State v. McLain
State v. McLain
Dissenting Opinion
filed a dissenting opinion.
“On Sunday, he advised me that he had been in Russia” is not at all the same as “He advised me that he had been in Russia on Sunday.” The first does not reveal when he had been in Russia, the second is specific about when he had been there. That is the situation we face in this case. The affiant writes of receiving information ■“from unknown callers” at unspecified times. The information was said to be that appellant “is” buying or trading stolen articles for drugs, again, at unspecified times. The officer noted that he had watched appellant’s apparent place of business, at an unspecified time. He also received the same information from known informants, who stated that appellant “was” using and selling methamphetamine, still without a known time frame.
The crux of the matter is whether the trial court’s interpretation of “in the last 72 hours” is a hyper-technical one. There seems, to have been no consideration that, just perhaps, the officer meant exactly what he wrote: within the previous 72 hours, he had conversed with his informant, who had related that the informant had seen appellant in possession of a controlled substance at an unspecified time. This is no more “hyper-technical” than interpreting the language to mean that the informant had seen the drugs within the last 72 hours.
When we parse statutes, we use the plain language of the statute because that
I respectfully dissent.
Opinion of the Court
OPINION
delivered the opinion of the Court
A Hale County Grand Jury indicted ap-pellee on a charge of possession with the intent to deliver methamphetamine, in an amount of four grams or more but less than two hundred grams. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search authorized by a search warrant. The trial court granted the motion to suppress, and the court of appeals affirmed the judgment. We will reverse and remand to the trial court.
I. FACTUAL BACKGROUND
Plainview Police Department police officers executed a search warrant at Appel-lee’s home and business on February 27, 2009. During the execution of the search warrant, the officers seized over 100 grams of methamphetamine. A Hale County grand jury indicted the Appellee on April 17, 2009. Appellee’s counsel filed a motion to suppress on June 16, 2009. The trial court granted the suppression motion on July 14, 2009. In the trial court’s findings of fact and conclusion of law, it found that “there was no point of reference given in the affidavit for any time frame for any of the substantive information in the affidavit” to support the magistrate’s finding of probable cause. The affidavit supporting the search warrant, in whole, reads as follows:
The Affiant, Ramiro Sanchez is a certified peace officer of The State Of Texas, is employed by the Plainview Police Department, who is assigned to the Criminal Investigation Division as the Narcotics Detective. The Affiant is in good standing with his employing agency and with the State Of Texas. The Affiant has received information from unknown*270 callers through the crime line, office phone and cell phone that Chris McClain is storing and selling methamphetamine “meth” at his residence and business, which is 3607 N. Columbia. Some of the callers stated that Chris is also buying or taking stolen items for payment on narcotics. The Affiant has previous knowledge that Chris was a user of methamphetamine and had been seen with other users and dealers of methamphetamine, who were under investigation by the Affiant at that time. The Affiant set up surveillance oh the suspected place and did observe some minute traffic, which is a sign of narcotics trafficking from the affiant’s training and experience. The Affiant observed some persons coming and going from the suspected place to be known users or dealers of narcotics, from past investigations. The time of the traffic varied but appeared to be most heavy at night, which is very common in the use or sale of methamphetamine. The Affiant then received the same information from different confidential informants. All informants have given true information in the past and are in good standing. The information received advised that Chris was using and selling methamphetamine. The informants advised that Chris was also.buying and taking as payment for “meth”, stolen items like welders, generators, vehicle parts, vehicles, trailers, trucks, tools, guns and many other items. They also advised that Chris will hide or store the methamphetamine in all different kinds of places, from inside the residence and ■ shop to the. vehicles and trailers on property. Inside the residence there is a fireplace and some of the bricks around it are loose and used to hide the “meth”. In the shop, some of the tool boxes are used to store it and also the office in the shop; In the past 72 hours, a confidential informant advised the Affiant that Chris was seen in possession of a large amount of methamphetamine at his residence and business. The informant again advised that Chris will hide or store the methamphetamine in all different places on the property. The informant is trustworthy, credible, and reliable and holds a steady fulltime job. Therefore the Affiant has reason to believe and does believe that methamphetamine “meth” is being sold and stored at 3607 N. Columbia. The Affiant asks that the identity of the informant be kept secret for security reasons.
The State claimed on direct appeal that the trial court abused its discretion in granting the suppression motion because the statement’ about the “past 72 hours” could imply that the informant saw Appel-lee with the methamphetamine during that time. The court of appeals disagreed, reasoning that “such implication is not supported by the plain text of the affidavit,” and that under a common sense reading of the affidavit, the reference to the “past 72 hours” referred to when the detective spoke to the informant, not to when the informant got the information about the Appellee.
II. DISCUSSION
Grounds for Review
This Court granted review of the following grounds: (1) Does an appellate court
Standard of Review And Requirement of Probable Cause
This Court normally reviews a trial court’s ruling on a motion to suppress by using a bifurcated standard of review, where we give almost total deference to the historical facts found by the trial court and review de novo the trial court’s application of the law.
We are instructed not to analyze the affidavit in a hyper-technical manner.
Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrants, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches.
An evaluation of the constitutionality of a search warrant should begin with the rule “the informed and deliberate determinations of magistrates empowered to issue warrants are to be preferred over the hurried action of officers who may happen to make arrests.”
A magistrate shall not issue a search warrant without first finding probable cause that a particular item will be found in a particular location.
Analysis
The court of appeals violated the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applied rules of grammar and syntax in its analysis. Further, the court of appeals reviewed the affidavit by focusing on what the officer “implied” rather than on what the magistrate could have reasonably inferred. The words “implies” and “inference” speak to information not specifically stated.
[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts.... A grudging or negative attitude by reviewing courts toward warrants ... is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.”21
While the plain meaning of the aforementioned statement, read literally, fails to clearly indicate exactly when the informant observed Appellee in possession of the methamphetamine, we believe that the magistrate could have reasonably inferred that the informant observed Appellee with the methamphetamine within the past 72 hours. By looking at the affidavit in its entirety, and not just this one sentence in isolation, it certainly would have been reasonable for the magistrate, considering all the facts in the affidavit along with reasonable inferences from those facts, to conclude that there was a fair probability that there was methamphetamine at appellee’s home at the time of the issuance of the warrant. We also believe that a magistrate’s experience and expertise in these matters would indicate that the time at which the affiant received the information from the. confidential informant that Ap-pellee possessed methamphetamine was irrelevant, but that the time at which the confidential informant observed such possession was necessary to establish probable cause. And if there was any doubt, the trial and appellate courts both should have deferred to the magistrate’s determination.
, We further note that other information in the affidavit from “unknown callers” stating that appellant “is storing and selling methamphetamine ‘meth’ at his residence and, business” combined with the affiant’s statements in the affidavit regarding the affiant’s surveillance and observations consistent with ongoing drug activity at appellant’s residence and business could also justify a magistrate’s conclusion that methamphetamine was probably at the suspected place when the warrant issued (emphasis supplied). See Flores, 827 S.W.2d at 419 (use of present verb tense in affidavit that confidential informant advised affiant that “there is stolen property at the suspected residence” supported magistrate’s conclusion that the stolen items were at the suspected place when he issued the warrant) (emphasis in original) and at 420 (“When stolen items have been viewed more than once, and there is nothing to suggest that the stolen items will not be at the suspected place in the future, the magistrate may weigh this fact in his calculations concerning the probability that the items will be on the suspected property.”); Swearingen, 143 S.W.3d at 813 (Cochran, J., dissenting) (staleness of information in a search warrant affidavit depends on the particular circumstances of
As stated in Rodriguez, “the informed and deliberate determinations of magistrates empowered to issue warrants are to be preferred over the hurried action of officers who may happen to make arrests.”
III. CONCLUSION
We reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings not inconsistent with this opinion.
. See State v. McLain, 310 S.W.3d 180, 183 (Tex.App.-Amarillo 2010).
. See id.
. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007).
. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004).
. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App. 2004) (citing Illinois v. Gates, 462 U.S. 213, 234-37, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
. Gates at 236, 103 S.Ct. 2317.
.Id.
. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007) (footnotes and citations to authority omitted).
. Lane v. State, 971 S.W.2d 748, 750-51 (Tex.App.-Dallas 1998, pet. ref’d).
. Rodriguez at 61; Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
. Rodriguez at 61; Gates, 462 U.S. at 234-37, 103 S.Ct. 2317.
. Id. at 61
. Id. at 61; U.S. CONST, amend. IV ("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.”)
. Id.
. Flores v. State, 827 S.W.2d 416, 418 (Tex.App.-Corpus Christi 1992, pet. ref’d); see also Sherlock v. State, 632 S.W.2d 604, 608 (Tex.Crim.App. 1982) (affidavit is “inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that the event upon which the probable cause was founded was not so remote as to render it ineffective”) (internal quotes omitted).
. THE AMERICAN HERITAGE BOOK OF ENGLISH USAGE (Houghton Mifflin, 1996).
. Gates, 462 U.S. at 236, 103 S.Ct. 2317 (citations and internal quotes omitted); United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
. Hall v. State, 795 S.W.2d 195, 197 (Tex.Crim.App. 1990).
Reference
- Full Case Name
- The STATE of Texas v. Chris Allen McLAIN, Appellee
- Cited By
- 339 cases
- Status
- Published