to

secondguess the trial judge’s determination of the credibility of the witnesses

but must view the evidence deferentially in support of the trial court’s ruling.14




      11
           … State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
      12
           … Id. at 819.
      13
        … Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003),
cert. denied, 541 U.S. 974 (2004); Ross, 32 S.W.3d at 855–56; Romero, 800
S.W.2d at 543.
      14
       … See Estrada, 154 S.W.3d at 607; Guzman, 955 S.W.2d at 89; see
also Ross, 32 S.W.3d at 856.

                                        9
                            S COPE OF THE W ARRANT

      In its third point, the State contends that the trial court erred by granting

the motion to suppress because the seizure and opening of the two safes did

not exceed the scope of the warrant. The warrant incorporated the affidavit

that “particularly described” the property to be seized as:

      2.    THERE IS AT SAID SUSPECTED PLACE AND PREMISES
            PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE
            LAWS OF TEXAS AND DESCRIBED AS FOLLOWS:

            Numerous customers’ checks stolen from Cingular Wireless.

            Checks and materials to make forged checks.

            Computers, printers and scanners for forging checks.

            Big Screen JVC 32 inch flat screen Television Serial Number
            16837227 JVC TV Stand model #RKC32DF4AS purchased
            with a counterfeit check Dated 01-22-04 for $974.15 [f]rom
            Sam’s Furniture.

            Lexmark Print Trio color jet printer purchased on January 24,
            2004 for $99.99 with counterfeit check #4957 from Express
            Computer Repair.

A safe is mentioned in the affidavit, not as property to be seized, but as part

of Hobbs’s basis for probable cause: “Lisa Lowery also told me that Robert

Powell and Leia McGee gave her another check #4961 in the name of

Augustine Terrell for $199.14 to go to Home Depot to purchase a safe for

them. Lisa Lowery advised that the safe is at [the Premises].”


                                       10
      Powell points out that there is a recognized distinction between search

and seizure, citing Horton v. California: 15 “A search compromises the individual

interest in privacy; a seizure deprives the individual of dominion over his or her

person or property.” 16

      The warrant did not specifically permit search or seizure of any safe, nor

did the underlying affidavit list any safe as “property concealed and kept in

violation of the laws of Texas.” The supporting affidavit referred to a single

safe, but it did not indicate what the safe would be used for, its size, its color,

its brand, or anything else that would distinguish the safe from all other safes.

      One of the most basic and fundamental requirements for a warrant is that

it must “particularly describ[e] the place to be searched, and the persons or

things to be seized.” 17     “The requirement that warrants shall particularly

describe the things to be seized makes general searches under them impossible

and prevents the seizure of one thing under a warrant describing another.” 18

“As to what is to be taken, nothing is left to the discretion of the officer



      15
           … 496 U.S. 128, 110 S. Ct. 2301 (1990).
      16
           … Id. at 133, 110 S. Ct. at 2306.
      17
           … U.S. C ONST. amend. IV.
      18
           … Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76
(1927).

                                        11
executing the warrant.” 19

      The State argues that “a search warrant authorizing the search of a

defined premises also authorizes the search of containers found on that

premises which reasonably might conceal items listed in the warrant, regardless

of whether separate acts of entry or opening may be required.” The State relies

on an Eighth Circuit case, United States v. Johnson, 20 to support its argument

that the police were authorized to seize, remove, and later open a safe not

named in the warrant.

      James Wayne Johnson was indicted on three counts of receiving firearms

previously shipped or transported in interstate commerce while a convicted

felon and on one count of possessing firearms in or affecting commerce while

a convicted felon.21 Johnson waived a jury trial, and the district court tried the

case on the basis of stipulated facts. 22

      On appeal, Johnson argued, among other things, that the officers

searching his residence had no authority to remove a floor safe from his




      19
           … Id.
      20
           … 709 F.2d 515 (8th Cir. 1983) (per curiam).
      21
           … Id. at 516.
      22
           … Id.

                                       12
bedroom and later open it at the police station without his consent.23 Johnson

was present when the officers found the safe and refused to open it for them

at the time of discovery. 24 That safe contained two of the weapons used to

convict Johnson.25

      The Eighth Circuit rejected Johnson’s contention, pointing out that “[a]

search warrant authorizing the search of defined premises also authorizes the

search of containers found on that premises which reasonably might conceal

items listed in the warrant.” 26 Because the officers were authorized to open the

safe under the warrant when they discovered it at the house, the court held

that they did not need a second warrant to complete the search of the safe at

the police station later. 27

      Unlike Powell, Johnson stipulated to the evidence before the trial court,

including the location of the floor safe within the premises described by the

warrant.28 Johnson complained of the sufficiency of the evidence, the propriety



      23
           … Id.
      24
           … Id.
      25
           … Id.
      26
           … Id.
      27
           … Id.
      28
           … Id.

                                       13
of taking without his consent a safe that was properly discovered pursuant to

a warrant to the police station before opening it, and the adequacy of the

affidavit supporting the warrant.29

      Unlike the trial court in the case before us, the Johnson court ruled that

            Johnson’s possession of each of the weapons listed in the
      indictment reasonably could be inferred from the stipulated facts
      considered by the district court. In particular, the California
      informant would have testified that she saw Dale Nelson,
      Johnson’s nephew, “return” a weapon similar to that listed in
      Count I to Johnson during the informant’s visit at the Johnson
      residence in February of 1982. During that same visit, she saw
      Johnson exercise personal control over the floor safe in which the
      officers found the weapons listed in Counts II and III.30

      Unlike the evidence in the Johnson case, nothing in the evidence in the

case before us shows that Powell exercised control over either safe seized by

the police. No evidence showed where the safes were found, that the safes

were connected to Powell, that either safe was the safe referred to in the

affidavit, or the age or size of the safes. Consequently, we cannot say that the

trial court erred by concluding that the seizure and opening of the safes

exceeded the scope of the warrant. We overrule the State’s third point.




      29
           … Id.
      30
           … Id. at 516–17.

                                      14
            D ID AN E XCEPTION TO THE W ARRANT R EQUIREMENT A PPLY?

      In its fourth point, the State contends that the trial court erred by granting

Powell’s motion to suppress because the police were not required to get

another warrant before opening the seized safes.         As we held above, the

original warrant did not justify the seizure. But law enforcement officers may

seize property that has not been “particularly described” in the warrant if the

State can show an exception to the warrant requirement. 31 As the Texas Court

of Criminal Appeals has explained,

      It has been very well settled that items in “plain view” may be
      seized by law enforcement personnel if each of the three conditions
      set forth in Coolidge v. New Hampshire are met. These conditions
      include: 1) the initial intrusion must be proper, in other words, that
      the police have a right to be where they are when the discovery is
      made; 2) the discovery of the evidence must be inadvertent; and
      3) it must be “immediately apparent” to the police that they have
      evidence before them (i.e. probable cause to associate the property
      with criminal activity). However, the United States Supreme Court
      has recently modified the criteria in that “inadvertence” is no longer
      a necessary condition of a legitimate “plain view” seizure. 32

      Consequently, to fall within the plain view warrant exception, the State

must show that (1) the police officer had legal authority to be in the place




      31
       … Marron, 275 U.S. at 196, 48 S. Ct. at 76; see also Horton, 496 U.S.
at 139–40, 110 S. Ct. at 2309.
      32
         … State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App 1991)
(citations omitted).

                                        15
where he viewed the safes and was legally able to access them; (2) the safes

were in plain view; and (3) the incriminating character of the safes was

immediately apparent. 33

      Hobbs testified that Lowery “mentioned the safes and that she believed

that some of the checks were possibly kept in the safe.” He also testified,

      Q. The two safes that you talk about, Lisa Lowery talked about
      those and you included some of the information on those in the
      affidavit, didn’t you?

      A. Yes, sir.

      Q. And, in fact, the safes that she refers to, as you put in the
      affidavit, those were stolen, right?

      A. Yes, sir.

      At a hearing on a motion to suppress, “the trial judge is the exclusive

judge of the credibility of the witnesses and the weight to be given their

testimony. He is authorized to believe or not believe any or all testimony of

witnesses for either the State or the defendant.” 34 If the State had prevailed

below, we would presume that the trial court took Hobbs’s testimony as true.

But in the case now before this court, we make no such presumption, especially



      33
           … See Horton, 496 U.S. at 136–37, 110 S. Ct. at 2308.
      34
       … Dalgleish v. State, 787 S.W.2d 531, 534 (Tex. App.—Beaumont
1990, pet. ref’d) (citing Mattias v. State, 731 S.W.2d 936, 939 (Tex. Crim.
App. 1987)).

                                      16
in light of the fact that the trial court noted that its ruling was based on the

evidence and credibility of the witnesses. Because the trial court announced

that the suppression ruling was based on the credibility of the witnesses, we

do not presume that the trial court found the sole witness credible.

      As Powell reminds us, although the State repeatedly used the plural,

“safes,” in questioning Hobbs, only a single safe is mentioned in his affidavit.

Thus, Hobbs’s testimony about two safes directly conflicted with his affidavit.

When, therefore, Hobbs testified that Lowery had told him that she believed

that some of the checks were possibly kept in the safe, it is entirely plausible

that the trial court found this testimony not credible, especially in light of the

fact that it appears nowhere in the affidavit.

       Perhaps the trial court did not believe that Lowery had spoken of two

safes, especially because Hobbs mentioned only one safe in his affidavit.

Perhaps the trial court did not believe that Lowery had said that “some of the

checks were possibly kept in the safe,” especially because Hobbs did not

mention this important information in his affidavit. Perhaps the trial court did

not believe Hobbs’s additional testimony that, in his experience, people who are

making forged checks have safes, especially because the officer did not

mention this information in his affidavit and did not list a safe as property that

he sought to seize.

                                       17
      Although Hobbs testified that he seized the safes when he executed the

warrant, he did not testify that they were in a place that the warrant authorized

him to search. Perhaps the trial court was not convinced that the State had

sustained its burden to prove by a preponderance of the evidence that the

officers were lawfully in the place where they actually found the safes. Hobbs

did not testify where or under what circumstances he found the safes. We do

not know how large, how old, or what brand the safes were. We, therefore,

cannot know that the trial court believed that it was immediately apparent that

either of the safes was the one that Lowery had claimed to have purchased and

was, therefore, considered stolen. It is possible that at least one of the safes

was the right size to hold checks because Hobbs testified that the police found

checks in one, but because of the trial court’s ruling, we cannot know whether

the trial court believed that the police did find checks there.

      Consequently, based on the standard of review that we must follow, we

hold that the trial court could have properly found that the State did not prove

that the “plain view” exception applied.     As a result, the seizure and later

search of the safes were illegal; a new warrant would have been necessary to

justify them. The trial court therefore did not err by suppressing the evidence

on this ground. We overrule the State’s fourth point and do not reach its first




                                       18
two points.35

                                     C ONCLUSION

      Having overruled the State’s third and fourth points without reaching its

first two points, we affirm the trial court’s order suppressing the evidence.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL A:       CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

PUBLISH

DELIVERED: June 5, 2008




      35
           … See T EX. R. A PP. P. 47.1.

                                           19
