Page 63 - TPA - A Peace Officer's Guide to Texas Law 2015

Even if the alleged minimization did occur, we do not find the effort to have been objectively reasonable.
The affidavit in support of the application to wiretap Norths phone stated that monitoring will be suspended if
the conversation is not criminal in nature or is not otherwise related to the offenses under investigation, and that
spot checks would be conducted to insure that the conversation ha[d] not turned to criminal matters.
However, the agents did not stop listening when it was made clear that the conversation was not criminal in
nature and then conduct brief spot checks. Rather, assuming the alleged minimization occurred, the agents
listened to a non-pertinent conversation for nearly one hour, suspending monitoring only eight times for an
average of less than one minute each time. Although the government asserts that the context supported
continuous listening because North had been stopped on what the government believed to be a drug run, it seems
just as likely that Norths failure to immediately discuss his near miss during the conversation demonstrated that
the phone call was not related to the drug crimes under investigation.

Until the very end of the conversation, nothing of the conversation was criminal in nature or referenced
the smuggling activities. Under these circumstances, it was not objectively reasonable for agents to listen in for
nearly one hour to a conversation that did not turn to criminal matters until the last few minutes. We therefore
conclude that the district court clearly erred in finding that these minimization attempts were objectively
reasonable. As such, the evidence obtained from the May 16, 2009 interception of Norths cell phone must be
suppressed.

th
U.S. v. North, No. 11-60763, Fifth Cir., Oct. 24 , 2013.

WARRANT AFFIDAVIT CONFIDENTIAL INFORMANT VERIFIED BY SURVEILLANCE.
(Practical tip: where possible, always try to back up a C.I. with independent officer observations)

In this case, a magistrate issued a warrant to search Appellants house for crack cocaine based on an
affidavit detailing a controlled purchase in which police used a reliable confidential informant to purchase
narcotics through an unknown third party. The third party was not aware of the police operation. However,
because there was no information on the credibility or reliability of the unknowing third party, Appellant argues
that the magistrate could not have concluded that there was probable cause to believe that the crack cocaine came
from Appellants house. Because we conclude that the affidavit provided a substantial basis for the magistrate
to find probable cause, we affirm.

To issue a search warrant, the magistrate must first find probable cause that a particular item will be found
in a particular location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). This process requires that
the magistrate to make a practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v.
Gates, 462 U.S. 213, 238 (1983).

Our duty is simply to ensure that the magistrate had a substantial basis for concluding that probable
cause existed based on the four corners of the affidavit and reasonable inferences there from. Gates, 462 U.S.
at 23839.

Despite Appellants arguments to the contrary, the court of appeals held that the affidavit was sufficient
because probable cause was based, not on the statements of the unknowing participant, but on the observations
of the police and the reasonable inferences there from.

That is, probable cause was based on the constant surveillance by police of the unknowing participant and
the reasonable inference that the unknowing participant went to Appellants house to get the drugs based on the
observations of the officer and the reasonable inferences derived there from.

A Peace Officer’s Guide to Texas Law 56 2015 Edition