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Date: 08-30-2020
Case Style:
James W. Cleveland v. The State of Texas
Case Number: 01-18-00668-CR
Judge: Panel consists of Justices Lloyd, Goodman, and Hightower.
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Cory Stott
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in Texas .
Description:
Court of Appeals For The First District of Texas
This appeal concerns a magistrate’s ruling that a peace officer’s affidavit
established probable cause to conduct a no-knock search of an apartment. The
material facts are simple and undisputed.
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On October 29, 2016, Houston Police Department Officer M. Parker filed an
affidavit requesting a warrant to search the apartment of an unknown black male
(later identified as Cleveland) for cocaine and related paraphernalia. Parker further
requested authorization to enter the apartment without first knocking and
announcing his identity and purpose.
In support of his warrant request, Parker explained that he had received a tip
that narcotics trafficking was occurring at the apartment. He then investigated the
alleged trafficking with the help of a “credible and reliable” confidential informant
who had provided him with “true and correct” material information in “numerous”
prior narcotics investigations. Parker went on to discuss the investigation in detail.
Most relevant here, Parker stated that, in the ten-day period preceding the submission
of his affidavit, he observed and oversaw the CI’s purchase of cocaine from the
suspect at the apartment on two separate occasions. Parker therefore concluded
probable cause existed to search the apartment.
In support of his request to make a no-knock entry, Parker explained that he
believed knocking and announcing would be dangerous, futile, or would inhibit
effective investigation of the offense for four reasons. First, Parker had observed the
occupants of the apartment utilizing the front window overlooking the stairwell to
observe unknown persons approaching the apartment by peeking through the blinds.
Second, the apartment was situated in a manner that offered the occupants a clear
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vantage point to observe law enforcement officers’ approach. Third, HPD knew the
apartment complex to be a high-crime area ridden with narcotics, prostitution, and
other criminal activity. Fourth, the victim of a recent shooting told HPD officers that
the suspect might be residing at or near the targeted apartment. Parker further noted
that the firearm involved in the shooting had not been recovered (indicating that the
suspect might be armed and dangerous).
The magistrate issued the requested search warrant, which expressly
authorized Parker to make a no-knock entry.
Three days later, Parker and two other officers executed the search warrant.
The officers made a no-knock forcible entry as authorized by the warrant. After
entering, they seized cocaine and other evidence of drug trafficking. Cleveland was
charged with felony possession with intent to distribute cocaine. See id.
Cleveland filed a pretrial motion to suppress the evidence obtained during the
search, arguing that Parker’s affidavit failed to set forth facts sufficient to (1)
establish probable cause or (2) justify the no-knock entry. The trial court denied
Cleveland’s motion. Cleveland then pleaded guilty to the charged offense. The trial
court accepted Cleveland’s plea and signed a judgment of conviction sentencing him
to 12 years’ confinement.
Cleveland appeals.
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Motion to Suppress
In a single issue, Cleveland contends the trial court abused its discretion in
denying his motion to suppress.
A. Standard of review
We review a ruling on a motion to suppress evidence for an abuse of
discretion. State v. Tercero, 467 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 2015,
pet. ref’d). When we review a trial court’s ruling on a motion to suppress, we give
almost total deference to the trial court’s express or implied determination of
historical facts and review de novo the court’s application of the law of search and
seizure to those facts. Id. We view the evidence in the light most favorable to the
trial court’s ruling. Id. The trial court is the sole trier of fact and judge of credibility
of the witnesses and the weight to be given to their testimony. Id. The trial court may
choose to believe or disbelieve any part or all of a witness’s testimony. Id. We sustain
the trial court’s ruling if it is reasonably supported by the record and correct on any
theory of law applicable to the case. Id.
B. Analysis
Cleveland contends the trial court abused its discretion in denying his motion
to suppress for two reasons. First, Cleveland contends that Parker’s affidavit failed
to set forth facts sufficient to establish probable cause. Second, Cleveland contends
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that Parker’s affidavit failed to set forth facts sufficient to justify the no-knock entry.
We consider each contention in turn.
1. Probable cause
We begin with Cleveland’s contention that Parker’s affidavit failed to
establish probable cause.
Under Texas criminal law, a search warrant may be obtained from a
magistrate only after submission of an affidavit setting forth substantial facts
establishing probable cause. TEX. CODE CRIM. PROC. art. 18.01(b). “Probable cause
exists if, under the totality of the circumstances set forth in the affidavit before the
magistrate, there is a ‘fair probability’ that contraband or evidence of a crime will be
found in a particular place at the time the warrant is issued.” State v. Jordan, 342
S.W.3d 565, 568–69 (Tex. Crim. App. 2011). In determining whether the affidavit
meets this burden, the magistrate should interpret it “in a non-technical, commonsense manner” and “draw reasonable inferences from the facts and circumstances
contained within its four corners.” Id. at 569.
We give great deference to a magistrate’s determination of probable cause. Id.
When reviewing such a determination, our duty “is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.” Id.;
see also Illinois v. Gates, 462 U.S. 213, 239 (1983) (“An affidavit must provide the
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magistrate with a substantial basis for determining the existence of probable
cause.”).
In his affidavit, Parker stated that he investigated the alleged narcotics
trafficking at Cleveland’s apartment with the help of a reliable CI. Most notably,
Parker stated that he observed the CI purchase cocaine from Cleveland at the
apartment on two separate occasions during the ten-day period preceding his
affidavit’s submission. From these statements, the magistrate could have determined
there was fair probability that cocaine and other evidence of narcotics trafficking
would be found at Cleveland’s apartment at the time of the warrant’s issuance. See
Patterson v. State, 138 S.W.3d 643, 648–49 (Tex. App.—Dallas 2004, no pet.)
(holding affidavit established probable cause for issuance of search warrant for
defendant’s residence when affidavit stated that CI had given reliable information to
law enforcement officer on more than two prior occasions, had been in premises to
be searched within last 48 hours, had seen methamphetamine there, was familiar
with methamphetamine, and methamphetamine was being sold).
We hold that the magistrate had a substantial basis for concluding that
probable cause existed for the search of Cleveland’s apartment. See Jordan, 342
S.W.3d at 569.
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2. Knock-and-announce
We now turn to Cleveland’s contention that Parker’s affidavit failed to set
forth facts sufficient to justify the no-knock entry.
Assuming without deciding the no-knock entry was unjustified, the illegal
manner of entry would not show the trial court abused its discretion in denying
Cleveland’s motion. The suppression of evidence is not a proper remedy for a
violation of the knock-and-announce rule unless the defendant proves the violation
was the unattenuated but-for cause of the seizure of evidence. See Hudson v.
Michigan, 547 U.S. 586, 592 (2006); State v. Callaghan, 222 S.W.3d 610, 613 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). Here, no causal connection existed
between the officers’ manner of entry and seizure of evidence. Officer Parker
obtained a valid search warrant authorizing seizure of cocaine and related evidence
from Cleveland’s apartment. Thus, regardless of their manner of entry, the officers
would have executed the warrant and discovered the incriminating evidence in
Cleveland’s apartment.
We hold that the allegedly unjustified no-knock entry did not warrant
suppression of the evidence because it was not the unattenuated but-for cause of the
evidence’s seizure. See Callaghan, 222 S.W.3d at 613–14 (holding that officers’
violation of knock-and-announce rule before executing search warrant did not
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require suppression of evidence found in search as it was not unattenuated but-for
cause of obtaining evidence).
Accordingly, we overrule Cleveland’s sole issue.
Outcome: We affirm.
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