COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00229-CR
MARCUS TERRILL SHED APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In two points that each concern the trial court’s decision to overrule his
evidentiary objections at trial, appellant Marcus Terrill Shed appeals his
conviction for possessing two ounces or less of marijuana. 2 We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West 2010).
Background Facts
In the spring of 2010, Fort Worth Police Department (FWPD) Officer
Michael Valdez received information from a confidential informant that at a house
in Fort Worth, a man named Marcus was involved in selling drugs. 3 Officer
Valdez conducted surveillance on the house and saw appellant entering and
leaving it. Also, Officer Valdez saw what appeared to be lookouts standing on
corners near the house. Appellant looked to be very comfortable while entering
and leaving the house, unlike other people who would walk to the house while
looking over their shoulders “possibly [for] a patrolman or law enforcement.”
Because of the high traffic entering and leaving the house, Officer Valdez thought
that it was a “dope location,” but he did not believe that it was appellant’s
residence.
After completing a probable cause affidavit, Officer Valdez obtained a
search warrant for the house on May 7, 2010. The probable cause affidavit
stated, among other facts, that in the previous seventy-two hours, the confidential
informant had seen a black male named Marcus, who stood at 5' 10'' and
weighed 220 pounds, possessing a large amount of marijuana while inside the
house; that Officer Valdez had conducted surveillance on the residence and had
seen Marcus coming and going freely from it; and that the confidential informant
3
The FWPD had previously used the same confidential informant. The
confidential informant did not conduct a controlled purchase of drugs at the
house.
2
had been used in multiple drug investigations and had been able to recognize
illegal controlled substances.
Just before officers began executing the search warrant on the day it was
issued, as they were approaching the house in a van, appellant exited the house
and began briskly walking away from it while looking back over his shoulder.
At the same time, two other men started walking away from the house. FWPD
Officer Ray Perez detained appellant after appellant had walked beyond the
residence’s cyclone fence. Appellant told Officer Perez that he had come to the
house only to buy “a dime bag of weed.” Appellant gave consent for Officer
Perez to search appellant’s person, and Officer Perez found a plastic baggie
containing marijuana. Also, appellant admitted that he had possessed a
marijuana cigarette that was on the ground near him. Officer Perez also found
$1,320 on appellant’s person.
Upon executing the warrant, officers discovered that in the house, there
was little furniture, no running water, not much clothing, no food or groceries, no
personal items in bathrooms, and no pictures on walls. According to Officer
Valdez, the house was “filthy”; it did not appear to Officer Valdez that anyone
was living there. In the house, officers found ecstasy, marijuana, cocaine,
hydrocodone, and a loaded gun.
3
A grand jury indicted appellant with possessing between four ounces and
five pounds of marijuana. 4 Appellant retained counsel and pled not guilty. At
trial, appellant objected, on constitutional grounds, to testimony concerning
evidence found by officers inside the house and on his person, but the trial court
overruled these objections without specifying its reasons for doing so. After
considering the evidence and arguments presented by the parties, the trial court
found appellant guilty of possessing less than two ounces of marijuana (a lesser-
included offense of his indicted charge) 5 and sentenced him to 120 days’
confinement. Appellant brought this appeal.
The Propriety of Appellant’s Temporary Detention
In his first point, appellant argues that the trial court erred by overruling his
objection to the admission of evidence found on his person by Officer Perez.
Appellant contends that Officer Perez found the evidence while illegally detaining
him without a warrant and that his subsequent arrest was also unlawful.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 6 Amador v. State, 221 S.W.3d 666, 673 (Tex.
4
See Tex. Health & Safety Code Ann. § 481.121(a), (b)(3).
5
See Leach v. State, 35 S.W.3d 232, 237 (Tex. App.—Austin 2000, no
pet.). The trial court explained that it could not find beyond a reasonable doubt
that appellant was linked to the controlled substances in the house.
6
Appellant did not file a pretrial motion to suppress evidence, but at trial, he
objected, on federal and state constitutional grounds, to the introduction of
evidence of the search of himself or of the search of the house. On appeal,
appellant has characterized his trial objections as a motion to suppress.
4
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When the record is silent on the reasons for the trial court’s ruling, we
imply the necessary fact findings that would support the ruling if the evidence,
viewed in the light most favorable to the ruling, supports those findings. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State,
214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial court’s legal
ruling de novo unless the implied fact findings supported by the record are also
dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim.
App. 2006). We must uphold the trial court’s ruling if it is supported by the record
and correct under any theory of law applicable to the case. State v. Stevens, 235
S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV (mandating that the
Appellant has not, however, separately briefed federal and state constitutional
arguments.
5
“right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated”); Wiede, 214
S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment
violation, the defendant bears the initial burden of producing evidence that rebuts
the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see
Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct.
1015 (2009). A defendant satisfies this burden by establishing that a search or
seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the
defendant has made this showing, the burden of proof shifts to the State, which
is then required to establish that the search or seizure was conducted pursuant
to a warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899,
902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
The State contends that Officer Perez justifiably detained appellant
because appellant was “seen fleeing a location known to police as a drug house
as a search warrant was being served on the residence.” In Michigan v.
Summers, just before police officers began executing a warrant at a home to
search for narcotics, they saw Summers leaving the home, requested his
assistance in entering the home, detained him, and eventually found heroin in his
coat pocket. 452 U.S. 692, 693, 101 S. Ct. 2587, 2589 (1981). Summers, who
was charged with possessing the heroin, argued that his initial detention violated
his Fourth Amendment rights, and the Supreme Court phrased the dispositive
6
question in the case as whether “the initial detention of [Summers] violated his
constitutional right to be secure against an unreasonable seizure of his person.”
Id. at 694, 101 S. Ct. at 2590. The Supreme Court held that the police had not
violated Summers’s rights, explaining,
Of prime importance in assessing the intrusion is the fact that
the police had obtained a warrant to search respondent’s house for
contraband. A neutral and detached magistrate had found probable
cause to believe that the law was being violated in that house and
had authorized a substantial invasion of the privacy of the persons
who resided there. The detention of one of the residents while the
premises were searched, although admittedly a significant restraint
on his liberty, was surely less intrusive than the search itself. . . .
In assessing the justification for the detention of an occupant
of premises being searched for contraband pursuant to a valid
warrant, both the law enforcement interest and the nature of the
“articulable facts” supporting the detention are relevant. Most
obvious is the legitimate law enforcement interest in preventing flight
in the event that incriminating evidence is found. Less obvious, but
sometimes of greater importance, is the interest in minimizing the
risk of harm to the officers. Although no special danger to the police
is suggested by the evidence in this record, the execution of a
warrant to search for narcotics is the kind of transaction that may
give rise to sudden violence or frantic efforts to conceal or destroy
evidence. The risk of harm to both the police and the occupants is
minimized if the officers routinely exercise unquestioned command
of the situation. Finally, the orderly completion of the search may be
facilitated if the occupants of the premises are present. . . .
....
. . . If the evidence that a citizen’s residence is harboring
contraband is sufficient to persuade a judicial officer that an invasion
of the citizen’s privacy is justified, it is constitutionally reasonable to
require that citizen to remain while officers of the law execute a valid
warrant to search his home. Thus, for Fourth Amendment purposes,
we hold that a warrant to search for contraband founded on probable
cause implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted.
7
Id. at 701–05, 101 S. Ct. at 2593–95 (footnotes and citation omitted).
Citing Summers, the Supreme Court recently reiterated that even when
police officers do not have reasonable suspicion, or any suspicion, that a
particular individual has been involved in criminal activity, they may detain that
individual incident to the execution of a proper search warrant as long as the
individual is found within or immediately outside a residence at the moment the
officers execute the warrant. Bailey v. United States, 133 S. Ct. 1031, 1037–38,
1042 (2013); see also Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1470
(2005) (“An officer’s authority to detain incident to a search is categorical . . . .
Thus, Mena’s detention for the duration of the search was reasonable under
Summers because a warrant existed to search [a residence] and she was an
occupant of that address at the time of the search.”). 7 The Court in Bailey
restated that “three important law enforcement interests . . . justify the detention
of an occupant who is on the premises during the execution of a search warrant:
officer safety, facilitating the completion of the search, and preventing flight.”
Bailey, 133 S. Ct. at 1038. The Court also stated that in determining whether an
individual is in the “immediate vicinity” of a premises to be searched and is
therefore subject to the categorical rule of Summers that allows detention, courts
should consider “the lawful limits of the premises, whether the occupant was
7
In Summers, the Court emphasized that the rule from that case does not
depend on an ad hoc determination about the extent of the intrusion caused by
the seizure or the quantum of proof justifying the detention. 452 U.S. at 705
n.19, 101 S. Ct. at 2595 n.19.
8
within the line of sight of his dwelling, the ease of reentry from the occupant’s
location, and other relevant factors.” Id. at 1042.
Texas courts have applied Summers to uphold temporary detentions that
are incident to the execution of search warrants. See Morrison v. State, 132
S.W.3d 37, 43–44 (Tex. App.—Houston [14th Dist.] 2004, pets. ref’d); see also
Babalola v. State, No. 10-09-00234-CR, 2011 WL 1419752, at *4 (Tex. App.—
Waco Apr. 13, 2011, pet. ref’d) (mem. op., not designated for publication).
We conclude that the rule that the Supreme Court established in Summers
and repeated and clarified in Bailey justified Officer Perez’s temporary detention
of appellant because appellant was at the front door of the house subject to the
warrant immediately prior to the execution of it and was detained in the house’s
immediate vicinity. 8 See Bailey, 133 S. Ct. at 1037–38, 1042; Summers, 452
U.S. at 704–05, 101 S. Ct. at 2595. The evidence established that as officers
approached the house, they saw appellant, along with two other men, on the
front porch; appellant was “just closing the door behind [him].” Appellant looked
at the officers’ van and began quickly walking away from the house by crossing a
driveway and by going onto a street. The police detained the other two men in
the front yard of the residence. Officer Perez, after receiving information about
appellant from a radio call, saw him “walking by the residence, and at that point
8
In his argument, appellant appears to concede that Officer Perez’s initial
interaction with him was a temporary detention; appellant does not argue that the
interaction qualified as a formal arrest.
9
detained him” outside the fence of the residence, at the corner of intersecting
streets. 9 Without oral prompting from Officer Perez, appellant stated that he had
gone to the house to buy “weed,” directed Officer Perez’s attention to a
marijuana cigarette on the ground, and said that the cigarette belonged to him.
Appellant then gave Officer Perez consent to search appellant’s person, and
Officer Perez found a baggie containing marijuana. 10
Appellant cites several cases to argue that the rule from Summers did not
justify his detention because he was “not on the premises” when he was
detained. 11 For example, in United States v. Sherrill, a federal appellate court
declined to apply Summers to authorize the police’s detention of a defendant
who had left the residence subject to a search warrant and had driven a car “off
the premises” to a location that was a block away from the home. 27 F.3d 344,
345–46 (8th Cir.), cert. denied, 513 U.S. 1048 (1994). Similarly, in United States
v. Edwards, another federal appellate court refused to apply Summers to a
defendant who the police seized three blocks away from the search. 103 F.3d
9
The house subject to the warrant was on a corner lot. The parties agree
that Officer Perez detained appellant within fifteen feet of the residence.
10
Appellant does not expressly challenge the admissibility of the
statements that he made to Officer Perez during the detention or the
voluntariness of the consent to search that he gave to Officer Perez.
11
This is the crux of appellant’s argument in his first point. He does not
particularly argue that any distinction between the means of seizure in Summers
(or its progeny) as compared to the means of seizure in this case (which
occurred by a display of force) requires the application of a different rule.
10
90, 93–94 (10th Cir. 1996). Finally, nearly thirty years ago, our court of criminal
appeals held that Summers did not justify the combined detention and
subsequent search of a defendant when the defendant arrived at the residence
fifteen to thirty minutes after the execution of the warrant and was therefore not
an “occupant” of the residence. Lippert v. State, 664 S.W.2d 712, 715, 720–21
(Tex. Crim. App. 1984). All of these cases are distinguishable because in this
case, at the precise time of the execution of the search warrant, Officer Perez
detained appellant while appellant was walking “by the residence,” just outside
the residence’s fence. Cf. Babalola, 2011 WL 1419752, at *4 (applying Summers
when the police detained a defendant “in the entryway to [his] apartment
complex, approximately 200 feet from his apartment”); Morrison, 132 S.W.3d at
43–44 (distinguishing Lippert and applying Summers when the defendant was at
the location subject to the warrant at the time of the warrant’s execution).
Because we hold that the principle discussed in Summers and in Bailey
justified Officer Perez’s temporary detention of appellant without particularized
suspicion of appellant’s involvement in criminal activity, we overrule appellant’s
first point. 12
12
Therefore, we decline to address whether Officer Perez had reasonable
suspicion of appellant’s criminal activity, which could alternatively justify
appellant’s temporary detention. See Tex. R. App. P. 47.1; Smith v. State, 316
S.W.3d 688, 700 n.2 (Tex. App.—Fort Worth 2010, pet. ref’d).
11
The Facts Supporting the Search Warrant
In his second point, appellant contends that the trial court erred by
overruling his evidentiary objections because the search warrant for the house
was not supported by probable cause. 13 In the trial court, appellant contended
that Officer Valdez’s affidavit did not establish probable cause to support the
warrant because the affidavit did not establish that the confidential informant was
credible and reliable and because Officer Valdez had not corroborated the facts
provided by the informant.
A search warrant cannot issue unless it is based on probable cause as
determined from the four corners of an affidavit. U.S. Const. amend. IV; Tex.
Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2012)
(“No search warrant shall issue for any purpose in this state unless sufficient
facts are first presented to satisfy the issuing magistrate that probable cause
does in fact exist for its issuance.”); see Farhat v. State, 337 S.W.3d 302, 305
(Tex. App.—Fort Worth 2011, pet. ref’d).
Probable cause for a search warrant exists if, under the totality of the
circumstances presented to the magistrate in an affidavit, there is at least a fair
probability or substantial chance that evidence of a crime will be found at the
specified location. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)
13
We will assume, without deciding, that appellant had a legitimate
expectation of privacy in the house and therefore had standing to challenge the
warrant. See Villarreal v. State, 935 S.W.2d 134, 138–39 (Tex. Crim. App.
1996).
12
(citing Illinois v. Gates, 462 U.S. 213, 238, 243 n.13, 103 S. Ct. 2317, 2332, 2335
n.13 (1983)). Probable cause “does not require that, more likely than not, the
item or items in question will be found at the specified location.” Id. In
determining probable cause, the magistrate may “interpret the probable cause
affidavit in a non-technical, common-sense manner[,] and he may draw
reasonable inferences from it.” Id.
When reviewing a magistrate’s decision to issue a warrant, we apply a
highly deferential standard in keeping with the constitutional preference for a
warrant to determine whether the magistrate had a substantial basis for
concluding that probable cause existed. State v. McLain, 337 S.W.3d 268, 271–
72 (Tex. Crim. App. 2011); Flores, 319 S.W.3d at 702 (stating that the
magistrate’s decision should “carry the day in doubtful or marginal cases”); see
Farhat, 337 S.W.3d at 306 (“No magical formula exists for determining whether
an affidavit provides a substantial basis for a magistrate’s probable cause
determination.”). Like the trial court, we should review the affidavit supporting the
warrant in a commonsense, realistic manner. Farhat, 337 S.W.3d at 306; Hogan
v. State, 329 S.W.3d 90, 93 (Tex. App.—Fort Worth 2010, no pet.) (“A reviewing
court should not invalidate a warrant by interpreting the affidavit in a
hypertechnical manner.”). The issue is not whether there are other facts that
could have, or even should have, been included in the affidavit; instead, we focus
on the combined logical force of facts that are in the affidavit. Hogan, 329
S.W.3d at 94; see Nichols v. State, 877 S.W.2d 494, 498 (Tex. App.—Fort Worth
13
1994, pet. ref’d) (“A warrant is not invalid merely because the officer failed to
state the obvious.”).
The four corners of Officer Valdez’s affidavit demonstrate that he received
information from a “reliable and confidential informant” that a black male named
Marcus was distributing marijuana from the house. According to the affidavit, the
same informant had, in the past, been used in multiple drug investigations, and
substances that the police had seized in those previous investigations had been
tested by a “qualified Fort Worth Police Department Chemist [who had found
them] to be illegal substances.”
The affidavit stated that the informant had “point[ed] out the . . . residence”
to Officer Valdez. Also, the affidavit explained that the informant had been inside
the house within the last seventy-two hours and had seen Marcus “in possession
of a large quantity” of marijuana that was “packaged in a way meant for sale and
distribution.” Furthermore, the affidavit explained that through Officer Valdez’s
training and experience, he knew that it was common for “actors involved in the
illegal distribution of narcotics to utilize residences to store and maintain drugs”;
that during surveillance, Officer Valdez saw Marcus “come and go freely” from
the house; and that Officer Valdez also saw a male standing in the front of the
house and walking up and down the street while acting like a lookout.
Appellant principally contends that the information contained in the affidavit
was insufficient to establish probable because it came “entirely from an informant
14
whose credibility and reliability [was not] proven” and because the police did not
corroborate the informant’s tip. We have explained,
The informant’s reliability or basis of knowledge is relevant in
determining the value of his assertions. Corroboration of the details
of an informant’s tip through independent police investigation can
also be relevant in the magistrate’s determination of probable cause.
Likewise, the affidavit should set forth the foundation for the officer’s
belief in an informant’s credibility and veracity. However, “a
deficiency in one may be compensated . . . by a strong showing as
to the other, or by some other indicia of reliability,” all of which are
relevant considerations under the totality of the circumstances.
Davis v. State, 144 S.W.3d 192, 197–201 (Tex. App.—Fort Worth 2004, pet.
ref’d) (op. on reh’g) (citations omitted) (holding that an affidavit did not establish
probable cause when the informant had not previously given information to a law
enforcement agency, the affidavit did not establish the basis for a conclusion that
the informant knew what marijuana looked like, and the police had not conducted
a sufficient independent investigation to corroborate the informant’s tip).
Contrary to appellant’s position, we conclude that the combined logical
force of the facts in Officer Valdez’s affidavit established the informant’s
credibility by showing that the informant had been used in multiple investigations,
that the informant’s ability to recognize illegal substances had been confirmed,
and that the informant’s work on the previous investigations had led to the
seizure of illegal substances such as heroin, cocaine, and marijuana. 14 See
14
In the sentence following a statement that illegal substances had been
seized in investigations in which the informant had provided a tip, the affidavit
states, “The reliable and confidential informant has been used in various drug
investigations in the past which have included such drugs as heroin,
15
Vafaiyan v. State, 279 S.W.3d 374, 384 (Tex. App.—Fort Worth 2008, pet. ref’d)
(“Informant hearsay may be credited by showing that the informant has given
reliable, credible information in the past, or by police corroboration.”) (emphasis
added); Pool v. State, 157 S.W.3d 36, 45 (Tex. App.—Waco 2004, no pet.)
(mem. op.) (“All that is required is a statement that the informant has provided
information in the past regarding narcotics trafficking, and that information proved
correct.”); see also Alegria v. State, No. 02-03-00187-CR, 2004 WL 1067780, at
*2 (Tex. App.—Fort Worth May 13, 2004, pet. ref’d) (mem. op., not designated
for publication) (holding that an affidavit established the informant’s credibility
when it stated that the informant had “previously provided information that [had]
led to the arrests of individuals for possession of a controlled substance and
[had] displayed the ability to accurately identify cocaine); Bonner v. State, Nos.
02-03-00003-CR, 02-03-00004-CR, 2004 WL 726840, at *2 (Tex. App.—Fort
Worth Apr. 1, 2004, pets. ref’d) (not designated for publication) (holding
similarly).
Viewing the facts expressed in Officer Valdez’s affidavit cumulatively and
in a commonsense manner, we conclude that they gave the magistrate a
substantial basis to conclude that there was a fair probability or substantial
methamphetamine (‘ice’), cocaine, [and] marijuana.” We conclude that the
magistrate could have reasonably inferred from this statement that as a result of
the informant’s tips, the police had seized heroin, methamphetamine, cocaine,
and marijuana. See McLain, 337 S.W.3d at 273 (indicating that reviewing courts
should not read sentences of affidavits in isolation).
16
chance that evidence of a crime—the possession or distribution of illegal
controlled substances—would be found at the house. See Flores, 319 S.W.3d at
702. Thus, we uphold the trial court’s determination that probable cause
supported the warrant, and we overrule appellant’s second point.
Conclusion
Having overruled appellant’s points, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 20, 2013
17
Marcus Terrill Shed v. State
Combined Opinion