Search Warrant Affidavit Requirements In Texas
An affidavit must allege substantial facts establishing probable cause to believe that the items would be found at the identified place. See Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).
The question is whether "the facts submitted to the magistrate are sufficient to justify a conclusion that the property that is the object of the search probably is on the . . . premises to be searched at the time the warrant issues." Id.
We look at the four corners of the affidavit in determining whether there is probable cause to search the identified locations. Id.
Statements made during a pretrial hearing do not factor into that determination. Id.
No search warrant shall issue for any purpose in Texas unless sufficient facts are first presented to satisfy the issuing magistrate that there is probable cause for its issuance. Tex. Code Crim. P. art. 18.01(b).
A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Id.
To justify a magistrate's finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become stale when the magistrate issues the search warrant. Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.--Corpus Christi 1993, pet. ref'd).
Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. Guerra, 860 S.W.2d at 611.
The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Hafford, 989 S.W.2d at 440; Guerra, 860 S.W.2d at 611.
When the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant. Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).