State v. Duncan

DAUPHINOT, Justice,

dissenting.

I respectfully dissent to the majority’s holding that the trial court erred in granting Duncan’s motion to suppress. The majority reasons that the allegations in the search warrant affidavit were sufficient to justify the magistrate’s conclusion that child pornography would probably be found in Duncan’s residence.

*809The majority is correct in stating that we review a trial court’s ruling on a motion to suppress under a bifurcated standard of review by giving almost total deference to the court’s determination of historical facts and reviewing de novo the court’s application of the law of search and seizure.1 The analysis, however, does not end there. Where the trial court does not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court’s ruling.2 That is, we assume the trial court made implicit findings of fact supported in the record that buttress its conclusion.3 If the trial court’s decision is correct on any theory of law applicable to the case, it must be sustained.4

A search warrant must be based upon probable cause.5 Probable cause sufficient to support the issuance of a search warrant exists where the facts contained within the four corners of the affidavit and the reasonable inferences drawn therefrom justify the magistrate’s conclusion that the property that is the object of the search is probably on the premises to be searched at the time the warrant issues.6 The affidavit must recite facts and circumstances within the affiant’s knowledge and of which the affiant has reasonably trustworthy information sufficient to warrant a reasonably cautious person’s belief that the offense has been committed and the evidence to be seized is at the particular place to be searched.7 In evaluating whether probable cause existed for the issuance of a warrant, appellate courts must assess the totality of the circumstances presented.8

The State contends that the trial court erred in granting the motion to suppress because the allegations in the search warrant, in their totality, were sufficient to support a probable cause finding that child pornography would be found in Duncan’s residence at the time the warrant was issued. The State argues that the reliability of the affiant and his sources of information are part of the “totality of the circumstances” that the magistrate should evaluate in making a probable cause determination and that the magistrate in this case was entitled to rely on the statements of the sixteen-year-old girl and the officer. While we recognize that a named citizen who is in a position to supply information by virtue of having been a crime victim or witness has an inherent reliability not attributed to police informants,9 the information in an affidavit in support of a search warrant must nevertheless be complete and specific enough to constitute probable cause to search a particular place.10

In this case, the facts set forth within the four corners of the affidavit did not support a reasonable belief that the object of the search, child pornography, was probably at Duncan’s residence at the time the warrant was issued. The affidavit *810does not quote M.W. as saying that she and Duncan had sexual relations at his parents’ residence or that Duncan had told her that he had any photograph, videotape, or computer file of child pornography at that residence. Although the majority correctly states that the magistrate is permitted to draw reasonable inferences from information contained within the four corners of the affidavit, we cannot read into the affidavit information not gleaned from within the affidavit itself. As the court of criminal appeals has noted:

It is one thing to draw reasonable inferences from information clearly set forth within the four corners of an affidavit. Thus, for example, it is sometimes permissible to presume reliability of an informant by virtue of the detailed nature of the information he supplies. It is quite another matter to read material information into an affidavit that does not otherwise appear on its face. We cannot, in the interest of a commonsense and realistic approach to interpretation of affidavits, “infer” a connection between informant’s observation of appellant with contraband, and the residence at 724 Del Mar Street.11

As in Cassias, “[t]he assertion that the ‘premises are in the possession and under the control of appellant is not attributed to the informant. In fact, it is purely a con-clusory statement, the source of which is not given nor the reliability vouched for.”12 A purely conclusory statement will not support the issuance of a warrant because it does not provide facts from which a neutral magistrate may make the necessary findings.13

In Wachter v. State, the San Antonio Court of Appeals concluded that probable cause existed to support the issuance of a warrant to search for a runaway child, child pornography videos, and controlled substances.14 In Wachter, allegations that the suspect was harboring a runaway were combined with his record involving child sexual assault and claims of his possession of videotapes of young women, demonstrating a continuing pattern of behavior. In addition,. the affidavit in Wachter contained the allegation that a runaway and suggestive materials were seen at the suspect’s residence within twenty-four hours of the warrant’s issuance.15 In the case now before us, however, the affidavit contains no allegations of contraband having been seen at Duncan’s residence. Indeed, M.W. never claimed to have seen any photographic depiction of her engaging in intercourse with Appellant.

The State submits that what the affidavit lacks in this case can easily be provided through reasonable inferences based upon common knowledge and experience. The State thus argues that it is highly unlikely that the sexual activity described in the affidavit, which the State erroneously describes as “illegal,”16 would have taken place in M.W.’s home rather than Duncan’s home and that it makes sense that a person would keep the records of this intimate activity in his home. The State further argues that it was not unreasonable for *811both the affiant and the magistrate to infer that Duncan had a computer in his home that probably contained evidence of child pornography. There are no allegations in the affidavit, however, from which any such inferences may be drawn. Nor does the affidavit contain any information from which a magistrate could draw the inference that the sexual activity could have occurred in only two possible places, Duncan’s family’s home or M.W.’s. Indeed, the State does not explain in its brief why it is more-reasonable to speculate that the sexual activity between the two teenagers would have taken place in Duncan’s home rather than in M.W.’s home, a friend’s home, a motel, or even in the backseat of an automobile or the bed of a pickup truck.

In Taylor v. State, the Amarillo Court of Appeals recognized that general information in an affidavit about a pedophile’s propensity to collect child pornography and maintain the collection at his home provided a basis to reasonably infer that contraband could probably be found in a suspect’s home.17 The Taylor court concluded, however, that the sending of one image over the Internet would not qualify the suspect as a pedophile where there was an absence of evidence that he collected child pornography or had an interest in it, and the magistrate could not have reasonably concluded that, like a pedophile, the suspect would maintain pornography at his residence.18

In this case, the affidavit contains no information that eighteen-year-old Duncan, who is nowhere described in the affidavit, is a pedophile or has a pedophile’s propensities. Moreover, the allegations concerning Duncan’s sexual relationship with the sixteen-year-old informant, his possession of a videotape and photographs of them having sexual relations, and his statements that he would put the pictures on the Internet do not establish him as a pedophile who probably maintains pornography at his residence. Even if, as the State and the majority urge, we may speculate that the two teenagers would prefer to risk discovery by Duncan’s parents rather than M.W.’s parents, the State directs us to nothing to buttress this speculation. As stated in Taylor, “[m]ore is needed before the sanctity of one’s home can be invaded by the government; it is not enough to simply conclude that contraband is in one’s home merely because the suspect has a home.”19

The only reference in the affidavit to Duncan’s residence that was attributed to the informant is that he lived at the stated address. No factual allegations tie the described sexual activity or pictures to Duncan’s residence. Viewed in its totality, the affidavit simply lacks allegations from which a resort to “common knowledge” might permit a reasonable inference that any particular picture or other items of child pornography were at Duncan’s residence at the time the warrant was issued. Nothing in the affidavit supports the warrant’s authorization to rummage freely through Duncan’s home and computer files in search of material the informant never claimed existed. Reviewing the court’s ruling de novo, I would view the evidence in the light most favorable to the trial court’s ruling and hold that the trial court did not err in granting Duncan’s motion to suppress.

. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000).

. Id. at 327-28.

. Id. at 328.

. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

. Wynn v. State, 996 S.W.2d 324, 326 (Tex.App.-Fort Worth 1999, no pet.) (citing U.S. Const. amend. IV; Tex. Const. art. I, § 9).

. Id.

. Id.

. Id. (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983)).

. See Lopez v. State, 535 S.W.2d 643, 648 (Tex.Crim.App.1976).

. See generally 2 Wayne R. LaFave, Search and Seizure § 3.4(c) (3d ed.1996).

. Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App.1986) (op. on reh’g) (citation omitted).

. Id. at 588 n. 2.

. Id. at 590.

. 961 S.W.2d 598, 602 (Tex.App.-San Antonio 1997, pet. ref'd).

. Id.

. See Tex. Penal Code Ann. § 22.011(e)(1) (Vernon Supp.2002) (providing that it is an affirmative defense to prosecution under subsection (a)(2) of section 22.011 that the actor was not more than three years older than the victim).

. 54 S.W.3d 21, 26 (Tex.App.-Amarillo 2001, no pet.).

. Id.

. Id. at 27.