Appellant was charged by indictment with possession of a controlled substance, cocaine. After his motion to suppress the cocaine seized at his residence during a search under warrant was denied by the trial court, he pled guilty in accordance with an agreed recommendation as to punishment. The trial court deferred adjudication of guilt and placed him on eight years community supervision.

On appellant's appeal of the denial of the motion to suppress, the court of appeals, finding that the search of the premises exceeded the scope of the warrant, reversed and remanded. Amir v. State, No. 01-99-00640-CR (Tex. App.--Houston [1^st Dist.] February 24, 2000) (not designated for publication), 2000 Tex. App. LEXIS 1222. We granted the state's petition for discretionary review ⁽¹⁾ to consider the conclusion of the court of appeals that the search exceeded the scope of the warrant. We reverse and remand.

Based on information provided by a confidential informant and an undercover police officer, the Houston Police Department obtained a warrant to search the business premises of U.S. Apparel for evidence relating to distribution of counterfeit merchandise. The search warrant stated:

YOU ARE THEREFORE COMMANDED to forthwith search the place therein named, to wit: U.S. Apparel which is located at 5627 Star Lane, Suite A, Houston, Harris County, Texas, with the authority to search for and seize any and all items . . . that may be found therein including, but not limited to counterfeit Levi,[sic] Strauss & Co. jeans, counterfeit Nike shirts, counterfeit merchandise, documents and records of U.S. Apparel pertaining to counterfeit merchandise . . . and any computer equipment used in the operation of U.S. Apparel.

At the time of the search, the exterior of the building occupied by U.S. Apparel appeared to be divided into two halves, each with its own address. One half was occupied by U.S. Apparel at 5627 Star Lane, Suite A, the other half by Texas International Motors at 5625 Star Lane. An unmarked exterior door led to the residence inside U.S. Apparel. Pursuant to the warrant, police officers entered U.S. Apparel at 5627 Star Lane, Suite A. They walked through a reception area to a warehouse area, and then up the stairs to the second floor of the building. On the second floor, the officers found an unlocked door marked "5625" and entered the room beyond, where they found appellant and two women. Appellant asserts that this room is his residence and is not part of 5627 A Star Lane. Over appellant's objections, the officers, with the assistance of a narcotics dog, searched the entire premises of 5627, including the area which appellant claimed was his residence. They seized cocaine, drug paraphernalia, and a semiautomatic pistol.

At the suppression hearing, the state called as witnesses three police officers who had participated in the execution of the search warrant. The state also introduced into evidence copies of appellant's Texas driver's license and Texas identification card and a copy of the search warrant, as well as various photographs and a videotape depicting the scene of the search. Appellant introduced into evidence a photograph showing a safe on the premises which the police had broken open. ⁽²⁾

At the conclusion of the hearing, the trial court denied the motion to suppress, stating:

And my opinion is they had a search warrant for 5627 Star Lane. The fact that the defendant carved out a portion of 5627 and placed a designation of 5625 on the door that entered into another portion of 5627 doesn't mean all of a sudden now that the officers have to go back and get a new search warrant. The State brought out if they got a search warrant for 5625, they would be searching the International Motors Company next door, which has no connection to this room that is designated 5625 found within 5627. However, would you ever get a warrant to this room with the 5625 posted on the door without their [sic] being a confusion as to which 5625 we are talking about? To me, the warrant was for 5627, suite A. They searched 5627, Suite A.

The court of appeals, in reversing the trial court's denial of the motion to suppress, noted, inter alia, that the warrant called for the search of U.S. Apparel at 5627 Star Lane, Suite A, Houston, Harris County, Texas, but did not call for the search of appellant's residential area marked 5625, which was located inside U.S. Apparel at 5627 A. Amir, 2000 Tex. App. LEXIS 1222, at *6. It found that U.S. Apparel and appellant's residence were separated by walls and a door that was marked with a different address, so that they were not the same entity. Id. at *7. It further found that: appellant's residence could not have been reasonably confused with the premises of U.S. Apparel; when the police entered the door, appellant informed them that they were in his residence; and the area contained amenities such as a bedroom, a bathroom, a kitchen, and a living room, while the U.S. Apparel premises contained a reception area, a warehouse area, and offices. Id. Based on this, the court found that the possibility of invasion of an innocent third party's privacy was too great to validate the search and that the discrepancies should have been investigated before the search. Id. at *8. Thus, it held that the search was illegal, because it exceeded the scope of the warrant. Id. at *10.

In reversing the trial court's denial of the motion to suppress, the court of appeals set out the relevant standards of review on a motion to suppress, stating:

In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We afford almost total deference to a trial judge's determination of historical facts that the record supports, especially when the findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo a trial judge's determination of mixed questions of law and fact that do not turn on an evaluation of credibility. Id. On a question of the application of law to facts, we review the evidence in the light most favorable to the trial judge's ruling. Id.

Id. at *4. However, the court of appeals failed to set out what evidence was presented at the hearing on the motion to suppress or its own application of law to facts.

The warrant authorized the police to "search the place therein named, to wit: U.S. Apparel which is located at 5627 Star Lane, Suite A . . . ." The trial court found, and the parties do not dispute, that appellant's claimed residence was connected by a unlocked door to the 5627 A address and was not connected to the 5625 address. The trial court also found that appellant had "carved out" a portion of the 5627 address and placed the numbers 5625 on the door, that 5625 is the address of another business that had no connection to U.S. Apparel, and that business records for U.S. Apparel were found in the residence area. In addition, evidence admitted at the suppression hearing showed that, when appellant obtained a Texas driver's license, he stated to the Department of Public Safety that 5627 A Star Lane was his home address, thus conceding that his residence was part of 5627 A Star Lane.

Federal case law on this issue generally holds that the scope of the warrant was not exceeded in circumstances similar to those presented here. See, e.g., United States v. Prout, 526 F.2d 380, 385-8 (5^th Cir.) (apartment located in building attached to building containing premises specified in warrant held to be part of those premises, where entrance to the latter opened into foyer shared with the former), cert. denied, 429 U.S. 840, 97 S. Ct. 114, 50 L. Ed.2d 109 (1976); United States v. Wright, 468 F.2d 1184, 1185-6 (6^th Cir. 1972) (building attached to premises specified in warrant held to be part of those premises, where door connected the two and the attached building was generally considered by witnesses to be part of the named premises), cert. denied, 412 U.S. 938, 93 S. Ct. 2771, 37 L. Ed.2d 397 (1973); United States v. Evans, 320 F.2d 482, 483 (6^th Cir. 1963) (attic attached to premises specified in warrant held to be part of premises, where attic could be accessed only through the premises named in the warrant and door between the two could not be locked or fastened from either side); see also United States v. Kaye, 432 F.2d 647, 649 (D.C. Cir. 1970) (search of apartment attached to store specified in warrant held invalid, where there was no access to store from apartment, and no apparent connection between the two).

Based on the evidence adduced at the hearing and the trial court's findings, we hold that the court of appeals erred in holding that the search exceeded the scope of the warrant. The state's third ground for review is sustained. ⁽³⁾ The judgment of the court of appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.

Johnson, J.

Date delivered: May 16, 2001

En Banc

Publish

1. We granted the state's petition on the following grounds: "(I) Can a suspect circumvent the lawful execution of a search warrant by arbitrarily carving out a portion of his business with numbers placed on an interior door that indicate the interior door is part of another physical address? (II) Do police officers exceed the scope of a search warrant of a business by entering what appears to be a residential portion of the structure, but is nevertheless located within the confines of a business address? (III) Does the mere presence of four numbers placed on the interior door of a business that is the subject of a valid search warrant create an additional area not covered by the search warrant? (IV) Can an individual carve out a cone of protection within the confines of his business by setting up an area of habitation within that same physical address?

(V) Does a lawful search of the fixed premises of a business extend to every part of the premises, including an area used for residential purposes where contraband may likely be found? (VI) Can cocaine by seized as 'mere evidence' when it is found on the premises that are the subject of a valid search warrant even though the cocaine was not named in the search warrant and was not connected to the crime being investigated?"

2. Appellant also attempted to introduce into evidence a utility bill from Houston Light & Power. After the state objected on various grounds, the trial court excluded the utility bill on the ground that it was irrelevant. Although appellant made a bill of exception concerning this matter, he did not appeal the exclusion of this evidence.

3. Based on our disposition of the state's third ground for review, it is unnecessary for us to review the remaining grounds. Therefore, those grounds are dismissed.