Opinion issued March 18, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NOS. 01-13-00214-CR
                                01-13-00215-CR
                                01-13-00216-CR
                         ———————————
                    BRET LEE GARDNER, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 180th District Court
                          Harris County, Texas
           Trial Court Case Nos. 1336695, 1336696, and 1336697



                                 OPINION

     The State charged Brett Gardner with three offenses of possession of child

pornography. TEX. PENAL CODE ANN. § 43.26 (West Supp. 2013). Gardner moved
to suppress evidence obtained through execution of a search warrant at his home

and his confession to having committed the offenses, which was procured during

interviews with law enforcement. The trial court denied the motions, and, pursuant

to a plea agreement with the State, Gardner pleaded guilty to all three offenses.

The trial court assessed a sentence of six years’ confinement for each charge; it

certified Gardner’s right to appeal the suppression ruling.

      On appeal, Gardner contends that the police obtained his confession in an

audio recording during custodial interrogations, in violation article 38.22 of the

Texas Code of Criminal Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S.

Ct. 1602 (1966). He further contends that the warrant did not provide probable

cause to search his home. Finding no error, we affirm.

                                    Background

      Gardner lived in LaPorte with his parents and grandfather. The LaPorte

Police Department learned through an investigation that someone at the Gardners’

house had used an Internet connection to share child pornography. Detective D.

Huckabee with the LaPorte Police Department, executed an affidavit in support of

a warrant to search the Gardners’ house. In the affidavit, Huckabee outlined his

extensive experience and specialized training, including his membership on the

Internet Crimes Against Children Task Force and twenty-six years’ experience in

investigating sexual crimes against children, including five years specializing in

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the investigation of Internet crimes against children. Based on his experience,

training, and expertise, Huckabee testified to the following information:

   • Peer-to-peer networks are the most pervasive method for the Internet
     distribution of child pornography.

   • These networks enable individual users, through the use of a variety of
     software, to connect through each computer’s unique Internet Protocol
     (IP) address and share image files within the network.

   • Specialized software allows investigators to compare the digital hash
     values of files shared by network users with the digital hash values of
     known child pornography provided by the National Center for Missing
     and Exploited Children, which acts as a clearinghouse for child
     pornography images and videos.

   • Comparison of hash values for the shared files with the hash values for
     the confirmed child pornography files provides an extremely accurate
     method for identifying individuals who possess and own child
     pornography.

   • The software investigation method also allows the investigator to narrow
     his search to confirmed images of child pornography possessed or shared
     within a particular geographic location.

   • In an online investigation in January 2012, Huckabee located an IP
     address—registered to Comcast Cable Communications and originating
     from an area in LaPorte, Texas—that was advertising files for sharing on
     a peer-to-peer network. The names of the files in the suspect share folder
     appeared to identify them as containing child pornography.

   • Huckabee downloaded files from the suspect share folder and confirmed
     that they depicted child pornography.

   • Through a Houston Metro Internet Crimes Against Children
     administrative subpoena served on Comcast, Huckabee obtained
     information concerning the identity of the customer assigned the IP


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      address used for the file sharing and confirmed that it had been assigned
      to the Gardner household.

      The police department secured a warrant based on Huckabee’s affidavit.

One morning in February 2012, shortly before dawn, Huckabee, Houston Police

Department Detective J. Roscoe, who also belonged to the Internet Crimes Against

Children Task Force, and computer forensic examiner Detective N. Gates,

accompanied by six other law enforcement officers, arrived at the Gardners’ house

to execute the search warrant. The officers’ parked cars filled the Gardners’

driveway, blocking any ingress or egress.

      The officers located computer equipment in Gardner’s bedroom. While

Gates previewed the files stored on the computer drives, Huckabee and Roscoe

brought Gardner to speak with them in a patrol car, where they could record the

interview. Roscoe advised Gardner at the beginning of the interview that he and

Huckabee would like to talk to Gardner, that he wasn’t under arrest, and that he

was free to leave at any time. Gardner agreed to talk to Huckabee and Roscoe.

      This first interview lasted nearly an hour.      Several times during the

interview, Gardner mentioned that he wasn’t sure if he should have a lawyer with

him and said that he might rather have one present. Each time, one of the officers

reminded Gardner that the car doors were unlocked, he was free to end the

interview and leave the patrol car whenever he wanted, and he could have an



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attorney present before answering their questions. When Gardner unequivocally

stated that he wanted an attorney, the officers ended the interview.

      Gardner and the officers left the patrol car and returned to the house. They

sat at the kitchen table while the officers spoke with Gardner’s mother. They

showed Gardner’s mother some of the pornographic images the police had found

on a digital storage device stored under Gardner’s bed. Gardner’s mother became

upset, and Gardner had a discussion with her. Gardner then turned to Huckabee

and Roscoe and told them that he wanted to talk to them again. Huckabee, Roscoe,

and Gardner returned to the patrol car, where they recorded a second interview.

Huckabee reiterated that Gardner did not have to talk to the officers. Gardner

confirmed that he had changed his mind and wanted to talk without counsel,

expressing a desire to cause as little pain to his parents as possible. At no time

during this second, approximately forty-minute interview, did Gardner request an

attorney. At the end of the interview, Gardner left the patrol car. The officers

questioned Gardners’ parents and his grandfather and collected evidence. About

three hours after they arrived, they left the scene. Approximately one month later,

Detective Huckabee obtained an arrest warrant and arrested Gardner.

      In his testimony at the suppression hearing, Gardner recounted that, initially,

the officers escorted him and his grandfather in their pajamas to the front porch of

the house. The officers would not let them re-enter the house to change into pants

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and a shirt. About a half an hour later, the officers brought Gardner and his

grandfather into the living room and allowed them to change their clothes.

       Gardner testified that Huckabee asked Gardner to accompany him to the

patrol car to have a conversation. Gardner did not recall if Huckabee told him he

was free to leave at the beginning or at the very end of the interview.          He

remembered asking for an attorney multiple times, but the officers ignored his

requests. When Gardner ended the interview, the officers brought Gardner back to

the house. Then, the officers showed his mother the pornographic images they had

found and asked Gardner whether he was ready to go back to the car. According to

Gardner, he agreed because he assumed he had no other choice.

       After an evidentiary hearing on Gardner’s motion to suppress, the trial court

made the following findings of fact and conclusions of law:

   • Gardner was not in custody on February 3, 2012, making article 38.22,
     section 3 of the Texas Code of Criminal Procedure inapplicable;

   • Gardner gave two video-recorded statements to Huckabee, during which
     Roscoe also was present;

   • Gardner was sitting, without handcuffs, in the backseat of a police
     vehicle parked outside his residence while he gave the statements;

   • During the end of the first interview depicted in the video-recorded
     statement, Gardner invoked his right to counsel, and the interview
     ceased;

   •   Gardner exited the vehicle and returned to his residence;


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   • Subsequently, Gardner expressed his desire to have further discussions
     with the aforementioned police officers;

   • Gardner expressly waived his right to counsel before the second video-
     recorded statement;

   • At the end of the second video-recorded statement, Gardner again exited
     the police vehicle and returned to his house;

   • Gardner was not arrested on February 3, 2012;

   • Gardner was in no way threatened or coerced by law enforcement to
     provide either of the video-recorded statements and gave both statements
     freely and voluntarily;

   • Huckabee, who testified in connection with the admissibility of
     Gardner’s statements, testified truthfully; and

   • Both of the video-recorded statements were admissible for all purposes in
     the proceedings.


                                     Discussion

      Standard of review

      We review a ruling on a motion to suppress for an abuse of discretion.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); Shepherd v.

State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We review a trial court’s

factual findings for abuse of discretion and its application of the law to the facts de

novo. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). We defer to a

trial court’s determination of historical facts, especially those based on an

evaluation of a witness’s credibility or demeanor. Turrubiate, 399 S.W.3d at 150;

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Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). We apply the

same deference to review mixed questions of law and fact.          Turrubiate, 399

S.W.3d at 150. When, as in this case, the trial court makes findings of fact and

conclusions of law, we will uphold the trial court’s ruling if it is “reasonably

supported by the record and is correct on any theory of law applicable to the case.”

Id. (citing Valiterra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010)).

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Custodial interrogation

      Gardner contends that the trial court erred in denying his motion to suppress

because Gardner was in custody when he confessed to his crimes. According to

Gardner, the two police interviews violated Miranda and article 38.22 of the Texas

Code of Criminal Procedure.

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

Section 9 of the Texas Constitution protect against unreasonable searches and

seizures by government officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.

App. 2007); Atkins v. State, 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d). In Miranda, the United States Supreme Court determined that an

accused, held in custody, must be given required warnings before questioning. 384

U.S. at 444–45, 86 S. Ct. at 1612; see Jones v. State, 119 S.W.3d 766, 772 (Tex.

                                         8
Crim. App. 2003).      Law enforcement’s failure to comply with the Miranda

requirements results in forfeiture of the use of any statement obtained during that

questioning by the prosecution during its case-in-chief. Id. Similarly, the Texas

Code of Criminal Procedure provides that a statement is admissible against a

defendant in a criminal proceeding if, among other things, the defendant was

warned as the statute requires before the statement was made, and the defendant

“knowingly, intelligently, and voluntarily” waived the rights set out in the

warnings. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); see also

TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a) (West 2005).

      As with the Miranda warnings, the article 38.22 warnings are required only

for custodial interrogations. Id.; Woods, 152 S.W.3d at 116; TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3(a). Our understanding of “custody” for purposes of

article 38.22 is consistent with the meaning of “custody” for purposes of Miranda.

Herrera, 241 S.W.3d at 526. “Custody,” for purposes of Miranda and article

38.22, includes the following: (1) the suspect is physically deprived of his freedom

of action in a significant way; (2) a law enforcement officer tells the suspect he is

not free to leave; (3) law enforcement officers create a situation that would lead a

reasonable person to believe that his freedom of movement has been significantly

restricted; and (4) probable cause exists to arrest the suspect, and law enforcement

officers do not tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d

                                         9
274, 294 (Tex. Crim. App. 2009) (citing Dowthitt v. State, 931 S.W.2d 244, 254

(Tex. Crim. App. 1996)).       The fourth situation exists only when the officer

communicates the knowledge of probable cause to the suspect or the suspect

concedes the existence of probable cause to the officer. Dowthitt, 931 S.W.3d at

255. Such a concession, however, does not automatically establish a custodial

interrogation; rather, it is a factor to consider, together with other circumstances, to

determine whether a reasonable person would believe that he is under restraint to a

degree associated with an arrest. Id.; Ervin v. State, 333 S.W.3d 187, 211 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

      Additional circumstances to consider for determining whether an

interrogation is custodial include whether the suspect arrived at the interrogation

place voluntarily, the length of the interrogation, any requests by the suspect to see

relatives or friends, and the degree of control exercised over the suspect. Ervin,

333 S.W.3d at 205; Xu v. State, 100 S.W.3d 408, 413 (Tex. App.—San Antonio

2002, pet. ref’d). An interrogation that begins as noncustodial can evolve; police

conduct during the encounter may escalate the interview to a custodial

interrogation. Dowthitt, 931 S.W.2d at 255.

      Gardner points to the following circumstances as supporting a reasonable

belief that he was under arrest:

   • The officers asked to speak with Gardner immediately when they arrived
     to execute the warrant;
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   • The patrol cars blocked the Gardners’ driveway during the search and
     subsequent interviews;

   • The officers escorted Gardner throughout the morning, first outside and
     to the patrol car for the interview, then back into the house, then back to
     the patrol car for the second interview;

   • Gardner mentioned an interest in speaking to an attorney several times
     during the first interview, but the officers did not offer him a telephone
     and continued to interrogate him;

   • The officers coerced Gardner into confessing by showing the child
     pornography to his mother; and

   • Gardner was interviewed for approximately forty-five minutes each time.

Gardner likens these circumstances to those addressed in United States v. Cavazos,

in which the Fifth Circuit Court of Appeals found that the defendant was subjected

to custodial interrogation. 668 F.3d 190 (5th Cir. 2012). Under the circumstances

in Cavazos, immigration enforcement agents awoke the defendant and his family at

about 6:00 A.M. Id. at 195. The agents handcuffed the defendant and brought him

to the kitchen table. They then removed the handcuffs and informed Cavazos that

they were conducting a “non-custodial interview.”’       Id.   The agents allowed

Cavazos to eat, drink, and use the restroom before they questioned him. Id. The

officers allowed Cavazos to make a telephone call, but they required him to hold

the phone so that they could listen to the call. Id. After completing the interview,




                                        11
the officers read the defendant his Miranda rights and then formally arrested him.

Id.

      Gardner’s interviews significantly differ in circumstance from those in

Cavazos. The officers escorted Gardner to avoid any interference with the officers

executing the search warrant. The record supports the trial court’s finding that the

officers did not use handcuffs. Gardner willingly accompanied the officers to the

patrol car for both interviews.     During the first interview, Gardner did not

unequivocally state that he wanted to consult an attorney. The officers reiterated

during the interview that Gardner was free to end the interview and leave the patrol

car at any time. Consistent with the trial court’s finding, the video recording

shows that when Gardner finally stated that he did not want to continue the

interview without an attorney present, the officers ended the interview. Gardner

did not ask the officers for a telephone at any time during the interviews, and the

officers did not refuse to allow Gardner to use the telephone. And, while it may

have been inconvenient for Gardner to leave the house due to the number of patrol

cars blocking the exit, nothing in the record shows that the officers intended to

continue to detain Gardner after they had finished executing the warrant.

      In contrast to Cavazos, the officers left the Gardner home after executing the

warrant and did not arrest Gardner until several weeks later, after they procured a

warrant for his arrest. This factor weighs heavily in favor of finding that Gardner

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was not in custody. See United States v. Jones, 523 F.3d 1235, 1243–44 (10th Cir.

2008) (quoting 2 Wayne R. LaFave et al., CRIMINAL PROCEDURE § 6.6(c) (3d ed.

2007) (collecting cases in which courts have relied on fact that defendant was

allowed to leave following interrogation as strong evidence that interrogation was

not custodial). The circumstances in this case do not involve a show of force,

actual physical restraint, or the deprivation of privacy that led the Fifth Circuit in

Cavazos to conclude that reasonable person would have believed that he was under

restraint to the degree associated with an arrest. Viewing the evidence in the light

most favorable to the trial court’s ruling, we hold that the trial court did not abuse

its discretion in denying Gardner’s motion to suppress his confession.

      Probable cause to search

      Gardner further contends that the trial court erred in denying his motion to

suppress the evidence obtained in executing the search warrant, because the police

lacked probable cause to conduct the search. A magistrate may not issue a search

warrant unless police present an affidavit setting forth sufficient facts to show that

probable cause exists for its issuance. TEX. CODE CRIM. PROC. ANN. art. 18.01(b)

(West Supp. 2013). The affidavit must show that:

   (1) a specific offense has been committed,

   (2) 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

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   (3) 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. 2013). In reviewing the sufficiency of an affidavit,

we defer to all reasonable inferences that the magistrate and trial court could have

made. See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Jones v.

State, 338 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364

S.W.3d 854 (Tex. Crim. App. 2012). Probable cause exists if, under the totality of

the circumstances, there is 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, 103 S. Ct. 2317, 2335 n.13 (1983)).

      Gardner specifically contends that Huckabee’s statements about the software

program that linked a computer at the Gardners’ residence to images of child

pornography were not based on his personal knowledge. If an officer, however,

has otherwise trustworthy information sufficient to warrant a person of reasonable

caution to believe that an offense was or is being committed, then personal

knowledge is not essential. See Torres v. State, 182 S.W.3d 899, 901–02 (Tex.

Crim. App. 2005) (“Because Castillo [v. State, 818 S.W.2d 803 (Tex. Crim. App.

1991)], may be interpreted to require both personal knowledge and trustworthy




                                         14
information, we overrule it and its progeny only to the extent that it requires both

kinds of information to support probable cause.”).

      In his affidavit, Huckabee describes his experience, training, and expertise in

investigating Internet crimes against children and in identifying individuals

suspected of those crimes through the use of a nationally recognized database and

specialized software programs. Huckabee detailed specific files identified in his

investigation. He confirmed that certain files had names associated with known

images of child pornography and described the contents of those files. Huckabee

described methods used to disseminate pornographic images. He confirmed that a

computer using an IP address assigned to the Gardners’ home contained images of

child pornography and that someone at that address had used software and file

sharing methods commonly used among child pornographers. Gardner did not

challenge Huckabee’s credentials or expertise. We hold that the affidavit provided

probable cause for issuing the search warrant. See State v. Moore, No. 05-06-

01295-CR, 2007 WL 4305374, at *5 (Tex. App.—Dallas Dec. 11, 2007, pet. ref’d)

(not designated for publication) (reversing pretrial order granting motion to

suppress because affiant averred that defendant had internet access at his home and

using his name, set up a Yahoo account; pornographic images were uploaded to

that account from computer located in defendant’s home supported reasonable

inference that child pornography would be found at defendant’s residence); see

                                         15
also State v. Cotter, 360 S.W.3d 647, 652–53 (Tex. App.—Amarillo 2012, no pet.)

(holding that information from reliable entity confirming that defendant was the

Internet subscriber associated with the IP addresses at issue and used screen name

involved in crime supported probable cause for warrant).

                                   Conclusion

      Because the record supports the trial court’s findings that Gardner was not in

custody when he gave the two video-recorded statements and that probable cause

existed to obtain a search warrant, we hold that the trial court correctly denied

Gardner’s motions to suppress. We therefore affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2.




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