Page 63 - Police Officer's Guide 2013

finally firing a shotgun. We conclude that factor three is neutral. The police requested consent to search. This
fourth factor favors appellant.
Appellant was made fully aware, both orally and in writing, of his right to decline consent. This fifth
factor favors the State. The sixth factor requires us to consider whether the police purpose underlying the
illegality was to obtain the consent to search. As stated in our discussion of the third factor, the police testified
that their purpose in forcing appellant to leave his home was to discuss the municipal code violations they had
seen, as well as the drug paraphernalia and the odor of marihuana. The police testified that they did not form an
intent to seek consent to search the house until the protective sweep of the house. The sixth factor favors the State.
Only two of the six factors favor the State, thus we conclude that the State has not met its burden of showing that
the taint of appellants illegal seizure was sufficiently attenuated from his subsequent consent to search. Thus, the
trial court erred in denying appellants motion to suppress.

st
Orosco v. State, No. 01-11-00559-CR (Ct. App. Houston [1 Dist] July 12, 2012).

SEARCH AND SEIZURE. WARRANTS. COMPUTER SEARCHES.

The defendant, who was a manager of a fastfood restaurant, began having a sexual relationship with a 16-
year-old girl who worked there. She took digital photos of herself naked and gave them to the defendant. When
their relationship was discovered by the girls parents and reported, she allowed the police to record a phone
conversation she had with the defendant in which they discussed some details of their sexual acts. A police
detective obtained an arrest warrant and a search warrant for the mans house. When the search warrant was
executed, officers seized a digital camera, pornographic DVDs, a laptop computer, a desktop computer tower,
phone cards, condoms, and a blindfold the defendant had used in one of his encounters with the girl. The
defendant was arrested after the police arrived at his house to search it. He was taken to the police station and
confessed to his part in the offense. A forensic analysis of defendants computers uncovered images that were
given to the detective. After he was indicted for multiple counts of sexual assault, possession of child
pornography, and indecency with a child, the defendant moved to suppress the evidence found at his house. He
argued that the warrant was not supported by probable cause, and that the affidavit was deficient. Following
denial of his motion, the defendant was tried by a jury and convicted on all but one of the counts. He appealed.

Holding: A search warrant must be supported by an affidavit that establishes probable cause within the
four corners of the affidavit. The affidavit must set forth facts establishingthat (1) a specific offense has been
committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person
committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. When a
court reviews a warrants affidavit for sufficiency, the issue is not whether there are other facts that could have,
or even should have, been included in the affidavit. Rather, the reviewing court focuses on the combined
logical force of facts that are in the affidavit, not those that are omitted from the affidavit. In this affidavit, the
affiant stated that the girl admitted that the defendant on several occasions asked her to provide him with pictures
of herself unclothed. She said she took two photos of herself in the restroom at work with the defendants cell
phone camera.

When the defendant brought a digital camera, the victim took additional photos of herself naked at her
home and gave the camera back to the defendant. He told her later that he had saved the pictures on a memory
card, but she did not know whether he saved them on his desktop computer. She knew he had a laptop, but he
told her it was not working. The affidavit alleged that the defendant had sexually assaulted the girl and had digital
pictures of her on two devices. It further alleged that he had saved some images on a memory card; that he had
a desktop computer in his house; and that he threatened to post the photos of the girl on the internet, suggesting
that the pictures would be stored or transferred to a computer for that purpose. Based on these allegations, the
magistrate reasonably could conclude that the photographs of the girl would be found on the defendants

A Peace Officer’s Guide to Texas Law 56 2013 Edition