Opinion
Nos. 05-06-01392-CR, 05-06-01393-CR, 05-06-01394-CR
Opinion issued November 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause Nos. F05-55531-UK, F05-55554-MNK F05-50737-QK.
Before Justices, WHITTINGTON, WRIGHT, and FITZGERALD.
OPINION
The State of Texas appeals the trial court's order granting Antoine Smith's motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon 2006) (State is entitled to appeal order of court in criminal case if order grants motion to suppress evidence). In three issues, the State claims the trial judge erred in granting Smith's motion on the ground that the affidavit supporting the search warrant lacked probable cause. Because we conclude the affidavit sets forth facts sufficient to establish probable cause, we vacate the trial court's order and remand these causes for further proceedings. Witnesses identified Smith and other accomplices to Dallas police as the people who murdered Miranda Wright in the early morning hours of August 2, 2005. The same witnesses identified the car Smith was driving and told Dallas police of an apartment complex in Richardson where Smith might be found. Dallas police officers went to the Cutter's Point Apartments in Richardson and discovered the car identified by the eyewitnesses. As they watched, appellant left apartment #249, got in his car, and drove off. After discovering Smith had several outstanding warrants, officers pulled him over and arrested him. When officers searched the car, they discovered cocaine. In the meantime, the officers at the apartment complex determined Smith was not listed on the lease for apartment #249. Concerned that the lessee, Shanika Glover, might be injured or in danger, the officers attempted to contact her. When Glover did not answer any of the phones listed as contact numbers on the lease, the Richardson police then performed a welfare check of the apartment to ensure she was not in danger or had not been injured. Glover was not in the apartment, nor were there signs of a struggle. Officers did, however, discover a weapon on a sofa and some marijuana in plain view. Nevertheless, they did not seize these items nor did they search the apartment. Detective Mark Ahearn prepared an affidavit for a search warrant of the apartment. Although he had been kept informed of what was happening at Glover's apartment, Detective Ahearn did not rely on any information from the officers at the apartment when preparing the affidavit. The affidavit states "there may be evidence" at the apartment implicating Smith in Wright's murder, including "firearms, ammunition, including a 9mm [sic] handgun of unknown make and model." Detective Ahearn and the other officers knew from the crime scene that the weapon used to murder Wright was a 9-millimeter weapon. A search of apartment #249 revealed a 9-millimeter weapon, 9-millimeter ammunition, drugs, and drug paraphernalia. Smith was charged with Wright's murder and two counts of possession of cocaine. Smith filed a motion to suppress evidence on the ground that his "apartment was searched for evidence without a search warrant before a search warrant was obtained." During the hearing, Smith argued that the welfare search performed of apartment #249 by the Richardson police to ensure Glover was not injured or in danger was an illegal search, performed without a search warrant, and that all evidence discovered as a result of that search should be suppressed. Following the hearing, the trial judge granted the motion to suppress, stating (i) the initial welfare search was not valid, (ii) "[t] he search warrant was not based on any information gained inside the house" during the welfare search, (iii) but "that the search warrant lacks probable cause." These appeals followed. In its third issue, the State argues the trial judge erred "because the magistrate had a substantial basis for its determination that probable cause existed." We agree. A trial judge reviewing a magistrate's determination to issue a warrant is limited to examining only the four corners of the affidavit to determine whether probable cause exists. State v. Ozuna, 88 S.W.3d 307, 310 (Tex.App.-San Antonio 2002, pet. ref'd) (citing Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992)). Because the trial judge does not make credibility choices in assessing the sufficiency of the affidavit, we review the trial judge's ruling de novo. Ozuna, 88 S.W.3d at 310 (citing Wynn v. State, 996 S.W.2d 324, 326-27 (Tex.App.-Fort Worth 1999, no pet.)). In other words, we apply the same standard that the trial judge applied when he evaluated the magistrate's decision to issue the warrant. Ozuna, 88 S.W.3d at 310; State v. Duncan, 72 S.W.3d 803, 806 (Tex.App.-Fort Worth 2002, pet. dism'd, untimely filed). During that review, we afford great deference to the magistrate's determination that the affidavit was sufficient to support the issuance of the warrant. Ozuna, 88 S.W.3d at 310 (citing Illinois v. Gates, 462 U.S. 213, 236 (1983) and Duncan, 72 S.W.3d at 806); see Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004) (magistrate's decision to issue search warrant should be given deference and not reviewed de novo). The test for determination of probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236. The task of a magistrate in issuing a search warrant is to make a practical, common sense decision whether, given all the circumstances set forth in the warrant's supporting affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. McKissick v. State, 209 S.W.3d 205, 211 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Gates, 462 U.S. at 238). Thus, probable cause to support the issuance of a search warrant exists when 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. McKissick, 209 S.W.3d at 211 (citing Cassias v. State, 719 S.W.2d 585, 587 (Tex.Crim.App. 1986)). Our duty, as a reviewing court, is simply to determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to support the issuance of the warrant when viewing the affidavit. See McKissick, 209 S.W.3d at 212 (citing Gates, 462 U.S. at 238). To justify issuing a search warrant, the affidavit submitted in support must set forth facts sufficient to establish probable cause that (i) a specific offense has been committed, (ii) the specifically described property or items to be searched for or seized constitute evidence of that offense, and (iii) the property or items constituting such evidence are located at the particular place to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon 2005). Whether the facts mentioned in the affidavit are adequate to establish probable cause depends on the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App. 1996). In the affidavit in support of the search warrant, Detective Ahearn alleged, with specificity, that Smith was a suspect believed to be involved in Wright's murder. Wright died as a result of a gunshot wound caused by a bullet from a handgun. Spent 9-millimeter cartridges were found near the crime scene. Eyewitnesses to Wright's murder knew Smith. These witnesses identified Smith and other accomplices involved in the shooting, gave a description of the vehicle Smith drove, and told the police where Smith might be found. Police questioned Smith and discovered that Smith's girlfriend occupied apartment #249 of the Cutter's Point Apartments. Smith had just left the apartment when police made contact with him. The affidavit states that there may be evidence, specifically a 9-millimeter handgun and ammunition, in apartment #249 that would further implicate Smith. Viewed in their totality, we conclude the facts and circumstances submitted to the magistrate within the four corners of the affidavit provided the magistrate with a substantial basis for concluding that evidence of Wright's murder, including a 9-millimeter weapon and ammunition, would probably be found in apartment #249-the apartment Smith frequently visited and had recently left-at the time the warrant was issued. See Cassias, 719 S.W.2d at 587-88 (search warrant affidavit must be read in commonsense and realistic manner; reasonable inferences may be drawn from facts and circumstances contained within affidavit's four corners); State v. Walker, 140 S.W.3d 761, 770-71 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (probable cause sufficient to support search warrant exists if facts contained within four corners of search warrant affidavit and reasonable inferences drawn therefrom justify magistrate's conclusion that object of search is probably on premises at time of warrant's issuance). The trial judge erred in concluding otherwise and in granting the motion to suppress evidence. We sustain the State's third issue. In light of our determination of the State's third issue, we need not address the State's first and second issues. See Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."). We vacate the trial court's order granting Smith's motion to suppress and remand these causes to the trial court for further proceedings consistent with this opinion.