State v. Powell
State v. Powell
Opinion of the Court
OPINION
delivered the opinion of the Court
This case involves a lawful search of two safes preceded by a seizure of these safes. Appellee is charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. The events leading up to this charge began when the police received information that appellee was making forged checks in his home. The police obtained a warrant to search appellee’s home and to seize, among other things, “checks and materials to make forged checks.” While executing this search warrant at appellee’s home, the police found two safes which no one disputes' the police could have lawfully searched since the safes could have contained “checks and materials for making forged checks.”
The record reflects that Hurst Police officer James Hobbs developed information from a person named Lisa Lowery that appellee and another person named Leia McGee were making forged checks in a home where appellee and McGee lived with McGee’s 83-year-old grandmother (Roberta). Based primarily on information provided by Lowery, Hobbs prepared an affidavit in support of an application for
Another section of the search-warrant affidavit described “property concealed and kept [at the home] in violation of the laws of Texas” as follows:
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 From [sic] 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.3
On January 29, 2004, a magistrate issued a search warrant for the home “to there search for the property described in said Affidavit, and to seize the same.” That same day, Hobbs and other police officers executed the search warrant and searched the home. The police seized two safes that were somewhere in the home. They took these safes to the police station. The next day a locksmith “drilled out the safes.” The police found methamphetamine in one of the safes.
Appellee was charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. Ap-pellee filed a written motion to suppress. This motion stated that in “one of the safes [seized from the home] the methamphetamine made the basis of this case was found.” This motion further stated that “there was insufficient probable cause on the face of the affidavit to justify the search warrant and that the scope of the warrant was exceeded.”
The trial court held a suppression hearing at which the search warrant and Hobbs’ search-warrant affidavit were introduced into evidence. Hobbs, who was the only witness to testify at the suppression hearing, testified that Roberta was the only adult at the home when the police “originally arrived” to execute the search warrant.
*764 Q. [STATE]: And was there a grandparent that was staying there at the time?
A. [HOBBS]: Roberta McGee, the grandmother, was there when we arrived.
Q. Any other persons that were-well, was she the only owner of [the home] that was there at the time, the grandmother?
A. As far as we knew, when we originally arrived, she was the only one there, the adult there. She met us outside.
The suppression-hearing record is silent on why the police took the safes to the police station to search them there. This record is also silent on whether one of the two safes seized from the home was the safe that Lowery bought at a Home Depot with a forged check. This record is also silent on which safe contained the methamphetamine.
Appellee claimed in final arguments to the trial court at the suppression hearing that the police exceeded the scope of the warrant when “they grabbed two safes, went back to Hurst, let them sit overnight, and then opened them....” The State responded that “[i]f they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.”
[STATE]: Secondly, as far as the safe goes, I mean, this detective testified that’s where these people hide this stuff. They had a right to search wherever to find these sorts of things, whether it’s in a safe, a wall safe, a floor safe, or a safe that they removed. If they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.
Additionally, the State would argue that’s stolen property, and that’s not an interest, a legitimate expectation of privacy that society is prepared to recognize.
[THE COURT]: You want one more time, too?
[DEFENSE]: Your Honor, there’s nothing in that affidavit that shows both of those safes were stolen property. They took two safes. They mention one, they took two, let them sit overnight and drilled them out.
The trial court subsequently signed an order granting appellee’s motion to suppress. This order recites that the trial court made its ruling after “[h]aving considered the evidence and the credibility of the witnesses.” On the State’s direct appeal from this ruling, the court of appeals decided that the seizure of the two safes exceeded the scope of the warrant, because these safes were not “particularly described” in the warrant as items to be seized resulting in their seizure to have been “warrantless,” and that the evidence, viewed in the light most favorable to the trial court’s ruling granting appellee’s motion to suppress, supports a ruling that this warrantless seizure of the safes cannot be justified under the “plain-view” exception to the warrant requirement. See State v. Powell, 268 S.W.3d 626, 630-32 (Tex.App.-Fort Worth 2008).
1. Did the Court of Appeals err by holding that the search and seizure of the locked safe(s) found on Appellee’s premises was not within the scope of the search which was supported by a search warrant based on probable cause?6
2. Did the Court of Appeals err in concluding that a locked safe(s) could not be seized, notwithstanding it could be reasonably concluded that it was a repository for forged checks and other fruits which were listed to be seized pursuant to a search warrant based upon probable cause?
3. Did the Court of Appeals err in failing to utilize the correct analytical construct appropriate to items seized and not listed to be seized in a search warrant based on probable cause and issued pursuant to Tex.Code Crim. Proc. Ann. art. 18.02(1), (8), (9) and (12)?7
4. Did the Court of Appeals implicitly hold the plain-view doctrine was inapplicable because the officer executing the search warrant seized “mere evidence,” ie., the locked safe(s), not listed as an item to be searched or seized in the warrant supported by probable cause.
I.
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. The Fourth Amendment’s “particularity” requirement is primarily meant to prevent general searches and the seizure of one thing under a warrant that describes another thing to be seized. See Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).
Appellee argues that the safes were not particularly described in the warrant as items to be seized and that their seizure,
The general Fourth Amendment rule is that the police cannot seize property that is not particularly described in a search warrant.
The State nevertheless claims, as it did at the suppression hearing, that “[ojffi-
The Eighth Circuit Court of Appeals’ decision in United States v. Robbins
In essence, the government’s argument is that because the warrant authorized officers to search inside the wallet, it also authorized them to seize the wallet. This argument is a fundamental misapprehension of Fourth Amendment law. The record shows that the government did not discover the notes until it searched the wallet in the middle of Robbins’ trial, months after it seized the wallet from his business. The threshold issue is whether officers were entitled to seize the wallet in the first place. The general rule, of course, is that police may only seize items described in the search warrant, absent an exception to the warrant requirement. Simply put, we believe that officers did not have authority to seize the wallet because the wallet itself was not an item described in the search warrant.
That items described in the warrant were ultimately found in the wallet does not justify the initial seizure. A search warrant does not give the police license to seize personal property not described in the warrant on the ground that such property might contain items that the warrant does describe; it only allows police to search such property at the place where the warrant is being executed if the property “legitimately might contain the [items] specified in the warrant,” and then to seize the described items they find inside or, under certain circumstances, the property itself once it is found to contain described items, see United States v. Beusch, 596 F.2d 871, 876-77 (9th Cir. 1979) (holding that officers could seize entire ledgers once they discovered that some of the individual pages matched warrant description; officers need not examine the entire ledger on the spot and then remove relevant individual pages).
See id. (emphasis in original, footnotes and citations to other authorities and to record omitted).
The suppression-hearing record reflects that the State made no attempt to establish a “limited exception” to the general Fourth Amendment rule that the police
Notwithstanding the foregoing, we do not agree with the court of appeals’ decision and the State’s concession that the safe that Lowery bought at a Home Depot with a forged check was not particularly described in the warrant as property to be seized. See Powell, 268 S.W.3d at 631 (“A safe is mentioned in the [search warrant] affidavit, not as property to be seized, but as part of Hobbs’s basis for probable cause: ‘Lisa Lowery also told me that [appellant] and [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].”’). The search warrant that was issued by the magistrate authorized the police to enter appellee’s home “to there search for the property described in the affidavit, and to seize the same and bring the same before me.” (Emphasis supplied). The safe that Lowery bought at a Home Depot with a forged check was “property described in the affidavit.” The police, therefore, could have seized the two safes they found in the home because they could have reasonably believed that one of the safes was the one that Lowery bought at a Home Depot with a forged check and that Lowery said was in the home.
II.
In addition, assuming that the seizure of the safes by the police violated appellee’s Fourth Amendment possessory rights in these safes,
The police could have lawfully searched the safes pursuant to the warrant before and after any unlawful seizure of them by the police.
The following discussion from Part IV of Hudson
Like today’s case, Segura involved a concededly illegal entry. Police conducting a drug crime investigation waited for Segura outside an apartment building; when he arrived, he denied living there. The police arrested him and brought him to the apartment where they suspected illegal activity. An officer knocked. When someone inside opened the door, the police entered, taking Segura with them. They had neither a warrant nor consent to enter, and they did not announce themselves as police — an entry as illegal as can be. Officers then stayed in the apartment for 19 hours awaiting a search warrant. Once alerted that the search warrant had been obtained, the police — still inside, having secured the premises so that no evidence could be removed— conducted a search. We refused to exclude the resulting evidence. We recognized that only the evidence gained from the particular violation could be excluded, and therefore distinguished the effects of the illegal entry from the effects of the legal search: “None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioner’s apartment ...” It was therefore “beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged.” If the search in Segura could be “wholly unrelated to the prior entry,” when the only entry was warrantless, it would be bizarre to treat more harshly the actions in this case, where the only entry was with a warrant. If the probable cause backing a warrant that was issued later in time could be an “independent source” for a search that proceeded after the officers illegally entered and waited, a search warrant obtained before going in must have at least this much effect.
See Hudson, 547 U.S. at 600-01, 126 S.Ct. 2159 (discussing Segura) (citations omitted and emphasis in original).
In this case, the methamphetamine was not obtained because the police may have unlawfully seized the safes but “because of a subsequent search pursuant to a lawful warrant.” See Hudson, 547 U.S. at 592, 126 S.Ct. 2159 (but-for causality is a necessary condition for application of exclusionary rule) and at 605 (Kennedy, J., concurring in part and concurring in the judgment) (“In this case the relevant evidence was discovered not because of a failure to knock and announce, but because of a subsequent search pursuant to a lawful warrant.”). We, therefore, decide that the “massive” remedy of exclusion of the methamphetamine is not required in this case. We believe that, as the defendant’s remedy in Hudson was a civil suit for damages for his broken door, any remedy that appellee might have is also a civil suit for damages for his alleged unlawfully seized safes. See Hudson, 547 U.S. at 596-99, 126 S.Ct. 2159.
The judgment of the court of appeals is reversed, and the case is remanded there for further proceedings not inconsistent with this opinion.
. See, e.g., United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.”) (Footnote omitted).
. It is not clear whether this refers to some time in the past or whether McGee was also in jail when Hobbs prepared the search warrant affidavit.
. The safe that Lowery bought at a Home Depot with a forged check is not listed in this part of the search-warrant affidavit, although the big-screen television that she bought with a forged check at a Sam's furniture store is listed.
. The suppression-hearing record also reflects that the police found "checks” in at least one of the safes. Hobbs testified at the suppression hearing:
Q. [STATE]: And is a safe a place, in your experience, where persons who are committing these offenses might hide some of the evidence like extra checks or whatnot?
A. [HOBBS]: Yes, sir, and dial's what I believed on this occasion and that that’s where we found checks.
. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (warrant-less searches and seizures are per se unreasonable under Fourth Amendment subject to
. We express no opinion on whether the search warrant was supported by probable cause as the court of appeals did not address that issue. See Powell, 268 S.W.3d at 627 (noting that State’s first two points of error pertained to the issue of probable cause to support the search warrant) and at 634 (finding it unnecessary to address State’s first two points of error).
. Article 18.02, subsections (1), (8), (9) and (12), provide that a search warrant may be issued to search for and seize: (1) property acquired by theft or in any other manner which makes its acquisition a penal offense; (8) any property the possession of which is prohibited by law; (9) implements or instruments used in the commission of a crime; or (12) contraband subject to forfeiture under Chapter 59 of this Code. We further note that Article 18.01(d), Tex.Code Crim. Proc., provides that ”[o]nly the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 of this code or property, items or contraband enumerated in Subdivisions (1) through (9) or in Subdivision (12) of Article 18.02 of this code may be seized.”
. We believe this to be a question of law based on an examination of the warrant and the affidavit in support of the warrant.
. See Marron, 275 U.S. at 196, 48 S.Ct. 74 (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).
. See also United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (wholesale seizure of file cabinets and miscellaneous papers and property not specified in the search warrant did not "grossly exceed” the warrant when the officers’ conduct "was motivated by the impracticability of on-site sorting and the time constraints of executing a daytime search warrant” and the "ten broad categories of records" described in the warrant “were present in every drawer of the file cabinets”); United States v. Blakeney, 942 F.2d 1001, 1027-28 n. 13 (6th Cir. 1991) (seizure of suitcase not described in warrant upheld because it included items that were described in the warrant among items not described in the warrant; thus, “where circumstances, such as these, make it impracticable to inventory and record at the site of the search the numerous contents of the suitcase which contained incriminating evidence, the seizure of irrelevant items within the suitcase along with the relevant items does not violate the fourth amendment, provided the irrelevant items are returned to Blakeney”); United States v. Shilling, 826 F.2d 1365 (4th Cir. 1987) (overbroad seizure of records prompted by legitimate practical concerns of keeping documents intact and preventing loss, rather than by governmental intent to engage in fishing expedition) overruled on other grounds by Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) as stated in United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994); Lafave, supra, § 4.6(a) (Manon is misleading "to the extent that it suggests that the police may never seize an object unless it is named in the warrant”) and § 4.11(a) (describing situations where police may "overseize” or seize an object not particularly described in a warrant).
. 21 F.3d 297 (8th Cir. 1994).
. With the State having lost in the trial court, we further note that whatever record evidence there might be that would support a finding that the seizure of the safes fell within a “limited exception" to the general rule would have to be viewed in the light most favorable to the trial court's ruling in favor of appellee. See State v. Kelly, 204 S.W.3d 808, 818 n. 19 (Tex.Cr.App. 2006). It has been suggested that the evidence that the police drilled out the safes at the police station permits an inference that they could not have opened the safes until this time and that their seizure, therefore, falls within a "limited exception” to the general rule. Appellee claimed during oral argument that it might be permissible for this Court and the court of appeals to supply such an inference had the State won in the trial court. But, with the State having lost in the trial court, we believe that supplying such an inference would not be viewing the evidence in the light most favorable to the trial court’s ruling in favor of appellee.
. The State also appears to argue that the safes could have been seized as described-in-the-warranl items because they are the "functional equivalent” of the described-in-the-warrant "checks and materials to make forged checks.” We disagree that these items are functionally equivalent since we do not believe that even a broad construction of “checks and materials to make forged checks” would include “safes.” See United States v. Reyes, 798 F.2d 380, 382-83 (10th Cir. 1986) ("seizure of a specific item characteristic of a generic class of items defined in the warrant did not constitute an impermissible general search”). In addition, the cases cited by the State do not support construing "checks and materials to make forged checks” to include "safes.” See, e.g., United States v. Hill, 19 F.3d 984, 986-88 (5th Cir. 1994) (check stubs were functional equivalent of described-in-the-warrant cash disbursement journals); United States v. Meriwether, 917 F.2d 955, 957-58 (6th Cir. 1990) (seizure of pager, containing defendant's telephone number, within scope of warrant authorizing seizure of telephone numbers of customers and suppliers); United States v. Word, 806 F.2d 658, 661 (6th Cir. 1986) (day sheets, spiral patient-sign-in notebooks, patient hospital-admission records, and patient-encounter forms were functional equivalent of described-in-the-warrant payment records, appointment books, medical records, and other
. See Horton v. California, 496 U.S. 128, 133-34, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (discussing difference between “searches” and "seizures” and noting that a "search” compromises the individual interest in privacy while a “seizure” compromises an owner's possessory interest).
. We note that Hudson was decided after the suppression hearing in this case.
. We note that the search warrant in this case had no expiration date. Therefore, under the version of Article 18.07 in effect at the time of the search in this case, the time allowed for the execution of the search warrant was "three whole days, exclusive of the day of its issuance and the day of its execution.” Under these circumstances, the search of the safes at the police station was a continuation of the initial lawful search. See United States v. Squillacote, 221 F.3d 542, 557-58 (4th Cir. 2000) (FBI agents’ returning to search home on six consecutive days pursuant to a warrant was "reasonable continuations of the original search”); United States v. Carter, 854 F.2d
. We also note that the invasion of appellee's privacy interests in the safes by the police search of the safes was exactly the same whether the police searched these safes at the home or at the police station. See Horton, 496 U.S. at 133-34, 496 U.S. 128 (a "search” compromises the individual interest in privacy while a “seizure” compromises an owner’s possessory interest); see also Hudson, 547 U.S. at 593-94, 126 S.Ct. 2159 (discussing Fourth Amendment interests vindicated by knock-and-announce requirement).
. Absent a "but-for” causal connection between any unlawful seizure of the safes and the discovery of the methamphetamine, our state exclusionary rule in Article 38.23(a), Tex. Code Crim. Proc., also would not require exclusion of the methamphetamine.
. Instead of taking the safes to the police station, the police and the safes could have remained at appellee's home until such time as the police could have had a locksmith come there and drill out the safes.
. We note that Part IV of Hudson is a plurality opinion which Justice Kennedy declined to join. See Hudson, 547 U.S. at 605, 126 S.Ct. 2159 (Kennedy, J., concurring in part and concurring in the judgment) (joining parts I through III of Justice Scalia's lead opinion and concurring in the judgment with respect to part IV).
. 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
Dissenting Opinion
filed a dissenting opinion.
I agree with the Court that the seizure of the safe in which the methamphetamine was discovered constituted an incremental intrusion upon a possessory interest for Fourth Amendment purposes. Even though the officers could have searched the safes while they were on the premises on authority of the warrant, they could not remove the safes to a different location to conduct the search absent some exigent circumstance that would make searching on the premises impracticable — -unless, of course, the warrant actually authorized seizure of the safes.
The warrant in this case authorizes the officers “to seize” “the property described” in the incorporated warrant affidavit. Paragraph 2 of the warrant affidavit expressly sets out the “PROPERTY ... DESCRIBED[,]” but this paragraph, while it specifies certain checks, electronic equipment for forging checks, and two items stolen with counterfeit checks (even supplying a serial number for the stolen television, so that it might be distinguished from any other television that might be found), makes no mention of a safe.
Indeed, the warrant affidavit does not even provide enough detail to distinguish which of the two safes actually seized was the stolen safe. As the court of appeals remarked in its opinion, the affidavit “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.”
Finally, I would not reach the alternative question whether, assuming a Fourth Amendment violation, the exclusionary rule ought to apply. Given the Court’s holding that the seizures were, in any event, authorized by the warrant, this issue does not arise, and the Court’s discussion of it is purely advisory. And even if the Court agreed with me that the warrant does not authorize seizure of the safes, it would be inappropriate to reach this question. The State has not argued at any level of these proceedings-in the trial court or on appeal-that the exclusionary rule ought not to apply. Because the issue was never joined below, there is no “decision” from the court of appeals with respect to that issue that we may review in our capacity as a discretionary review court.
I would simply affirm the judgment of the court of appeals upholding the trial court’s ruling. Because the Court does not, I respectfully dissent.
. United States v. Robbins, 21 F.3d 297, 300-01 (8th Cir. 1994).
. See Majority opinion, at 763.
. State v. Powell, 268 S.W.3d 626, 631 (Tex.App.-Fort Worth 2008).
. Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).
. Id.
. E.g., Arline v. State, 721 S.W.2d 348, 353 n. 9 (Tex.Crim.App. 1986); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App. 1990); Holland v. State, 802 S.W.2d 696, 700-01 (Tex.Crim.App. 1991); Stringer v. State, 241 S.W.3d 52, 59 (Tex.Crim.App. 2007); George E. Dix & Robert O. Dawson, 43A Texas Practice- Criminal Practice and Procedure § 44.21, at 858-59 (2d ed. 2001).
. Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).
. Professor LaFave has argued that the good faith exception announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should apply in this context. Wayne R. LaFave, 2 Search and Seizure-A Treatise on the Fourth Amendment § 4.06 (4th ed. 2004), at 604. Accordingly, "suppression is required because of a particularity defect only if the warrant was 'so facially deficient — i.e., in failing to particularize ... the thing to be seized — that the executing officer cannot reasonably presume it to be valid.’ " Id., quoting Leon, supra, at 923, 104 S.Ct. 3405. Because the Court does not recognize a particularity problem in this case at all, it is ill-equipped to ask whether the defect is so great that the police officers could not reasonably have presumed that the warrant authorized them to seize the safes. Instead, it resorts to Hudson for a far more categorical proposition — that the exclusionary rule is simply too "massive” a remedy ever to apply under these circumstances and that civil remedies will suffice. We should not leap to such a dubious conclusion without the benefit of briefs from the parties and a decision from the court of appeals to review.
Concurring Opinion
filed a concurring opinion, in which JOHNSON and COCHRAN, JJ., joined.
I join the judgment of the Court and its opinion, except for Part II. For the rea
Reference
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- The STATE of Texas v. Robert Leahy POWELL, Appellee
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