TX14: The fact home surveillance systems are cheap now isn’t PC to get a SW for one in a home without some fact or inference one will be found

To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018):

The parties have not cited, nor have we found, a case in which the Court of Criminal Appeals has determined under what circumstances a magistrate could reasonably infer that an electronic device exists in a particular location. This court has required specific facts to support an inference that those devices exist before we have allowed seizure or search of electronic devices pursuant to a warrant. This is demonstrated by our jurisprudence surrounding the searches of computers/cameras and cellphones.

Many of these cases address the second requirement of article 18.01(c), whether “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,” see Tex. Code Crim. Proc. art. 18.01(c), rather than whether a particular item will be found in a particular location. However, both considerations require that the property or items at issue exist. In this case, appellant’s issue centers around whether probable cause existed that the surveillance video or surveillance equipment was located at the auto shop, not whether probable cause existed that the surveillance video or surveillance equipment constituted evidence of the charged offenses or evidence that appellant committed the offenses. Nonetheless, the magistrate inferred not only that the surveillance video and surveillance equipment was at a specific location (inside of the auto shop); it also inferred that the surveillance video and surveillance equipment existed. Therefore, to the extent cases addressing the second requirement of article 18.01(c) involve inferences regarding the existence of property or items subject to search, we find them persuasive.

Generally, to support a search warrant for a computer, we have held there must be some evidence that a computer was directly involved in the crime. See Ex parte Jones, 473 S.W.3d 850, 856-57 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (defendant subscribed to commercial child pornography website); Ryals v. State, 470 S.W.3d 141, 143, 146 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (defendant told undercover officer that he would use computer to make fake IDs); Porath v. State, 148 S.W.3d 402, 409 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (defendant met complainant in internet chat room).

When there is no evidence that a computer was directly involved in the crime, more is generally needed to justify a computer search. For example, in Checo v. State, 402 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), the defendant kidnapped a child and took her to a house, where he showed her adult pornography on a desktop computer. Id. at 444. The defendant then took the complainant to another room, where he attempted to assault her. Id. The complainant observed a laptop in that room that was set up to take pictures and videos. Id. The affiant obtained a warrant to search for child pornography (which the complainant had not been shown), and the defendant moved to suppress the results of the search, arguing that there was no information in the officer’s affidavits that the defendant photographed or videotaped the complainant, or other information independently linking him to child pornography. Id. at 449. We rejected that argument, noting affidavit testimony from the officer that those who engage children in a sexually explicit manner often collect child pornography on their computers. Id. Given this level of factual specificity, we held that the search warrant was valid. Id. at 449-50.

. . .

Likewise, an affidavit offered in support of a warrant to search the contents of a cellphone must usually include facts that a cellphone was used during the crime or shortly before or after. In Aguirre, we also held that the affidavit was sufficient to search all of the defendant’s cellphones where the complainant said that a particular cellphone was used to photograph her and that the defendant had used instant messenger to send her a photograph of his penis. Id. at 116-17. Based on opinion testimony included in the affidavit that pedophiles share pornography through electronic media, we concluded that all of the cellphones could be searched. Id.

. . .

With these general principles in mind, we turn to the affidavit in this case. We review the affidavit realistically and with common sense; “a reviewing court must uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding that probable cause existed.” Duarte, 389 S.W.3d at 354. Our focus cannot be on what other facts “could or should have been included in the affidavit,” but rather must be “on the combined logical force of facts that actually are in the affidavit.” Id. at 354-55. “The Supreme Court has repeatedly reminded reviewing courts that they should ‘not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.'” Rodriguez, 232 S.W.3d at 59. The allegations in the affidavit are sufficient if they would “justify a conclusion that the object of the search is probably on the premises.” Ramos, 934 S.W.2d at 363 (quoting Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986)). We defer to all reasonable inferences that the magistrate could have made. Duarte, 389 S.W.3d at 354.

We conclude that the affidavit in this case failed to establish probable cause that surveillance video or surveillance equipment existed and would be located at Dreams Auto Customs. The affiant also provided no facts that a computer containing surveillance video was involved in the crime, directly or indirectly, such that the existence of surveillance video or surveillance equipment could be reasonably inferred. The affidavit did not reference any computers or computer hard drives. “[A]udio/video surveillance video and/or video equipment” was mentioned in the introductory paragraph of the affidavit, but no facts were described to support the conclusion that a video surveillance system existed at the body shop. Nor were facts included from which it could reasonably be inferred that surveillance video or equipment would probably be found at the shop.

The State argues that surveillance cameras are part of “everyday life,” and as such, the magistrate could have reasonably inferred the existence of surveillance equipment in Dreams Auto Customs. Courts have held that magistrates may rely on matters of common knowledge in finding probable cause. Rodriguez, 232 S.W.3d at 64 (“As reviewing courts, we are obliged to defer to the magistrate and uphold his determination based upon all reasonable and commonsense inferences and conclusions that the affidavit facts support.”). For example, in Manuel v. State, the affiant did not need to describe special training or experience to support the conclusion that specific clothing worn by a murder suspect would probably be found at his residence, in part, because the court determined that it was common knowledge that the defendant’s clothing would be at a defendant’s home. 481 S.W.3d 278, 284-86 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d) (“[C]ommon experience tells us that there is a ‘fair probability’ that clothing worn ‘a lot’ over a period of years will be kept at a person’s residence.”).

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