State v. Powell

¶1OPINION

¶2delivered the opinion of the Court

¶3This case involves a lawful search of two safes preceded by a seizure of these safes. Appellee is charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. The events leading up to this charge began when the police received information that appellee was making forged checks in his home. The police obtained a warrant to search appellee’s home and to seize, among other things, “checks and materials to make forged checks.” While executing this search warrant at appellee’s home, the police found two safes which no one disputes' the police could have lawfully searched since the safes could have contained “checks and materials for making forged checks.”1 The police seized these two safes and took them to the police station where they searched them the next day and found in one of the safes the methamphetamine that is the subject of this prosecution. The trial court and the court of appeals decided that the seizure of these two safes violated appellee’s Fourth Amendment rights because these safes were not “particularly described” in the search warrant as items to be seized. Accordingly, the trial court and the court of appeals decided that the methamphetamine had to be suppressed. We will reverse.

¶4The record reflects that Hurst Police officer James Hobbs developed information from a person named Lisa Lowery that appellee and another person named Leia McGee were making forged checks in a home where appellee and McGee lived with McGee’s 83-year-old grandmother (Roberta). Based primarily on information provided by Lowery, Hobbs prepared an affidavit in support of an application for *763a warrant to search the home. Hobbs prepared this affidavit on January 29, 2004, and it recites: (1) that Lowery was at the home when appellee and McGee gave her forged checks to purchase various items, (2) that appellee and McGee had stolen some customer checks from Cingu-lar Wireless, (3) that appellee and McGee were making forged checks on a computer at the home where Lowery also saw drugs, guns and counterfeit money, (4) that Lowery had used forged checks furnished by appellee and McGee to buy a big-screen television at a Sam’s furniture store and a safe at a Home Depot, (5) that this big-screen television and this safe were in the home, (6) that appellee was “currently in custody at Tarrant County Jail and no longer” at the home, (7) that McGee “has been arrested for Theft and DWI,”2 and (8) that Roberta “was not involved.”

¶5Another section of the search-warrant affidavit described “property concealed and kept [at the home] in violation of the laws of Texas” as follows:

THERE IS AT SAID SUSPECTED PLACE AND PREMISES PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF TEXAS AND DESCRIBED AS FOLLOWS:

Numerous customers’ checks stolen from Cingular Wireless.

Checks and materials to make forged checks.

Computers, printers and scanners for forging checks.

Big Screen JVC 32 inch flat screen Television Serial Number 16837227 JVC TV Stand model # RKC32DF4AS purchased with a counterfeit check Dated 01-22-04 for $974.15 From [sic] Sam’s Furniture.

Lexmark Print Trio color jet printer purchased on January 24, 2004 for $99.99 with counterfeit check #4957 from Express Computer Repair.3

¶6On January 29, 2004, a magistrate issued a search warrant for the home “to there search for the property described in said Affidavit, and to seize the same.” That same day, Hobbs and other police officers executed the search warrant and searched the home. The police seized two safes that were somewhere in the home. They took these safes to the police station. The next day a locksmith “drilled out the safes.” The police found methamphetamine in one of the safes.

¶7Appellee was charged with possession with intent to deliver more than 4 but less than 200 grams of methamphetamine. Ap-pellee filed a written motion to suppress. This motion stated that in “one of the safes [seized from the home] the methamphetamine made the basis of this case was found.” This motion further stated that “there was insufficient probable cause on the face of the affidavit to justify the search warrant and that the scope of the warrant was exceeded.”

¶8The trial court held a suppression hearing at which the search warrant and Hobbs’ search-warrant affidavit were introduced into evidence. Hobbs, who was the only witness to testify at the suppression hearing, testified that Roberta was the only adult at the home when the police “originally arrived” to execute the search warrant.

*764Q. [STATE]: And was there a grandparent that was staying there at the time?

A. [HOBBS]: Roberta McGee, the grandmother, was there when we arrived.

Q. Any other persons that were-well, was she the only owner of [the home] that was there at the time, the grandmother?

A. As far as we knew, when we originally arrived, she was the only one there, the adult there. She met us outside.

¶9The suppression-hearing record is silent on why the police took the safes to the police station to search them there. This record is also silent on whether one of the two safes seized from the home was the safe that Lowery bought at a Home Depot with a forged check. This record is also silent on which safe contained the methamphetamine.4

¶10Appellee claimed in final arguments to the trial court at the suppression hearing that the police exceeded the scope of the warrant when “they grabbed two safes, went back to Hurst, let them sit overnight, and then opened them....” The State responded that “[i]f they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.”

[STATE]: Secondly, as far as the safe goes, I mean, this detective testified that’s where these people hide this stuff. They had a right to search wherever to find these sorts of things, whether it’s in a safe, a wall safe, a floor safe, or a safe that they removed. If they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.

Additionally, the State would argue that’s stolen property, and that’s not an interest, a legitimate expectation of privacy that society is prepared to recognize.

[THE COURT]: You want one more time, too?

[DEFENSE]: Your Honor, there’s nothing in that affidavit that shows both of those safes were stolen property. They took two safes. They mention one, they took two, let them sit overnight and drilled them out.

¶11The trial court subsequently signed an order granting appellee’s motion to suppress. This order recites that the trial court made its ruling after “[h]aving considered the evidence and the credibility of the witnesses.” On the State’s direct appeal from this ruling, the court of appeals decided that the seizure of the two safes exceeded the scope of the warrant, because these safes were not “particularly described” in the warrant as items to be seized resulting in their seizure to have been “warrantless,” and that the evidence, viewed in the light most favorable to the trial court’s ruling granting appellee’s motion to suppress, supports a ruling that this warrantless seizure of the safes cannot be justified under the “plain-view” exception to the warrant requirement. See State v. Powell, 268 S.W.3d 626, 630-32 (Tex.App.-Fort Worth 2008).5 We granted *765the State’s petition for discretionary review which presents the following four grounds for review.

1. Did the Court of Appeals err by holding that the search and seizure of the locked safe(s) found on Appellee’s premises was not within the scope of the search which was supported by a search warrant based on probable cause?6

2. Did the Court of Appeals err in concluding that a locked safe(s) could not be seized, notwithstanding it could be reasonably concluded that it was a repository for forged checks and other fruits which were listed to be seized pursuant to a search warrant based upon probable cause?

3. Did the Court of Appeals err in failing to utilize the correct analytical construct appropriate to items seized and not listed to be seized in a search warrant based on probable cause and issued pursuant to Tex.Code Crim. Proc. Ann. art. 18.02(1), (8), (9) and (12)?7

4. Did the Court of Appeals implicitly hold the plain-view doctrine was inapplicable because the officer executing the search warrant seized “mere evidence,” ie., the locked safe(s), not listed as an item to be searched or seized in the warrant supported by probable cause.

¶12I.

¶13The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. The Fourth Amendment’s “particularity” requirement is primarily meant to prevent general searches and the seizure of one thing under a warrant that describes another thing to be seized. See Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

¶14Appellee argues that the safes were not particularly described in the warrant as items to be seized and that their seizure, *766therefore, exceeded the scope of the warrant rendering their seizure warrantless8 which, on this record, cannot be justified by any exigency. Appellee argues that “[wjhile it would have been proper for the police to open those safes while still on the premises, actually seizing the safes for future opening off of the premises was improper.”

¶15The general Fourth Amendment rule is that the police cannot seize property that is not particularly described in a search warrant.9 This general rule is subject to “limited exception[s]” for various exigencies that require or make it reasonable for the police to seize this not-de-sci’ibed-in-the-warrant property (e.g., the owner of a not-deseribed-in-the-warrant locked safe, which the police may lawfully search pursuant to a search warrant, refuses to unlock the safe). See Wayne R. Lafave, Search & Seizure.- A Treatise On The Fourth Amendment § 4.11(a) (4th ed.2004) (there are cases in which it will be quite reasonable for police to remove a container, such as a computer or a file cabinet containing voluminous documents, from the scene of the search so that opening it and examining it can be more readily accomplished elsewhere but this is “a limited exception to the general rule that a search warrant does not give police license to seize personal property not described in the warrant on the ground that such property might contain items that the warrant does describe; it only allows police to search such property at the place where the warrant is being executed”) (emphasis in original, internal quotes omitted);10see also United States v. Johnson, 709 F.2d 515, 516 (8th Cir.1983) (while executing a search warrant authorizing seizure of weapons, police seized not-described-in-the-warrant locked floor safe after defendant refused to open it).

¶16The State nevertheless claims, as it did at the suppression hearing, that “[ojffi-*767cers searching the premises for checks and materials to make forged checks ... properly seized and searched the safes discovered at the premises because it was reasonable for the officers to believe that the safes could contain the items sought.” This argument is contrary to the plain language of the Fourth Amendment that authorizes police to seize only the items described in a search warrant. It does not authorize, in the usual case, the police to seize not-deseribed-in-the-warrant containers even though the police may lawfully search these containers on the premises pursuant to the warrant.

¶17The Eighth Circuit Court of Appeals’ decision in United States v. Robbins11illustrates this. In Robbins, the police seized, during a search of the defendant’s business, the defendant’s not-described-in-the-warrant wallet that the police could have lawfully searched on the premises because it could have contained described-in-the-warrant items. See Robbins, 21 F.3d at 298-301. The wallet was not searched until the middle of the defendant’s trial and found to contain described-in-the-warrant items. See id. The Eighth Circuit decided that the seizure of the wallet violated the Fourth Amendment and characterized an argument, very similar to the one made by the State in this case that the police properly seized the wallet because they could have searched it, as “a fundamental misapprehension of Fourth Amendment law.” See Robbins, 21 F.3d at 300. The Eighth Circuit wrote:

In essence, the government’s argument is that because the warrant authorized officers to search inside the wallet, it also authorized them to seize the wallet. This argument is a fundamental misapprehension of Fourth Amendment law. The record shows that the government did not discover the notes until it searched the wallet in the middle of Robbins’ trial, months after it seized the wallet from his business. The threshold issue is whether officers were entitled to seize the wallet in the first place. The general rule, of course, is that police may only seize items described in the search warrant, absent an exception to the warrant requirement. Simply put, we believe that officers did not have authority to seize the wallet because the wallet itself was not an item described in the search warrant.

That items described in the warrant were ultimately found in the wallet does not justify the initial seizure. A search warrant does not give the police license to seize personal property not described in the warrant on the ground that such property might contain items that the warrant does describe; it only allows police to search such property at the place where the warrant is being executed if the property “legitimately might contain the [items] specified in the warrant,” and then to seize the described items they find inside or, under certain circumstances, the property itself once it is found to contain described items, see United States v. Beusch, 596 F.2d 871, 876-77 (9th Cir.1979) (holding that officers could seize entire ledgers once they discovered that some of the individual pages matched warrant description; officers need not examine the entire ledger on the spot and then remove relevant individual pages).

¶18See id.(emphasis in original, footnotes and citations to other authorities and to record omitted).

¶19The suppression-hearing record reflects that the State made no attempt to establish a “limited exception” to the general Fourth Amendment rule that the police *768may not lawfully seize not-described-in-the-warrant property and it apparently litigated the issue concerning the legality of the police seizure of the safes based solely on its interpretation of Fourth Amendment law that “[i]f they could have looked at it out there at the scene, they could have seized it and brought it back into the police department.” This might explain why the record is silent on why the police seized the safes and whether the seizure of the safes was justified by some exigency such as, for example, that there was no one at appellant’s home who could have opened the locked safes.12

¶20Notwithstanding the foregoing, we do not agree with the court of appeals’ decision and the State’s concession that the safe that Lowery bought at a Home Depot with a forged check was not particularly described in the warrant as property to be seized. See Powell, 268 S.W.3d at 631 (“A safe is mentioned in the [search warrant] affidavit, not as property to be seized, but as part of Hobbs’s basis for probable cause: ‘Lisa Lowery also told me that [appellant] and [McGee] gave her another check # 4961 in the name of Augustine Terrell for $199.14 to go to Home Depot to purchase a safe for them. Lisa Lowery advised that the safe is at [the Premises].”’). The search warrant that was issued by the magistrate authorized the police to enter appellee’s home “to there search for the property described in the affidavit, and to seize the same and bring the same before me.” (Emphasis supplied). The safe that Lowery bought at a Home Depot with a forged check was “property described in the affidavit.” The police, therefore, could have seized the two safes they found in the home because they could have reasonably believed that one of the safes was the one that Lowery bought at a Home Depot with a forged check and that Lowery said was in the home.13See *769Article 18.02. This decision on this question of law as to what items the search warrant authorized to be seized does not have the effect of converting the search in this case into a general search and it does not have the effect of authorizing the seizure of one thing under a warrant describing another. See Marron, 275 U.S. at 196, 48 S.Ct. 74 (Fourth Amendment requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another).

¶21II.

¶22In addition, assuming that the seizure of the safes by the police violated appellee’s Fourth Amendment possessory rights in these safes,14 we believe that the “massive” remedy of exclusion of the methamphetamine in this case is not required under the United States Supreme Court’s decision in Hudson v. Michigan, which decided that the violation by the police of the knock-and-announce Fourth Amendment rule that preceded an otherwise lawful search of the defendant’s home pursuant to a search warrant did not require exclusion of evidence that was found during the search. See Hudson v. Michigan, 547 U.S. 586, 594, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.”) (emphasis in original).15 Appellee’s interests that were allegedly violated in this case (his possessory and not his privacy interests in the safes) have nothing to do with the otherwise lawful search of the safes that resulted in the acquisition of the methamphetamine. See id.; Horton, 496 U.S. at 133-34, 110 S.Ct. 2301.

¶23The police could have lawfully searched the safes pursuant to the warrant before and after any unlawful seizure of them by the police.16 It thus cannot be *770said that the timing of the search of the safes violated appellee’s privacy interests in the safes. See id.17It also cannot be said that the police searched the safes and discovered the methamphetamine as a result of exploiting any unlawful seizure of the safes or that any unlawful seizure of the safes was even a “but-for” cause that led to the police searching the safes and discovering the methamphetamine.18See Hudson, 547 U.S. at 592-93, 126 S.Ct. 2159 (“... exclusion may not be premised on the mere fact that a constitutional violation was a but-for cause of obtaining the evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition of suppression... .Whether [the violation of the Fourth Amendment knock- and-announce rule] had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.”) (emphasis in original and internal quotes omitted) and at 601 (“While acquisition of the gun and drugs was the product of a search pursuant to a warrant, it was not the fruit of the fact that the entry was not preceded by knock-and-announce.”). We believe that this record, viewed in the light most favorable to the trial court’s ruling in favor of appellee, fairly demonstrates that the police would have searched the safes whether or not they took them to the police station.19 In this case, therefore, we are unable to conclude that there is any causal connection between any unlawful seizure of the safes and the otherwise lawful search of the safes resulting in the acquisition of the methamphetamine by the police. This otherwise lawful search of the safes was “wholly unrelated” to any prior unlawful seizure of these safes.

¶24The following discussion from Part IV of Hudson20of the Supreme Court’s prior decision in Segura v. United States21 further illustrates why the remedy of exclusion of the methamphetamine is not required in this case as a result of any *771unlawful seizure of the safes that may have occurred.

Like today’s case, Segura involved a concededly illegal entry. Police conducting a drug crime investigation waited for Segura outside an apartment building; when he arrived, he denied living there. The police arrested him and brought him to the apartment where they suspected illegal activity. An officer knocked. When someone inside opened the door, the police entered, taking Segura with them. They had neither a warrant nor consent to enter, and they did not announce themselves as police — an entry as illegal as can be. Officers then stayed in the apartment for 19 hours awaiting a search warrant. Once alerted that the search warrant had been obtained, the police — still inside, having secured the premises so that no evidence could be removed— conducted a search. We refused to exclude the resulting evidence. We recognized that only the evidence gained from the particular violation could be excluded, and therefore distinguished the effects of the illegal entry from the effects of the legal search: “None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioner’s apartment ...” It was therefore “beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged.” If the search in Segura could be “wholly unrelated to the prior entry,” when the only entry was warrantless, it would be bizarre to treat more harshly the actions in this case, where the only entry was with a warrant. If the probable cause backing a warrant that was issued later in time could be an “independent source” for a search that proceeded after the officers illegally entered and waited, a search warrant obtained before going in must have at least this much effect.

¶25See Hudson, 547 U.S. at 600-01, 126 S.Ct. 2159 (discussing Segura) (citations omitted and emphasis in original).

¶26In this case, the methamphetamine was not obtained because the police may have unlawfully seized the safes but “because of a subsequent search pursuant to a lawful warrant.” See Hudson, 547 U.S. at 592, 126 S.Ct. 2159 (but-for causality is a necessary condition for application of exclusionary rule) and at 605 (Kennedy, J., concurring in part and concurring in the judgment) (“In this case the relevant evidence was discovered not because of a failure to knock and announce, but because of a subsequent search pursuant to a lawful warrant.”). We, therefore, decide that the “massive” remedy of exclusion of the methamphetamine is not required in this case. We believe that, as the defendant’s remedy in Hudsonwas a civil suit for damages for his broken door, any remedy that appellee might have is also a civil suit for damages for his alleged unlawfully seized safes. See Hudson, 547 U.S. at 596-99, 126 S.Ct. 2159.

¶27The judgment of the court of appeals is reversed, and the case is remanded there for further proceedings not inconsistent with this opinion.

¶49filed a dissenting opinion.

¶50I agree with the Court that the seizure of the safe in which the methamphetamine was discovered constituted an incremental intrusion upon a possessory interest for Fourth Amendment purposes. Even though the officers could have searched the safes while they were on the premises on authority of the warrant, they could not remove the safes to a different location to conduct the search absent some exigent circumstance that would make searching on the premises impracticable — -unless, of course, the warrant actually authorized seizure of the safes.1 The Court goes on to hold that the warrant does authorize seizure of the safes. With this I respectfully disagree.

¶51The warrant in this case authorizes the officers “to seize” “the property described” in the incorporated warrant affidavit. Paragraph 2 of the warrant affidavit expressly sets out the “PROPERTY ... DESCRIBED[,]” but this paragraph, while it specifies certain checks, electronic equipment for forging checks, and two items stolen with counterfeit checks (even supplying a serial number for the stolen television, so that it might be distinguished from any other television that might be found), makes no mention of a safe.2 Later, in the part of the warrant affidavit intended to supply the necessary probable cause, brief allusion is made to a safe that was purchased from Home Depot with what, in context, we may suppose was a forged check (although, contrary to the Court’s suggestion, the affidavit does not expressly say so). The informant indicates that the safe was located in the house to be searched. But the affidavit does not otherwise “describe” the safe with any specificity. I cannot conclude that the warrant affidavit really “described” the safe at all, much less that it did so with sufficient particularity to satisfy the Fourth Amendment.

¶52Indeed, the warrant affidavit does not even provide enough detail to distinguish which of the two safes actually seized was the stolen safe. As the court of appeals remarked in its opinion, the affidavit “did not indicate what the safe would be used for, its size, its color, its brand, or anything else that would distinguish the safe from all other safes.”3 Even assuming the warrant affidavit would authorize the seizure of the stolen safe from the premises, it unequivocally did not authorize the seizure of two safes, and provides no basis to determine which of the two safes the officers could seize. From the scant information provided, we cannot know whether the methamphetamine was actually found in the safe that the affidavit mentions, or in the unmentioned safe. This uncertainty underscores the very purpose behind the particularity requirement of the Fourth Amendment as it pertains to the seizure of property, ie., to “prevent[] the seizure of one thing under a warrant describing another.” 4 “As to what is to be taken, nothing [should be] left to the discretion of the officer executing the warrant.”5 Here, the police officers could not have deter*773mined which safe they were authorized to seize. Under these circumstances, the court of appeals was correct to conclude that the particular safe mentioned in the warrant affidavit was described with insufficient particularity to authorize them to seize either of the two safes they found on the premises. I cannot fathom how the Court now divines that there is sufficient particularity to authorize the officers to seize both.

¶53Finally, I would not reach the alternative question whether, assuming a Fourth Amendment violation, the exclusionary rule ought to apply. Given the Court’s holding that the seizures were, in any event, authorized by the warrant, this issue does not arise, and the Court’s discussion of it is purely advisory. And even if the Court agreed with me that the warrant does not authorize seizure of the safes, it would be inappropriate to reach this question. The State has not argued at any level of these proceedings-in the trial court or on appeal-that the exclusionary rule ought not to apply. Because the issue was never joined below, there is no “decision” from the court of appeals with respect to that issue that we may review in our capacity as a discretionary review court.6 The Court reaches its desired conclusion at least partly on the basis of a plurality portion of a United States Supreme Court opinion that is not precisely on point.7 Neither the parties nor the court of appeals have addressed the advisability of extending the holding of that case to the distinct facts here.8 The whole enterprise is anti-adversarial, ill-informed, and anti-systemic. I abstain.

¶54I would simply affirm the judgment of the court of appeals upholding the trial court’s ruling. Because the Court does not, I respectfully dissent.