Opinion issued March 18, 2014
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-13-00214-CR
01-13-00215-CR
01-13-00216-CR
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BRET LEE GARDNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case Nos. 1336695, 1336696, and 1336697
OPINION
The State charged Brett Gardner with three offenses of possession of child
pornography. TEX. PENAL CODE ANN. § 43.26 (West Supp. 2013). Gardner moved
to suppress evidence obtained through execution of a search warrant at his home
and his confession to having committed the offenses, which was procured during
interviews with law enforcement. The trial court denied the motions, and, pursuant
to a plea agreement with the State, Gardner pleaded guilty to all three offenses.
The trial court assessed a sentence of six years’ confinement for each charge; it
certified Gardner’s right to appeal the suppression ruling.
On appeal, Gardner contends that the police obtained his confession in an
audio recording during custodial interrogations, in violation article 38.22 of the
Texas Code of Criminal Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602 (1966). He further contends that the warrant did not provide probable
cause to search his home. Finding no error, we affirm.
Background
Gardner lived in LaPorte with his parents and grandfather. The LaPorte
Police Department learned through an investigation that someone at the Gardners’
house had used an Internet connection to share child pornography. Detective D.
Huckabee with the LaPorte Police Department, executed an affidavit in support of
a warrant to search the Gardners’ house. In the affidavit, Huckabee outlined his
extensive experience and specialized training, including his membership on the
Internet Crimes Against Children Task Force and twenty-six years’ experience in
investigating sexual crimes against children, including five years specializing in
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the investigation of Internet crimes against children. Based on his experience,
training, and expertise, Huckabee testified to the following information:
• Peer-to-peer networks are the most pervasive method for the Internet
distribution of child pornography.
• These networks enable individual users, through the use of a variety of
software, to connect through each computer’s unique Internet Protocol
(IP) address and share image files within the network.
• Specialized software allows investigators to compare the digital hash
values of files shared by network users with the digital hash values of
known child pornography provided by the National Center for Missing
and Exploited Children, which acts as a clearinghouse for child
pornography images and videos.
• Comparison of hash values for the shared files with the hash values for
the confirmed child pornography files provides an extremely accurate
method for identifying individuals who possess and own child
pornography.
• The software investigation method also allows the investigator to narrow
his search to confirmed images of child pornography possessed or shared
within a particular geographic location.
• In an online investigation in January 2012, Huckabee located an IP
address—registered to Comcast Cable Communications and originating
from an area in LaPorte, Texas—that was advertising files for sharing on
a peer-to-peer network. The names of the files in the suspect share folder
appeared to identify them as containing child pornography.
• Huckabee downloaded files from the suspect share folder and confirmed
that they depicted child pornography.
• Through a Houston Metro Internet Crimes Against Children
administrative subpoena served on Comcast, Huckabee obtained
information concerning the identity of the customer assigned the IP
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address used for the file sharing and confirmed that it had been assigned
to the Gardner household.
The police department secured a warrant based on Huckabee’s affidavit.
One morning in February 2012, shortly before dawn, Huckabee, Houston Police
Department Detective J. Roscoe, who also belonged to the Internet Crimes Against
Children Task Force, and computer forensic examiner Detective N. Gates,
accompanied by six other law enforcement officers, arrived at the Gardners’ house
to execute the search warrant. The officers’ parked cars filled the Gardners’
driveway, blocking any ingress or egress.
The officers located computer equipment in Gardner’s bedroom. While
Gates previewed the files stored on the computer drives, Huckabee and Roscoe
brought Gardner to speak with them in a patrol car, where they could record the
interview. Roscoe advised Gardner at the beginning of the interview that he and
Huckabee would like to talk to Gardner, that he wasn’t under arrest, and that he
was free to leave at any time. Gardner agreed to talk to Huckabee and Roscoe.
This first interview lasted nearly an hour. Several times during the
interview, Gardner mentioned that he wasn’t sure if he should have a lawyer with
him and said that he might rather have one present. Each time, one of the officers
reminded Gardner that the car doors were unlocked, he was free to end the
interview and leave the patrol car whenever he wanted, and he could have an
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attorney present before answering their questions. When Gardner unequivocally
stated that he wanted an attorney, the officers ended the interview.
Gardner and the officers left the patrol car and returned to the house. They
sat at the kitchen table while the officers spoke with Gardner’s mother. They
showed Gardner’s mother some of the pornographic images the police had found
on a digital storage device stored under Gardner’s bed. Gardner’s mother became
upset, and Gardner had a discussion with her. Gardner then turned to Huckabee
and Roscoe and told them that he wanted to talk to them again. Huckabee, Roscoe,
and Gardner returned to the patrol car, where they recorded a second interview.
Huckabee reiterated that Gardner did not have to talk to the officers. Gardner
confirmed that he had changed his mind and wanted to talk without counsel,
expressing a desire to cause as little pain to his parents as possible. At no time
during this second, approximately forty-minute interview, did Gardner request an
attorney. At the end of the interview, Gardner left the patrol car. The officers
questioned Gardners’ parents and his grandfather and collected evidence. About
three hours after they arrived, they left the scene. Approximately one month later,
Detective Huckabee obtained an arrest warrant and arrested Gardner.
In his testimony at the suppression hearing, Gardner recounted that, initially,
the officers escorted him and his grandfather in their pajamas to the front porch of
the house. The officers would not let them re-enter the house to change into pants
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and a shirt. About a half an hour later, the officers brought Gardner and his
grandfather into the living room and allowed them to change their clothes.
Gardner testified that Huckabee asked Gardner to accompany him to the
patrol car to have a conversation. Gardner did not recall if Huckabee told him he
was free to leave at the beginning or at the very end of the interview. He
remembered asking for an attorney multiple times, but the officers ignored his
requests. When Gardner ended the interview, the officers brought Gardner back to
the house. Then, the officers showed his mother the pornographic images they had
found and asked Gardner whether he was ready to go back to the car. According to
Gardner, he agreed because he assumed he had no other choice.
After an evidentiary hearing on Gardner’s motion to suppress, the trial court
made the following findings of fact and conclusions of law:
• Gardner was not in custody on February 3, 2012, making article 38.22,
section 3 of the Texas Code of Criminal Procedure inapplicable;
• Gardner gave two video-recorded statements to Huckabee, during which
Roscoe also was present;
• Gardner was sitting, without handcuffs, in the backseat of a police
vehicle parked outside his residence while he gave the statements;
• During the end of the first interview depicted in the video-recorded
statement, Gardner invoked his right to counsel, and the interview
ceased;
• Gardner exited the vehicle and returned to his residence;
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• Subsequently, Gardner expressed his desire to have further discussions
with the aforementioned police officers;
• Gardner expressly waived his right to counsel before the second video-
recorded statement;
• At the end of the second video-recorded statement, Gardner again exited
the police vehicle and returned to his house;
• Gardner was not arrested on February 3, 2012;
• Gardner was in no way threatened or coerced by law enforcement to
provide either of the video-recorded statements and gave both statements
freely and voluntarily;
• Huckabee, who testified in connection with the admissibility of
Gardner’s statements, testified truthfully; and
• Both of the video-recorded statements were admissible for all purposes in
the proceedings.
Discussion
Standard of review
We review a ruling on a motion to suppress for an abuse of discretion.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); Shepherd v.
State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We review a trial court’s
factual findings for abuse of discretion and its application of the law to the facts de
novo. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). We defer to a
trial court’s determination of historical facts, especially those based on an
evaluation of a witness’s credibility or demeanor. Turrubiate, 399 S.W.3d at 150;
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Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). We apply the
same deference to review mixed questions of law and fact. Turrubiate, 399
S.W.3d at 150. When, as in this case, the trial court makes findings of fact and
conclusions of law, we will uphold the trial court’s ruling if it is “reasonably
supported by the record and is correct on any theory of law applicable to the case.”
Id. (citing Valiterra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010)).
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000).
Custodial interrogation
Gardner contends that the trial court erred in denying his motion to suppress
because Gardner was in custody when he confessed to his crimes. According to
Gardner, the two police interviews violated Miranda and article 38.22 of the Texas
Code of Criminal Procedure.
The Fourth Amendment of the United States Constitution and Article I,
Section 9 of the Texas Constitution protect against unreasonable searches and
seizures by government officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007); Atkins v. State, 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.]
1994, pet. ref’d). In Miranda, the United States Supreme Court determined that an
accused, held in custody, must be given required warnings before questioning. 384
U.S. at 444–45, 86 S. Ct. at 1612; see Jones v. State, 119 S.W.3d 766, 772 (Tex.
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Crim. App. 2003). Law enforcement’s failure to comply with the Miranda
requirements results in forfeiture of the use of any statement obtained during that
questioning by the prosecution during its case-in-chief. Id. Similarly, the Texas
Code of Criminal Procedure provides that a statement is admissible against a
defendant in a criminal proceeding if, among other things, the defendant was
warned as the statute requires before the statement was made, and the defendant
“knowingly, intelligently, and voluntarily” waived the rights set out in the
warnings. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); see also
TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a) (West 2005).
As with the Miranda warnings, the article 38.22 warnings are required only
for custodial interrogations. Id.; Woods, 152 S.W.3d at 116; TEX. CODE CRIM.
PROC. ANN. art. 38.22, § 3(a). Our understanding of “custody” for purposes of
article 38.22 is consistent with the meaning of “custody” for purposes of Miranda.
Herrera, 241 S.W.3d at 526. “Custody,” for purposes of Miranda and article
38.22, includes the following: (1) the suspect is physically deprived of his freedom
of action in a significant way; (2) a law enforcement officer tells the suspect he is
not free to leave; (3) law enforcement officers create a situation that would lead a
reasonable person to believe that his freedom of movement has been significantly
restricted; and (4) probable cause exists to arrest the suspect, and law enforcement
officers do not tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d
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274, 294 (Tex. Crim. App. 2009) (citing Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996)). The fourth situation exists only when the officer
communicates the knowledge of probable cause to the suspect or the suspect
concedes the existence of probable cause to the officer. Dowthitt, 931 S.W.3d at
255. Such a concession, however, does not automatically establish a custodial
interrogation; rather, it is a factor to consider, together with other circumstances, to
determine whether a reasonable person would believe that he is under restraint to a
degree associated with an arrest. Id.; Ervin v. State, 333 S.W.3d 187, 211 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d).
Additional circumstances to consider for determining whether an
interrogation is custodial include whether the suspect arrived at the interrogation
place voluntarily, the length of the interrogation, any requests by the suspect to see
relatives or friends, and the degree of control exercised over the suspect. Ervin,
333 S.W.3d at 205; Xu v. State, 100 S.W.3d 408, 413 (Tex. App.—San Antonio
2002, pet. ref’d). An interrogation that begins as noncustodial can evolve; police
conduct during the encounter may escalate the interview to a custodial
interrogation. Dowthitt, 931 S.W.2d at 255.
Gardner points to the following circumstances as supporting a reasonable
belief that he was under arrest:
• The officers asked to speak with Gardner immediately when they arrived
to execute the warrant;
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• The patrol cars blocked the Gardners’ driveway during the search and
subsequent interviews;
• The officers escorted Gardner throughout the morning, first outside and
to the patrol car for the interview, then back into the house, then back to
the patrol car for the second interview;
• Gardner mentioned an interest in speaking to an attorney several times
during the first interview, but the officers did not offer him a telephone
and continued to interrogate him;
• The officers coerced Gardner into confessing by showing the child
pornography to his mother; and
• Gardner was interviewed for approximately forty-five minutes each time.
Gardner likens these circumstances to those addressed in United States v. Cavazos,
in which the Fifth Circuit Court of Appeals found that the defendant was subjected
to custodial interrogation. 668 F.3d 190 (5th Cir. 2012). Under the circumstances
in Cavazos, immigration enforcement agents awoke the defendant and his family at
about 6:00 A.M. Id. at 195. The agents handcuffed the defendant and brought him
to the kitchen table. They then removed the handcuffs and informed Cavazos that
they were conducting a “non-custodial interview.”’ Id. The agents allowed
Cavazos to eat, drink, and use the restroom before they questioned him. Id. The
officers allowed Cavazos to make a telephone call, but they required him to hold
the phone so that they could listen to the call. Id. After completing the interview,
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the officers read the defendant his Miranda rights and then formally arrested him.
Id.
Gardner’s interviews significantly differ in circumstance from those in
Cavazos. The officers escorted Gardner to avoid any interference with the officers
executing the search warrant. The record supports the trial court’s finding that the
officers did not use handcuffs. Gardner willingly accompanied the officers to the
patrol car for both interviews. During the first interview, Gardner did not
unequivocally state that he wanted to consult an attorney. The officers reiterated
during the interview that Gardner was free to end the interview and leave the patrol
car at any time. Consistent with the trial court’s finding, the video recording
shows that when Gardner finally stated that he did not want to continue the
interview without an attorney present, the officers ended the interview. Gardner
did not ask the officers for a telephone at any time during the interviews, and the
officers did not refuse to allow Gardner to use the telephone. And, while it may
have been inconvenient for Gardner to leave the house due to the number of patrol
cars blocking the exit, nothing in the record shows that the officers intended to
continue to detain Gardner after they had finished executing the warrant.
In contrast to Cavazos, the officers left the Gardner home after executing the
warrant and did not arrest Gardner until several weeks later, after they procured a
warrant for his arrest. This factor weighs heavily in favor of finding that Gardner
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was not in custody. See United States v. Jones, 523 F.3d 1235, 1243–44 (10th Cir.
2008) (quoting 2 Wayne R. LaFave et al., CRIMINAL PROCEDURE § 6.6(c) (3d ed.
2007) (collecting cases in which courts have relied on fact that defendant was
allowed to leave following interrogation as strong evidence that interrogation was
not custodial). The circumstances in this case do not involve a show of force,
actual physical restraint, or the deprivation of privacy that led the Fifth Circuit in
Cavazos to conclude that reasonable person would have believed that he was under
restraint to the degree associated with an arrest. Viewing the evidence in the light
most favorable to the trial court’s ruling, we hold that the trial court did not abuse
its discretion in denying Gardner’s motion to suppress his confession.
Probable cause to search
Gardner further contends that the trial court erred in denying his motion to
suppress the evidence obtained in executing the search warrant, because the police
lacked probable cause to conduct the search. A magistrate may not issue a search
warrant unless police present an affidavit setting forth sufficient facts to show that
probable cause exists for its issuance. TEX. CODE CRIM. PROC. ANN. art. 18.01(b)
(West Supp. 2013). The affidavit must show that:
(1) a specific offense has been committed,
(2) the specifically described property or items that are to be searched for
or seized constitute evidence of that offense or evidence that a
particular person committed that offense, and
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(3) the property or items constituting evidence to be searched for or
seized are located at or on the particular person, place, or thing to be
searched.
Id. art. 18.01(c) (West Supp. 2013). In reviewing the sufficiency of an affidavit,
we defer to all reasonable inferences that the magistrate and trial court could have
made. See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Jones v.
State, 338 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364
S.W.3d 854 (Tex. Crim. App. 2012). Probable cause exists if, under the totality of
the circumstances, there is a “fair probability” or “substantial chance” that
contraband or evidence of a crime will be found at the specified location. Flores v.
State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462
U.S. 213, 238, 243 n.13, 103 S. Ct. 2317, 2335 n.13 (1983)).
Gardner specifically contends that Huckabee’s statements about the software
program that linked a computer at the Gardners’ residence to images of child
pornography were not based on his personal knowledge. If an officer, however,
has otherwise trustworthy information sufficient to warrant a person of reasonable
caution to believe that an offense was or is being committed, then personal
knowledge is not essential. See Torres v. State, 182 S.W.3d 899, 901–02 (Tex.
Crim. App. 2005) (“Because Castillo [v. State, 818 S.W.2d 803 (Tex. Crim. App.
1991)], may be interpreted to require both personal knowledge and trustworthy
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information, we overrule it and its progeny only to the extent that it requires both
kinds of information to support probable cause.”).
In his affidavit, Huckabee describes his experience, training, and expertise in
investigating Internet crimes against children and in identifying individuals
suspected of those crimes through the use of a nationally recognized database and
specialized software programs. Huckabee detailed specific files identified in his
investigation. He confirmed that certain files had names associated with known
images of child pornography and described the contents of those files. Huckabee
described methods used to disseminate pornographic images. He confirmed that a
computer using an IP address assigned to the Gardners’ home contained images of
child pornography and that someone at that address had used software and file
sharing methods commonly used among child pornographers. Gardner did not
challenge Huckabee’s credentials or expertise. We hold that the affidavit provided
probable cause for issuing the search warrant. See State v. Moore, No. 05-06-
01295-CR, 2007 WL 4305374, at *5 (Tex. App.—Dallas Dec. 11, 2007, pet. ref’d)
(not designated for publication) (reversing pretrial order granting motion to
suppress because affiant averred that defendant had internet access at his home and
using his name, set up a Yahoo account; pornographic images were uploaded to
that account from computer located in defendant’s home supported reasonable
inference that child pornography would be found at defendant’s residence); see
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also State v. Cotter, 360 S.W.3d 647, 652–53 (Tex. App.—Amarillo 2012, no pet.)
(holding that information from reliable entity confirming that defendant was the
Internet subscriber associated with the IP addresses at issue and used screen name
involved in crime supported probable cause for warrant).
Conclusion
Because the record supports the trial court’s findings that Gardner was not in
custody when he gave the two video-recorded statements and that probable cause
existed to obtain a search warrant, we hold that the trial court correctly denied
Gardner’s motions to suppress. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
Publish. TEX. R. APP. P. 47.2.
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