State v. Powell

• Decision Date: 03 March 2010
• Docket Number: No. PD-1205-08.,PD-1205-08.
• Citation: 306 SW 3d 761
• Parties: The STATE of Texas v. Robert Leahy POWELL, Appellee.
• Court: Texas Court of Criminal Appeals

306 S.W.3d 761

The STATE of Texas v. Robert Leahy POWELL, Appellee.

No. PD-1205-08.

Court of Criminal Appeals of Texas.

March 3, 2010.

Greg Westfall, Fort Worth, for Appellant.

Charles M. Mallin, Asst. Criminal District Atty., Fort Worth, Jeffrey L. Van horn, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, KEASLER and HOLCOMB, JJ., joined.

This case involves a lawful search of two safes preceded by a seizure of these safes. Appellee is charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. The events leading up to this charge began when the police received information that appellee was making forged checks in his home. The police obtained a warrant to search appellee's home and to seize, among other things, "checks and materials to make forged checks." While executing this search warrant at appellee's home, the police found two safes which no one disputes the police could have lawfully searched since the safes could have contained "checks and materials for making forged checks."¹ The police seized these two safes and took them to the police station where they searched them the next day and found in one of the safes the methamphetamine that is the subject of this prosecution. The trial court and the court of appeals decided that the seizure of these two safes violated appellee's Fourth Amendment rights because these safes were not "particularly described" in the search warrant as items to be seized. Accordingly, the trial court and the court of appeals decided that the methamphetamine had to be suppressed. We will reverse.

The record reflects that Hurst Police officer James Hobbs developed information from a person named Lisa Lowery that appellee and another person named Leia McGee were making forged checks in a home where appellee and McGee lived with McGee's 83-year-old grandmother (Roberta). Based primarily on information provided by Lowery, Hobbs prepared an affidavit in support of an application for a warrant to search the home. Hobbs prepared this affidavit on January 29, 2004, and it recites: (1) that Lowery was at the home when appellee and McGee gave her forged checks to purchase various items, (2) that appellee and McGee had stolen some customer checks from Cingular Wireless, (3) that appellee and McGee were making forged checks on a computer at the home where Lowery also saw drugs, guns and counterfeit money, (4) that Lowery had used forged checks furnished by appellee and McGee to buy a big-screen television at a Sam's furniture store and a safe at a Home Depot, (5) that this big-screen television and this safe were in the home, (6) that appellee was "currently in custody at Tarrant County Jail and no longer" at the home, (7) that McGee "has been arrested for Theft and DWI,"² and (8) that Roberta "was not involved."

Another section of the search-warrant affidavit described "property concealed and kept at the home in violation of the laws of Texas" as follows:

THERE IS AT SAID SUSPECTED PLACE AND PREMISES PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF TEXAS AND DESCRIBED AS FOLLOWS:

Numerous customers' checks stolen from Cingular Wireless.

Checks and materials to make forged checks.

Computers, printers and scanners for forging checks.

Big Screen JVC 32 inch flat screen Television Serial Number 16837227 JVC TV Stand model #RKC32DF4AS purchased with a counterfeit check Dated 01-22-04 for $974.15 From sic Sam's Furniture.

Lexmark Print Trio color jet printer purchased on January 24, 2004 for $99.99 with counterfeit check # 4957 from Express Computer Repair.³

On January 29, 2004, a magistrate issued a search warrant for the home "to there search for the property described in said Affidavit, and to seize the same." That same day, Hobbs and other police officers executed the search warrant and searched the home. The police seized two safes that were somewhere in the home. They took these safes to the police station. The next day a locksmith "drilled out the safes." The police found methamphetamine in one of the safes.

Appellee was charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. Appellee filed a written motion to suppress. This motion stated that in "one of the safes seized from the home the methamphetamine made the basis of this case was found." This motion further stated that "there was insufficient probable cause on the face of the affidavit to justify the search warrant and that the scope of the warrant was exceeded."

The trial court held a suppression hearing at which the search warrant and Hobbs' search-warrant affidavit were introduced into evidence. Hobbs, who was the only witness to testify at the suppression hearing, testified that Roberta was the only adult at the home when the police "originally arrived" to execute the search warrant.

Q. STATE: And was there a grandparent that was staying there at the time?

A. HOBBS: Roberta McGee, the grandmother, was there when we arrived.

Q. Any other persons that were-well, was she the only owner of the home that was there at the time, the grandmother?

A. As far as we knew, when we originally arrived, she was the only one there, the adult there. She met us outside.

The suppression-hearing record is silent on why the police took the safes to the police station to search them there. This record is also silent on whether one of the two safes seized from the home was the safe that Lowery bought at a Home Depot with a forged check. This record is also silent on which safe contained the methamphetamine.⁴

Appellee claimed in final arguments to the trial court at the suppression hearing that the police exceeded the scope of the warrant when "they grabbed two safes, went back to Hurst, let them sit overnight, and then opened them...." The State responded that "if they could have looked at it out there at the scene, they could have seized it and brought it back into the police department."

STATE: Secondly, as far as the safe goes, I mean, this detective testified that's where these people hide this stuff. They had a right to search wherever to find these sorts of things, whether it's in a safe, a wall safe, a floor safe, or a safe that they removed. If they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.

Additionally, the State would argue that's stolen property, and that's not an interest, a legitimate expectation of privacy that society is prepared to recognize.

THE COURT: You want one more time, too?

DEFENSE: Your Honor, there's nothing in that affidavit that shows both of those safes were stolen property. They took two safes. They mention one, they took two, let them sit overnight and drilled them out.

The trial court subsequently signed an order granting appellee's motion to suppress. This order recites that the trial court made its ruling after "having considered the evidence and the credibility of the witnesses." On the State's direct appeal from this ruling, the court of appeals decided that the seizure of the two safes exceeded the scope of the warrant, because these safes were not "particularly described" in the warrant as items to be seized resulting in their seizure to have been "warrantless," and that the evidence, viewed in the light most favorable to the trial court's ruling granting appellee's motion to suppress, supports a ruling that this warrantless seizure of the safes cannot be justified under the "plain-view" exception to the warrant requirement. See State v. Powell, 268 S.W.3d 626, 630-32 (Tex.App.-Fort Worth 2008).⁵ We granted the State's petition for discretionary review which presents the following four grounds for review.

1. Did the Court of Appeals err by holding that the search and seizure of the locked safe(s) found on Appellee's premises was not within the scope of the search which was supported by a search warrant based on probable cause?⁶

2. Did the Court of Appeals err in concluding that a locked safe(s) could not be seized, notwithstanding it could be reasonably concluded that it was a repository for forged checks and other fruits which were listed to be seized pursuant to a search warrant based upon probable cause?

3. Did the Court of Appeals err in failing to utilize the correct analytical construct appropriate to items seized and not listed to be seized in a search warrant based on probable cause and issued pursuant to Tex.Code Crim. Proc. Ann. art. 18.02(1), (8), (9) and (12)?⁷

4. Did the Court of Appeals implicitly hold the plain-view doctrine was inapplicable because the officer executing the search warrant seized "mere evidence," i.e., the locked safe(s), not listed as an item to be searched or seized in the warrant supported by probable cause.

I.

The Fourth Amendment provides that 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." U.S. Const., amend. IV. The Fourth Amendment's "particularity" requirement is primarily meant to prevent general searches and the seizure of one thing under a warrant that describes another thing to be seized. See Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

Appellee argues that the safes were not particularly described in the warrant as items to be seized and that their seizure therefore, exceeded the scope of the warrant rendering their seizure warrantless⁸ which, on this record, cannot be justified by any exigency. Appellee argues that "while it would have been proper for the police to open those safes while still on the premises, actually seizing the safes for future opening off of the premises was...