Lamb v. State

603 S.W.3d 152

Dustin Judd LAMB, Appellant

v.The STATE of Texas, Appellee

No. 06-19-00203-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: March 5, 2020

Date Decided: April 17, 2020

James R. Rodgers, The Moore Law Firm, LLP, Paris, for Appellant.

Gary D. Young, Lamar County and District Attorney, Paris, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

Following Dustin Judd Lamb's indictment for the offense of online solicitation of a minor, Lamb filed three pretrial motions to suppress evidence¹ that were denied by the trial court. Lamb thereafter entered into a plea agreement with the State, and the trial court placed him on deferred adjudication community supervision for a period of ten years and imposed a $1,000.00 fine. In a single appellate issue, Lamb contends that the trial court erred in denying his motion to suppress "the cell phones seized from [his] person and vehicle." Because we find that the trial court erred in denying Lamb's motion to suppress evidence of the cell phone seized from Lamb's person and because that error was harmful, we reverse the trial court's judgment and remand for a new trial.

I. Background

G.P., a minor who was trading Instagram messages with forty-three-year-old Lamb, attempted suicide after her mother confronted her about those sexually explicit exchanges. Officer Jeremy Massey of the Reno Police Department investigated the incident and learned that G.P. and Lamb had been exchanging sexually explicit private messages on Instagram and that G.P. told Lamb that she was fifteen years old. Further investigation revealed that Lamb attempted to claim that his son sent the messages, but the timing of the messages precluded that likelihood.

Based on this information, among other things, Massey executed an affidavit seeking a search warrant of Lamb's property located at 120 County Road 12550 in Lamar County. The affidavit more particularly described the property as "[a] location known as 120 County Road 12550, Lamar County[,] TX." The affidavit continued, "The location has a brown wooden shop with the east side painted beige with a white camper trailer parked beside it. The address is displayed in front of the home on the mailbox." The affidavit further stated that Massey had probable cause to believe that "the occupant(s)^{[2 ]} of the suspect location [was/were] in the possession of cellular telephones, computers, and digital media storage devices that may contain sexually explicit material and messages with a minor child" and requested "a search warrant for the described property, including any and all outbuildings and motor vehicles."

Based on Massey's affidavit, a search warrant was issued commanding entry onto "120 County Road 12550, Lamar County, Texas[,] described in said affidavit and there search for the property described in said affidavit and to seize same named in the affidavit."

At the suppression hearing, Massey testified that no one was on the premises when he and three other police officers arrived at 120 County Road 12550 to execute the search warrant. According to Massey, Lamb arrived during the course of the search, pulled off the county road, and parked. Massey could not testify as to the location of the property line and could not say whether Lamb's vehicle was on the property described in the search warrant. Justin Hicks, Massey's neighbor and relative, testified that he drove by the property located at County Road 12550 on the day of the search and noticed several squad cars there. He saw Lamb standing in the road by his truck and stopped to talk with him. Hicks testified that Lamb was parked "in the road" and was standing "in the center of the road" leaning on his truck. There were three or four squad cars parked in Lamb's driveway blocking the entrance. According to Hicks, Lamb's truck was not in the ditch, but it was on the road surface.

When Lamb got out of his vehicle and asked the officers what was going on, Massey believed that he and Lamb were both on the property described in the warrant. Massey believed that because Lamb parked his car on the gravel and not on the road that the car was also on the premises described in the warrant. The car was parked next to a small drainage ditch. Although the search warrant did not authorize a search of Lamb's person, and Massey was aware of that fact, Massey removed Lamb's cell phone from Lamb's back pocket. This action is reflected in Massey's chain-of-custody report. After Massey confiscated Lamb's cell phone, he directed the other officers to conduct a search of Lamb's vehicle.

The search of Lamb's vehicle resulted in the seizure of a second cell phone, a stealth cam, an SD card reader, an Olympus recorder, and a Taurus pistol. Massey admitted that the only basis for the search and seizure was the warrant. Lamb was arrested at the scene based on his confession.

Lamb challenges the trial court's denial of his motion to suppress evidence of the two cell phones. The trial court certified Lamb's right to appeal the denial of his motion to suppress, and this appeal timely ensued.

II. Standard of Review

We review a trial court's decision on a motion to suppress under a mixed standard of review. "We give almost total deference to the trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on credibility and demeanor while we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor." Johnson v. State , 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) ; see Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We must affirm the decision if it "is reasonably supported by the record and is correct under any theory of law applicable to the case." Brito Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005) ; see Osbourn v. State , 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

III. Analysis

Lamb claims that the search warrant did not authorize the search of his vehicle or the confiscation of his cell phone from his person.

A. The Search of Lamb's Vehicle Was Constitutionally Permissible

Lamb claims that the search of his vehicle exceeded the scope of the warrant because at the time of the search, his vehicle was not located on the premises to be searched as described in the warrant. "The scope of a search warrant is governed by the terms of the warrant, and the scope includes spatial restrictions as well as the items to be seized." Drayton v. State , 559 S.W.3d 722, 726 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (citing Zarychta v. State , 44 S.W.3d 155, 166 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) ). "A search made under the authority of a search warrant may extend to the entire area covered by the warrant's description." Long v. State , 132 S.W.3d 443, 448 (Tex. Crim. App. 2004) (quoting Wayne R. LaFave, Search and Seizure, § 4.10(a) at 654 (3d ed.1996)). "When courts examine the description of the place to be searched to determine the warrant's scope, they follow a common sense and practical approach, not a ‘Procrustean’ or overly technical one." Id. (citing United States v. Ventresca , 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Ker v. California , 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ). When the scope of the search is challenged based on the location of the search, "the officer[ ] must show that [he was] properly in the place where the item was found," either on the basis of the search warrant or under the authority of an exception to the warrant requirement. Snider v. State , 681 S.W.2d 60, 63 (Tex. Crim. App. 1984) ; see Swink v. State , 747 S.W.2d 53, 54 (Tex. App.—Texarkana 1988, no pet.).

The search warrant specifically authorized the search of any and all motor vehicles³ located on the premises of 120 County Road 12550, Lamar County, Texas. Massey's testimony at the suppression hearing revealed that Lamb "pulled off the county road onto the property on the property line there." Although Massey did not know where the surveyed property line was located, he testified that Lamb left the roadway or what he would "consider the actual road, the gravel or pavement and onto the grass." Massey testified that he believed that to be the yard of the premises described in the search warrant.

Although the record before us does not definitively answer the question of whether Lamb's vehicle was parked on the premises of 120 County Road 12550 at the time of the search, Massey's testimony indicates that he was on the premises pursuant to a valid search warrant⁴ and that he believed that Lamb's vehicle was located on the premises or curtilage of his property. Even if Massey was mistaken in this belief, the search was nevertheless valid if it was reasonable. "What is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant [or] the police officer executing a warrant ... is not that they always be correct, but they always be reasonable." Illinois v. Rodriguez , 497 U.S. 177, 185, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (no Fourth Amendment violation when police made warrantless search of apartment based on reasonable belief that they had valid consent to search when they did not). The Brinegar Court explained the requirement of reasonableness in a way that is particularly apt here: "Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable [persons], acting on facts leading sensibly to their conclusions of probability." Brinegar v. United States , 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). This is because "sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment." Rodriguez , 497 U.S. at 185, 110 S.Ct. 2793. The record here adequately demonstrates...