TX3: Affidavit was completely conclusory, and motion to suppress should have been granted

In the third appeal of this case, the affidavit did not show a substantial basis for showing probable cause to believe that weapons would be found in defendant’s house. The affidavit was bottomed on mere conclusions of the officers, and the motion to suppress should be granted. Kennedy v. State, 338 S.W.3d 84 (Tex. App.—Austin 2011), on remand from Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (appellate issues were preserved) which reversed Kennedy v. State, 262 S.W.3d 454 (Tex. App.—Austin 2008):

For the reasons that follow, we believe that the affidavit did not provide a substantial basis for determining whether there was probable cause to believe that there were illegal weapons on Kennedy’s property. See Tex. Code Crim. Proc. Ann. art. 18.02(4) (West 2005) (listing “weapons prohibited by the Penal Code” as one type of property that search warrant may be issued for). First, although the affidavit described the weapons and ammunition that were recovered from Kennedy’s car on the night of the shooting, nothing in the affidavit indicated that any of the weapons were legally prohibited. In other words, nothing in the affidavit suggested that Kennedy’s possession of the recovered items was, on its own, illegal. Similarly, although the affidavit mentioned that Kennedy had asked the New Braunfels police department to return a handgun that had been taken from him, the affidavit did not explain why the handgun was taken or allege that it was seized because it was a legally prohibited weapon. Consequently, these portions of the affidavit provided no basis to conclude that there was a fair probability that prohibited weapons would be found on Kennedy’s property.

. . .

These statements were too conclusory to properly serve as support for a probable cause-determination. … They did not provide enough information to allow the reviewing magistrate to make an independent evaluation and provided no basis for the officers’ beliefs. On the contrary, the statements provided nothing more than a summary of Goll’s and others’ bare and unsubstantiated beliefs and suspicions that people who “possess and utilize” some legal weapons were more likely to possess and use illegal weapons. …

In addition, we note our strong concern regarding the use of these types of statements as support in a search-warrant affidavit. The statements postulated that individuals who possess and utilize legal weapons were likely to possess and utilize illegal weapons, and this type of rationalization is akin to the idea that individuals who legally use and possess over-the-counter or legally prescribed medications are more likely to use and possess illegal controlled substances. Regardless of whatever statistical significance statements of this sort might in fact possess, these types of overly generalized and unsubstantiated statements that seek to imply illegal conduct based on legal conduct cannot serve as a legitimate basis for a probable-cause determination.

[Remember, Texas has no good faith exception to the exclusionary rule.]