Rios v. State, 14-18-00886-CR

CourtCourt of Appeals of Texas
Writing for the CourtMeagan Hassan Justice
PartiesRAMON RIOS, III, Appellant v. THE STATE OF TEXAS, Appellee
Docket Number14-18-00886-CR
Decision Date03 August 2021

RAMON RIOS, III, Appellant


No. 14-18-00886-CR

Court of Appeals of Texas, Fourteenth District

August 3, 2021

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1491213


Meagan Hassan Justice

I dissent from this court's denial of en banc relief because the panel majority's opinion (1) is contrary to controlling precedent from the United States Supreme Court concerning two important federal questions involving the Fourth Amendment to the United States Constitution (i.e., (a) whether police officers may conduct protective sweeps of private homes even when (i) they complete an arrest outside, (ii) there are no specific and articulable facts that anyone inside said homes poses any danger to anyone, and (iii) police have already completed their arrest and departed the premises with the arrestee; and (b) whether the plain view doctrine applies even (i) under the foregoing facts, (ii) when officers neither search nor seize the evidence in question before acquiring a warrant, and (iii) when officers cannot see the narcotics made the basis of a search warrant because the narcotics are inside an opaque black trash bag inside another bag inside a home); (2) is contrary to controlling precedent from the Texas Court of Criminal Appeals; and (3) conflicts with the decisions of numerous state courts of last resort and United States courts of appeals concerning clearly established Fourth Amendment rights under the United States Constitution.

I. Facts

Appellant was inside his home when police arrived with two warrants authorizing his arrest for murder. They breached the door, broke out the windows, and ordered him outside. He complied and was arrested on his front porch. Officers could see inside through the broken windows, but did not see anyone else therein. Officers handcuffed him, took him across the street, placed him in a police car, and interviewed him for approximately 10-15 minutes. After those 10-15 minutes passed, officers returned to his house, entered it, and performed several searches without a search warrant.

Deputy Alexander (the High-Risk Operations Unit ["HROU"][1] team leader responsible for planning the operation) testified that he "had the duties to do a protective sweep of the residence to make sure it's secure for any investigators or anybody else" and that he saw narcotics "in the initial search as soon as [they] went inside the residence . . . in the red bag right outside the back door."[2] Pictures of the red bag and the black bags in the residence were introduced at trial.[3] The panel majority accepted Deputy Alexander's testimony that (based on viewing the bags) the black bags contained narcotics. See Rios v. State, No. 14-18-00886-CR, 2020 WL 5048593, at *2 (Tex. App.-Houston [14th Dist.] Aug. 27, 2020, no pet. h.) ("Maj. Op.") ("Alexander testified that . . . while standing in the kitchen of the house, he saw . . . what appeared to be a brick of cocaine ....").

At trial, Deputy Alexander also admitted that officers knew (1) the house in question had been under surveillance 24 hours a day for two and a half months, [4](2) officers conducted surveillance the night before the arrest warrant was executed, (3) they had information about "the comings and goings of the people who lived at that residence," (4) "that there was a child and female at the residence," (5) "every morning" the child was going to leave the residence to go to school, (6) the mother and child had left the house the morning the arrest warrant for Appellant was executed (because officers had physically stopped and "contained"/"detained" them), (7) they "didn't have any evidence or any information" indicating that there was somebody else in the house, and (8) "as far as [they] knew, there was no one else there [at the house]."[5]

Despite these indisputable facts, officers testified that they entered Appellant's home and conducted a (so-called) "protective sweep". The HROU team leader explained that:

• "[N]o matter how much intel I'm given, until I physically go inside that residence and look, that I know that 100 percent there's no one inside." (emphasis added)
• His team performs "a protective sweep on every residence that we go to." (emphasis added). But see Concurring Op. at 10 ("The simple fact is that whether a protective sweep was justified and whether drugs were appropriately seized are fact-intensive questions. These decisions, by their nature must be based on the facts of each particular case[.]")

When the initial search was completed, the HROU team leader did "a secondary clear to make sure there [were] no persons inside"; this secondary clear was "a very slow methodical search" because he was "looking for people". During this warrantless secondary sweep, Deputy Alexander discovered a second set of black bags (that he presumed contained narcotics) on top of a white cooler.

Deputy Alexander also testified that after the house was cleared, officers "go one last time through the residence and pick up anything that we might have used during the operation and bring it out"; this could include "breakaway tools, the battering ram. Anything that we might have used during that operation, they're going back through and making sure we clean up all of our equipment." Despite this testimony, there is no evidence in the record of any such tools being used inside the house or being removed by officers. According to Deputy Alexander, the whole process took approximately 20 minutes (and more than five); according to another officer, it took 30 or 45 minutes. Officers were only instructed to depart the residence after Deputy Alexander personally went through every room, looked in every place where a body could fit, and personally deemed the residence safe. After this third warrantless search, officers sent in a photographer to document the damage (an independent and documented warrantless invasion of the home).

Deputy Persaud (who was investigating "mid-level drug traffic" at the residence) testified he arrived on-scene after the residence was secured and was told by Deputy Alexander that narcotics were inside the home. Based thereon, Deputy Persaud drafted an affidavit for a search warrant. Said affidavit states (in relevant part):

Deputy Alexander advised your Affiant that he observed a gun case on the right side of the living room containing an assault rifle and a handgun when he went into the house Deputy Alexander advised your Affiant continued [sic] to make his way toward Roman Rios III location [sic]; Deputy Alexander advised your Affiant that he observed brick shaped packages wrapped in black electrical tape, that are consistent with the shape and size of a kilogram of cocaine .... Deputy Alexander advised your Affiant that he observed . . . an open red piece of luggage/suit case. Deputy Alexander advised your affiant that he observed the red suitcase was open and observed what appeared to be kilogram packages that were rectangular, wrapped in black electrical tape. Deputy Alexander advised your Affiant that based on his training and experience, he knows that the type of packaging is consistent with the way cartels and others in the narcotics industry package narcotics for distribution.

This affidavit, however, is contrary to the record.

Specifically, Deputy Persaud's affidavit states Deputy Alexander told him the red suitcase contained rectangular kilogram packages wrapped in black electrical tape. However, Deputy Alexander's testimony never mentions tape (much less electrical tape) or rectangular packages; instead, Deputy Alexander testified that during his initial search, he saw black "bags" inside of a red suitcase.[6]Additionally, Deputy Alexander did not see either an assault rifle or a handgun upon entry into the home; instead, he unambiguously testified that the gun case in question was closed.[7] As a result, the subsequently issued search warrant was predicated upon materially false information combined with information that was acquired during the second warrantless search. See, e.g., 5 RR 10 (showing the rectangular packages found on top of the cooler during the second warrantless search). The panel majority presumed that "the second phase of the sweep violated the Fourth Amendment." Maj. Op. at 14.

Appellant produced an uncontroverted expert at the hearing on his motion to suppress. This expert testified that (1) he reviewed the reports and there was no evidence of someone else entering or leaving the residence, (2) there were four separate entries into the residence without a warrant, (3) a protective sweep in a house that size with that many officers should take two or three minutes, (4) the officers knew there was only one person in the house, (5) the initial sweep took too long, and (6) the officers put themselves at greater risk by entering the house.

II. Law

Certain basic facts about the Fourth Amendment are already well-settled law. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'"[8] Searches conducted without a warrant inside a home are presumptively unreasonable absent consent or exigent circumstances. Arizona v. Hicks, 480 U.S. 321, 326-27 (1987); see also Steagald v. United States, 451 U.S. 204, 211, 222 (1981); Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).

If governmental actors conduct a warrantless search inside a home, they bear a heavy burden to prove it was reasonable and permitted by the Fourth Amendment.[9] This burden is particularly heavy...

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