Opinion
No. 12-04-00307-CR
Opinion delivered March 23, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law of Houston County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
MEMORANDUM OPINION
In one issue, the State of Texas appeals the trial court's suppression of evidence seized during the execution of a combination search and arrest warrant. We affirm.
Background
On July 25, 2003, Texas Alcoholic Beverage Commission Officers Scott Zella and Ben Gardner presented a form "Texas Alcoholic Beverage Commission" affidavit for a warrant for search and arrest to a magistrate in Houston County, Texas. The affidavit identified the premises to be searched as a certain building or private dwelling located in Houston County, Texas, described as a white, two story, woodframe structure located at the corner of M.L.K. and Hall street in the city limits of Crockett, Tx. The structure is located on the west side of M.L.K. and the south side of Hall street [and] . . . is a place where alcoholic beverages are unlawfully possessed, sold, manufactured, kept and stored in violation of the provisions of the Alcoholic Beverage Code where equipment and instrumentality used for, capable of use for, and designed for use in the manufacturing of illicit beverages containing alcohol in excess of one-half of one percent by volume are kept, stored and possessed. . . . The affidavit further stated that the premises were "occupied by, in charge of and under the control of an unidentified black male to be positively identified at a later time." Zella and Gardner also verified that being certified Texas peace officers "worthy of belief," they used a confidential informant to enter the premise [sic] described [in the description portion of the warrant]. On 07/25/2003 at approximately 6:00 p.m., the confidential informant purchased a 12 ounce bottle of Budweiser beer from an unidentified black male to be identified later. The confidential informant paid a total of $1.25 for the alcoholic beverage. The confidential informant exited the location with the alcoholic beverage and it was confirmed to be an alcoholic beverage. . . . A records check through the Texas Alcoholic Beverage Commission showed no permit or license to sell alcoholic beverages. Below this statement in the affidavit, the magistrate signed her name and noted that she was verifying the affidavit at 6:45 p.m. on July 25. At the bottom of the same page, the warrant portion of the form commands any peace officer to search the described premises and seize any alcoholic beverages "unlawfully kept, stored, possessed, and sold" and any "equipment and instrumentalities" used for the sale or manufacture of such alcoholic beverages. The warrant also commands any peace officer to arrest the "saidunidentified black male(s) the person ____ accused of the unlawful possession, sale and manufacture of such alcoholic beverages and equipment, and any other person found in unlawful possession thereof." At the conclusion of the arrest warrant, in the space provided for the magistrate's signature, the warrant states, "Witness my hand, this 25 day of July A.D.Did the Trial Court Err by Granting the Motion to Suppress?
In its sole issue, the State contends that the trial court erred in suppressing the evidence seized after the warrant was executed because the description of the property to be searched satisfied the requirements of Article 18.04 of the Texas Code of Criminal Procedure. Duncan argues that the trial court did not err in suppressing both the evidence seized during the search and Duncan's arrest because 1) the affidavit for the search and arrest warrant lacked sufficient probable cause, thereby authorizing a mere "fishing expedition," and 2) the warrant was unsigned by the magistrate; therefore, no determination can be made as to whether probable cause was found. Before discussing whether the facts contained in the affidavit support a determination of probable cause by the magistrate, we must first note that a search warrant is sufficient if it contains the following requisites:1) that it run in the name of "the State of Texas";
2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched;
3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and
4) that it be dated and signed by the magistrate.Tex. Code Crim. Proc. Ann. art. 18.04 (Vernon Supp. 2004-2005) (emphasis added). Article 15.02 of the Texas Code of Criminal Procedure mandates that an arrest warrant shall be sufficient if it has, inter alia, the signature of the magistrate. Tex. Code Crim. Proc. Ann. art. 15.02(3) (Vernon Supp. 2004-2005). However, as Duncan points out, the warrant in the case at hand was not signed by the magistrate. An analogous situation was addressed in Miller v. State, 703 S.W.2d 352 (Tex.App.-Corpus Christi 1986, pet. ref'd). In Miller, the search warrant in question was printed on the back side of the affidavit in support of the warrant. Id. at 353. The search warrant was not signed by the magistrate; however, the affidavit in support of the warrant was signed by the magistrate "in his capacity as an officer of the state who is authorized to administer an oath, not for the purpose of signing the search warrant." The court reasoned that because article 18.04(4) required the signature of the magistrate, the search warrant was invalid and the evidence obtained through the invalid search warrant should have been suppressed. Id. at 353-54 (emphasis in original). The court also held that the "good faith exception" to the exclusionary rule as announced in United States v. Leon, 468 U.S. 897, 921, 104 S. Ct. 3405, 3419, 82 L. Ed. 677, 697 (1984) was inapplicable to the facts in that case because the warrant was so facially deficient. Id. at 354. The facts of the instant case are also similar to those in Dunn v. State, 951 S.W.2d 478, 480 (Tex.Crim.App. 1997). In Dunn, the appellant argued that his arrest was illegal because the arrest warrant was not signed at the time of his arrest, in violation of article 15.02 of the Texas Code of Criminal Procedure. The record at the hearing on the motion to suppress reflected that the magistrate was presented with twenty pages of affidavits and warrants. After determining that probable cause existed for all of the warrants, including Dunn's arrest warrant, the magistrate signed nineteen of the twenty pages. Id. at 479. The one page he did not sign was Dunn's arrest warrant. The mistake was not discovered until after Dunn had been arrested. Upon realizing the error, the magistrate's signature was immediately obtained. Id. The court of criminal appeals stated that Dunn correctly asserted that the arrest warrant was not in compliance with article 15.02(3). The court also noted that article 38.23(a) of the Texas Code of Criminal Procedure excludes evidence obtained by an officer or other person in violation of any provision of the constitutions or laws of the State of Texas and the United States of America. Id. However, the court looked to article 38.23(b), which provides that "[i]t is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause." With this statute in mind, the court stated that the record established that Dunn was arrested by officers acting in objective good faith reliance on a warrant based on probable cause and issued by a magistrate. The court also stated that the record reflected the magistrate found probable cause to issue the warrant, signed the accompanying warrants, and intended but inadvertently failed to sign appellant's arrest warrant. This appears to be exactly the type of situation intended to be covered by article 38.23(b). Evidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate's determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution. After taking all of the facts surrounding the failure to sign the warrant into consideration, the court held that Dunn's arrest warrant had issued for purposes of the good faith exception of article 38.23(b). Id. The facts of the instant case are most analogous to those in Miller. Although the court in Dunn found that the record reflected that the magistrate "intended but inadvertently failed" to sign the arrest warrant, the scant record in this case does not illuminate any such intentions of the magistrate nor does it show that any effort was made to obtain the magistrate's signature after Duncan was arrested. The search and arrest warrant was the only piece of evidence introduced at the hearing, and it does not include a signature by the magistrate. Furthermore, the State did not argue or brief at the trial court, or in this court, any contention that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant. The State has therefore waived any such argument. See Tex.R.App.P. 33.1. We agree with Duncan's contention that the warrant was unlawful and hold that the trial court did not err by excluding the evidence of Duncan's arrest and any evidence seized during the search of the premises. See Tex. Code Crim. Proc. art. 38.23(a) (Vernon Supp. 2004-2005).