Opinion
NO. 01-18-00668-CR
07-28-2020
JAMES W. CLEVELAND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1529355
MEMORANDUM OPINION
In this drug trafficking case, the sole issue on appeal is whether the State's primary evidence was legally seized from the defendant's apartment. In November 2016, peace officers executed a no-knock warrant to search the apartment of James W. Cleveland. In their search, the officers found cocaine and other evidence of drug trafficking. As a result, Cleveland was charged with felony possession with intent to distribute cocaine. See TEX. HEALTH & SAFETY CODE § 481.112(a), (d). After his indictment, Cleveland filed a motion to suppress the evidence seized from his apartment, which the trial court denied. Cleveland then pleaded guilty, and the trial court signed a judgment of conviction sentencing him to 12 years' confinement.
On appeal, Cleveland argues that the trial court abused its discretion in denying his motion to suppress because the affidavit in support of the search warrant failed to establish probable cause and failed to justify the no-knock entry. We hold that the affidavit set forth substantial facts establishing probable cause to search Cleveland's apartment, including importantly the fact that the affiant officer had used a confidential informant to purchase cocaine from Cleveland's apartment on two separate occasions shortly before the warrant was issued. We further hold that, even if the no-knock entry in this case was unjustified, suppression of the evidence was not the appropriate remedy because no causal connection existed between the officers' manner of entry and seizure of evidence from Cleveland's apartment.
Therefore, we affirm.
Background
This appeal concerns a magistrate's ruling that a peace officer's affidavit established probable cause to conduct a no-knock search of an apartment. The material facts are simple and undisputed.
On October 29, 2016, Houston Police Department Officer M. Parker filed an affidavit requesting a warrant to search the apartment of an unknown black male (later identified as Cleveland) for cocaine and related paraphernalia. Parker further requested authorization to enter the apartment without first knocking and announcing his identity and purpose.
In support of his warrant request, Parker explained that he had received a tip that narcotics trafficking was occurring at the apartment. He then investigated the alleged trafficking with the help of a "credible and reliable" confidential informant who had provided him with "true and correct" material information in "numerous" prior narcotics investigations. Parker went on to discuss the investigation in detail. Most relevant here, Parker stated that, in the ten-day period preceding the submission of his affidavit, he observed and oversaw the CI's purchase of cocaine from the suspect at the apartment on two separate occasions. Parker therefore concluded probable cause existed to search the apartment.
In support of his request to make a no-knock entry, Parker explained that he believed knocking and announcing would be dangerous, futile, or would inhibit effective investigation of the offense for four reasons. First, Parker had observed the occupants of the apartment utilizing the front window overlooking the stairwell to observe unknown persons approaching the apartment by peeking through the blinds. Second, the apartment was situated in a manner that offered the occupants a clear vantage point to observe law enforcement officers' approach. Third, HPD knew the apartment complex to be a high-crime area ridden with narcotics, prostitution, and other criminal activity. Fourth, the victim of a recent shooting told HPD officers that the suspect might be residing at or near the targeted apartment. Parker further noted that the firearm involved in the shooting had not been recovered (indicating that the suspect might be armed and dangerous).
The magistrate issued the requested search warrant, which expressly authorized Parker to make a no-knock entry.
Three days later, Parker and two other officers executed the search warrant. The officers made a no-knock forcible entry as authorized by the warrant. After entering, they seized cocaine and other evidence of drug trafficking. Cleveland was charged with felony possession with intent to distribute cocaine. See id.
Cleveland filed a pretrial motion to suppress the evidence obtained during the search, arguing that Parker's affidavit failed to set forth facts sufficient to (1) establish probable cause or (2) justify the no-knock entry. The trial court denied Cleveland's motion. Cleveland then pleaded guilty to the charged offense. The trial court accepted Cleveland's plea and signed a judgment of conviction sentencing him to 12 years' confinement.
Cleveland appeals.
Motion to Suppress
In a single issue, Cleveland contends the trial court abused its discretion in denying his motion to suppress.
A. Standard of review
We review a ruling on a motion to suppress evidence for an abuse of discretion. State v. Tercero, 467 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). When we review a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id. We view the evidence in the light most favorable to the trial court's ruling. Id. The trial court is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id. The trial court may choose to believe or disbelieve any part or all of a witness's testimony. Id. We sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Id.
B. Analysis
Cleveland contends the trial court abused its discretion in denying his motion to suppress for two reasons. First, Cleveland contends that Parker's affidavit failed to set forth facts sufficient to establish probable cause. Second, Cleveland contends that Parker's affidavit failed to set forth facts sufficient to justify the no-knock entry. We consider each contention in turn.
1. Probable cause
We begin with Cleveland's contention that Parker's affidavit failed to establish probable cause.
Under Texas criminal law, a search warrant may be obtained from a magistrate only after submission of an affidavit setting forth substantial facts establishing probable cause. TEX. CODE CRIM. PROC. art. 18.01(b). "Probable cause exists if, under the totality of the circumstances set forth in the affidavit before the magistrate, there is a 'fair probability' that contraband or evidence of a crime will be found in a particular place at the time the warrant is issued." State v. Jordan, 342 S.W.3d 565, 568-69 (Tex. Crim. App. 2011). In determining whether the affidavit meets this burden, the magistrate should interpret it "in a non-technical, common-sense manner" and "draw reasonable inferences from the facts and circumstances contained within its four corners." Id. at 569.
We give great deference to a magistrate's determination of probable cause. Id. When reviewing such a determination, our duty "is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Id.; see also Illinois v. Gates, 462 U.S. 213, 239 (1983) ("An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause.").
In his affidavit, Parker stated that he investigated the alleged narcotics trafficking at Cleveland's apartment with the help of a reliable CI. Most notably, Parker stated that he observed the CI purchase cocaine from Cleveland at the apartment on two separate occasions during the ten-day period preceding his affidavit's submission. From these statements, the magistrate could have determined there was fair probability that cocaine and other evidence of narcotics trafficking would be found at Cleveland's apartment at the time of the warrant's issuance. See Patterson v. State, 138 S.W.3d 643, 648-49 (Tex. App.—Dallas 2004, no pet.) (holding affidavit established probable cause for issuance of search warrant for defendant's residence when affidavit stated that CI had given reliable information to law enforcement officer on more than two prior occasions, had been in premises to be searched within last 48 hours, had seen methamphetamine there, was familiar with methamphetamine, and methamphetamine was being sold).
We hold that the magistrate had a substantial basis for concluding that probable cause existed for the search of Cleveland's apartment. See Jordan, 342 S.W.3d at 569.
2. Knock-and-announce
We now turn to Cleveland's contention that Parker's affidavit failed to set forth facts sufficient to justify the no-knock entry.
Assuming without deciding the no-knock entry was unjustified, the illegal manner of entry would not show the trial court abused its discretion in denying Cleveland's motion. The suppression of evidence is not a proper remedy for a violation of the knock-and-announce rule unless the defendant proves the violation was the unattenuated but-for cause of the seizure of evidence. See Hudson v. Michigan, 547 U.S. 586, 592 (2006); State v. Callaghan, 222 S.W.3d 610, 613 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). Here, no causal connection existed between the officers' manner of entry and seizure of evidence. Officer Parker obtained a valid search warrant authorizing seizure of cocaine and related evidence from Cleveland's apartment. Thus, regardless of their manner of entry, the officers would have executed the warrant and discovered the incriminating evidence in Cleveland's apartment.
We hold that the allegedly unjustified no-knock entry did not warrant suppression of the evidence because it was not the unattenuated but-for cause of the evidence's seizure. See Callaghan, 222 S.W.3d at 613-14 (holding that officers' violation of knock-and-announce rule before executing search warrant did not require suppression of evidence found in search as it was not unattenuated but-for cause of obtaining evidence).
Accordingly, we overrule Cleveland's sole issue.
Conclusion
We affirm.
Goodman
Justice Panel consists of Justices Lloyd, Goodman, and Hightower.