Page 167 - Texas police Association Peace Officer Guide 2017

“bare bones.” A finding at least of good faith, the Government argued, is appropriate because of
the “tight temporal nexus” between the last trash inspection and issuance of the affidavit, and the
connection the totality of the information within the affidavit establishes between the evidence to
be seized (K-2) and the place to be searched.

We find support for the Government’s argument in a case in which a district court upheld
the lawfulness of a search of a defendant’s residence based on the applicability of the good faith
exception. United States v. Sibley.
In Sibley, in the affidavit supporting the search warrant, an investigator for the district attorney
attested that a drug enforcement agent witnessed an occupant of the defendant’s apartment taking
garbage bags to his apartment complex’s community dumpster. The investigator and agent
inspected the bags in the dumpster and found marijuana. The investigator further attested that
the apartment manager previously reported to police that the complex’s maintenance worker
found marijuana in trash dumped by occupants of the defendant’s apartment, and that the
defendant recently had security cameras installed on his property. Taking all this information
together, we found that “the affidavit connects [the defendant] to the apartment, . . . [occupants
of the apartment] to possession of marihuana[,] and the apartment and its occupants to prior drug
activity.” We ruled that the good faith exception applied, and declined to determine whether
probable cause existed. Though there are distinctions, we conclude that Sibley compels
application of the good faith exception here.

As noted above, generally a finding of good faith ends our analysis. We believe it is
important, though, to explain why we also disagree with the district court’s holding that these
facts do not support probable cause.

Here, the officer conducted several inspections, not just one, of the trash receptacle in a
one-month period. The last inspection occurred 72 hours before issuance of the warrant.
Temporal proximity between when the information in an affidavit is obtained and the issuance of
the warrant is relevant indicia of probable cause. All of these inspections revealed the same
evidence: K-2 and mail addressed to Moore’s residence together in a trash bag. Further, the
affidavit included details about security cameras at the apartment and Moore’s previous drug
convictions. Those facts corroborated the belief that Moore was engaged in criminal activity at
his residence, and are relevant in determining the existence of probable cause.

The district court was particularly concerned about the size and public accessibility of the
trash receptacle, calling it an “exercise of speculation” to guess “as to whom each individual item
[in the receptacle] may belong.” Those would be valid concerns if the K-2 and mail were found
loose in the trash receptacle, but the items were found together in the trash bags. The meaning of
the term “sealed” in the affidavit is unclear. Regardless, affidavits are to be interpreted in “a
commonsense” manner. It is reasonable to infer that the affidavit meant that the bags were
tightly closed in some way, whether by being tied or otherwise, and then were placed into the
receptacle. The bags were later recovered and found inside were drugs and mail addressed to
Moore’s residence. Considering that information in an affidavit must only provide “a fair
probability that contraband or evidence of a crime will be found in a particular place,” questions
about the meaning of “sealed” do not undermine the warrant.

A Peace Officer’s Guide to Texas Law 162 2017 Edition