Checo v. State, 2013 WL 2489936 (Tx. Ct. of. Appeals)

M.C., a seven year old girl, testified that appellant was parked outside her school by a bike lane in his green truck.   Appellant was holding a cell phone to his ear and told M.C. that her mother wanted appellant to pick her up.  M.C. got in the truck, and appellant drove back to his townhouse.  Inside the townhouse appellant brought M.C. up to his room, which M.C. described as “a mess” and had a cartoonish pictures of the sea on the walls.  M.C. also described the bedroom with specificity including that the bed was directly on the floor with no frame, and there was a laptop setup to take photos or video.  Next, appellant brought M.C. back downstairs where he showed her pornographic videos on a laptop.  After, he brought her back upstairs and told her to sit on the bed.  Appellant asked M.C. if she knew how to kiss and suck on a lollipop.  M.C. replied “no” and began to cry.  Appellant had his pants pulled down to his knees exposing his boxer shorts.  He apologized to M.C. and dropped her off at a corner telling her not to tell anyone what happened.   When M.C. got home she told her parents who took her to the police station.   M.C. was able to identify appellant as well as his green truck.

Based on information provided by M.C. the police obtained search warrants allowing them to search appellant’s person, residence, truck, and a laptop found in the truck for child pornography.  The search revealed numerous other digital media storage devices, which ultimately yielded sexually explicit videos, chat logs, a pump device, lubricants and two news tracts by another convicted child molester.  There were over 300 images of child pornography found in appellant’s digital media storage devices.  Appellant was convicted.  He appealed his conviction on eight grounds, generally reduced to attacks on the search warrants and attacks on the admissibility of evidence.

Search Warrant Attacks:  Appellant argued that the search warrants were so overbroad as to constitute “general warrants” in violation of the 4th Amendment of the Constitution.  He then argued that because of the violations the court erred in denying his motion to suppress.

The Fourth Amendment requires that 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. The particularity requirement forecloses the opportunity for a general search and prevents the seizure of one thing under a warrant describing another by restricting the discretion of the executing officer.

Overly broad language in a warrant, however, does not necessarily render the entire resulting search and seizure improper. Instead, the remedy for an overly broad warrant is to sever the overly broad portions from those that are sufficiently particular; the search and seizure of items listed under the valid portions is lawful; only seized items not covered by the particularized portions  should be excluded from evidence on that basis.

In appellant’s case, both warrants (truck/laptop, and home/person) were virtually identical in their language, and both contained the introductory language “to search for and to seize any and all items that may be found there…including but not limited to…”  The court found that the “any and all” language was indeed broad, but assuming without conceding that it was “overly broad” the saving language of the specific categories would allow the broad language to be severed while still adequately capturing the items which were seized.

Practitioner Note: Failing to include the particularity of what is to be seized can be fatal, warrants should be as specific as possible.

Appellant also argued that the particularity language was itself overly broad.  The warrants were written as to include “any and all data, information, or evidence of…”

Appellant did not raise this issue on appeal, and therefore forfeited the issue.  Having not shown error by the trial court, he failed to meet his burden.

The appellate court found appellant’s claims to be without merit.

Affidavit Attacks:  Appellant argued that the police officer’s affidavit did not provide probable cause to support a search and seizure for child pornography.  Specifically appellant argued that just because he abducted M.C., and showed her adult pornography, in the absence of evidence that he also photographed or video recorded M.C. there was no probable cause to suggest he possessed child pornography.  In short, appellant argued there was no direct link to child pornography based on the facts of his case.

An appellate court reviews a magistrate’s decision to authorize a search warrant under a highly deferential standard, and is limited to the four corners of the document.

The affiant drew clear links in his affidavits, based on his experience, training, and discussions with other experienced investigators, between appellant’s alleged actions and the likelihood he possessed child pornography. Of particular note, the facts as presented by the affiant established not only that appellant possessed sexual proclivities toward children but also that he had an interest in and ready access to pornography, based on the fact he showed pornography to M.C. while she was in his townhouse.

The court concluded that the affidavit provided substantial basis for concluding that probable cause existed.

Practitioner Note:  The language used in the affidavit drew links between the physical touching of a child to the probable possession of child pornography by citing studies as well as professional experience.

Each of appellant’s claims were rejected and the rulings of the trial court affirmed.

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