      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00517-CR



                                  The State of Texas, Appellant

                                                  v.

                                  Marli Shealyn Elrod, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
        NO. CR2011-633, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING



                                           OPINION


               The State of Texas appeals a pretrial order granting, in part, Marli Shealyn Elrod’s

motion to suppress. In two points of error, the State contends that the trial court erred by concluding

that Elrod had standing to contest the searches conducted by investigating detectives and by

suppressing the evidence resulting from two of the complained-of searches. We affirm the trial

court’s order of suppression.


                                         BACKGROUND1

               On March 17, 2011, deputies and emergency personnel responded to a 911 call

concerning an infant child who had stopped breathing. Upon responding to the location, the

“Yorkshire residence,” deputies made contact with Elrod who indicated that she was babysitting the


       1
         As this is a pretrial interlocutory appeal, the record is limited. We obtain this background
information from the record of the suppression hearing and the exhibits admitted at this hearing.
child, P.E., while the child’s mother was away from the residence. She explained to the deputies that

earlier in the day she had accidentally dropped P.E. as she was putting P.E. down for her nap when

a dog bit her in the ankle. She said the child struck her head on the railing of the crib before falling

to the floor where she landed on a stuffed animal toy. Elrod informed the deputies that she picked

P.E. up and calmed her. She indicated that after P.E. stopped crying she was happy and even played

with Elrod’s 14-month old daughter. Elrod said she later put P.E. back down for her nap. When she

subsequently checked on her, she discovered the child was having difficulty breathing so she called

for emergency help.

                During the course of their investigation, sheriff’s deputies obtained four separate

search warrants. The first search warrant (SW2011-079) was issued that same day, March 17, 2011,

and authorized a search of the Yorkshire residence. During the execution of this search warrant,

officers seized a laptop from the Yorkshire residence and took photographs, measurements, and a

video recording of the inside of the home. The second search warrant (SW2011-080) was issued the

following day, March 18, 2011, and authorized a search of the laptop seized from the home on

March 17th. A third search warrant (SW2011-091) was issued March 29, 2011, and authorized an

additional search of the Yorkshire residence. During the execution of this search warrant, officers

seized a baby crib and wooden chairs with booster seats attached, and took photographs of those

items within the home. The fourth search warrant (SW2011-092) was also issued March 29, 2011,

and authorized a search of Elrod’s cell phone.

                Prior to trial, Elrod filed a motion to suppress all of the evidence obtained as a result

of the execution of the four search warrants. At the pretrial hearing on the motion, the State argued



                                                   2
that Elrod lacked standing to contest the searches. After hearing testimony from Elrod and argument

from both parties, the trial court concluded that Elrod had standing. No further testimony was

presented at the hearing. Elrod argued that the first search warrant lacked sufficient probable cause

both to show that a crime had been committed or that evidence of a crime would be found at the

residence. She next argued that, as a result of the invalidity of the first search warrant, the search

of the laptop pursuant to the second search warrant was the fruit of the poisonous tree. She further

argued that the second search warrant lacked sufficient probable cause that a specific crime had been

committed or that there was evidence of such crime on the laptop. Elrod also argued that the third

search warrant lacked probable cause that a specific offense had been committed. Finally, she

argued that the fourth search warrant lacked probable cause that a specific offense had been

committed or that her cell phone contained evidence of a crime. The trial court made no ruling at

the conclusion of the hearing, but took the matter under advisement.

                 Subsequent to the hearing, prior to trial, the trial court granted Elrod’s motion to

suppress as to the first two search warrants (SW2011-079 and SW2011-080) and suppressed the

evidence recovered from the searches pursuant to those warrants. The court concluded that the

affidavit in support of the first search warrant lacked sufficient probable cause and, consequently,

the second search warrant was “tainted by the fruit of the poisonous tree” because the laptop was

recovered during the execution of the first search warrant. The trial court denied Elrod’s motion

as to the last two search warrants (SW2011-091 and SW2011-092). The State appeals the trial

court’s order.




                                                  3
                                           DISCUSSION

               In its first point of error, the State contends, as it did below, that Elrod lacks standing

to contest the search of the Yorkshire residence because she failed to demonstrate a legitimate

expectation of privacy in the residence. In its second point of error, the State argues that the trial

court erred in suppressing the evidence recovered from the search of the Yorkshire residence and the

laptop seized from the residence because the affidavits in support of those search warrants

sufficiently set forth probable cause.


                                         Standard of Review

               We review a trial court’s ruling on a motion to suppress evidence for abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its

discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005). The trial court’s ruling on the motion to suppress will be affirmed if it is

reasonably supported by the record and is correct under any theory of law applicable to the case.

Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

               In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to

the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s

application of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327.

We afford almost total deference to the trial judge’s rulings on mixed questions of law and fact when

the resolution of those questions depends on an evaluation of credibility and demeanor.             State

                                                   4
v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). We review de novo mixed questions of law and fact that do not depend on an

evaluation of credibility and demeanor. Johnson, 336 S.W.3d at 657; Guzman, 955 S.W.2d at 89.

All purely legal questions are reviewed de novo. Johnson, 336 S.W.3d at 657; Kothe v. State,

152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

               At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge

of the credibility of the witnesses and the weight to be given to their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. Unless the trial court

abuses its discretion by making a finding unsupported by the record, we defer to the trial court’s

findings of fact and will not disturb them on appeal. Johnson, 336 S.W.3d at 657; Guzman,

955 S.W.2d at 89; Miller v. State, 335 S.W.3d 847, 854 (Tex. App.—Austin 2011, no pet.). When,

as here, the trial court makes no findings of fact and conclusions of law, and none are requested, we

review the evidence in the light most favorable to the trial court’s ruling and assume that the trial

court made implicit findings of fact that support its ruling so long as those findings are supported

by the record. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche, 10 S.W.3d

at 328.


                                              Standing

               The State first urges that the trial court erred by concluding that Elrod had standing

to contest the search of the Yorkshire residence or the laptop seized from the residence and thus to

complain about the search warrants issued by the magistrate in this case.




                                                  5
Expectation of Privacy in Residence

               The Fourth Amendment to the United States Constitution and Article I, Section 9 of

the Texas Constitution protect individuals against unreasonable searches and seizures. See

U.S. Const. amend. IV; Tex. Const. art. I, § 9; Mincey v. Arizona, 437 U.S. 385, 390 (1978); Luna

v. State, 268 S.W.3d 594, 603 (Tex. Crim. App. 2008). The rights secured by the Fourth

Amendment and Article I, Section 9 are personal. Emack v. State, 354 S.W.3d 828, 834 (Tex.

App.—Austin 2011, no pet.); see Rakas v. Illinois, 439 U.S. 128, 139 (1978); Richardson v. State,

865 S.W.2d 944, 948–49 (Tex. Crim. App. 1993). A defendant seeking to suppress evidence on the

ground that it was obtained in violation of the Fourth Amendment or Article I, Section 9 must show

that he personally had a reasonable expectation of privacy that the government violated. Emack,

354 S.W.3d at 834; see Rakas, 439 U.S. at 139–40; Handy v. State, 189 S.W.3d 296, 299 (Tex.

Crim. App. 2006); see also Kothe, 152 S.W.3d at 59 (standing under Fourth Amendment);

Richardson, 865 S.W.2d at 948–49 (standing under Article I, § 9); Fuller v. State, 829 S.W.2d 191,

202 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex.

Crim. App. 1995) (standing requirement of Article 38.23, Texas statutory exclusionary rule). The

defendant bears the burden of demonstrating standing to challenge the legality of the search by

showing that he had a subjective expectation of privacy in the place invaded that society is prepared

to recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002);

Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1992).

               In considering whether an appellant has demonstrated an objectively reasonable

expectation of privacy, we examine the totality of the circumstances surrounding the search,



                                                 6
including whether: (1) the defendant had a property or possessory interest in the place invaded;

(2) he was legitimately in the place invaded; (3) he had complete dominion or control and the right

to exclude others; (4) prior to the intrusion, he took normal precautions customarily taken by those

seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent

with historical notions of privacy. Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138. This

list of factors is not exhaustive, nor is any one factor dispositive of an assertion of privacy.

Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138–39.

               An “overnight guest” has a legitimate expectation of privacy in his host’s home.

Luna, 268 S.W.3d at 603 (citing Minnesota v. Olson, 495 U.S. 91, 98 (1990)). However, the

legitimate privacy expectation of an overnight guest does not extend to a casual visitor or guest who

is merely present with the consent of the homeowner. Minnesota v. Carter, 525 U.S. 83, 90 (1998).

               The State contends that Elrod lacked standing because she was only a babysitter and,

as such, was simply a casual visitor or guest without the expectation of privacy of an overnight guest.

However, Elrod’s testimony at the suppression hearing established that she kept clothing and other

personal property at the Yorkshire residence and that she and her daughter “often” spent the night

in the home, “every weekend” from Friday through Sunday or sometimes Monday. In fact, she

testified that the room where she and her daughter slept on those occasions was considered by her

and those living in the home to also be “their” room.2 Her testimony also established that she had

spent the night at the residence on March 16th, the night before she called for emergency help for




       2
        It appears that Elrod was romantically involved with the adult son of the homeowners. The
room that she and her daughter stayed in was his room.

                                                  7
P.E., and that when she called for help she was in the home caring for P.E. and her child. Thus, the

record reflects that as a frequent overnight guest and caretaker for children in the home, Elrod had

a possessory interest in the residence and was legitimately in the home. Further, as the babysitter,

Elrod had dominion and control over the residence and had the right, perhaps even the duty, to

exclude others from the home.

                In its argument, the State focuses on evidence that, according to the State, contradicts

Elrod’s testimony. First, Elrod previously lived full time at this residence but moved out over a year

before this incident and expressed to detectives that she had no desire to move back in with her

boyfriend. Second, she told investigating deputies that she had moved back in with her parents in

Austin, Texas and on March 17th her parents’ Austin residence was where she was receiving her

mail and was the address listed on her driver’s license.3 The State also asserts that Elrod was

inconsistent in her testimony because she admitted on cross-examination that she told deputies that

she and her daughter only spent the weekends at the Yorkshire residence on those weekends that the

homeowners’ son, her boyfriend, did not work.

                None of this evidence, however, negates the fact that Elrod was a frequent overnight

guest in the residence, with clothing and personal property in the home. At best, this testimony

creates a conflict in evidence that the trial court was permitted to resolve in Elrod’s favor. The trial

judge is the sole trier of fact and exclusive judge of credibility of the witnesses and the weight to be

given to their testimony. St. George, 237 S.W.3d at 725. We defer to the trial court’s factual




       3
          The State acknowledges that the evidence showed that the Yorkshire residence was the
address listed on Elrod’s voter registration.

                                                   8
findings and view them in the light most favorable to the prevailing party, although we review the

legal issue of standing de novo. Kothe, 152 S.W.3d at 59; see Parker v. State, 182 S.W.3d 923, 925

(Tex. Crim. App. 2006). When the trial court fails to make explicit findings of fact, we imply fact

findings that support the trial court’s ruling so long as the evidence supports these implied findings.

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Examining all the circumstances,

the trial court could reasonably find that Elrod was a resident of the Yorkshire residence, at least

part-time, or a regular overnight guest with a legitimate expectation of privacy in where she and her

child frequently and routinely spent the night. Under the circumstances, the trial court could

reasonably conclude that Elrod had a subjective expectation of privacy in the home that was

objectively reasonable.


Expectation of Privacy in Room with Crib

               The State additionally argues that while Elrod may have standing in the Yorkshire

residence, she had no reasonable expectation of privacy in the room containing the crib or the other

property described in the first search warrant because she called for emergency aid. Relying on a

combination of the emergency doctrine and plain view doctrine, the State contends that Elrod

essentially waived her expectation of privacy because she invited emergency responders into the

home and those individuals saw, in “plain view,” the evidence later sought in the search warrant.4




       4
          We note that there is no evidence in the record before us that the emergency responders
actually entered the Yorkshire residence when responding to Elrod’s call for help or that they saw
any of the evidence the deputies later sought to search for and seize pursuant to the subsequent
search warrant.

                                                  9
                The emergency doctrine is a recognized exception to the warrant requirement. Laney

v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003) (citing Mincey, 437 U.S. at 392).

The emergency doctrine allows police officers to make warrantless entries and searches when

they reasonably believe that a person within is in need of immediate aid. Shepherd v. State,

273 S.W.3d 681, 683–84 (Tex. Crim. App. 2008) (citing Mincey, 437 U.S. at 392); Laney,

117 S.W.3d at 861. The emergency doctrine is limited. It applies when the police are acting, not

in their “crime-fighting” role, but in their limited community caretaking role to “protect or preserve

life or avoid serious injury.” Laney, 117 S.W.3d at 861. The officer’s “actions [must be] totally

divorced from the detection, investigation, or acquisition of evidence relating to the violation of a

criminal statute.” Id. (quoting Mincey, 437 U.S. at 392). “[T]here is a difference between rendering

emergency aid and investigating the possibly criminal cause of the emergency. The emergency

doctrine justifies the former, but it does not always justify the latter.” Bray v. State, 597 S.W.2d 763,

768 (Tex. Crim. App. 1980). The emergency doctrine does not apply when the police are carrying

out their “crime-fighting” role by conducting a search based on probable cause to gather evidence

of a crime. Shepherd, 273 S.W.3d at 684; Laney, 117 S.W.3d at 858. If the emergency doctrine

applies, the police may seize evidence that is in plain view during the course of their legitimate

emergency activities. Shepherd, 273 S.W.3d at 684; Laney, 117 S.W.3d at 862.

                The “plain view” seizure doctrine is another exception to the warrant requirement.

See Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). It allows an officer to seize an

item during a warrantless search if (1) the officer sees an item in plain view at a vantage point where

he has the right to be, and (2) it is immediately apparent that the item seized constitutes



                                                   10
evidence—that is, there is probable cause to associate the item with criminal activity. Miller v. State,

No. PD-0705-11, 2012 WL 5869416, at *8 (Tex. Crim. App. Nov. 21, 2012) (citing Martinez

v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000)); Ramirez v. State, 105 S.W.3d 730, 745 (Tex.

App.—Austin 2003, no pet.). Because such an officer is legitimately on the private premises, and

so long as he has not exceeded the authority granted him by the warrant or the exigency that

legitimizes his presence in the first place, he may seize any item in plain view that probable cause

tells him is contraband. State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010). He may seize

this item, just as he would be permitted to seize any item in public that it was “immediately

apparent” to him was contraband, without first obtaining a warrant. Id.

                Neither the emergency doctrine nor plain view doctrine addresses the issue of

standing. They do not create, diminish, or even measure a person’s legitimate expectation of

privacy. Nor do they suggest the waiver of any expectation of privacy. Rather, these doctrines serve

to justify or excuse the governmental intrusion upon a person’s legitimate expectation of privacy

under certain circumstances. These doctrines do not support the State’s assertion that Elrod waived

her expectation of privacy by calling for emergency aid for P.E. and thus lacked standing to contest

the subsequent search of a particular room within the home. We reject the State’s contention that

by inviting emergency personnel into a residence to protect or preserve life, a person somehow

relinquishes her expectation of privacy in the home.

                Moreover, the State is procedurally defaulted from asserting that the trial court’s

ruling should be reversed on this additional legal theory. An appellate court may affirm a trial

court’s decision on a legal theory not presented to the trial court because the ordinary notions of



                                                  11
procedural default do not require a prevailing party to list or verbalize in the trial court every possible

basis for upholding its decision. Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002)

(citing State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)); State v. Huddleston,

164 S.W.3d 711, 716 (Tex. App.—Austin 2005, no pet.). However, an appellate court may not

reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining

party because the ordinary notions of procedural default do not permit a trial court’s decision to be

reversed on a theory the trial court did not have an opportunity to rule on and upon which the

non-appealing party did not have an opportunity to develop a complete factual record. Hailey,

87 S.W.3d at 122; Huddleston, 164 S.W.3d at 716. The ordinary notions of procedural default apply

equally to the defendant and the State. Mercado, 972 S.W.2d at 78; Huddleston, 164 S.W.3d at 716.

Here, the State raises this argument—that pursuant to the emergency and plain view doctrines Elrod

waived her expectation of privacy and consequently lacks standing—for the first time on appeal.

The record does not reflect that it was raised or argued at the suppression hearing. Because the State

did not raise this contention below, it is waived. See Miller, 335 S.W.3d at 858.


Conclusion Regarding Standing

                We conclude that the trial court did not abuse its discretion in finding that Elrod had

standing to challenge the first two search warrants and the subsequent searches of the Yorkshire

residence and the laptop seized from that residence. We overrule the State’s first point of error.




                                                    12
                                           Probable Cause

                The State next argues that the trial court erred by concluding that the magistrate

lacked probable cause to issue the search warrants for the Yorkshire residence and the laptop seized

from that residence. Consequently, the State contends that the trial court abused its discretion in

suppressing the evidence recovered from those searches.


Probable Cause Affidavit

                No search warrant may issue unless a sworn affidavit is first presented to the

magistrate setting forth sufficient facts to show that probable cause exists for its issuance. Tex. Code

Crim. Proc. Ann. art. 18.01(b) (West Supp. 2012). The sworn affidavit must set forth facts sufficient

to establish probable cause:


        (1) that a specific offense has been committed, (2) that the specifically described
        property or items that are to be searched for or seized constitute evidence of that
        offense or evidence that a particular person committed that offense, and (3) that the
        property or items constituting evidence to be searched for or seized are located at or
        on the particular person, place, or thing to be searched.


Id. art. 18.01(c) (West Supp. 2012). 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) (citing Illinois v. Gates, 462 U.S. 213, 238,

243 n.13 (1983)).

                When reviewing a decision by a judge or magistrate to issue a search warrant,

we apply a deferential standard of review because of the constitutional preference for law

                                                  13
enforcement officials to obtain warrants rather than conduct warrantless searches. State v. McLain,

337 S.W.3d 268, 271 (Tex. Crim. App. 2011). The facts submitted for the magistrate’s probable

cause determination are those contained within the four corners of the affidavit and are to be read

in a common-sense and realistic manner. McLain, 337 S.W.3d at 271; Rodriguez v. State,

232 S.W.3d 55, 61 (Tex. Crim. App. 2007). A magistrate may draw reasonable inferences from the

facts stated in the affidavit. Rodriguez, 232 S.W.3d at 61; Hedspeth v. State, 249 S.W.3d 732, 737

(Tex. App.—Austin 2008, pet. ref’d). When in doubt about the propriety of the magistrate’s

conclusion, we defer to all reasonable inferences the magistrate could have made. Rodriguez,

232 S.W.3d at 61; see McLain, 337 S.W.3d at 271. Our inquiry, then, is whether there are sufficient

facts stated within the four corners of the affidavit, coupled with inferences from those facts, to

establish a fair probability that evidence of a particular crime will likely be found at a given location.

See Rodriguez, 232 S.W.3d at 62.

                The affiant in this case was Detective Wayne E. Lehman. The affidavit filed by the

detective in support of his request for a search warrant for the Yorkshire residence asserted his belief

that evidence used in the commission of aggravated assault would be found at that location. To

support this belief, the detective first included a description of Elrod’s account of how P.E. sustained

her injuries. According to Lehman, Elrod explained that she accidentally dropped the child when

she was putting her down for a nap because the dog bit her on the ankle. She further explained that

P.E.’s head struck the railing of the crib as she fell to the floor where she landed on top of a stuffed

animal toy. The detective then stated in his affidavit that he looked at photographs taken by a

colleague at the hospital where, according to the detective’s recitations, the child was “conscious and



                                                   14
alert.” The photos, attached to his affidavit, depict several bruises on the child’s face. The detective

then opined that the bruises on the child’s face “did not appear to be consistent with [Elrod’s]

account of the incident.”

                There was no information in the affidavit about the detective’s training and

experience, his general knowledge of child abuse crimes, or his familiarity with injuries sustained

in such crimes based on his training and experience. Nor did he detail the facts on which he based

his belief that Elrod, or someone else, had somehow intentionally inflicted serious bodily injury to

P.E. Simply put, the information the detective provided in the affidavit merely asserted that he did

not believe Elrod’s story. A mere conclusory statement will not suffice to show probable cause.

Gates, 462 U.S. at 239.

                Although the detective stated in the affidavit that he sought evidence in connection

with the offense of aggravated assault, the affidavit did not provide any basis from which it could

be inferred that P.E. was the victim of an aggravated assault. Nor did the affidavit contain any

information indicating that Lehman would have any reason to believe that evidence relating to an

aggravated assault would be found in the residence. There were no facts articulated to form a basis

of belief that P.E.’s injuries were sustained in an aggravated assault, other than the detective’s

disbelief of Elrod’s account based on his viewing of the photographs of the child. While the

detective sought evidence of objects that “could cause blunt force trauma to an infant child’s head,”

there were no facts set forth in the affidavit indicating that P.E. suffered blunt force trauma to the

head. The only information concerning the child’s medical condition was the attached photographs

depicting bruises on her face along with the recitation that these photographs were taken at the



                                                  15
hospital where the child was conscious and alert. The detective also sought evidence of items that

“could be used to suffocate or strangle an infant child,” yet nowhere in the affidavit are there any

facts suggesting that P.E. was strangled or suffered injuries consistent with strangulation or

suffocation. Finally, the detective also sought computer and digital evidence “which could be used

for internet searches that could be researched to conceal or attempt to conceal said offense.”

However, the affidavit set forth no facts from which to infer that Elrod had used any such devices.

The detective’s belief that a computer device could be used for such purposes does not set forth facts

from which to believe or infer that a computer device had been so used on this occasion.

               Given the paucity of facts in the affidavit, we conclude that the magistrate did not

have a substantial basis for determining that probable cause existed to search the Yorkshire

residence. The affidavit lacked a substantial basis for determining that there was probable cause to

believe that the offense of aggravated assault had been perpetrated or that there was evidence related

to the commission of such offense in the Yorkshire residence. Accordingly, we hold that the trial

court did not abuse its discretion in granting Elrod’s motion to suppress the evidence obtained during

the search of the Yorkshire residence pursuant to the first search warrant.

               The “fruit of the poisonous tree” doctrine serves to exclude as evidence not only the

direct products of Fourth Amendment violations, but also the indirect products. Wong Sun v. United

States, 371 U.S. 471, 484, 487–88 (1963) (explaining that exclusionary rule applies to evidence

“obtained either during or as a direct result of” Fourth Amendment violation); State v. Iduarte,

268 S.W.3d 544, 550–51 (Tex. Crim. App. 2008) (citing Armstrong v. State, 550 S.W.2d 25, 31

(Tex. Crim. App. 1976)). The evidence recovered from the laptop seized during the first search of



                                                 16
the Yorkshire residence was the indirect product of an illegal search. Therefore, that evidence was

properly subject to suppression based on the taint of the illegal search through which the laptop was

obtained. Moreover, the affidavit in support of the search warrant for the laptop, while adding the

offense of injury to a child as an offense believed to be committed, contained the same information,

or lack thereof, as the first search warrant. It too failed to set forth sufficient facts from which a

magistrate could determine that an offense had been perpetrated against P.E. or that there was

evidence related to the commission of such offense on the laptop. Again, the detective’s mere

suspicion that the laptop could have been used to research how to conceal a crime does not suffice

to show probable cause. Accordingly, we hold that the trial court did not abuse its discretion in

granting Elrod’s motion to suppress the evidence obtained pursuant to the search of the laptop.


Good Faith Exception

               The State contends that, in the alternative, even if the search warrants at issue lacked

probable cause, the evidence is still admissible because the officers conducting the searches relied

on the search warrants in good faith. There is some dispute among the parties as to whether the State

is asserting a generic “good faith” exception under United States v. Leon, 468 U.S. 897, 924 (1984),

if such exception exists, or is limited to the statutory good faith exception contained in

Article 38.23(b) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann.

art. 38.23(b) (West 2005).

               Texas law provides that 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, shall not be admitted in evidence against the accused on the trial of any criminal

                                                 17
case. Id. art. 38.23(a) (West 2005). Pursuant to Article 38.23(b), “[i]t is an exception to the

provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement

officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based

on probable cause.” Id. art. 38.23(b). Under its unambiguous language, the statutory good faith

exception requires an initial finding of probable cause.

               The State contends that because Elrod failed to verbally argue the statutory ground

for exclusion at the suppression hearing, it is not now limited by the statutory good faith exception.

Elrod argues that the statutory ground for exclusion was presented to the trial court because the

motion the trial court ruled on explicitly articulated Article 38.23 as a ground for exclusion.

However, we need not resolve this dispute because the State is procedurally defaulted from asserting

this “good faith” argument as a basis for reversing the trial court’s ruling. Again, an appellate court

may affirm a trial court’s decision on a legal theory not presented to the trial court, but it may not

reverse a trial court’s decision on a legal theory not presented to the trial court. Hailey, 87 S.W.3d

at 121–22; Huddleston, 164 S.W.3d at 716. Here, the State raises this good faith argument for the

first time on appeal. Because the State failed to raise this contention to the trial court below at the

suppression hearing, it is waived. See Miller, 335 S.W.3d at 858.


Conclusion Regarding Probable Cause

               We conclude that the trial court did not err in finding that the magistrate lacked

probable cause to issue the first search warrant of the Yorkshire residence and that the ensuing search

warrant for the laptop was tainted by the illegality of the first search. Therefore, we hold that the

trial court did not abuse its discretion in suppressing the evidence obtained from the illegal search

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of the Yorkshire residence or the subsequent illegal search of the laptop recovered from the home.

We overrule the State’s second point of error.


                                          CONCLUSION

               We conclude that the trial court did not abuse its discretion in finding that Elrod had

standing to challenge the complained-of searches or in finding that the first two search warrants

lacked sufficient facts to show that probable cause existed for their issuance. Accordingly, we affirm

the trial court’s order of suppression.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: February 27, 2013

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