Case Summary - Robert Leahy Powell v. State

Police developed information that Robert Leahy Powell and another person named Leia McGee were making forged checks in their home. The detective prepared an affidavit for a search warrant that included information that Powell and McGee’s house contained materials for making forged checks and that Powell and McGee had given forged checks to a friend to purchase a safe at Home Depot that was kept at the home. The affidavit also contained information that Powell and McGee had drugs in their house as well. The form of the affidavit also had a section that described the property “concealed and kept in violation of the laws of Texas.” This section of the affidavit listed among other things “checks and materials to make forged checks, but did not list the safes. The police executed the warrant and seized the two safes so that a locksmith could drill out the safes the next day. The police found methamphetamine in one of the safes, and the State charged Powell with possession of methamphetamine.

Powell filed a motion to suppress arguing that the State could’ve searched the safes at the scene pursuant to the warrant, taking them to another location amounted to a seizure outside the scope of the warrant. While courts have recognized that police may take some items from the scene that are not listed in the warrant in those circumstances where it is too difficult to perform a search at the scene, the State did not argue this at the trial level. The trial court suppressed the evidence and the State appealed, and the court of appeals affirmed. [Here’s a link to the court of appeals case information if you are interested.]

The CCA reversed, holding that the reference in the affidavit to the safe purchased with the forged check was sufficient to authorize the seizure of both safes. Judge Hervey, joined by Judges Keasler, Womack, Meyers, Holcomb, Cochran, Johnson, and Presiding Judge Keller, explained that the reference to the safe in the warrant was specific enough to prevent the police from engaging in a general search of the premises. Judge Hervey, joined only by Judges Keasler, Meyers, Holcomb, and Presiding Judge Keller, also went on to opine (in Part II of the opinion) that the “massive” remedy of exclusion of the evidence of the methamphetamine was not required in this case because ultimately only Powell’s possessory interests in his safe was violated, not his privacy interests.

Judge Womack, joined by Judges Johnson and Cochran, concurred with the opinion to the extent that it held the safe was properly described in the warrant, but declined to join them regarding their discussion of the federal exclusionary rule. Judge Price dissented because he felt that the reference to the safe was not sufficient enough to actually describe the safe to be seized. According to Price, it was not a sufficient description because it wasn’t even enough to tell the police which of the two safes to seize, it was not a sufficient description. Moreover, Price not have even reached the question of whether the exclusionary rule should apply because the majority had held that the seizure was authorized by the warrant making the issue of the application of the exclusionary rule irrelevant. Judges Womack, Johnson, and Cochran, also would not reach the issue of the applicability of the exclusionary rule for the very same reasons. [Here’s a link to the CCA case information if you’re interested.]

Commentary: The State really dodged a bullet with this one. They clearly wanted to hold that the difficulty with opening a safe created an exigent circumstance that would’ve allowed them to remove the safe to another location to search it. But the State never argued it, and as the appealing party, that really put the State in a bad position. Moreover, the State conceded that the property was not adequately described in the warrant. Fortunately for the State, the CCA did not accept this concession. Frankly, I would’ve been hard pressed to criticize them had they taken those opportunities to simply affirm. Well, except for the fact that Illinois v. Gates does make clear that you aren’t supposed to read search warrants in a hyper-technical fashion. There’s a strong presumption in favor of warrants, so the fact that police took their evidence to a neutral magistrate before conducting a search certainly deserved some consideration. And Powell did not have any privacy interest in the inside of the safe because the warrant would’ve allowed them to search inside it for the forged checks. So really the argument is more about form than substance. There’s a mention of a safe in one place but not in the specific place in the affidavit that lists what items are supposed to be at the location. I suppose that’s why eight judges had no problem upholding this search.

A wise friend of mine has pointed out that this case appears to be a kissing cousin of State v. Matthew Ryan Dobbs. [Here’s a link to the post when the issue was granted.] I don’t know why these two cases weren’t decided at the same time as both were State’s appeals from searches based on warrants where the search may have exceeded the scope of the warrant. I suppose the resolution of Powell suggests why they weren’t decided together. The CCA ultimately didn’t think that the seizure in Powell exceeded the scope of the warrant because the safes were described in the warrant. In Dobbs, however, the Court may be tinkering with the plain view exception to the warrant requirement. I suppose that both cases could be seen as searches that exceed the scope of the warrant, but then Dobbs doesn’t really need to address the issue of whether White v. State is still good law. [Note, the issue in Dobbs is essentially whether there’s still a requirement that it be immediately apparent on sight that contraband is contraband for police to be able to seize when they find it in plain view.] Exit question: Does that mean Powell helps or hurts Dobbs?