Foreman v. State
| Decision Date | 10 August 2017 |
| Docket Number | NO. 14-15-01005-CR, NO. 14-15-01006-CR,14-15-01005-CR |
| Parties | Nathan Ray FOREMAN, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Stanley G. Schneider, Houston, TX, for Appellant.
Clinton Morgan, Houston, TX, for Appellee.
Before the court en banc.
EN BANC MAJORITY OPINION
Appellant Nathan Ray Foreman challenges his conviction for aggravated robbery and aggravated kidnapping. Foreman argues in a single issue that the trial court should have granted his motion to suppress surveillance video evidence found on a computer hard drive pursuant to a search warrant because the warrant’s supporting affidavit did not establish probable cause. Having granted appellant’s motion for reconsideration en banc, we conclude the affidavit was not sufficient to support a finding of probable cause. This court’s panel plurality, concurring, and dissenting opinions filed August 10, 2017, are withdrawn, and our judgment of that date is vacated. We reverse the trial court’s denial of appellant’s motion to suppress and remand for a new trial consistent with this opinion.
On December 24, 2012, witnesses driving on the service road of Highway 290 observed complainants Moses Glekiah and Richard Merchant tumble from the rear of a van onto the road. Complainants were bound with zip ties and their mouths were taped shut with duct tape. Witnesses observed that complainants had been shot and were bleeding. One witness called 9-1-1. Police and paramedics arrived at the scene, and complainants were taken by ambulance to Ben Taub Hospital.
Both complainants were injured. Merchant was more seriously injured. In addition to gunshot wounds
and injuries from falling out of a moving vehicle, Merchant’s abdomen had been burned with an iron. Due to Merchant’s injuries, officers could not initially interview him. However, officers were able to interview Glekiah at the hospital. Glekiah initially told Officers Arnold and Hufstedler that he went to an auto shop to work on some cars when he was robbed by several black males.
Glekiah had an outstanding arrest warrant1 and was transferred to Houston Central Jail after his discharge from the hospital. After the transfer, Arnold and Hufstedler met with Glekiah at jail, and Arnold asked him to "Take to us [sic] where this happened." Glekiah accompanied the officers and directed them to a custom auto shop at 2501 Central Parkway, Dreams Auto Customs.
The officers researched the shop, looking for individuals tied to the business. They found Charese Foreman listed as the owner of Dreams Auto Customs on a filing with the county clerk’s office. Marriage license records showed Charese was married to Nathan Foreman. Arnold and Hufstedler concluded Nathan and Charese Foreman were both owners of Dreams Auto Customs.
Arnold subsequently obtained a search warrant for Dreams Auto Customs. Arnold was the affiant in the affidavit for the search warrant. In the affidavit for search warrant, Arnold described the facts as he understood them at that time: Glekiah and Merchant had agreed to meet someone at Dreams Auto Customs to conduct "business." When the two men arrived, several suspects grabbed them, tied them up, beat them, poured gasoline on them, and threatened to set them on fire. The suspects stole cash and other items from the men. The suspects then forced the men into the back of a van at gunpoint and drove the van away from the auto shop. The men jumped out of the moving van because they believed they were going to be killed. As the men jumped, they were shot by the suspects.
Arnold and Hufstedler executed the search warrant on January 8, 2013. At the shop, they found and seized three computer hard drives, zip ties, duct tape, a digital camera, a gas can, a computer skimmer, and an iron. They also swabbed for DNA. The computer hard drives were transferred to the police forensics lab, and forensic experts retrieved video surveillance from one of the hard drives. The video surveillance captured a portion of the offenses and appellant’s involvement in the offenses.
In a pretrial motion to suppress, appellant objected to the seizure of the computer hard drives and/or video surveillance equipment. In support of the motion, appellant argued that the warrant did not list computers or computer hard drives as items to be seized. Appellant also argued that even if the computers were characterized as "audio/video surveillance" or "video equipment" (items that were listed in the warrant), the supporting affidavit was defective because it failed to set forth sufficient facts to establish probable cause that surveillance equipment was located at the auto shop. Initially, the trial court denied the motion with regard to the computer containing surveillance video but suppressed the other two computers. Appellant then moved for rehearing of the motion to suppress and filed a second motion to suppress. Appellant asked the trial court to suppress "[a]ll computer hard drives and or audio / video surveillance video and or video equipment." On rehearing, the trial court ruled that none of the computers should be suppressed. Appellant moved to suppress a third time at trial. The trial court addressed the motion to suppress in a hearing outside the presence of the jury.
In the hearing, the State indicated it did not intend to introduce contents of the two computers which did not contain surveillance video so only the computer containing surveillance video was at issue. Arnold testified that he became aware of surveillance equipment at Dreams Auto Customs before drafting his affidavit, when he initially visited the shop with Glekiah. He testified that he mentioned video surveillance equipment in his affidavit Arnold reiterated, Arnold also testified it was "not unusual" and "probably expected" that a business like a custom auto shop would have a surveillance equipment system. When asked, "[I]s that something that you typically look for when investigating homicide cases?" Arnold responded, "Every time."
The affidavit included "audio/video surveillance video and/or video equipment" in a list of items Arnold believed might be found at the auto shop:
I, D. Arnold, a peace officer employed by Houston Police Department do solemnly swear that I have reason to believe and do believe that on the property of 2501-C #2 Central Parkway Houston, Harris County, Texas (Target Location), with the authority to search for and to seize any and all ITEMS CONSITUTING [sic] EVIDENCE CONSTITUTING AGGRAVATED ASSAULT AND ROBBERY that may be found therein including, but not limited to all DNA and items that may contain biological material; fingerprints; hair fiber(s); audio/video surveillance video and/or video equipment; instrumentalities of the crime including firearm(s) and ballistics evidence; gasoline container(s), lighter(s), tap, zip tie(s), van; fruits of the crime including wallet(s), suitcase, briefcase, money, documents establishing identity of Complainant(s) and/or Suspect(s) such as paper(s), license(s), cell phone(s).
The affidavit also described the location:
Said location of 2501-C #2 Central Parkway Houston, Harris County, Texas is more particularly described as a single story building complex with a large sign facing Central Parkway that shows address 2501-C for all the businesses within the complex strip, this particular business [sic] is made of metal and brick with dark tinted glass windows and black painted aluminum; a sign attached to the front of the building over the door reads "Dreams Auto Customs"; the front door is dark tinted glass and faces parking lot; on the door is the suite number C#2; the back of the business has an aluminum looking, gray in color bay door that opens into the business.
Arnold admitted, however, that there was no reference to surveillance equipment in the section of the affidavit which stated the facts upon which his belief was based. The affidavit did not reference the officers' observation of cameras outside the business. The affidavit did not reference the officers' experience with surveillance equipment in custom auto shops or homicide cases. The facts section stated:
to their bodies and had been transported to Ben Taub Hospital for treatment. Affiant spoke to Diane Deyoung who witnessed Complainants coming out of a white van license plate AV5-0784 before the [sic] continued down the road without stopping. Affiant learned from hospital personnel that Moses Glekiah (Complainant Glekiah) was recovering from gunshot wounds and Richard Merchant (Complainant Merchant) was in critical condition for his gunshot injuries.
Affiant spoke with Moses Glekiah (Complainant Glekiah) and learned he and his friend Richard Merchant (Complainant Merchant) had agreed to engage in [sic] business transaction at 2501-C #2 Central Parkway Houston, Harris County, Texas with a male known as "J...
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