State v. Toone, 05-91-00414-CR

• Decision Date: 17 January 1992
• Docket Number: No. 05-91-00414-CR,05-91-00414-CR
• Parties: The STATE of Texas, Appellant, v. Thomas Edwin TOONE, Appellee.
• Court: Texas Court of Appeals

Page 744

823 S.W.2d 744

The STATE of Texas, Appellant, v. Thomas Edwin TOONE, Appellee.

No. 05-91-00414-CR.

Court of Appeals of Texas,

Dallas.

Jan. 17, 1992.

Petition for Discretionary Review

Granted June 17, 1992.

Randall A. Blake, Tom O'Connell, McKinney, for appellant.

John Hagler, Robert M. Rose, Dallas, for appellee.

Before STEWART, LAGARDE and WHITTINGTON ¹, JJ.

OPINION

LAGARDE, Justice.

Thomas Edwin Toone was charged by indictment with the offense of possession of less than twenty-eight grams of cocaine. The trial court granted Toone's motion to suppress which asserted that officers seized the cocaine in violation of state statutory laws as well as both the United States and the Texas Constitutions. The State of Texas appeals from the trial court's order. Because we find that the federal officers acted under a valid federal search warrant, we reverse the trial court's order and remand the cause for further proceedings.

FACTUAL BACKGROUND

Wayne W. Meyers, a federal postal inspector assigned to the Fort Worth Division of the United States Postal Inspection Service, investigated the mailing of material involving the sexual exploitation of minors and of obscene material. These offenses violate sections 1461, 2251, and 2252 of Title 18 of the United States Code. Meyers received several written requests from Toone for various illegal videotapes and publications. From these requests, Meyers planned a delivery of the contraband to Toone's house while disguised as a U.S. postman. Meyers obtained a federal search warrant in anticipation of this delivery to prevent possible destruction of the evidence. Meyers's lengthy search-warrant affidavit specified numerous fruits, instrumentalities, and evidence of possession of child pornography that he, through his investigation, believed would be found in Toone's home. Federal officers executed the search warrant on November 30, 1989.

During the search for the pornography, the officers discovered cocaine in a jewelry box. Subsequently, Toone was indicted in state court for cocaine possession and charged in federal court with receiving obscene materials through the mail.

TOONE'S MOTION TO SUPPRESS

Prior to the state court trial, Toone filed a motion to suppress the cocaine arguing that (1) the federal search warrant affidavit contained stale information, and (2) the search warrant was issued prior to the commission of any offense. The amount of delay that will make information stale for search warrant purposes depends upon the particular facts of a case, including the nature of criminal activity and the type of evidence sought. Ellis v. State, 722 S.W.2d 192, 196 (Tex.App.--Dallas 1986, no pet.). Mechanically counting days is of little assistance in the determination of staleness; rather, common sense and reasonableness must prevail, with considerable deference given to the magistrate's judgment. Id. Thus, our analysis will focus on Toone's second argument.

Specifically, Toone complained of the following language in the search warrant:

... there will be concealed a certain person or property, namely evidence, fruits, and instrumentalities of violations of Title 18, United States Code, Section 2251 and 2252....

(Emphasis added). Toone argued that the words "will be" made the warrant an "anticipatory search warrant" by indicating that probable cause would exist in the future. He contended that probable cause did not exist at the time the warrant issued because the contraband was not then on the premises. Therefore, he asserts, the warrant was invalid under article 18.01(b) and (c) of the Texas Code of Criminal Procedure. ² The trial court agreed and granted the motion to suppress.

LEGAL ANALYSIS

A. Anticipatory Search Warrant

Toone's argument that anticipatory search warrants are invalid is based on the language in article 18.01(b) and (c) because, as he admits, there is no case law in Texas holding this type of warrant invalid. Other jurisdictions, both federal and state, have confronted this issue, and a majority have concluded that anticipatory warrants are constitutional. ³

OTHER STATES

For example, the following three cases are factually similar and they come from different states all of which have probable cause requirements comparable to those of Texas. ⁴ First, in Massachusetts, the applicable statute provides that

A court or justice authorized to issue warrants in criminal cases may, upon complaint on oath that the complainant believes that any of the property or articles hereinafter named are concealed in a house, place, vessel or vehicle or in the possession of a person anywhere within the commonwealth and territorial waters thereof, if satisfied that there is probable cause for such belief, issue a warrant identifying the property and naming or describing the person or place to be searched....

MASS.GEN. LAWS ANN. ch. 276, § 1 (West 1990). The Supreme Judicial Court of Massachusetts in Commonwealth v. Soares, stated, "we read G.L. c. 276, § 1, to permit search warrants to issue on a showing that concealment or possession is probable at the time a warrant is to be executed, and not solely at the time of its issuance." Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221, 225 (1981).

Second, in McNeill v. Commonwealth, a Virginia state police detective obtained a search warrant in anticipation of delivery of cocaine reported by UPS employees. McNeill v. Commonwealth, 10 Va.App. 674, 395 S.E.2d 460, 461 (1990). The court held that this anticipatory warrant was valid because there was probable cause ⁵ to believe that the contraband would be located on the premises at the time the warrant would be executed. Id. 395 S.E.2d at 463. The probable cause was established by showing that the contraband was on a "sure course" to the premises. Id.

Third, in Commonwealth v. Reviera, the Superior Court of Pennsylvania upheld the legality of a search warrant for a package of controlled substances, which, at the moment the warrant issued, was not yet on the premises. Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252, 1254

                (1989).  The probable cause 6 requirement came from the magistrate's reasonable conclusion that there is a fair probability that the evidence will be on the premises to be searched at the time the warrant is executed.  Id. 563 A.2d at 1255.   The Court reasoned that permitting the issuance of an anticipatory warrant allows the police a reasonable degree of flexibility in responding to crime, while ensuring the oversight of a neutral authority who can act to protect the constitutional rights of criminal suspects.  Id. at 1256
                

FEDERAL

We turn now to an example under federal law of a legal anticipatory search warrant. In United States v. Wylie, the Fifth Circuit approved a magistrate's issuance of an anticipatory search warrant that authorized the search of premises when it was known that the contraband was on a sure course to its destination there. United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); see also United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.), (prior issuance of warrant permissible for four envelopes containing magazines and photographs in violation of 18 U.S.C. § 2252(a)(2) because they were on a sure course to their destination in the mail), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986). In Wylie, the Fifth Circuit cites a Second Circuit case in which Drug Enforcement Association agents applied for and received an anticipatory warrant to search an apartment for cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia. United States v. Garcia, 882 F.2d 699, 701 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed. 336 (1989). Execution of this warrant was contingent upon the delivery of cocaine by two men operating in cooperation with the DEA agents. Garcia, 882 F.2d at 701. In rejecting the argument that an anticipatory search warrant was unconstitutional per se, the court held that the warrant was based on probable cause. The court stated that when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant. Id. at 702. The fact that the contraband is not presently located at the place is immaterial so long as there is probable cause to believe that it will be there when the warrant is executed. Id. The court further explained that the affidavits supporting the application for an anticipatory warrant must show: (1) the agent believes a delivery of contraband is going to occur, (2) how the agent obtained this belief, (3) how reliable his sources are, and (4) what part the government agents will play in the delivery. Id. at 703.

In the present case, there are even stronger facts supporting probable cause than in Garcia. In his affidavit, Meyers states that he received the requests from Toone, packaged the videotapes and magazines, and would personally deliver the items. No third parties were necessary to the completion of the delivery. This delivery was under the total control of the government.

Accordingly, we conclude that the federal search warrant based on the postal inspector's affidavit was valid. Because the federal officers were properly on the premises, the seizure of the cocaine was legal.

B. Reverse Silver-Platter Doctrine

Alternatively, assuming arguendo, that the cocaine seizure did violate Texas law, we hold that because the federal search warrant was valid, the cocaine may be used in a state proceeding. To reach this conclusion, we review the "silver-platter" doctrine and illustrate how, in Toone's case, the reverse applies.

Historically, federal standards for lawful searches and seizures were usually more protective than the standards followed by the states. Because state officers were not subject to the Fourth Amendment and the exclusionary rule, the...