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Ashlie Nicole POWELL, Appellant v. The STATE of Texas, Appellee
When police initiate an investigation after receiving a tip from a first-time, confidential source, police may confirm the material facts received in the tip by using an independent investigation that, should it corroborate the tip, allows police to obtain a search warrant to search the place police suspect they will find evidence of a crime.1 In these two cases, the appellant challenges the trial court's ruling that an affidavit police filed to support their request for a search warrant was sufficient to demonstrate police had probable cause to conduct the search of a residence in which they discovered illegal drugs. The affidavit police filed to support their request for the warrant reflects police initiated the investigation of the residence after they received a tip from a first-time confidential source, a tipster, who according to the appellant, the affidavit failed to show had given police reliable information in the past.
On appeal, Ashlie Nicole Powell seeks to overturn her convictions for possession with the intent to deliver methamphetamine and for possession with the intent to deliver cocaine.2 She argues the convictions hinge on the trial court's rulings denying the motions she filed to challenge various aspects regarding the validity of the search.3 We conclude Powell's arguments lack merit;4 thus, the judgments from which Powell appeals are affirmed.
In 2016, a grand jury indicted Powell for possession with the intent to deliver 400 grams or more of cocaine and possession with the intent to deliver between 200 and 400 grams of meth.5 Powell's convictions hinge on the admissibility of the cocaine and meth police discovered when police searched a residence controlled by Jamarlon Glenn (Glenn). In June 2014, after receiving a tip from a first-time, confidential source (a person police knew to use meth) police opened an investigation that focused on determining whether Glenn was using the residence to traffic in meth. According to the affidavit filed to support the search warrant, the tipster told police that three men, Glenn, Harold Glenn (Harold), and Valeman Patrick Coleman (Coleman) were trafficking in large quantities of meth in Liberty and Harris Counties. The tipster also told police where Glenn and Harold lived.
When police sought a search warrant, they supported the request with an affidavit signed by a peace officer employed by the Texas Department of Public Safety. The officer, whom we will refer to as “the agent,” stated in his affidavit that he works for a joint DEA drug task force, which he explained focuses on drug trafficking operations in the Houston area. The agent stated he has worked with the drug task force for the past fifteen years. According to the affidavit, in June 2014, a tipster (referred to in the affidavit as a confidential source) told the agent that Glenn, Harold and Coleman were trafficking in “kilogram quantities of crystal meth[ ].” The tipster also told the agent that Glenn, Harold and Coleman controlled the property where Glenn and Harold lived. The tipster related he bought meth from Coleman on prior occasions and stated Coleman acquired his meth from Howard who, in turn, acquired it from Glenn.
The agent did not apply for the search warrant based solely on the tip. Instead, the agent reviewed records relevant to the criminal backgrounds of the men the tipster identified as the men involved in trafficking illegal drugs. In that part of his investigation (according to the affidavit), the agent learned the three men all had been arrested or convicted for either possessing or for selling illegal drugs. Harold had the more extensive criminal history—four convictions for delivering cocaine and a conviction for engaging in organized crime. On the other hand, Coleman had a conviction in 2012 for possessing a controlled substance, but the affidavit does not describe the substance involved. Glenn had one prior arrest on an offense involving an illegal drug, but the affidavit does not describe the date of that arrest or the nature of the charge involved.
The affidavit describes a surveillance operation by the drug task force in August 2014, which occurred where the tipster told the agent Glenn lived. The surveillance operation, as described by the affidavit, involved an undercover police officer posing as someone wanting to buy around $3000 of meth. Coleman and the undercover officer went to the property that the tipster told the agent Glenn and the other two men controlled. When there, the undercover officer waited in a nearby vehicle while Coleman entered Glenn's yard with money the undercover officer gave him to buy meth. The video, according to the affidavit, shows Coleman walking from the undercover officer's vehicle into Glenn's backyard and then interacting with Glenn near the back door. Minutes later, according to the affidavit, Coleman returned with a cup that he handed to the undercover officer. The cup had a substance inside, which testing by police showed was crystal meth. The affidavit states the substance in the cup weighed 115 grams.
Police asked a magistrate in Liberty County to issue a search warrant within twenty-four hours of the time the undercover officer purchased the meth. Police then used the search warrant to search Glenn's residence that same day. After entering the residence using the search warrant, police discovered cocaine and meth, the illegal drugs at issue in Powell's appeal. Police arrested Glenn and Powell at Glenn's home.
Based on the illegal drugs police discovered in the search, the State indicted Powell for the two felony crimes described above. Before trial, Powell moved to suppress the evidence police obtained when they searched Glenn's home. Powell filed two motions that are relevant to her appeals, a motion to suppress and a separate motion challenging the credibility of the statements in the affidavit police used to support their request for the search warrant they relied on when they searched Glenn's home. Challenging the truthfulness of the statements the agent included in the affidavit, Powell's motion alleges that some of the agent's statements are false and were made by him with at least a reckless disregard for the truth. The focus of Powell's challenge to the agent's credibility focuses on two of the sentences in the affidavit. Relying on the United States Supreme Court's decision in Franks,6 Powell argues the trial court should have excised both after finding them false and made in reckless disregard of the truth.
We quote the paragraph the sentences are in for context but italicize the two sentences that are the focus of Powell's motion. The paragraph in the affidavit that contains the sentences Powell sought to have the trial excise states:
Within the last twenty-four (24) hours, your Affiant along with other members of DEA HIDTA H-33 conducted a buy/walk operation utilizing an undercover Police Officer. The undercover Police Officer posed as a methamphetamine trafficker and was dealing directly with COLEMAN who was acting as a broker between the undercover Police Officer and JAM[A]RLON GLENN. Subsequently, VALEMAN COLEMAN met with the undercover Police Officer at ․ [ ]GLENN's Residence[ ]. Once at GLENN'S residence, the undercover Police Officer gave COLEMAN $2900.00 of DEA Imprest Funds in exchange for approximately 115 grams of crystal methamphetamine. During the buy/walk operation, surveillance observed COLEMAN walk towards JAMARLON GLENN's residence. COLEMAN was observed meeting with JAMARLON GLENN by the back door of JAMARLON GLENN's residence (the suspect residence). Surveillance observed JAMARLON GLENN deliver a white cup to COLEMAN. This white cup was subsequently identified as the container containing approximately 115 grams crystal methamphetamine which field test positive as methamphetamine. A few minutes later COLEMAN was observed by surveillance returning to and entering the passenger side of the undercover vehicle. Once inside of the undercover vehicle, COLEMAN gave the undercover Police Officer the white cup containing the crystal like substance that the undercover Police Officer recognized as methamphetamine.
Powell coupled these complaints with three more. First, she argued the affidavit fails to describe facts sufficient to demonstrate the information the tipster provided the agent was reliable. Second, she argues the agent left facts out of his affidavit that she argues are material to evaluating probable cause. Last, Powell suggests that, after excluding the agent's false statement and the statements in the affidavit she argues are unreliable, the rest is insufficient to support a finding of probable cause.
The trial court conducted a suppression hearing to consider the arguments outlined above. The parties did not call any witnesses during the hearing. Yet the reporter's record from the hearing shows Powell requested, and the trial court agreed, to review the surveillance video of the undercover operation before ruling on Powell's motions. When the hearing concluded, the trial court took Powell's motions under advisement.
When the court ruled on Powell's motion, it overruled all of Powell's arguments but one. The trial court agreed to excise the sentence in the agent's affidavit stating “[s]urveillance observed JAMARLON GLENN deliver a white cup to COLEMAN.” In its order, the trial court found that sentence unsupported by the surveillance video and found the agent made the statement in reckless disregard for the truth. While the trial court struck that sentence, it refused to strike any others, including the sentence that “COLEMAN was observed meeting with JAMARLON GLENN by the back door of JAMARLON GLENN's residence (the suspect residence).” The trial court then denied Powell's motion to suppress and signed an order stating “the remaining facts, together with reasonable inferences that arise from such facts, provide a substantial basis for a finding of probable cause[.]”
About a year later, Powell pleaded guilty to possession with the intent to deliver both cocaine and methamphetamine in amounts between 4 and 200 grams 7 based on her plea agreements with State. To carry out the agreements, the trial court deferred finding Powell guilty, placed her on community supervision in each case for five years, and allowed her to appeal from the trial court's rulings on her pretrial motions.
In a single issue, Powell argues the trial court erred by finding the agent's affidavit supported the trial court's finding of probable cause. On appeal, Powell advances the same arguments she made at trial, which focus on the court's rulings on her Franks motion 8 and her motion to suppress. Because we must first decide whether the trial court erred when it denied parts of Powell's Franks motion to decide what statements the affidavit contains relevant to the question of probable cause, the issue she challenged in her motion to suppress, we address the ruling on the Franks motion before addressing her arguments on whether the affidavit demonstrates probable cause.
The Franks Ruling
The Texas and United States constitutions both require search warrants to be supported by evidence sufficient to establish probable cause.9 To establish probable cause, police must provide a magistrate with “facts and circumstances known to law enforcement officers [that] are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”10 Even when a magistrate issues a search warrant, the defendant may still challenge the truthfulness of statements in the affidavit police have used to support the warrant with evidence to show the affidavit contains false statements if those statements were made by the affiant with at least a reckless disregard for the truth.11
In an evidentiary hearing conducted on Franks motions challenging the truthfulness of statements in affidavits, the defendant has the burden to prove both that specific statements in the affidavit are false and that they were with at least a reckless disregard for the truth.12
Under the law, an affidavit signed by a peace officer supporting a request for a search warrant is presumably valid.13 But that presumption may be overcome if the defendant shows the affidavit contains statements that are untrue and made with an intentional knowing, or reckless disregard for the truth.14 When courts say an affidavit supporting a request for a search warrant must be “truthful,” however, courts do not require every fact in the affidavit to be within the affiant's personal knowledge.15 Rather, courts require statements in such affidavits to be “truthful” in the sense the affiant, when signing the affidavit, believed or accepted the information in the affidavit as true.16 Thus, when statements are shown to be untruthful based on simple negligence or inadvertence but not made by the affiant with at least a reckless disregard for the truth, the trial court need not strike the statements to review a magistrate's decision that an affidavit contains sufficient facts to support a finding of probable cause.17 In considering Franks rulings, we consider both the statements in the affidavit and the evidence admitted in hearings conducted on Franks motions to decide whether the trial court abused its discretion by finding statements true or untrue and if untrue, made with at least a reckless disregard for the truth.18
In pretrial motions, Powell argued the trial court was required to strike the two sentences we have emphasized in the paragraph quote above. Powell asked the trial court to assess whether the agent's statements were reckless based on nothing more than the surveillance video police obtained at Glenn's home. Turning to the sentence Powell complained about in the trial court and the trial court refused to strike, we have analyzed the video and agree with the trial court that the videotape does not to that statement, which describes the fact that Glenn and Coleman met at Glenn's residence and describing they met by the home's back door is a sentence that is false and made by the agent with a reckless disregard for the truth.
Generally, the facts shown in the video fit the agent's description of them. The affidavit describes a meeting that occurred by the back door of the home and describes Glenn and Coleman as the persons who met.19 The video fails to show the agent did not know what Glenn or Coleman looked like. What the video depicts is a man in a light-color shirt walking out of the back door of a house onto an elevated deck while Coleman approaches the house after he leaves the passenger side of a truck, parked a short distance away. Coleman walks up to the deck, stops and stands next to the deck with his feet on the ground. Glenn, who is standing on the deck, and Coleman then meet where Coleman is standing by the deck on the ground. After that, Glenn turns around and walks toward the back door. Before reaching the door, he stops and removes something from an object attached to the house, possibly an air-conditioner located under a window near the home's back door. After that, Glenn returns to the edge of the deck where Coleman remained. There is no audio associated with the video, and nothing in the videotape or the agent's affidavit suggests that those on the drug task force could hear what Coleman and Glenn discussed.
In our opinion, the inference that Glenn is the person on the deck is a reasonable one based on the background investigation the agent described. But even if we are wrong about that, the trial court could have rejected Powell's claim asserting the agent acted with reckless disregard for the truth by crafting an affidavit that leaves the impression the agent knew what Glenn looked like and could, from that knowledge, identify Glenn as the man he saw meeting with Coleman by the back door. Simply put, Powell's evidence does not show the agent could not identify Glenn.20
Next, Powell suggests the information in the affidavit, when compared to the video of the surveillance operation, demonstrates the agent left out facts material to a magistrate's deciding whether the affidavit is sufficient to demonstrate probable cause. The U.S. Supreme Court and the Texas Court of Criminal Appeals, however, have not yet decided whether omissions in affidavits used to support search warrants are cognizable claims that may be raised to contest a search warrant affidavit under the Supreme Court's ruling in Franks. Yet several courts have allowed such claims to be raised in trial courts and reviewed arguments about omitted facts in an appeal by applying Franks.21 For that reason, we will assume (without deciding) that Powell's claim alleging the agent omitted material facts from the search warrant affidavit is one that is subject to our review.
Even then, Powell's complaints alleging the agent omitted material facts still fails. According to Powell, the agent failed to mention the fact that people other than Glenn can be seen with Coleman in the video after Coleman entered Glenn's yard. We agree the affidavit fails to mention others were in Glenn's yard during the surveillance operation. That said, the video still shows Glenn and Coleman meeting at the back of Glenn's home and shows Coleman returning shortly after that meeting to the undercover officer's truck, where Coleman gave the officer 115 grams of meth. So while others were present in Glenn's yard, and Coleman can be seen interacting with them, those facts do not show Glenn and Coleman did not meet. Nor does the video show that Glenn was unaware of what was going on in his yard or show he never met with Coleman when Coleman came into his yard to purchase meth.
Powell also complains the affidavit fails to mention that trees and a mobile home obscured the agent's view from the surveillance shown in video. She argues the omission of this fact was material to the court's ruling on probable cause. While we agree the view captured on the video is sometimes obscured, but that fact does not show the statements in the affidavit are false or made with a reckless disregard for the truth. Without more, the fact Glenn and Coleman cannot be seen the entire time in the video does not show any facts in the affidavit are untrue.22 For instance, the affidavit does not state that Coleman and Glenn were the only men in the yard or that the camera had a clear view of them at all times.
The Probable Cause Finding
Powell's remaining arguments suggest that after taking out the facts she claims were false and unreliable, what remains does not support the trial court's finding of probable cause. When reviewing a challenge to a trial court's ruling on a motion to suppress, we employ a bifurcated standard of review.23 Under that standard, we give almost total deference to the trial court's rulings when they turn on questions of historical facts or when they turn on the trial court's evaluation of the credibility and demeanor of the witnesses who testified during hearings on the motions to suppress.24 While deferring to the trial court on those aspects of its ruling, we apply a de novo standard to determine whether the trial court applied the law correctly to the facts based on the information available from the four-corners of the affidavit.25
We rejected Powell's arguments suggesting the trial court erred by failing to strike more than the single sentence the trial court elected to strike. Having rejected Powell's other arguments aimed at striking other parts of the affidavit, we focus our analysis on the facts described in what's left without including the sentence the trial court chose to strike.26 In our review, we must decide whether the trial court applied the law correctly when it found that minus the one sentence, what remained established that police had probable cause to believe they would find evidence of criminal activity at Glenn's home.27 If so, we will uphold the trial court's ruling and affirm Powell's convictions.28 If not, we must suppress the evidence police obtained in the search.29
Powell supports her probable cause issue with four arguments, claiming (1) the information police obtained from the tipster was too stale to support a finding of probable cause; (2) the agent's affidavit contains no facts showing the police knew the tipster to be credible and reliable because the agent failed to describe facts to show the tipster had given police reliable information in the past; (3) Glenn's, Coleman's, and Harold's criminal histories do not support the trial court's finding of probable cause; and (4) the agent's affidavit does not describe enough facts to link Glenn's residence to the illegal activity the agent described.
We address each of these arguments in turn. Turning to Powell's suggestion claiming the affidavit was stale, the facts in the record show the search occurred within twenty-four hours of the drug task force operation at Glenn's home. The affidavit shows a person police believed was involved in drug trafficking, Coleman, returned to an undercover officer's vehicle after going to Glenn's residence with money to purchase meth. While there, he met with Glenn and returned shortly after that meeting to the undercover officer's vehicle with meth. We reject Powell's argument claiming the information in the warrant was too stale to support the trial court's finding of probable cause.
Next, Powell argues the agent's affidavit contains no information to show the tipster had given police reliable information in the past. While that's true, we focus on the totality of the circumstances in our review to decide whether the facts and inference available from the four-corners of the affidavit support the trial court's finding of probable cause. Here, the affidavit describes how police corroborated the material facts they received from the tipster through an independent investigation to learn whether Glenn was using his residence to traffic in meth. Coleman—who the tipster told the agent was involved in the trafficking operation—accompanied the undercover officer to Glenn's home, and then returned to the officer after buying meth at the residence after going there with an undercover officer who wanted to buy meth.
Under Texas law, police may corroborate a tip from a first-time confidential informant by conducting an independent investigation that corroborates the material information gathered in a tip.30 This is logical because “the concept of probable cause is a fluid one. It deals in probabilities, not certainties.”31 We conclude the independent investigation is a circumstance the trial court could consider in deciding whether the information provided by the tipster provided an additional circumstance that, along with the other facts the affidavit described, supports the trial court's finding that probable cause existed to support the search.32
Powell's last two arguments take a divide and conquer approach to the agent's affidavit. She isolates certain facts without discussing the circumstances and facts revealed by the affidavit when considered as a whole.33 When reviewing a trial court's finding of probable cause, we must not “invalidate a warrant by interpreting the affidavit in a hyper-technical manner.”34 Boiling it all down, we agree with the trial court finding that the agent's affidavit, even without the sentence the trial court excised, contains enough to support the trial court's finding of probable cause.35
We conclude Powell's arguments have no merit. Accordingly, we affirm the judgments in Trial Court Cause Numbers CR32456 and CR32457.
1. Compare State v. Duarte, 389 S.W.3d 349, 358 (Tex. Crim. App. 2012) (stating “tips from anonymous or first-time confidential informants of unknown reliability must be coupled with facts from which an inference may be drawn that the informant is credible or that his information is reliable”), with Angulo v. State, 727 S.W.2d 276, 280 (Tex. Crim. App. 1987) (holding that an anonymous tip, when coupled with an independent police investigation corroborating the tip, “provided the officers involved with sufficient probable cause” to support the warrant police obtained to conduct the search).
2. See Tex. Health & Safety Code Ann. § 481.112(d)-(f).
3. Police arrested Powell in the residence during the search. According to the affidavit police filed to support the warrant, the residence belongs to Jamarlon Glenn. Powell's brief states police arrested Powell and Jamarlon Glenn as a result of the search.
4. The briefs Powell filed raise identical arguments. The arguments in Powell's brief focus on the validity of the affidavit police filed to support the search warrant and whether it demonstrates probable cause; she has not argued the State failed to produce sufficient evidence to link her to the drugs police discovered in Glenn's home.
5. See Tex. Health & Safety Code Ann. § 481.112.
6. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that defendants may challenge the sufficiency of search warrant affidavits by showing (1) the statements in the affidavit are false, (2) the false statements were made by the affiant with at least a reckless disregard for the truth, and (3) without the these, the rest of the affidavit fails to establish that probable cause exists to support the requested search).
7. See Tex. Health & Safety Code Ann. § 481.112(d). We note that the judgment in Powell's meth case, Trial Court Cause Number CR32457, depends on her agreement to plead guilty to a lesser weight for the meth than the weight alleged in the indictment relevant to the charge that Powell possessed and intended to deliver meth.
8. See Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. We also note that we have construed Powell's brief liberally to give her the benefit of her arguments complaining both about the trial court's ruling on her Franks motion and her complaints that the trial court should have granted her motion to suppress. See Tex. R. App. P. 38.9 (requiring appellate courts to construe briefs liberally).
9. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007).
10. Marcopoulos v. State, 538 S.W.3d 596, 599-600 (Tex. Crim. App. 2017) (cleaned up).
11. See Franks, 438 U.S. at 171-72, 98 S.Ct. 2674.
13. Cates, 120 S.W.3d at 355.
14. See Franks, 438 U.S. at 165, 98 S.Ct. 2674.
16. See Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996).
17. Dancy v. State, 728 S.W.2d 772, 782-83 (Tex. Crim. App. 1987) (clarifying that a misstatement in an affidavit resulting from mere negligence in checking or recording facts relevant to probable cause determination “is beyond the pale of Franks”).
18. See Franks, 438 U.S. at 154-56, 98 S.Ct. 2674; Cates v. State, 120 S.W.3d 352, 355-57 (Tex. Crim. App. 2003).
19. We note the agent's affidavit identifies the location of the meeting as by the back door. (emphasis added). Webster's defines the term by as meaning “in proximity to[,]” and the definition for the word includes one that the word by means “NEAR.” Webster's Third New International Dictionary 306 (2002). From the video, it appears Coleman and Glenn meet around twelve to fifteen feet from the home's back door. Since the word by is not limited to a definition such as immediately adjacent to, it does not appear to us that the agent's description about the location of the meeting is false.
20. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. In its brief, the State did not argue the trial court erred by striking the agent's statement that he saw Glenn hand Coleman a white cup. Since the State has not complained about that part of the trial court's ruling, we need not decide whether we agree with it to resolve the arguments Powell presents in her briefs. Absent a complaint by the State about that aspect of the trial court's ruling, we do not include that sentence in evaluating whether the remaining facts in the affidavit support the trial court's finding on probable cause.
21. See United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980); McKissick v. State, 209 S.W.3d 205, 212-14 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd); Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref'd) (collecting cases); see also Massey v. State, 933 S.W.2d 141, 146 n.3 (Tex. Crim. App. 1996).
22. See Dancy, 728 S.W.2d at 782-83.
23. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—Fort Worth 2004, pet. ref'd).
24. Johnson, 68 S.W.3d at 652.
26. See Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App. 2019).
27. See State v. Cuong Phu Le, 463 S.W.3d 872, 878 (Tex. Crim. App. 2015).
28. Id. at 877.
29. See Franks, 438 U.S. at 156, 98 S.Ct. 2674.
30. See Le, 463 S.W.3d at 877-78, Angulo, 727 S.W.2d at 280.
31. Angulo, 727 S.W.2d at 280.
32. See State v. Griggs, 352 S.W.3d 297, 303-04 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (“[A]lthough the affidavit did not reflect that the informant had seen additional narcotics in the residence, the magistrate could have inferred that additional narcotics were in the residence from the facts provided.”).
33. See Le, 463 S.W.3d at 878.
34. Id. at 877.
35. See Angulo, 727 S.W.2d at 280.
HOLLIS HORTON, Justice
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Docket No: NO. 09-18-00434-CR, NO. 09-18-00435-CR
Decided: July 22, 2020
Court: Court of Appeals of Texas, Beaumont.
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