No. 07-06-0280-CR
October 17, 2008. DO NOT PUBLISH.
Appealed from the County Court at Law No. 2 of Henderson County; No. 2005-0854CL2; Honorable Nancy Adams Perryman, Judge.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
PATRICK A. PIRTLE, Justice.
Appellant, Jerry Wayne Bannister, was convicted of possession of a controlled substance, to-wit: anabolic steroids, and sentenced to 365 days confinement in the county jail and a fine of $1,000, with the period of confinement and $500 of the fine being suspended in favor of one year of community supervision. The controlled substance in question was found during a search of Appellant's residence, conducted pursuant to a search warrant issued on the basis of an affidavit from Kevin Hanes, an investigator with the Henderson County Sheriff's Office. By two issues, Appellant contends the trial court erred by (1) denying his request for a Franks v. Delaware hearing concerning the truthfulness of allegations contained in Hanes's affidavit, and (2) overruling his motion to suppress. We reverse and remand. By his second issue, Appellant maintains the affidavit in support of the search warrant in question was deficient under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Texas Constitution, in three particulars: (1) proximity of time, (2) possession by Appellant, and (3) connection to the place to be searched. The affidavit, sworn to on May 4, 2005, reads in relevant part as follows:
1. THERE IS IN HENDERSON COUNTY, TEXAS, A SUSPECTED PLACE AND PREMISES DESCRIBED AND LOCATED AS FOLLOWS: [A description of the location and description of the property follows.] This residence is located in Trinidad, Henderson County, Texas. Also including any vehicles located at said residence.
2. THERE IS AT SAID SUSPECTED PLACE AND PREMISES PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF TEXAS AND DESCRIBED AS FOLLOWS: Drug paraphernalia kept, prepared, or manufactured in violation of the laws of this State.
3. SAID SUSPECTED PERSONAL PROPERTY IS IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING PERSONS: Jerry Bannister, a white male and/or Jennifer Bannister, a white female.
4. Affiant HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS:
Affiant is Kevin Hanes, an Investigator with the Henderson County Sheriff's Office and a certified peace officer. Affiant reviewed copies of photographs, which were secured by a search warrant on May 3, 2005, from CVS in Athens, Texas. Affiant knows Jerry Bannister and has been able to identity him in several pictures. Those pictures show Bannister with three different people helping them with what appears to be a device or apparatus, designed or adapted to be used illegally to inhale marijuana.
Affiant has previous experience and training in drug investigations and in apprehending individuals who use drugs including marijuana. Affiant believes from the pictures that the above-described apparatus is in fact a form of a marijuana pipe, which is drug paraphernalia. Affiant has also seen marijuana in his experience as a peace officer and that one of the pictures shows what Affiant believes to be marijuana in the hand of Bannister. Affiant has assisted in the execution of a number of search warrants, has interviewed a number of individuals who used marijuana and has arrested a number of people for the offense of possession of marijuana and possession of drug paraphernalia. Affiant knows from his experience individuals that have drug paraphernalia do not destroy the same after the marijuana is gone.
Affiant has attached to this affidavit photocopies of five of the photographs which Affiant has viewed. These copies are incorporated by reference in this affidavit. [Five photographs were attached. Four photographs depict three different individuals wearing what appears to be an oxygen mask with a pipe-like device attached. Those photographs appear to have been taken at night. The fifth photograph (the relevance of which escapes this Court) depicts three individuals seated on two chairs. This photograph appears to have been taken during the daytime.]
In Affiant's experience individuals that have and maintain drug paraphernalia, take pride in the same and therefore do not want it destroyed. Affiant also know from his experience that paraphernalia is often stored or transported in vehicles.
Affiant believes the pictures he viewed were from the wedding reception of Bannister and Jennifer Bannister. Affiant has learned they were married on April 23, 2005. Affiant is familiar with the home of Bannister. The pictures Affiant has viewed are pictures taken of the home, carport and outbuildings of Jerry Bannister. Affiant has been to the above-described residence, carport and outbuildings and it is the same residence, carport and outbuildings where Jerry Bannister presently lives.
On this date, Affiant went by the above described residence, carport and outbuildings and saw that the wedding decorations are still present.
Affiant believes based upon his training and experience and the foregoing, that the smoking apparatus or paraphernalia will still be present at the residence, carport, outbuilding or vehicle(s) belonging to Jerry Bannister or his wife, Jennifer Bannister. Affiant knows such paraphernalia is against the law and requests a search warrant to search the above described residence, carport, and outbuildings for the same.
Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Ramos v. State, 934 S.W.2d 358, 363 (Tex.Crim.App. 1996); Cassias v. State, 719 S.W.2d 585, 587 (Tex.Crim.App. 1986) (emphasis added). When the facts and circumstances within the knowledge of the affiant, arising from a reasonably trustworthy source, would warrant a person of reasonable caution to believe that the items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place. Id. A search warrant affidavit must be read in a common sense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances contained within the four corners of the affidavit. Id. at 587-88. We must decide whether under the totality of the circumstances the information contained in the affidavit is such as to provide a "substantial basis" to support the magistrate's finding that a cautious person would be warranted in the belief that drug paraphernalia would presently be found on the premises described. Illinois v. Gates, 462 U.S.213, 225-39,103 S.Ct. 2317, 2325-33, 76 L.Ed.2d 527 (1983). At the Time the Warrant Is Issued
An affidavit that does not provide a substantial basis for a magistrate to conclude that the object of the search is presently located at the place to be searched, does not establish sufficient probable cause for the issuance of a search warrant. Id. The only information provided by the affidavit at issue concerning the temporal connection between the object of the search (drug paraphernalia) and the place to be searched (Appellant's residence) is the Affiant's belief that the pictures were from a wedding reception that Affiant believed occurred some twelve days prior to presentment of the affidavit to the magistrate. However, the affidavit offers no support whatsoever for Affiant's conclusion that the photographs were from Appellant's wedding reception. Furthermore, assuming the photographs were from the wedding reception, the affidavit contains no statement as to when the wedding reception took place, nor does he postulate why he believes the paraphernalia would still be located at the place where the photographs were taken. In order to reach the conclusion the State supports, i.e. that the photographs were taken at Appellant's residence on or near the date Appellant was married (April 23rd), the magistrate would have to place inference upon inference just to conclude the events depicted occurred some twelve days prior. If you then inferred that the item depicted was contraband, and you assumed that Appellant stored the contraband on the premises depicted and that the contraband had not been removed, you might reach the conclusion that the object of the search was located on the premises to be searched at the time the warrant was issued. Such inference, upon inference, upon inference is not probable cause. Possession of Contraband by Appellant
In the affidavit in question, Affiant makes the statement that "one of the pictures shows what Affiant believes to be marijuana in the hand of Bannister." Notwithstanding the fact that an examination of the photograph belies that position, there is nothing in the affidavit to support any conclusion that the apparatus depicted was used or intended for use in ingesting, inhaling, or otherwise introducing marijuana into the human body. See Tex. Health Safety Code Ann. § 481.002 (17)(L) (Vernon 2003). The Affiant's conclusion that the apparatus depicted is contraband is nothing more than mere suspicion. Without a connection to the use of a controlled substance, the assumption that the object depicted is a "smoking apparatus used or intended to be used to ingest marijuana" is non-existent. At the Place to be Searched
Based upon "his experience," the Affiant posits that paraphernalia is "often stored or transported in vehicles." The affidavit says nothing about whether paraphernalia is also stored in residences, carports, or outbuildings; however, he reaches the conclusion that the smoking device depicted in the photographs "will still be present at the residence, carport, outbuilding, or vehicle(s) belonging to [Appellant] or his wife." This conclusion is based on pure conjecture both as to issue of storage and as to the continued storage in the same location over an extended period of time. As such, it fails to establish a reasonable basis upon which to conclude that drug paraphernalia could be found at Appellant's residence. To conclude that the apparatus depicted was illegal drug paraphernalia and that the paraphernalia was stored at Appellant's residence at the time the warrant was issued, one would need to base inference upon inference upon inference. Such information might suffice to corroborate an informant's first hand tip, thus combining to establish probable cause; however, it does not by itself provide anything more than the Affiant's mere suspicion that contraband might be found there. A search warrant issued upon such feeble premises provides no constitutional protection whatsoever. Because the affidavit in question does not provide sufficient probable cause to justify the issuance of the warrant in question, Appellant's second issue is sustained. Disposition of Appellant's second issue pretermits consideration of his first issue. Accordingly, the trial court's judgment is reversed and this cause is remanded for further proceedings consistent with this opinion. Quinn, C.J., concurring. Campbell, J., dissenting.
BRIAN QUINN, Chief Justice.
Concurring Opinion
I concur in the decision to reverse and remand the cause for the following reason. The court in Harris v. State, 227 S.W.3d 83, 85 (Tex.Crim.App. 2007) outlined what a defendant must show in order to be granted a Franks hearing. That is a defendant must 1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false, 2) accompany these allegations with an offer of proof stating the supporting reasons, and 3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant. Id. In the case at bar, appellant pointed out the portion of the affidavit that he believed was false; he contended that the pictures attached to the affiant's affidavit were not of appellant's house as stated in the affidavit. Appellant then accompanied his allegations with an offer of proof consisting of pictures of his actual home which home appears to be different from the one in the affiant's pictures. And, finally, in excising the pictures of the house at which appellant allegedly possessed drug paraphernalia from the affidavit, the remaining content of the affidavit is insufficient to support the issuance of the warrant based on the fact that there is probable cause that drug paraphernalia would be found at appellant's home. Therefore, I conclude that appellant established his right to and the trial court should have held a Franks hearing. Harris, 227 S.W.3d at 85. Accordingly, I reverse the judgment and remand the case for further proceedings.
JAMES T. CAMPBELL, Justice.
DISSENTING OPINION
My colleagues agree that the trial court's judgment must be reversed, but have different reasons for their conclusion. Respectfully disagreeing with both their opinions, I would affirm the trial court's judgment, and thus must dissent from the Court's judgment reversing the trial court. Franks hearing Chief Justice Quinn finds persuasive appellant's contention the trial court reversibly erred by not giving him a hearing on his Franks motion. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Although I agree trial courts should err on the side of giving, rather than denying, hearings, I believe the trial court here did not abuse its discretion by denying appellant a Franks hearing. Appellant's motion for a Franks hearing asserted the investigator's affidavit contained two false statements, made deliberately or with a reckless disregard for the truth. The motion attacked the investigator's statement, "Affiant is familiar with the home of [appellant]. The pictures Affiant has viewed are pictures taken of the home, carport and outbuildings of [appellant]. Affiant has been to the above-described residence, carport and outbuildings and it is the same residence, carport and outbuildings where [appellant] presently lives." The motion asserted the photographs were not taken at appellant's home but at another home. Appellant appended to his motion additional photographs of his home and of the home at which the motion said the photographs incorporated into the search warrant affidavit were taken. Assuming that the motion and its appended photographs provide a sufficient preliminary showing that the affidavit's statement that the photographs the affiant viewed were taken at appellant's residence was false, I nonetheless would find the motion gave the trial court no basis for a conclusion the investigator made the false statement deliberately or with reckless disregard for the truth. I do not believe we can infer from the photographs themselves that the affidavit was made with a reckless disregard for the truth. See Cates v. State, 120 S.W.3d 352, 357-58 (Tex.Crim.App. 2003) (motion gave statement of reasons supporting assertion officer knew information in affidavit was false, thereby satisfying Franks); Dancy v. State, 728 S.W.2d 772, 782-83 (Tex.Crim.App. 1983) (applying requirement of intentional or reckless false statement). See generally George E. Dix Robert O. Dawson, Texas Practice: Criminal Practice and Procedure §§ 6.38, 6.42 (2d ed. 2001) (discussing Franks requirement that false statement be made with accompanying mental state). Without a statement of reasons, appellant's assertion a false statement was made deliberately or with reckless disregard for the truth was merely conclusory. Cates, 120 S.W.3d at 355 (to be entitled to a hearing, a defendant must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; the challenger's attack must be more than conclusory). Appellant's Franks motion also challenged as false the investigator's statement, "Affiant has also seen marijuana in his experience as a peace officer and that [sic] one of the pictures shows what Affiant believes to be marijuana in the hand of [appellant]." Appellant attached to his motion an enlarged copy of the photograph referred to in the affidavit. His motion asserted the enlarged copy "clearly show[s] that Affiant could not identify anything in [appellant's] hands much less marijuana." The photograph shows appellant and another man. The other man is wearing the mask apparatus and appellant is holding one hand under the bowl of the pipe while reaching toward the bowl with his other hand. It appears appellant is holding something in his extended fingers, about to place the item in the pipe. From the copies of the photographs in the appellate record, we agree it is difficult to identify what, if anything, appellant is holding in his fingers. The statement in the affidavit, however, is that the picture shows "what Affiant believes" to be marijuana. Even the enlarged photograph, which the investigator of course had not seen when he signed the affidavit, does not disprove that appellant is holding marijuana. And, given the nature of the pictured apparatus and the context of the photograph, his stated belief that appellant is shown holding marijuana is not unreasonable. I conclude the trial court reasonably could have found that appellant's Franks motion did not make a substantial preliminary showing that the statement regarding marijuana in the affidavit was false. Even if I am mistaken in that conclusion, I would conclude further that deleting the statement from the affidavit would not have rendered it insufficient to support issuance of the search warrant. The warrant sought drug paraphernalia, not marijuana. For those reasons, I would find the trial court did not abuse its discretion by denying a Franks hearing. Probable cause Although the magistrate's determination of the existence of probable cause for the issuance of the warrant necessarily was made solely from his review of the officer's affidavit and its accompanying photographs, and we have the same information in front of us, our review of the magistrate's decision to issue the warrant is not de novo, but one in which we must give great deference to the magistrate's finding of probable cause. Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App. 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004) (Cochran, J., dissenting). See also Gates v. Illinois, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting "that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of a de novo review. A magistrate's `determination of probable cause should be paid great deference by reviewing courts'"). I would find that the affidavit and photographs gave the magistrate here a substantial basis to conclude there was a fair probability that drug paraphernalia would be found at appellant's residence. See Rodriguez, 232 S.W.3d at 60 (describing probable cause and standards for review of issuance of warrant). The affidavit told the magistrate that the peace officer affiant knew appellant, and had been to appellant's home and was familiar with it; that the photographs depicting the presence of the device were taken at appellant's home; that the affiant had "learned" appellant was married on April 23; that on the date of the affidavit, May 4, the affiant saw wedding decorations at appellant's home; and that the photographs had been obtained from "CVS in Athens, Texas" by search warrant on May 3. The affidavit stated the affiant's belief that the photographs were taken at appellant's wedding reception. Justice Pirtle is correct that the affidavit and photographs do not demonstrate that the photographs were taken at the wedding reception, or that they were taken on April 23. But the photographs depict an apparent social gathering of some kind, and, given the other information presented to the magistrate, I think an inference agreeing with the officer's belief that the photographs were taken at the wedding reception was reasonable. Appellant also argues that the magistrate could draw no inference about the date the photographs were made from the fact they were seized from a photo processor on May 3. He points out that film may be taken to a processor months, if not years, after the photographs were taken. The argument reflects the kind of second-guessing that is improper under the standard of review that binds us here. Rodriguez, 232 S.W.3d at 60-61; Davis v. State, 202 S.W.3d 149, 157 (Tex.Crim.App. 2006). See also Brown v. State, 243 S.W.3d 141, 145 (Tex.App.-Eastland 2007, pet. ref'd) citing Gates, 462 U.S. at 235-36 (judicial review must take into account that many warrants are issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than that used in formal legal proceedings). Certainly photos may be processed long after they were taken, and many of us have delayed having photos processed for months or years. Many people, however, do not engage in that kind of delay, and I think the magistrate was entirely free to draw the inference that these photographs were at the processor because they were recently taken. In my judgment, the magistrate was not required to infer anything to conclude the mask device appearing in the photographs likely constituted an item of drug paraphernalia. That conclusion simply required the magistrate to apply his common sense to the scenes depicted in the photographs. Appellant is seen in the photographs assisting three different people with an apparatus similar to a gas or oxygen mask with a pipe attached. Each of the three people appellant is assisting is wearing the apparatus, its mask covering the wearer's nose and mouth. In one photograph, appellant appears to be placing something in the bowl of the pipe. In another, appellant appears to be lighting the pipe. Further, the officer's affidavit stated he had experience and training in drug investigations, and stated his belief that the apparatus was a form of "marijuana pipe." The affidavit also described the apparatus as appearing to be "a device or apparatus designed or adapted to be used illegally to inhale marijuana." The affidavit and photographs gave the magistrate ample basis for a conclusion the apparatus was drug paraphernalia. Appellant argues none of the photographs depict him exercising actual care, custody, control or management of the mask. I disagree. One of photographs shows him adjusting the straps of the mask around the head of another person, actions that constitute control of the mask. Further, as depicted in the photographs, the mask device was not a consumable or perishable item, but one of "enduring utility to its holder." Swearingen, 143 S.W.3d at 813 (Cochran, J., dissenting) quoting Andresen v. State, 24 Md.App. 128, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975). The magistrate could infer that its holder would keep it following its use on the occasion shown in the photographs. Granted, an inference that appellant was the holder was required. But, again, I think the information given the magistrate permitted such a reasonable inference. The magistrate was told the device was being used at appellant's home. The photographs showed three different people wearing the mask, but appellant was the common denominator in the photographs, assisting each of the three people with its use. Of those shown in the photographs, appellant had the most frequent contact with the device. Case law reminds us that probable cause deals with probabilities. Rodriguez, 232 S.W.3d at 62. See also Dixon v. State, 206 S.W.3d 613, 619 n. 20 (Tex.Crim.App. 2006), citing Gates, 462 U.S. at 231 ("[i]n dealing with probable cause, as the very name implies, we deal with probabilities"). Probable cause cannot be founded on merely conclusory statements of the affiant's belief. Rodriguez, 232 S.W.3d at 61. Here, the affidavit and photographs provided the magistrate substantially more information than such conclusory statements. Considering the totality of the circumstances presented by the affidavit and its attached photographs, and given the deference we owe to the magistrate's determination of probable cause, I would find the magistrate had a substantial basis for a common-sense conclusion that the device sought by the warrant probably still could be found at appellant's residence. See Rodriguez, 232 S.W.3d at 62 (stating standard). Based on the foregoing, I would affirm the trial court's judgment. Because the Court does not, I respectfully dissent.