Foreman v. State
| Decision Date | 25 November 2020 |
| Docket Number | PD-1091-18,NOS. PD-1090-18,S. PD-1090-18 |
| Citation | 613 S.W.3d 160 |
| Parties | Nathan Ray FOREMAN, Appellant v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
Clinton Morgan, Houston, for State.
Stanley G. Schneider, Houston, for Appellant.
Acting on evidence that two men had been tortured and robbed at a business in Houston, the police obtained a warrant to search the business. The warrant authorized the police to seize "any and all ... surveillance video and/or video equipment" from the business—and that is precisely what they did. The problem, Appellant Nathan Foreman says, is that the affidavit supporting the warrant said not one word about "surveillance video and/or video equipment" possibly being at the business. In this opinion, we must decide whether the probable-cause magistrate was nevertheless justified in issuing a warrant authorizing the police to seize that equipment. We conclude that she was.
As far as con men go, Richard Merchant and Moses Glekiah are not what most people would call luminaries of their profession. They had concocted a plan to swindle Appellant Nathan Foreman into buying a batch of "black money,"1 allegedly valued at $200,000, for $100,000 in cash. Of course, the "black money" was not money at all—it was construction paper. And at first, it seemed like the scam was working; Foreman appeared to be on board. Foreman agreed to conduct the transaction at Dreams Auto Customs, an auto-body shop owned by his wife. But somewhere along the way, the scam went awry.
Not long after Merchant and Glekiah arrived at the shop, they were ambushed. Foreman and some accomplices captured both men, tied them up, and tortured them. Eventually, Merchant and Glekiah were forced into a van at gunpoint. Foreman ordered his accomplices to take the pair to "the spot" and said that he would "be there" when they arrived. Unfortunately for Foreman, Merchant and Glekiah managed to escape in transit. Glekiah eventually told the police what had happened to them and where it had happened.
Based on the information that Glekiah gave, the police applied for a warrant to search Dreams Auto Customs. In addition to providing the known details of the alleged offenses, the warrant affidavit had this to say about the shop, produced here without alteration:
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 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 suite number C#2; the back of the business has an aluminum looking, gray in color bay door that opens into the business.
Later in the affidavit, this location is described as an "autoshop."
The hearing officer reviewing the affidavit, whom we shall hereinafter refer to as the "magistrate," found that it established probable cause. She issued a warrant for the police "to search for and seize any and all ITEMS CONSTITUTING EVIDENCE CONSTITUTING AGGRAVATED ASSAULT AND ROBBERY that may be found therein [at the listed location, Dreams Auto Customs] including," among other things, "audio/video surveillance video and/or video equipment." Pursuant to this warrant, the police seized three computer hard drives from Dreams Auto Customs. Upon analysis, one hard drive—the only hard drive at issue in this proceeding—was found to contain surveillance footage that depicted much of the incident at Dreams Auto Customs and Foreman's involvement in that incident. Foreman was charged with aggravated kidnapping and aggravated robbery.
Foreman filed a motion to suppress the fruits of the search, invoking the Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas Constitution, and Chapter 18 of the Texas Code of Criminal Procedure. Specifically, Foreman argued that the warrant affidavit "fail[ed] to set forth sufficient facts to establish probable cause that audio and video surveillance equipment" could be found at Dreams Auto Customs. Through a winding procedural path that is not altogether relevant to this proceeding, the trial court denied Foreman's motion as to the hard drive at issue here and allowed the surveillance footage that it contained in evidence. Foreman was convicted of both offenses as charged and sentenced to fifty years’ confinement.
On appeal, Foreman argued that the trial judge's ruling violated each of the constitutional and statutory provisions he had invoked in his motion to suppress. Once again, Foreman asserted that the warrant affidavit failed to establish probable cause that surveillance equipment could be found at Dreams Auto Customs.
A divided panel affirmed the trial judge's ruling. Foreman then filed a motion for en banc reconsideration, which was granted.
The en banc court of appeals agreed with Foreman that the search warrant was issued in error because the supporting affidavit failed to establish probable cause that Dreams Auto Customs was equipped with a surveillance system.2 It rejected the State's argument that it was "common knowledge" that most businesses nowadays have surveillance systems.3 In so holding, it adopted the standard that "common knowledge" consists only of matters "so well known to the community as to be beyond dispute."4 Applying that standard, the court of appeals regarded the "presence of surveillance video or equipment in an auto shop" to be insufficiently "well known to the community as to be beyond dispute."5 It also rejected the State's argument that the police's seizure and subsequent analysis of the hard drive was justified under the "plain view" doctrine.6 The court of appeals ultimately found that the trial judge's error in admitting the surveillance footage was harmful and so reversed Foreman's conviction.7
In this discretionary-review proceeding, the State advances three arguments. First, the State argues that the court of appeals erred when it held "that a magistrate could not infer from the warrant affidavit that an auto body shop would have a surveillance system." Second, the State argues that the court of appeals erred to hold that the seizure of the surveillance system was not justified by the plain-view doctrine. Third, the State argues that the court of appeals erred to find the trial judge's putative error in admitting the surveillance footage in evidence harmful. Based on our resolution of the first point, we need not reach the second or third points.
There are three distinct legal provisions at issue in this proceeding: The Fourth Amendment to the United States Constitution; Article I, Section 9 of the Texas Constitution ; and Chapter 18 of the Texas Code of Criminal Procedure.
"The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a search warrant without first finding probable cause that a particular item will be found in a particular location."8 Under the Fourth Amendment, probable cause to support the issuance of a search warrant exists "where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued."9 The test is not whether the warrant affidavit proves beyond a reasonable doubt, or even by a preponderance of the evidence, that a search of the listed location would yield a particular item of evidence; a "fair probability" will suffice.10 Neither does the test demand that the affidavit be read with hyper-technical exactitude.11 While a magistrate may not baselessly presume facts that the affidavit does not support, the magistrate is permitted to make reasonable inferences from the facts contained within the affidavit's "four corners."12 Ultimately, the test is whether the affidavit, read in a commonsensical and realistic manner and afforded all reasonable inferences from the facts contained within, provided the magistrate with a "substantial basis" for the issuance of a warrant.13 This is a "flexible and nondemanding" standard.14 "Thus, even in close cases we give great deference to a magistrate's determination of probable cause," in part because we seek to "encourage police officers to use the warrant process[.]"15
By contrast, we have held that Article I, Section 9 of the Texas Constitution "contains no requirement that a seizure or search be authorized by a warrant."16 The inquiry is holistic and singular: Whether, under the totality of the circumstances and in light of the "public and private interests that are at stake," the search or seizure was "reasonable."17 But on appeal, the only aspect of the instant search that Foreman has characterized as unreasonable happens to be the same aspect that he finds objectionable under the Fourth Amendment: The mismatch between what the search warrant expressly authorized (i.e. , the seizure of "surveillance video and/or video equipment") and what the underlying affidavit described. Therefore, our analysis under Article I, Section 9 will mirror our Fourth-Amendment analysis. We will decide whether the warrant affidavit established probable cause for the search and seizure of surveillance equipment.
Finally, Article 18.01(b) of the Texas Code of Criminal Procedure says that "no search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance."18 Article 18.01(c) elaborates:
A search warrant may not be issued under Article 18.02(a)(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause: (1) that a...
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