PD-1090-18 & PD-1091-18 02/13/2019
1. “The Fourteenth Court erred by holding that a magistrate could not infer from the warrant affidavit that an auto body shop would have a surveillance system. The Fourteenth Court held that before a magistrate could consider common knowledge, the matter must be ‘beyond dispute,’ a civil standard the Fourteenth Court grafted onto Fourth Amendment law.”
2. “The Fourteenth Court erred by holding that when officers see a surveillance system recording a location where a crime occurred two weeks prior, they do not have probable cause to seize the system’s hard drive unless they know what is on the hard drive prior to examining it.”
3. “The Fourteenth Court erred by holding that the error required reversal, even under the standard for non-constitutional error, where the State’s remaining evidence was overwhelming and the defense non-existent.”
The victims in the case were in the process of conning Foreman out of a lot of money when he found out. Foreman and his cohorts tortured the two victims for several hours at his auto body shop. They escaped after tumbling, bound and gagged, from a moving vehicle in a volley of bullets. One of the victims identified the auto shop and picked Foreman out of a lineup. Police obtained a warrant for the shop to seize, among other things, surveillance equipment and video. During the search, police saw a t.v. monitor displaying live surveillance footage and seized the attached hard drive. After Foreman was charged with aggravated robbery and kidnapping, he filed a motion to suppress the surveillance video (recorded at the time of the offense) found on the drive. He pointed out that the warrant affidavit failed to explain the basis for the affiant’s belief that surveillance equipment would be found at the shop. The trial court denied the suppression motion. The surveillance video was admitted at trial, and Foreman was convicted.
On appeal, Foreman challenged the suppression ruling. A divided en banc court of appeals reversed on rehearing. It found no facts in the affidavit to show that a computer or surveillance equipment was involved in the crime and nothing from which to infer that such equipment would probably be found at the shop. It denied that it was a matter of common knowledge that businesses (particularly ones that store valuable, movable property) use surveillance systems, explaining that matters of common knowledge must be “so well known to the community as to be beyond dispute.” It also rejected the State’s plain-view argument that once officers saw a monitor displaying live surveillance footage of a crime scene, they had probable cause to believe a connected hard drive would contain evidence of a crime. The majority held that the incriminating character of the drive was not immediately apparent since officers had to examine it forensically before they knew whether it was associated with criminal activity. The majority also found the error harmful. A dissenting justice believed it was a fair inference that surveillance equipment would be found in the auto shop, noting that one only need look over head while in any store, restaurant or commercial property to recognize the ubiquitous nature of surveillance cameras. Another dissenter believed Foreman lacked standing and that any error was not harmful.
The State contends that the inference that an auto shop would have surveillance equipment is similar to inferences upheld in other warrant cases. It also argues that “beyond dispute” is not the standard in criminal cases to determine whether something is common knowledge and does not belong in a probable-cause analysis. As to its plain-view argument, the State contends that the “immediately apparent” prong does not require actual knowledge, only probable cause. Barring a voluntary disclosure, police will never have sufficient information about the content of surveillance video, under the majority’s standard, to enable them to seize equipment under plain view or obtain a warrant. The State argues that, rather than viewing the evidence neutrally in its harm analysis, the court of appeals discounted the victims’ testimony (based on a view of their credibility that the jury clearly did not share) and improperly considered (in deciding guilt-phase harm) the trial court’s reliance on the video at the punishment phase.