Page 165 - Texas police Association Peace Officer Guide 2017

If the Legislature did not intend for search warrant affidavits to become public until a peace
officer executes the warrant, it may revise the statute to that effect. A bill currently pending
before the Legislature would amend .article 18.0l(b) to provide that the affidavit becomes public
information when the search warrant for which the affidavit was presented is executed. See Tex.
H.B. 3237, 85th Leg., R.S. (2017).

SUMMARY
A court construing the plain language of article ,18.0l(b) of the Code of Criminal Procedure
would likely conclude that a search warrant affidavit becomes public information when sworn to
and filed with the court.

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Opinion No. KP-0145, Texas Attorney General’s Office, April 24 , 2017.
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SEARCH WARRANT – SPECIFICITY OF AFFIDAVIT – GOOD FAITH EXCEPTION

In April 2014, Temple, Texas police officers executed a search warrant at Byron Moore’s
residence. In support of the warrant, police submitted the two-page affidavit of a Temple police
investigator with experience in narcotics crimes. The affidavit listed an address, described the
residence at that address, and said the residence was “controlled by” Moore and another The
warrant application sought authorization to search all vehicles and outbuildings located on or
around the property. It identified the evidence to be seized as synthetic cannabinoids, also known
as the controlled substance “K-2.” The affidavit identified both Moore and the other individual
as suspected parties, detailed some of Moore’s criminal history, and noted that there were
security cameras on Moore’s property. Moore has twice been convicted of state aggravated
assault with a deadly weapon and, at the time of the search, was on parole for one of those
offenses. Moore also had a federal conviction for distribution of crack cocaine.

The affidavit described three inspections conducted in late March and April 2014 of trash
discarded in a receptacle in a public alley behind the residence, the latest being conducted 72
hours before the magistrate judge approved the warrant application. The motion to suppress
challenged the sufficiency of these inspections as support for probable cause for the warrant.
These inspections revealed:
• March 26: mail addressed to Moore’s residence and several K-2 “roaches,” i.e., butts of a
cannabis cigarette, in a “sealed” trash bag;
• April 7: a box addressed to one of the suspected parties, a K-2 spice package, and a K-2 roach
in a “sealed” trash bag; and
• April 23: mail addressed to Moore or the other suspect and three K-2 roaches contained in a
“sealed” trash bag, and a K-2 package.

Police subsequently tested the roaches, all of which were positive for K-2. The affidavit
did not include the specific addressee of the mail enclosed in the trash bags, and contained no
other information connecting Moore to possession of K-2 or any other current criminal activity at
his residence.

A Peace Officer’s Guide to Texas Law 160 2017 Edition