State v. Elrod

• Decision Date: 25 October 2017
• Docket Number: PD-0705-16,PD-0706-16,NOS. PD-0704-16,S. PD-0704-16
• Citation: 538 S.W.3d 551
• Parties: The STATE of Texas v. Gordon Heath ELROD, Appellee
• Court: Texas Court of Criminal Appeals

538 S.W.3d 551

The STATE of Texas

v.Gordon Heath ELROD, Appellee

NOS. PD-0704-16

PD-0705-16

PD-0706-16

Court of Criminal Appeals of Texas.

DELIVERED: October 25, 2017

Lawrence B. Mitchell, 11300 N. Central Expressway, Suite 408, Dallas, Texas 75243, for Appellant.

Brian P. Higginbothan, Assistant Criminal District Attorney, Frank Crowley Courts Building, 133 N. Riverfront Boulevard, LB–19, Dallas, TX 75207, Stacey Soule, Austin, TX, for the State.

OPINION

Richardson, J., delivered the opinion for a unanimous Court.

Appellee, Gordon Heath Elrod, was charged with fraudulent use or possession of identifying information¹ and with two offenses of tampering with a governmental record.² Appellee filed a motion to suppress evidence seized by Mesquite police officers after they executed a search warrant at his hotel room. The trial court granted Appellee's motion to suppress, finding that the affidavit in support of the search warrant did not establish probable cause. The Fifth Court of Appeals agreed and affirmed the trial court's order.³ We granted the State's petition for discretionary review.

We hold that the affidavit contained enough particularized facts given by a named informant to allow the magistrate to correctly determine that there was probable cause to issue a search warrant. The court of appeals erred by affirming the trial court's order granting Appellee's pretrial motion to suppress. We reverse the judgment of the Fifth Court of Appeals, vacate the trial court's order granting the motion to suppress, and remand the case to the trial court for proceedings consistent with this opinion.

THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT

Affiant, Investigator Smith with the Mesquite Police Department, provided the affidavit in support of the application for a search warrant to search Room 119 at the Executive Inn and Suites, located at 3447 E. Hwy 30, Mesquite, Texas. Smith attested to the following events in his affidavit presented to the magistrate that are pertinent to this appeal:

On Monday, April 27, 2015 at approximately 17:23 hours [5:23 p.m.] Officer Mobley, Officer McCloud, Officer Everett, and Officer Berg were dispatched to 4050 Gus Thomasson Rd (One Star Food Mart), Mesquite, Dallas County, Texas in reference to a Forgery.

Upon arrival officers observed a heavy male subject walk out of the store towards a 1995 white Cadillac dev (TXLP: FKH2476). Officers then observed the store clerk who was later identified as Kasumbi, Ahmed (W/M 5/31/80) come out of the business and state to officers "that's them" and pointed at the vehicle....

While officers were out with the three suspects, Kasumbi called dispatch and advised there was a female suspect involved and she was still at the location. Officer[s] Everett, Mobley, and McCloud arrived at the location. Kasumbi stated the female who was identifying herself as Bazan,⁴ Elizabeth with a paper ID was trying to cash a check. Kasumbi advised the female had been at the location on Saturday 04/25/15 trying to cash the same check. Kasumbi stated he told the female that he couldn't cash the check on that day. Kasumbi advised the female came in today and was trying to cash the check. Kasumbi stated the check was suspicious and he believed it was fictitious. Kasumbi provided officers with the check that the female was trying to cash.

The check appeared to be a payroll check from Texas Family Dental (10233 East Northwest Hwy Ste 510, Dallas, TX). The check showed to be paying a Monica Bazen the amount of $1,012. Officer Mobley made contact with the dental office which had the name of American Family Dental. Officer Mobley spoke with a Linda Dutton who advised they have a part time doctor with the name of Monica Bazen. Dutton advised they had not issued any payroll checks to Dr. Bazen recently. Dutton provided a phone number for Dr. Bazen.

Officer Mobley then made contact with Bazen, Monic [sic ] by phone who advised she didn't have a payroll check from American Family Dental. Bazen advised she had not given anyone permission to cash a check with her name. Bazen stated she did wish to press charges against anyone using her person [sic ] information.

Officers placed the female who identified herself as Stovall, Marsha (W/F 09/20/86) into custody. While searching Stovall's purse officers located a paper ID with Stovall's information. Officers located a paper ID with the name Bazan, Elizabeth (W/F 02/08/87), and a note book with several names, id. [sic ] numbers, social security numbers, and address[es]. Officers also located several credit cards inside Stovall's purse ... Officers also located [a] clear glass pipe believed to be used for smoking methamphetamines. Stovall also provided officers with a TX driver license for Andricka, Lindsay (B/F 08/19/91) as well as a social security card with the same name, and a social security card with Monica Bazan on it in her back pocket.

* * *

Officers transported Stovall to Mesquite City Jail where she was booked in for Forgery with financial instrument and Fraudulent Use/Possession of Identifying Information without incident.

Officer Mobley placed the ID's Stovall had in her possession as well as the note book with social security numbers, ID's, names, addresses, the check, and credit cards into Mesquite Police Department property room as evidence.

On 4-28-15 at approximately 0830 hours [8:30 a.m.] Inv. Smith proceeded to the Mesquite Jail to interview Stovall. Prior to the interview Stovall was read her Miranda Warning to which she advised she understood. Stovall went on to advise that she had been staying in room #119 at the Executive Inn located at 3447 E Hwy 30 Mesquite, TX 75150 for the last few days prior to being arrested. Stovall advised that the counterfeit check, driver license and social security card bearing the name of Monica Bazan were all printed in the motel room. She advised that there are two desk top computers and four printers in the room. She advised that the occupants of the room were Alisha Davis,⁵ her husband Gordon, and their two kids Jacob and Jeremiah. Stovall advised that they were printing counterfeit checks, driver licenses, and social security cards when she left the room on 4-27-15 at 1700 hours [5:00 p.m.]. Stovall advised that Gordon and Alisha are mail thieves and the information they counterfeited came from stolen mail which was also inside the motel room.

On 4-27-15 at approximately 1900 hours [7:00 p.m.] Officers Walzel and Berg made contact with Gordon in room #119 at the Executive Inn located at 3447 E Hwy 30 Mesquite, TX 75150.

Officers advised they observed computers and printers in the room.

Your Affiant believes that there is further evidence inside the dwelling at 3447 E Hwy 30 #119 Mesquite, TX 75150. It is believed that the residence contains evidence of the offense of Forgery Financial Instrument, a violation of section 32.21 of the Texas Penal Code.⁶

The magistrate issued the search warrant at approximately 10:35 a.m. on April 28, 2015, and it was executed that day. Appellee was arrested the following day on April 29, 2015, pursuant to an arrest warrant.⁷ Appellee filed a Motion to Suppress on or about July 31, 2015.

On August 28, 2015, the trial court held a hearing on Appellee's motion to suppress. Appellee testified regarding only the issue of standing to bring the motion. Appellee testified that he and his wife and children were renting room 119 in the Executive Inn, on Highway 30, in Mesquite, Texas. Defense counsel then offered into evidence the search warrant affidavit, urging the trial court to rule on the motion to suppress based on the four corners of the affidavit. There were no other witnesses presented, and there was no additional evidence offered.

ARGUMENTS OF THE PARTIES

Appellee claimed in his motion to suppress that the search warrant, under which tangible evidence was seized, was in violation of his rights under the Texas and United States Constitutions and thus invalid because the supporting affidavit did not reflect probable cause. Appellee urged in his motion that probable cause was lacking because (1) the affidavit lacked sufficient underlying facts which would lead a neutral and detached magistrate to conclude that the alleged contraband was at the designated location, and (2) the affidavit failed to state sufficient underlying information to establish the credibility of the facts alleged by the affiant.

At the motion to suppress hearing, Appellee argued that, looking at the four corners of the affidavit, nothing Stovall said was corroborated by any independent investigation by the police. He argued that Stovall was not a credible nor reliable informant, and that a tip by an informant of unknown reliability standing alone is insufficient to support probable cause for an affidavit.

The State responded that there was probable cause to support the magistrate's decision to issue the search warrant because (1) the tip came from a named informant, not an anonymous or confidential one, (2) it was made against Stovall's penal interest, (3) it was a detailed first-hand account of criminal activity, and (4) it was consistent with information the officers had observed for themselves.

For the reasons discussed below, we hold that the search warrant affidavit established sufficient probable cause to support the magistrate's decision to issue the search warrant.

ANALYSIS

"The core of the Fourth Amendment's warrant clause and its Texas equivalent is that a magistrate may not issue a search warrant without first finding ‘probable cause’ that a particular item will be found in a particular location."⁸ In determining whether a warrant sufficiently establishes probable cause, this Court is bound by the four corners of the affidavit.⁹ "[I]n interpreting affidavits for search warrants courts must do so in a common sense and realistic manner."¹⁰ "[P]robable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution in the belief that the items to be...