Petition for Writ of Certiorari — Nathan Ray Foreman, Petitioner v. Texas

No. 20-________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------NATHAN RAY FOREMAN,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Texas Court Of Criminal Appeals

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------ROMY B. KAPLAN

LAW OFFICE OF ROMY B. KAPLAN

Texas Bar No. 24077851

440 Louisiana, Suite 800

Houston, Texas 77002

(281) 969-3725

RomyBK@makethemproveit.com

STANLEY G. SCHNEIDER*

SCHNEIDER &

MCKINNEY, P.C.

Texas Bar No. 17790500

440 Louisiana, Suite 800

Houston, Texas 77002

(713) 951-9994

stans3112@aol.com

Counsel for Petitioner

*LEAD COUNSEL

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Law enforcement obtained a warrant to search a

business. The affidavit in support of the warrant application did not include a request to seize computers. Nor

did it describe any facts tending to support even an inference that the business had any surveillance equipment or computers. They seized computers and video

surveillance equipment containing a video that was

introduced into evidence. The Texas Court of Criminal

Appeals determined that probable cause existed to

seize the computer and surveillance equipment based

solely on inferences drawn from the affidavit’s description of the building searched. Based on this

Court’s decisions in Nathanson v. United States, 290

U.S. 31 (1933); Brinegar v. United States, 338 U.S. 160

(1949); Illinois v. Gates, 462 U.S. 213 (1983); and

United States v. Sokolow, 490 U.S. 1 (1989), the question presented is:

Whether the decision of the Texas Court of Criminal Appeals constitutes an unreasonable application of

this Court’s clearly established precedent, by inferring

facts from a building’s description to justify the conclusion that the seizure of computers, not mentioned in

the affidavit, containing a surveillance video, did not

violate the Fourth Amendment.

ii

PARTIES TO THE PROCEEDINGS

Nathan Ray Foreman .................................... Petitioner

c/o Stanley G. Schneider

Schneider & McKinney, P.C.

440 Louisiana, Suite 800

Houston, Texas 77002

State of Texas .............................................. Respondent

RELATED PROCEEDINGS

State of Texas v. Nathan Ray Foreman, cause number 1374837, judgment entered on November 19, 2015.

State of Texas v. Nathan Ray Foreman, cause number 1374838, judgment entered on November 19, 2015.

Foreman v. State, 2017 Tex. App. LEXIS 7584 (Tex.

App. 14th 2017), cause numbers 14-15-01005-CR and

14-15-1006-CR (opinions issued on August 10, 2017.

Rehearing en banc granted, opinion issued Foreman v.

State, 561 S.W.3d 218 (Tex. App. 14th 2018) (en banc

August 31, 2018)

Foreman v. State, 565 S.W.3d 371 (Tex. App. 14th

2018). Order releasing Foreman on bond pending appeal.

Foreman v. State, 613 S.W.3d 160 (Tex. Crim. App.

2020), PD-1090-18 and PD1091-18, November 25,

2020; Rehearing denied January 13, 2021.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

RELATED PROCEEDINGS ................................

ii

TABLE OF AUTHORITIES .................................

v

CITATION TO LOWER COURT OPINIONS ......

1

STATEMENT OF JURISDICTION .....................

2

CONSTITUTIONAL PROVISION INVOLVED ....

2

U.S. CONST. amend. IV ......................................

2

STATEMENT OF THE CASE..............................

3

REASONS FOR REVIEW .................................... 11

CONCLUSION..................................................... 26

APPENDIX

Appendix A

Opinion of the Court of Criminal Appeals of

Texas (November 25, 2020) ......................... App. 1-16

Appendix B

Opinion of the Court of Appeals of Texas,

Fourteenth District, Houston (August 31,

2018) .......................................................... App. 17-86

Appendix C

Opinion of the Court of Appeals of Texas,

Fourteenth District, Houston (August 10,

2017) ........................................................ App. 87-114

iv

TABLE OF CONTENTS—Continued

Page

Appendix D

Denial of Motion for Rehearing by the Court

of Criminal Appeals of Texas (January 13,

2021) ...................................................... App. 115-116

Appendix E

Exhibit A – Affidavit of Search

Warrant ................................................. App. 117-125

v

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Texas, 378 U.S. 108 (1964) ................... 20, 23

Brinegar v. United States, 338 U.S. 160 (1949) .... passim

Carroll v. United States, 267 U.S. 132 (1925) ............23

Foreman v. State, 613 S.W.3d 160 (Tex. Crim.

App. 2020) ........................................................ passim

Foreman v. State, 561 S.W.3d 218 (Tex. App. 14th

2018) (en banc) ..........................................................1

Foreman v. State, 2017 Tex. App. LEXIS 7584

(Tex. App. 14th 2017) ................................................1

Florida v. Harris, 568 U.S. 237 (2013) .......................21

Giordenello v. United States, 357 U.S. 480

(1958).................................................................... 20

Illinois v. Gates, 462 U.S. 213 (1983) .................. passim

Jones v. United States, 362 U.S. 257 (1960) ......... 21, 23

Ker v. California, 374 U.S. 23 (1963) ..........................20

Mincey v. Arizona, 437 U.S. 385 (1978) ......................11

Nathanson v. United States, 290 U.S. 41

(1933) ........................................................ 12, 20, 22

Ornelas v. United States, 517 U.S. 690 (1996) ...........20

Stone v. Powell, 428 U.S. 465 (1976) ..................... 11, 12

Texas v. Brown, 460 U.S. 730 (1983) (plurality

opinion) .............................................................. 22, 23

United States v. Dyer, 580 F.3d 386 (6th Cir.

2009) ........................................................................19

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Frazier, 423 F.3d 526 (6th Cir.

2005) ........................................................................21

United States v. Leon, 468 U.S. 897 (1984) ................25

United States v. McPhearson, 469 F.3d 518 (6th

Cir. 2006) .................................................................21

United States v. Sokolow, 490 U.S. 1 (1989) ......... 12, 19

United States v. Wallace, 550 F.3d 729 (8th Cir.

2008) (per curiam) ...................................................22

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .........22

STATUTES AND RULES

28 U.S.C. § 1257(a) ........................................................2

SUP. CT. R. 10(c) ............................................................2

SUP. CT. R. 14 ................................................................1

U.S. CONST. amend. IV ........................................ passim

1

TO THE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

COMES NOW NATHAN RAY FOREMAN, Petitioner herein, by and through his attorneys, STANLEY

G. SCHNEIDER and ROMY B. KAPLAN, and pursuant to SUP. CT. R. 14 files this petition for writ of certiorari and in support thereof, would show the Court as

follows:

---------------------------------♦---------------------------------

CITATION TO LOWER COURT OPINIONS

The Texas Court of Criminal Appeals issued one

opinion. The Fourteenth Court of Appeals issued two

opinions. They are (in reverse chronological order):

1. Foreman v. State, 613 S.W.3d 160 (Tex. Crim.

App. 2020). A copy of the opinion is included as Appendix 1. Motion for Rehearing was denied on January 13,

2021. Appendix 115-116.

2. Foreman v. State, 561 S.W.3d 218 (Tex. App.

14th 2018) (en banc). A copy of the opinion is included

as Appendix 17.

3. Foreman v. State, 2017 Tex. App. LEXIS 7584

(Tex. App. 14th 2017). A copy of the opinions are included as Appendix 87.

---------------------------------♦---------------------------------

2

STATEMENT OF JURISDICTION

This is an appeal from the Texas Court of Criminal

Appeals. The Court of Criminal Appeals denied rehearing on January 13, 2021 from its earlier opinion of

November 25, 2021.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

Jurisdiction is specifically authorized by Supreme

Court Rule 10(c) in that the Texas Court of Criminal

Appeals on direct appeal has decided an important federal question that conflicts with this Court’s Fourth

Amendment decisions concerning the factual requirements for a probable cause determination by magistrate before issuance of a search warrant.

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISION INVOLVED

U.S. CONST. amend. IV

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable search and seizures, shall not

be violated, and no warrant shall issue, but

upon probable cause, supported by oath or affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

3

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property without due process of law, nor deny

to any person within its jurisdiction the equal

protection of the laws.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

This application stems from the trial court’s denial

of a motion to suppress the search of Foreman’s business pursuant to a search warrant that was issued

two weeks after the alleged offense. The Texas Court of

Criminal Appeals ruled that a magistrate could determine probable cause to seize computers and video

surveillance equipment based on the affidavit’s description of the location to be searched even though

computers were not items sought by law enforcement.

The charges against Foreman arose when the two

complainants, Richard Merchant and Moses Glekiah,

attempted to defraud him of $100,000. Merchant had

engaged on several occasions in the “black money

scam,” in which the perpetrator defrauds a victim by

persuading him that bundles of banknote-sized black

paper in a suitcase are actually currency notes that

4

have been dyed to avoid detection by authorities.

3RR155; 5RR9-12.1

On December 24, 2012, Foreman was to exchange

$100,000 for $200,000 of dyed money with Glekiah

and Merchant but they duped him into taking black

construction paper. 4RR153; 5RR31. Foreman became

wise to the scheme because, shortly after the complainants arrived at the shop and unloaded their supplies,

Appellant summoned four men from the shop’s office.

4RR160. The complainants were shot and beaten.

Investigators learned about the black money scam

by consulting with Secret Service agents. 4RR83.

Glekiah directed police to Foreman’s business which

was located a short distance from where they escaped,

and later identified Foreman in a photo array. 3RR15758; SX57-58.

Two weeks after the alleged incident, police obtained a search warrant for Foreman’s auto shop. The

search warrant affidavit stated as follows:

I, D. Arnold, a peace officer employed by Houston Police Department do solemnly swear

that I have reason to believe that on the property of 2501-C #2 Central Parkway Houston,

Harris County, Texas (Target Location), with

the authority to search for and to seize any

and all ITEMS CONSTITUTING EVIDENCE

CONSTITUTING AGGRAVATED ASSAULT

Citations to “RR” are to the record in Foreman v. State,

Nos. 14-15-01005-CR and 14-15-01006-CR (Texas 14th Court of

Appeals, filed April 13, 2016 and May 9, 2016).

1

5

AND ROBBERY that may be found therein

including, but not limited to all DNA and

items that may contain biological material;

fingerprints; hair fiber(s); audio/video surveillance video and/or video equipment; instrumentalities of the crime including firearm(s)

and ballistics evidence; gasoline container(s),

lighter(s), tape, zip tie(s), van; fruits of the

crime including wallet(s), suitcase, briefcase,

money, documents establishing identity of

Complainant(s) and/or Suspect(s) such as paper(s), license(s) cell phone(s).

Said location of 2501-C W1 Central Parkway

Houston, Harris County, Texas is more particularly described as a single story building

complex with a large sign facing Central Parkway that shows address 2501-C for all the

businesses within the complex strip, this particular business is made of metal and brick

with dark tinted glass windows and black

painted aluminum; a sign attached to the front

of the building over the door reads “Dreams

Auto Customs”; the front door is dark tinted

glass and faces parking lot; on the door is the

suite number C#2; the back of the business has

an aluminum looking, gray in color bay door

that opens into the business.

MY BELIEF IS BASED UPON THE FOLLOWING FACTS:

D. Arnold (Affiant) was assigned to investigate Aggravated Assault and reviewed offense report #161435712D written by Officer

A. Deleon. Affiant was dispatched to 10500

6

Northwest Freeway, Houston, Harris County,

Texas. Affiant learned from Officer A. Deleon

that Cindy Davis (Witness) reported that on

December 24, 2012 she observed two men

(Complainants) lying injured on the side of

the roadway with their hands tied and

mouths duct taped. Affiant learned from HPD

Officer A. Deleon that Complainants had apparent gunshot wounds to their bodies and

had been transported to Ben Taub Hospital

for treatment. Affiant spoke to Diane Deyoung

who witnessed Complainants coming out of a

white van license plate AV5-0784 before the

continued down the road without stopping.

Affiant learned from hospital personnel that

Moses Glekiah (Complainant Glekiah) was

recovering from gunshot wounds and Richard

Merchant (Complainant Merchant) was in

critical condition for his gunshot injuries.

Affiant spoke with Moses Glekiah (Complainant Glekiah) and learned he and his friend

Richard Merchant (Complainant Merchant)

had agreed to engage in business transaction

at 2501-C #2 Central Parkway Houston, Harris

County, Texas with a male known as “Jerry.”

When Complainants arrived on December 24,

2012 at the business that they describe as an

autoshop, they are grabbed by several men

and held against their will. Complainant

Glekiah reported that Suspects grabbed Complainants, beat them with hands and feet, and

tied their hands with zip ties. The suspects

also stole their cash money $400 that Complainants had in their possession, wallets,

cell phone and suitcase/briefcase container

7

belonging to Complainant Merchant. Suspect

1 poured gasoline on Complainants and held

lighter near Complainants threatening to set

them on fire. Suspect 1 then called two other

Suspects to who put Complainants in truck at

gunpoint. Complainant Glekiah says that he

felt in fear for their lives. Complainants

jumped out of the van because they believed

they were going to be killed. As Complainant

leaped out of the vehicle they were shot by

Suspects.

Complainant Glekiah directed Affiant to the

autoshop where this Aggravated Assault and

Robbery occurred at 2501-C #2 Central Parkway Houston, Harris County, Texas. Affiant researched the location and found the owner to

be Charese Foreman. Affiant reviewed computer databases and discovered that Charese

Foreman is married to Nathan Ray Foreman.

Affiant reviewed criminal history of Nathan

Ray Foreman and found that he had been

charged with auto theft, possession of prohibited weapon and delivery of cocaine. Affiant

showed Complainant Glekiah a known photograph of Nathan Ray Foreman along with five

other photos of similar looking males. Complainant Glekiah positively identified Nathan

Ray Foreman as Suspect 1 who participated

in punching Complainants, told other suspects what to do, poured the gasoline on Complainants and contacted 2 suspects to drive

Complainant away from business. Affiant

knows that gasoline and lighter are deadly

weapons that can kill a person.

8

Affiant believes that Complainants and Suspects DNA will be inside the Target Location

along with property belonging to Complainant such as money, suitcase/briefcase, wallets,

cell phone, identification cards. Also instrumentalities of the crime such as white van

that transported Complainants, guns used to

shoot Complainants, zip ties used to tie complainants may also be inside Target Location.

WHEREFORE, PREMISES CONSIDERED,

Your affiant respectfully request that a warrant issue authorizing your affiant, or any

other peace officer of Harris County, Texas to

enter the Target Location which is 2501-C #2

Central Parkway Houston, Harris County,

Texas with authority to search for and to seize

the property and items set out earlier in this

affidavit.

Appendix 117 (emphasis added).

Recovered at Foreman’s shop, police seized zip ties,

an iron, a gas can, and a Dell computer tower containing surveillance video of the auto shop’s interior.

3RR168-70, 205-09; 4RR33,43. State’s Exhibit 28 contains excerpts of the surveillance video showing Appellant, the five codefendants, and the complainants in

the auto shop on the date of the alleged offenses.

4RR44-52, 73; SX28. State’s Exhibits 29, 30, 31, 32,

34, 38, and 43 are still photo images derived from the

surveillance video. While most of their interactions occurred off-camera, the video corroborated portions of

the complainants’ testimony, as summarized in the following timeline:

9

11:00 a.m.: Appellant counts money before

the complainants arrive. 4RR75;

11:30 a.m.: Merchant rolls a suitcase into

the shop. 4RR53;

11:35 a.m.: Codefendant Darren Franklin is

depicted carrying a gun. 4RR5055;

11:45 a.m.: Appellant is seen carrying a roll

of duct tape. 4RR56-56;

12:00 p.m.: Appellant is seen with codefendant Jason Washington, who is

wearing his U.S. Customs Agent

uniform. 4RR56-57;

1:00 p.m.:

Codefendant Franklin is seen

carrying the steam iron later

seized during the search. 4RR5961;

1:05 p.m.:

A codefendant wipes down the

complainants’ car with a rag.

4RR57-58;

3:25 p.m.:

A white van is backed into the

shop; Appellant opens the rear

door and lays a tarp on the floor

of the van. 4RR63-64;

3:30 p.m.:

The complainants, who are tied

up, are loaded into the back of

the van. 4RR64-65;

3:35 p.m.:

Appellant and a codefendant

load the complainants’ bags into

the complainants’ car. 4RR93;

10

3:40 p.m.:

Codefendant Darren Franklin

drives the complainants’ car out

of the shop. 4RR53-94.

Foreman filed a motion to suppress the surveillance video evidence extracted from the Dell tower

seized pursuant to the search warrant for the auto

shop. CR29.2 Foreman claimed that the seizure of

several computer hard drives was beyond the scope of

the warrant and not supported by the statement of

probable cause in the warrant affidavit. CR44-46.

The return and inventory listed “3 hard drives for

computer.” CR38. Appellant argued that the affidavit

was devoid of any facts supporting a probable cause

finding that computers, “audio/video surveillance,” or

“video equipment” are located at the place to be

searched. CR45-47.

The trial court (Judge Jim Anderson) denied the

motion as to the Dell tower connected to the surveillance monitor but granted the motion with regard to

the other two hard drives. CR55-56. In written Findings of Fact and Conclusions of Law, the trial court

found that there was probable cause to issue the warrant as a general matter based on the complainant’s

detailed description of the offenses. The trial court further concluded that the seizure of the Dell tower hard

drive connected to the surveillance monitor was within

the scope of the warrant because it was “logical to

Citations to “CR” are to the clerks record in Foreman v.

State, Nos. 14-15-01005-CR and 14-15-01006-CR (Texas 14th

Court of Appeals, filed March 18-19, 2016).

2

11

believe” that it was part of a surveillance system and

that video data was stored on it. CR55.3

---------------------------------♦---------------------------------

REASONS FOR REVIEW

The Texas Court of Criminal Appeals has decided

an important federal question in a manner that constitutes an unreasonable application of this Court’s

Fourth Amendment jurisprudence so as to require that

this Court exercise its responsibility to ensure a consistent application of the requirement of the Fourth

Amendment in state court proceedings. This Court is

the sole protector of an individual’s Fourth Amendment rights from unreasonable decisions by state

courts.4

A theory rejected by the Court of Criminal Appeals. Appendix 11.

4

As Justice Marshall stated in his concurring opinion in

Mincey v. Arizona, 437 U.S. 385, 402-403 (1978):

With regard to the Fourth Amendment issue, however,

we had little choice but to grant review, because our

decision in Stone v. Powell, 428 U.S. 465 (1976), precludes federal habeas consideration of such issues. In

Stone the Court held that, “where the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id., at 494 (footnotes

omitted). Because of this holding, petitioner would not

have been able to present to a federal habeas court the

Fourth Amendment claim that the Court today unanimously upholds.

3

12

In this case, the decision by the Texas Court of

Criminal Appeals conflicts with this Court’s decisions

in Nathanson v. United States, 290 U.S. 41 (1933);

Brinegar v. United States, 338 U.S. 160 (1949); Illinois

v. Gates, 462 U.S. 213 (1983); and United States v.

Sokolow, 480 U.S. 1 (1989) by suggesting that a magistrate can infer probable cause to seize computers5 and

video surveillance equipment based solely on the affidavit’s description of the building to be searched.

The Court of Criminal Appeals rejected the State’s

argument that a magistrate could infer the existence

of computers at a business based on the “common

knowledge” within the community or that existence of

computers was logical as found by the trial court. The

Texas Court of Criminal Appeals rightly concluded

that:

Like the court of appeals, we look upon the

State’s “common knowledge” rubric with some

skepticism. Our research has revealed scant

support for the idea that a magistrate, contemplating a probable-cause affidavit articulating a limited set of facts to justify the

issuance of a search warrant, may supplement the articulated facts with unarticulated

The additional responsibilities placed on this Court in

the wake of Stone become apparent upon examination

of decisions of the Arizona Supreme Court on the

Fourth Amendment issue presented here.

Federal habeas corpus review of Foreman’s Fourth Amendment claim is prohibited by this Court’s decision in Stone.

5

Computers are not mentioned as possible evidence to be

seized in the search warrant affidavit.

13

facts that the magistrate deems so obvious

or widespread as to constitute “common

knowledge.” That is not to say that probablecause magistrates lack any authority to take

cognizance of “common knowledge” whenever

they perceive it. It means only that it is not

how established Fourth Amendment jurisprudence would generally frame the inquiry. Established Fourth Amendment jurisprudence

would instead observe that a magistrate, contemplating a probable-cause affidavit articulating a discrete set of facts to justify the

issuance of a warrant, is allowed to draw all

reasonable inferences from the articulated

facts. And that, we conclude, is the optimal

way to address the probable-cause issue before us.

Foreman v. State, 613 S.W.3d at 165-166. Appendix 11.

However, the Court of Criminal Appeals found

that the affidavit provided sufficient probable cause to

seize the computers and surveillance equipment based

solely on inferences that it crafted from the description

of the building to be searched including the name of

the business on a sign.

As previously noted, in this case, the affiant described the “target location”, a business, without mentioning any observation of any security cameras on the

building. The complainants did not tell law enforcement that they observed cameras. There are no facts

contained within the affidavit that suggests that the

affiant had any knowledge that computers or video

surveillance equipment existed either within or

14

outside the building. Or, there are no facts in the affidavit that suggest that the affiant even suspected

that the business had security cameras or surveillance

equipment.

An objective review of the four corners of the affidavit cannot support a determination that probable

cause existed to seize any computers or video surveillance equipment at Foreman’s business. Instead, the

Texas Court of Criminal Appeals, Court stated:

Based on the information that Glekiah gave,

the police applied for a warrant to search

Dreams Auto Customs. In addition to providing the known details of the alleged offenses

and the evidence sought to be discovered, the

warrant affidavit had this to say about the

shop, produced here without alteration:

Said location of 2501-C #2 Central Parkway

Houston, Harris County, Texas is more particularly described as a single story building

complex with a large sign facing Central

Parkway that shows address 2501-C for all

the businesses within the complex strip, this

particular business is made of metal and brick

with dark tinted glass windows and black

painted aluminum; a sign attached to the

front of the building over the door reads

“Dreams Auto Customs”; the front door is

dark tinted glass and faces parking lot; on the

door is suite number C#2; the back of the business has an aluminum looking, gray in color

bay door that opens into the business.

15

Later in the affidavit, this location is described as an “autoshop.”

The hearing officer reviewing the affidavit,

whom we shall hereinafter refer to as the

“magistrate,” found that it established probable cause. She issued a warrant for the police

“to search for and seize any and all ITEMS

CONSTITUTING EVIDENCE CONSTITUTING AGGRAVATED ASSAULT AND ROBBERY that may be found therein [at the listed

location, Dreams Auto Customs] including,”

among other things, “audio/video surveillance

video and/or video equipment.” Pursuant to

this warrant, the police seized three computer

hard drives from Dreams Auto Customs.

Upon analysis, one hard drive—the only hard

drive at issue in this proceeding—was found

to contain surveillance footage that depicted

much of the incident at Dreams Auto Customs

and Foreman’s involvement in that incident.

Foreman was charged with aggravated kidnapping and aggravated robbery.

Foreman v. State, 613 S.W.3d at 161-162. Appendix 34.

The Court of Criminal Appeals’ probable cause review was based solely from inferences drawn from the

building description. Its decision was based solely on

its determination that the building’s description “reasonably contributed to the magistrate’s determination

of probable cause” and justified the seizure of the computers and video surveillance equipment.

16

First, the Court stated that the affidavit described

the target location as one “business” amongst other

businesses within a “single story building complex.”

The Court concluded that:

From the fact that the target location was a

“business,” the magistrate could reasonably

infer that the activities being conducted there

involved money. From the fact that this business was located within a “single story building complex,” the magistrate could infer that

this business dealt in (or at least contained)

tangible goods, and possibly even cash. These

facts would reasonably contribute to the conclusion, at least to the degree of certainty associated with probable cause, that the target

location had a heightened need to keep its

premises secure.

Foreman v. State, 613 S.W.3d at 166 (emphasis added).

Appendix 12-13.

The Court further stated that:

Second, the existence of tinted windows on a

building provide a magistrate with the reasonable belief that a business had a heightened need for security.

The Court of Criminal Appeals stated that “the

affidavit said that the target location was ‘made of

metal and brick, with dark tinted glass windows and

black painted aluminum.’ ” From this, the Court of

Criminal Appeals concluded that the magistrate could

reasonably conclude that, not only did this business

have a heightened need for security measures, it had

17

already adopted at least one security measure: tinted

windows. Based solely on the existence of tinted windows the Court of Criminal Appeals stated that “it

would not offend reason for a magistrate to infer that

there was a fair probability of other security measures

being employed there, as well.” Appendix 13.

Based on the name on the sign, “Dreams Auto

Customs,” outside the building, the Court of Criminal

Appeals concluded that from the name of the business,

a magistrate could infer that the target did customized

body work on automobiles which required heightened

security. The affidavit explained that:

this business was called “Dreams Auto Customs” and was in fact an “autoshop.” From

this, the magistrate could reasonably infer

that the target business involved the customization of automobiles. Automobiles, the

magistrate might reasonably conclude, are

uniquely mobile and highly valuable tangible

goods. And because the automobiles being

worked upon at this business were customized items, the magistrate could reasonably infer that they warranted extra security. These

things also contributed to a reasonable inference that, at least to the degree of certainty

associated with probable cause, the target location was likelier to employ some means of

keeping tabs on the comings and goings of the

vehicles in its care.

Foreman v. State, 613 S.W.3d at 166-167 (emphasis

added). Appendix 13-14.

18

Finally, from the existence of the bay doors at the

back of the business, a magistrate could infer that

there was a need for surveillance equipment to secure

the premises and its content from thefts. The Court of

Criminal Appeals noted that:

The affidavit said that there was a bay door in

the back of the business that opened into the

interior of the business. From this fact, the

magistrate could infer that the automobiles

upon which Dreams Auto Customs worked

were brought directly into the business; they

were not handled off-site. Consequently, either for security or liability purposes, the

magistrate could reasonably infer that the

business needed to be able to keep an eye on

the interior of the business. From these concrete indications that the target business had

a unique need for security on its premises and

had in fact deployed some security measures,

it was logical for the magistrate to infer that

to the degree of certainty associated with

probable cause, the business was equipped

with a video surveillance system. This does

not mean that based on the articulated facts,

we consider it more-than-fifty-percent probable that the target business was using surveillance equipment. That is not what probable

cause demands. It means only that based on

the totality of the articulated facts, it was not

unreasonable for the magistrate to discern a

“fair probability” of such equipment being

found.

Foreman v. State, 613 S.W.3d at 166-167. Appendix 14.

19

Thus, while giving lip service to this Court’s teachings, the Court of Criminal Appeals crafted inferences

based upon inferences in order to assume facts to support a probable cause determination to seize computers and surveillance equipment.

This Court has clearly stated that the Fourth

Amendment requires that a search warrant describe

with particularity the place to be searched and the

items to be seized. U.S. Const. amend. IV. And repeatedly, this Court has stated that probable cause exists

when an affidavit shows a “fair probability” that the

police will find evidence in the place they seek to

search. Gates, 462 U.S. at 232, 238; United States v.

Dyer, 580 F.3d 386, 390 (6th Cir. 2009). There must exist, within the four corners of the affidavit, a substantial factual basis for a magistrate’s determination of

probable cause. Gates, 462 U.S. at 236, 246 n.14.

While this Court has made it clear that articulating a precise meaning of probable cause is not possible,

its opinions have constantly reminded that probable

cause is a common sense, nontechnical concept that

deals with “the factual and practical considerations of

everyday life on which reasonable and prudent men,

not legal technicians, act.” Illinois v. Gates, 462 U.S.

213, 231 (1983) (quoting Brinegar v. United States, 338

U.S. 160, 175 (1949)); see United States v. Sokolow, 490

U.S. 1, 7-8 (1989).

This Court has stated that probable cause to

search exists where the known facts and circumstances are sufficient to warrant a man of reasonable

20

prudence in the belief that contraband or evidence of a

crime will be found, see Brinegar, supra, at 175-176;

Gates, supra, at 238. Probable cause is a fluid concept

that takes its substantive content from the particular

contexts in which the standards are being assessed.

Gates, supra, at 232; Brinegar, supra, at 175; Ker v.

California, 374 U.S. 23, 33 (1963); Ornelas v. United

States, 517 U.S. 690, 695-696 (1996).

Unlike the Texas Court of Criminal Appeals decisions, normally, reviewing courts will not defer to a

warrant based on an affidavit that does not “provide

the magistrate with a substantial basis for determining the existence of probable cause” to seize evidence.

Gates, 462 U.S. at 239. Rather, reviewing courts typically require sufficient information be presented to the

magistrate to allow a determination of probable cause

and the decision cannot be a mere ratification of the

bare conclusions of others. Ibid. See Aguilar v. Texas,

378 U.S. 108, 114-115 (1964); Giordenello v. United

States, 357 U.S. 480 (1958); Nathanson v. United

States, 290 U.S. 41 (1933). Admittedly, a magistrate

may reasonably infer facts to support a probable cause

determination if there are facts stated to support the

inference.

There must be some actual information in the affidavit related to the items to be seized from which an

inference can be drawn. The cases are legion where

appellate courts have upheld the seizure of money,

drugs, photographs or weapons based on inferences

drawn from the experience of police officers or the

statements of witnesses. But an affidavit must contain

21

“particularized facts demonstrating ‘a fair probability

that evidence of a crime will be located on the premises

of the proposed search.’ ” United States v. McPhearson,

469 F.3d 518, 524 (6th Cir. 2006); United States v.

Frazier, 423 F.3d 526, 531 (6th Cir. 2005).

In other words, an affidavit in support of a search

warrant must contain information sufficient to establish (1) a connection between the defendant and the

place to be searched and (2) a fair probability evidence

being sought by law enforcement can be found at that

location. Florida v. Harris, 568 U.S. 237, 244 (2013); see

Gates, 462 U.S. at 235-36, 245 n.14. Thus, a search

warrant comports with the Fourth Amendment if it

was issued by a “magistrate [who] had a ‘substantial

basis for . . . conclud[ing]’ that a search would uncover

evidence of wrongdoing. . . .” Gates, 462 U.S. 213, 236

(1983) (quoting Jones v. United States, 362 U.S. 257,

271 (1960)).

“For the magistrate to be able to properly perform this official function, the affidavit presented [in support of the search warrant]

must contain adequate supporting facts about

the underlying circumstances to show that

probable cause exists for the issuance of the

warrant.” The affidavit must contain particularized facts demonstrating “a fair probability

that evidence of a crime will be located on the

premises of the proposed search.” In other

words, the affidavit must suggest “that there

is reasonable cause to believe that the specific

‘things’ to be searched for and seized are located on the property to which entry is

22

sought” and not merely “that the owner of

property is suspected of crime.”

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

Clearly, under this Court’s Fourth Amendment jurisprudence, a law enforcement officer’s application for

a search warrant must demonstrate probable cause to

believe that enumerated evidence of the offense will be

found at the place to be searched. In determining

whether this element is satisfied, “[t]he task of the issuing magistrate is . . . to make a practical, commonsense decision whether, given all the circumstances set

forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Gates, 462 U.S. at 238.

More important, the facts presented to the magistrate

must be sufficient for a “reasonable man of caution to

believe that evidence of a crime will be found.” Texas v.

Brown, 460 U.S. 730, 742 (1983) (plurality opinion).

United States v. Wallace, 550 F.3d 729, 732 (8th Cir.

2008) (per curiam).

Long ago, in Nathanson v. United States, 290 U.S.

41 (1933), this Court clearly stated that an affidavit

must provide the magistrate with a substantial basis

for determining the existence of probable cause and

that a conclusory statement fails to meet that requirement. A conclusory statement gives the magistrate no

basis for making a judgment regarding probable cause.

Likewise, an officer’s statement that “[a]ffiants have

received reliable information from a credible person

23

and do believe” that heroin is stored in a home is likewise inadequate. Aguilar v. Texas, 378 U.S. 108 (1964).

It is impossible that a description of a brick building with tinted windows and bay doors gave rise to

sufficient facts to justify the seizure of computers or

surveillance equipment without some other specific

fact that suggested the existence of particular evidence. An affidavit cannot establish probable cause

which merely states the affiant’s belief that there is

cause to search, without stating facts upon which that

belief is based. Jones v. United States, 362 U.S. 257, 269

(1960); Brinegar v. United States, 338 U.S. 160, 176

(1949). Likewise, the affidavit must at least suggest

that computers exist before a warrant justifies their

seizure.

Repeatedly, this Court has ruled that while magistrates are allowed to draw inferences from known

facts to support a probable cause determination, this

Court has made it crystal clear that there has to be a

clear factual basis from which an inference can be derived to support a determination of probable cause.

Facts must exist to warrant a reasonable person to believe that evidence of a crime exists at a particular location. See Texas v. Brown, 460 U.S. 730, 742 (1983)

(plurality opinion) (quoting Carroll v. United States,

267 U.S. 132, 162 (1925)).

In this case, the affidavit is clear. It is divided into

three parts.

The first paragraph describes the items sought as

evidence without mentioning computers. In the second

24

paragraph, the affiant describes with great specificity

the building to be searched. The building description is

essential so that officers do not search the wrong place.

The third part of the affidavit begins with this statement in capital letters:

MY BELIEF IS BASED UPON THE FOLLOWING FACTS. Appendix 118.

The affiant did not intend for the magistrate to

consider the building description in her probable cause

determination.

Rather than determine whether probable cause

exists within the affidavit’s facts, it is the description

of the business or “target location” to be searched that

the Court of Criminal Appeals derives inferences from

which it creates probable cause for the seizure of computers. The affidavit is without any factual statement

that supports a conclusion that the owner of the business has a need for security that requires any type of

surveillance of the interior of the business. Speculation, like conclusory statements, are not sufficient to

justify the seizure of the computers in Foreman’s business.

The Texas Court of Criminal Appeals decision

constitutes an unreasonable application of this Court’s

precedent that requires this Court to exercise its

responsibility to protect citizens from unreasonable

interpretation of the Fourth Amendment. Notwithstanding the deference that is normally due magistrates, a warrant is invalid if the probable cause

determination reflects an improper analysis of the

25

totality of the circumstances. Gates, 462 U.S. at 238239; United States v. Leon, 468 U.S. 897, 915 (1984)

This Court has made it clear that probable cause to

seize evidence must derive from specific facts that justify the seizure or a reasonable inference from specific

articulable facts contained within the affidavit that

lead a reasonable person to believe that the evidence

exists and can be located at the location to be searched.

That is not what the Texas Court of Criminal Appeals did in this case.

This Court should not permit the Texas Court of

Criminal Appeals to create inferences to support a

probable cause determination from an affidavit’s description of a building to be searched. Rather, the Texas

Court of Criminal Appeals should be required to identify particularized facts that demonstrate a fair probability that specific identified evidence of a crime would

be located on the premises of the proposed search. In

this case, the search warrant affidavit did not seek to

seize computers let alone identify any facts that would

support the magistrate’s probable cause decision.

---------------------------------♦---------------------------------

26

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ROMY B. KAPLAN

LAW OFFICE OF ROMY B. KAPLAN

440 Louisiana, Suite 800

Houston, Texas 77002

(281) 969-3725

RomyBK@makethemproveit.com

STANLEY G. SCHNEIDER

SCHNEIDER &

MCKINNEY, P.C.

440 Louisiana, Suite 800

Houston, Texas 77002

(713) 951-9994

stans3112@aol.com

Counsel for Petitioner