                         NUMBER 13-16-00509-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DANIEL H. ALEMAN II,                                                      Appellant,

                                        v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                        MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Contreras and Hinojosa
            Memorandum Opinion by Chief Justice Valdez
      A grand jury in San Patricio county issued an eight-count indictment against

appellant Daniel H. Aleman II for the offenses of: aggravated sexual assault of a child

(two counts); sexual assault (one count); indecency with a child (four counts); and

improper visual recording (one count). See TEX. PENAL CODE ANN. §§ 22.021, 22.011,
21.11, 21.15 (West, Westlaw through 2017 1st C.S.). After being indicted, Aleman moved

to suppress evidence obtained under a warrant that authorized officials to seize

“electronic media” at his residence. The trial court conducted a hearing on the matter and

denied Aleman’s motion to suppress. Thereafter, Aleman pleaded guilty to all counts

alleged in the indictment, and the trial court sentenced him to forty years in prison as to

the aggravated sexual assault of a child counts; twenty years in prison as to the sexual

assault and indecency with a child counts; and two years in prison as to the improper

visual recording count. The trial court ordered that the sentences on all counts run

concurrently.

       By one issue, Aleman contends the warrant failed to comply with the requirement

of the Fourth Amendment that a warrant “particularly describ[e] the place to be searched,

and the . . . things to be seized,” and therefore, the trial court should have suppressed all

evidence obtained under the warrant. See U.S. CONST. amend. IV. We affirm.

                                    I.    BACKGROUND

       At the suppression hearing, the State admitted the search warrant affidavit that the

lead officer prepared for the magistrate judge to consider in issuing the warrant. The

affidavit provided the following facts.

       Aleman worked at a Goodwill store. On December 23, 2014, a female patron

entered a dressing room to try on clothing. While in the dressing room, she observed the

bottom part of a clothing cart (Z-cart) slightly protruding underneath her dressing room

door. The patron also noticed what appeared to be a small camera the size of a cigarette

lighter taped to the bottom corner of the Z-cart. The camera had a Secure Digital (SD)

card, which is a feature that allows users to export content on the camera to other digital



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devices. The patron removed the camera from the Z-cart and confronted Aleman, who

was standing near the cart outside the dressing room. The patron demanded that Aleman

call the store manager, but Aleman grabbed the device from the patron’s hands and

walked away toward the storage room.                  Shortly thereafter, Aleman returned to the

dressing room area without the camera and without the store manager. By this point, a

police officer arrived at the store to investigate the matter. Aleman told the officer that the

patron mistook his pedometer1 for a camera. However, Aleman could not produce a

pedometer to clear up the confusion.

       Based on the patron’s report, authorities believed Aleman committed the state-jail

felony offense of invasive visual recording in violation of Texas Penal Code section 21.15.

To further the investigation, authorities obtained access to surveillance video at the

Goodwill store on December 23, which, according to the search warrant affidavit, showed

the following:

       [A]t 5:21 pm, two teenage females had walked into one of the dressing
       rooms and again on video it shows [Aleman] positioning a device on the Z-
       cart and sticking the cart under the dressing room door where the two young
       females had gone into. [Aleman] walks around the area and at one point
       he removes the Z-Cart and walks into dressing room 1 or 2 and pulls the Z-
       cart leg into the dressing room and then pushes it back out as to take the
       camera off of the Z-cart. At 5:24 pm, another two young females, possibly
       12 to 14 years old also walk into a dressing room and again [Aleman]
       positions the Z-Cart leg under the door at each room. [Aleman] removes
       the Z-cart at one point and pulls the Z-cart closer to camera 10 where this
       was all viewed from and a device is observed taped to the corner leg of the
       Z-cart. [Aleman] reaches down and removes the device and sticks the
       device in his front pocket and walks away.

       By reviewing only [the] video footage [on December 23], [Aleman] is seen
       recording five different females throughout the day. Officers searched the
       back-storage room area and were never able to locate the devi[c]e as
       [Aleman] had apparently hid it. [Aleman] was suspended from work and
       was escorted out of the store. The following morning, unknown to the

       1   A pedometer is a small digital device that keeps count of a person’s steps throughout the day.

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      employees opening the store, [Aleman] was not supposed to be at the store.
      According to one of the employees who opened the store, [Aleman] came
      inside the store and went straight back to the storage room area. This
      employee stated that by the time he made it back to the storage room he
      observed [Aleman] grab something from behind a plastic shelf in the storage
      room and place the unknown item into his pocket. The employee advised
      that [Aleman] then walked out of the storage room and left the store.

The search warrant affidavit further stated that the “device that [Aleman] had is believed

to be at his home as this device did have an SD card port on it and can be downloaded

onto a computer to view.”

      Following the December 23 incident, authorities applied for and obtained a warrant

to search for and seize “electronic media” at Aleman’s residence, to wit:

      personal computers and electronic storage devices capable of receiving or
      storing electronic data, including any external storage devices such as, but
      not limited to floppy discs and diskettes (including zip discs and cartridges),
      digital video discs (DVD’s) compact discs (CD’s), flash drives (“thumb
      drives”), external hard drives, tape drivers, digital video recorders (including
      TiVo), internet appliances, video game consoles (including Nintendo Wii),
      MP3 players (including Apple IPod), digital cameras and digital camera
      memory media, magnetic tapes and disks, cellular telephones, personal
      digital assistants (PDA’s), tape recordings, and audio tapes; the hardware
      necessary to retrieve such data, including, but not limited to, central
      processing units (CPU’s) connecting devices, viewing screens, disc and
      cartridge drives, tape drives, printers, and monitors; the manuals, with all
      software, handwritten notes, or printed materials describing the operation
      of said computers, hardware and software; and, any and all passwords
      found at the location that may allow access to any of the aforementioned
      devices and equipment.

      Authorities executed the warrant at Aleman’s residence and seized various

electronic devices, including a camera, a laptop, computer hard drives, cell phones, a

thumb drive, an Olympus media card, a Halo device, and pornographic video tapes and

DVDs. A search of these devices uncovered photos and videos of individuals trying on

clothes in dressing rooms and of two children, ages four and six, performing oral sex on

Aleman. The trial court denied Aleman’s motion to suppress. This appeal followed.

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                                    II.    DISCUSSION

       Aleman contends the warrant’s description of “electronic media” was not

sufficiently particular to meet the Fourth Amendment’s command, and therefore, any

incriminating electronic media should have been suppressed.

A.     Applicable Law

       The Fourth Amendment mandates that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. Probable

cause exists when, 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. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013).

       A warrant and supporting affidavit satisfies the Fourth Amendment when it recites

facts sufficient to show (1) that a specific offense has been committed, (2) that the

property or items to be searched for or seized constitute or contain evidence of the offense

or evidence that a person committed it, and (3) that the evidence sought is located at or

within the thing to be searched. Sims v. State, 526 S.W.3d 638, 645 (Tex. App.—

Texarkana 2017, no pet.). The third element above elucidates the Fourth Amendment’s

particularity requirement, which is at issue in this appeal. Regarding this requirement, the

Texas Court of Criminal Appeals has explained that:

       [T[he Fourth Amendment’s particularity requirement assures the individual
       whose property is searched or seized of the lawful authority of the executing
       officer, his need to search, and the limits of his powers to search. The
       constitutional objectives of requiring a particular description of the place to
       be searched include: (1) ensuring that the officer searches the right place;
       (2) confirming that probable cause is, in fact, established for the place
       described in the warrant; (3) limiting the officer’s discretion and narrowing
       the scope of his search; (4) minimizing the danger of mistakenly searching

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       the person or property of an innocent bystander or property owner; and (5)
       informing the owner of the officer’s authority to search that specific location.

Bonds, 403 S.W.3d at 874–75 (internal quotes omitted).

       A warrant is sufficiently particular if it enables the officer to locate the property and

distinguish it from other places in the community. Id. at 875. The degree of specificity

required is flexible and will vary according to the crime being investigated, the item being

searched, and the types of items being sought. See United States v. Richards, 659 F.3d

527, 537 (6th Cir. 2011). “[T]he Fourth Amendment does not require perfection in the

warrant’s description of the place to be searched.” Bonds, 403 S.W.3d at 875. However,

the Fourth Amendment “prohibits general warrants authorizing officials to rummage

through a person’s possessions looking for any evidence of a crime.” United States v.

Layne, 43 F.3d 127, 132 (5th Cir. 1995).

B.     Standard of Review

       When reviewing a magistrate’s decision to issue a warrant, we apply a “highly

deferential standard of review because of the constitutional preference for searches

conducted pursuant to a warrant over warrantless searches.” See Walker v. State, 494

S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). As such, we must

uphold the magistrate’s decision if the magistrate had a “substantial basis” for concluding

that a search warrant probably would uncover evidence of wrongdoing. See id. We

review a search warrant affidavit in a “non-technical, common-sense manner, drawing

reasonable inferences solely from the facts and circumstances contained within the

affidavit’s four corners.” Id. We are not to interpret the affidavit in a hypertechnical

manner. See id. at 908.

C.     Analysis

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       The warrant in this case authorized the seizure of “electronic media” at Aleman’s

residence based on information that Aleman used a hidden camera to record patrons at

a Goodwill store on December 23, 2014. The warrant authorized the seizure of cameras

as well as various other electronic devices specifically listed in the warrant. We observe

that the warrant’s specification of these devices made it facially particular and also

advanced several constitutional objectives of requiring a particular description of the place

to be searched. For example, it ensured that the officer searched the right devices; it

limited the officer’s discretion and narrowed the scope of the search to specific devices;

it minimized the danger that the officer may mistakenly search other items or devices not

specifically described in the warrant; and it informed Aleman of the officer’s authority to

search the devices listed in the warrant. See Bonds, 403 S.W.3d at 874–75.

       Nonetheless, Aleman counters that the warrant’s specification of the various

devices created an overbreadth problem that undermined (rather than advanced) the

constitutional objectives of requiring particularity.    Specifically, Aleman argues the

“laundry list” of non-camera devices identified in the warrant gave officers unfettered

discretion to rummage through all his digital devices even though officials knew only that

he used a camera device to commit the crime. However, other than citing to the general

rule requiring particularity in a warrant, Aleman provides no legal authority to support his

position that the warrant’s specification of “electronic media” in this case was prohibitively

overbroad, and we find none. In any event, the facts showed that, immediately after the

December 23 incident, Aleman hid the camera in a secret place at the Goodwill store and

retrieved it the following morning, giving him a window of opportunity to export electronic

media from his camera to other unknown electronic devices using the camera’s SD card.

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Therefore, the facts in the search warrant affidavit support a finding that evidence of

improper visual recording tied to the December 23 incident could have been stored on

the various non-camera devices that were specifically described in the warrant.

        We note that Aleman’s overbreadth argument might have fared better under

different facts—for example, if authorities caught Aleman red-handed and immediately

seized his camera, which did not have data-transfer capabilities. Under that factual

scenario, there would be little reason to search various non-camera devices at his

residence because Aleman would have had no opportunity to transfer incriminating media

content to other electronic devices. However, considering the facts in this case and giving

appropriate deference to the magistrate’s decision to issue the warrant, we hold that the

warrant’s description of “electronic media” was sufficient to meet the Fourth Amendment’s

particularity requirement. See id. We overrule Aleman’s sole issue. 2




        2 We note that the warrant in this case also yielded evidence to support Aleman’s conviction for two
counts of sexual exploitation of a child in the United States District Court for the Southern District of Texas.
See United States v. Aleman, 675 Fed. Appx. 441, 442–43 (5th Cir. 2017). In that case, as in this case,
Aleman challenged the warrant under the Fourth Amendment; however, he did so from a different angle,
arguing the warrant was “insufficiently particular because it authorized only a seizure of the digital items
found in his home but not a forensic search of those items.” See id. at 443–44. The federal Fifth Circuit
rejected Aleman’s argument under the good-faith exception and held a reasonable officer could have
understood the warrant to permit a forensic search of the contents of Aleman's electronic media. See id.
at 443; see also United States v. Leon, 468 U.S. 897, 919 (1984) (holding that the Fourth Amendment
exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence
obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be invalid). In its briefing to this Court, the State invites us to “consider
following the ruling of the Fifth Circuit as discussed above, and determine that the good-faith exception to
the exclusionary rule applies, so that no further analysis is required.” We appreciate the State’s invitation.
However, we decline to resolve this appeal in that manner because the Fifth Circuit’s good-faith analysis
pertained to the unique particularity argument advanced by Aleman in that case, which differs from the
overbreadth argument he makes in this case.

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                                   III.   CONCLUSION

          We affirm the trial court’s judgment.



                                                       /s/ Rogelio Valdez
                                                       ROGELIO VALDEZ
                                                       Chief Justice


Do not publish.
TEX. R. APP. P. 47.2(b).


Delivered and filed this
23rd day of August, 2018.




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