*1 of Texas The STATE McLAIN, Appellee.
Chris Allen No. PD-0946-10. Appeals of Texas. of Criminal Court 13, 2011. April
OPINION J.,
HERVEY, delivered the opinion of KELLER, P.J., Court which MEYERS, PRICE, WOMACK, COCHRAN, JJ„ KEASLER and joined. County A Jury Hale Grand indicted pellee charge of possession with the methamphetamine, intent to deliver in an grams amount of four or more but less grams. hundred Appellee’s two counsel a motion to suppress filed the con- traband seized as a result of a search aby authorized search warrant. The trial court granted motion to suppress, and the court of affirmed judg- ment. We will reverse and remand to the trial court.
I. FACTUAL BACKGROUND Department Plainview Police police offi- cers a search executed warrant at Appel- lee’s home and on February business During execution of the search warrant, the officers seized grams over 100 of methamphetamine. County A Hale grand jury indicted the Appellee on April Appellee’s counsel a motion filed June suppress on 2009. The trial court granted suppression motion on In July findings law, of fact and conclusion of it found that point given “there was no of reference any for time frame for the substantive information in the affida- support vit” to supporting cause. warrant, whole, the search as reads follows: Affiant, Ramiro Sanchez is a certi- Texas, fied of The peace officer State Of employed the Plainview Police De- partment, assigned iswho to the Crimi- Lanehart, Lubbock, Appel- for Chuck nal Division Investigation as the Narcot- lant. The Affiant good ics Detective. is in Daniel, D.A., Plainview, Asst. Rob Jef- standing employing with his agency Horn, Austin, frey L. Van Atty., State’s Of the State Texas. The Affiant State. has received from unknown line, shop; the office in the In the crime office it and also through
callers hours, a confidential informant phone cell Chris McClain phone selling methamphetamine the Affiant that Chris was seen storing and *3 business, and large at his residence amount of meth- “meth” Some of the N. Columbia. which is 3607 and busi- amphetamine at his residence buying that Chris is also callers stated that again ness. The informant for on payment items taking or stolen the methamphet- will hide or store Chris previous Affiant has The narcotics. places prop- on the amine in all different was a user of knowledge that Chris trustworthy, erty. The informant is and had been seen methamphetamine credible, steady and reliable and holds a and dealers of metham- other users the has job. fulltime Therefore Affiant investiga- who were under phetamine, and does believe that reason to believe The at that time. by the Affiant tion being “meth” is sold methamphetamine the sus- up surveillance oh Affiant set The at 3607 N. Columbia. and stored some min- and did observe pected place identity of the in- Affiant asks that the traffic, sign is a of narcotics ute which security for rea- kept formant be secret training from the affiant’s trafficking sons. The Affiant observed experience. and that appeal The on direct State claimed from coming going and persons some abused its discretion the trial court to be known users suspected place because suppression motion granting narcotics, past from inves- dealers of “past 72 hours” the statement’ about time the traffic varied tigations. Appel- imply that the informant saw could heavy night, appeared to be most but during that methamphetamine lee with the very common in the use or sale
which appeals disagreed, rea- time. The court Affiant then methamphetamine. The implication sup- that “such is not soning information from dif- received same affidavit,” plain text of the ported informants. All infor- confidential ferent reading a common sense and that under given have true information mants affidavit, “past the reference to the good standing. and are in referred to the detective hours” when received advised that Chris informant, to the not to when spoke using selling methamphetamine. was the information about got informant The informants advised Chris Focusing solely “past on the Appellee.1 also.buying taking payment as in the search warrant hours” statement welders, “meth”, gener- items like stolen affidavit, court of decided that vehicles, trailers, ators, parts, vehicle give magis- fail[ed] the “affidavit trucks, tools, many other guns and any when any trate idea of will They items. also advised Chris the issuance of a allegedly supports which or store the hide “fatal to the warrant occurred” which was places, kinds of from inside all different n efficacy of the affidavit.”2 shop to the. vehicles the residence and on Inside the property. and trailers II. DISCUSSION fireplace there and some residence for Review Grounds around it are loose and of the bricks review of the follow- granted This Court shop, hide the “meth”. In the used to (1) appellate Does an court ing grounds: of the tool boxes are used to store some McLain, 180, 183 2. See id. 1. See State v. 2010). (Tex.App.-Amarillo prohibition “hypertechnical” violate the to be conducted to a searches warrant opposed a warrant when it as to a review of strict- warrantless long search.5 As as the grammar syntax rules of ly applies had (2) substantial basis for concluding proba- analysis? it for an appropriate its Is existed, ble uphold we will mag- opinion impli- court to base its istrate’s cause determination.6 within a cations found warrant deferring rather reasonable We are analyze instructed not to reviewing magistrate' inferences the could the affidavit in a hyper-technical manner.7 (3) have drawn from the affidavit? Did When “reviewing magistrate’s decision *4 appellate by failing court err to ad- warrant, a issue appellate and courts dress whether the trial court afforded apply highly a deferential standard in propriate reviewing mag- deference to the (cid:127)keeping with the preference constitutional implicit finding istrate’s the informant Thus, for a warrant. when an appellate described affidavit saw the metham- court reviews an issuing magistrate’s de phetamine “in the 72 hours?” termination, that court should interpret a cómmonsensical and real Requirement Standard of Review And manner, istic recognizing magis of Probable Cause may trate draw reasonable inferences. defer, doubt, inWhen we all to reasonable normally This Court reviews a inferences that the could have ruling on a suppress motion to made?’8 review, by using a bifurcated standard of give
where we
almost total
to
deference
Since the Fourth
strongly
Amendment
the historical facts
the trial court
found
prefers
to be
searches
conducted pursuant
and review
appli
de novo the trial court’s
warrants,
search
the United States Su-
However,
cation of the law.3
when the
preme
provided
Court has
incentives for
trial court
determining probable
cause
law-enforcement officials to obtain war-
to support the issuance of a search war
conducting
rants instead of
warrantless
rant,
credibility
there are no
determina
searches.9 One incentive is a less-strict
tions, rather the trial court is constrained
reviewing
standard for
the propriety of a
to the four corners of the affidavit.4 Ac
search conducted
to a warrant.10
cordingly,
situation,
when we review
magis
In this
give great
must
warrant,
trates’s decision to
issue
we deference to the magistrate’s probable-
apply a highly deferential
be
standard
appellate
determination.11 Both
cause of
preference
the constitutional
give
courts and trial courts alike must
State,
State,
666,
(Tex.
55,
(Tex.
3.
v.
Rodriguez
Amador
221 S.W.3d
673
8.
v.
232 S.W.3d
61
Crim.App.2007).
(footnotes
Crim.App.2007)
and
citations
omitted).
authority
State,
380,
(Tex.
4. Hankins v.
132 S.W.3d
Crim.App.2004).
State,
748,
9. Lane v.
971 S.W.2d
750-51
1998,
ref’d).
App.-Dallas
pet.
808,
Swearingen
v.
810-
(Tex.Crim.App.2004)
(citing
Illinois
61;
States,
Rodriguez
Ornelas v. United
Gates,
213, 234-37,
2317,
462 U.S.
103 S.Ct.
517 U.S.
116 S.Ct.
134 L.Ed.2d
(1983)).
13.
at 59.
1992,
ref’d);
pet.
App.-Corpus Christi
see also
Rodriguez
14.
at 59.
Sherlock
v.
(affidavit
1982)
Crim.App.
“inadequate
if it
15. Id. at 61
fails to
facts which would
disclose
enable
to ascertain from
affidavit that
CONST,
61;
("The
at
U.S.
amend.
IV
Id.
upon
which the
event
cause was
per-
right
people to be
in their
secure
founded
not so remote as to render it
effects,
sons, houses,
against
papers, and
un-
ineffective”) (internal
omitted).
quotes
seizures,
not be
reasonable searches
shall
issue,
violated,
Warrants
but
and no
shall
20. THE AMERICAN HERITAGE BOOK OF
cause,
Mifflin, 1996).
supported (Houghton
Oath or
upon probable
ENGLISH USAGE
affirmation,
particularly describing
Gates,
236, 103
searched,
462 U.S. at
S.Ct. 2317
place
persons
and the
to be
(citations
omitted);
quotes
and internal
Unit-
seized.”)
things to be
Ventresca,
U.S.
ed
States
(1965).
at 61.
S.Ct.
13 L.Ed.2d
appeals acknowledged
The court of
matters would indicate that
the time at
applies to the
highly
deferential standard
which the affiant received the information
an
but
magistrate’s decision in
from the. confidential informant
Ap-
failed to
that standard
the case at
apply
pellee possessed methamphetamine was ir-
appeals analyzed,
hand. The court of
.
relevant, but that
the time at which the
isolation,
sentence,
“In the
72 confidential informant
pos-
observed such
hours, a confidential informant advised the
necessary
session was
proba-
to establish
Affiant that
was seen in
Chris
doubt,
ble cause. And if there was
large
amount of
both
should have
his residence and business.” The court of
deferred to the
determina-
with the trial court that the
agreed
They
tion.24
failed to do so.
any specificity regarding
affidavit “lacked
, We further note that other information
when the matters referenced” occurred
in the affidavit from “unknown callers”
that a
reading”
and held
“common sense
stating that appellant
storing
“is
and sell-
indicated that the affidavit’s reference to
ing methamphetamine ‘meth’ at his resi-
“past
72 hours” referred to “when the
and,
dence
business” combined with the
informant,
spoke
affiant
to the confidential
regard-
statements
affiant’s
not when the confidential informant ac-
ing the affiant’s surveillance and observa-
quired the information.”22 The court of
tions
ongoing drug
consistent with
analysis
appeals’s
conflicts
the estab-
appellant’s
residence and business could
war-
requirement
lished
that courts review
*6
justify magistrate’s
also
conclusion that
result,
rant affidavits as a whole.23
it
As a
failed,
methamphetamine
probably
was
at
the
provide
found that
suspected place when the warrant
issued
probable cause.
Flores,
(emphasis
supplied). See
plain meaning
While the
of the afore-
(use
S.W.2d at 419
of present verb tense in
statement,
literally,
mentioned
read
fails to
that
affidavit
confidential informant ad-
clearly
exactly
indicate
when the informant
vised affiant that “there is stolen property
in
Appellee
observed
suspected
at
the
residence” supported
methamphetamine, we believe that
the
magistrate’s conclusion that
the stolen
reasonably
inferred
suspected place
items were at the
when he
that
informant
Appellee
observed
with
warrant) (emphasis
original)
issued the
methamphetamine
within the
(“When
and at 420
stolen items have been
By looking
hours.
at the affidavit in its
once,
viewed more than
and there is noth-
entirety,
just
not
this one sentence
ing
suggest
that the stolen items will
isolation,
certainly
it
would have been rea-
future,
suspected place
not be at the
magistrate,
sonable for the
all
considering
magistrate may weigh
this fact in his
the facts in the
along
with reason-
concerning
probability
calculations
that
facts,
able inferences from those
to con-
suspected proper-
items will be on the
probability
clude that there was a fair
ty.”); Swearingen,
23. Hall v. Crim.App.1990). further enterprise proceedings tends to court for inconsis- ongoing “An the case: time, single possession abut opinion. over tent with continue this may be over contraband of a consumable reoccur”); and never gulp or snort JOHNSON, J., dissenting filed Johnson, States United see also opinion. Cir.1972) (“Where (10th F.2d isolated violation it a mere affidavit recites JOHNSON, J., dissenting filed a imply unreasonable not be
would opinion. rather quickly dwindles However, Sunday, he me that he had “On where of time. passage with the recites facts indicat- been in Russia” is not at the same as properly and continuous protracted ing been in “He advised me that he had Russia conduct, of nature, passage a course Sunday.” The first does not reveal when significant.”). less time becomes Russia, spe- he had been second is had been there. That cific about when he informed Rodriguez, “the As stated face in this case. is the situation we magis- determinations and deliberate receiving warrants are to affiant writes of empowered trates to issue n “from unknown callers” at action over the hurried preferred unspecified to make ar- may happen who officers times. The information was said to be the court of opinion rests.”25 appellant buying trading “is” stolen “hurried” words of the peals chose the drugs, again, unspecified articles for that the inferences officer over reasonable noted that he had times. The officer Both the have made. magistrate could appellant’s apparent place watched of busi- were the court of trial court and ness, time. He re- unspecified at an also what affidavit in search of reviewing the from known ceived the same information conveying as the author of the affiant was informants, appellant who stated that inquiring into the rather using selling methamphetamine, “was” drawn of the conclusions reasonableness *7 a known time frame. still without (i.e., they were review- magistrate in search of what The crux of the matter is whether the ing the affidavit by the implying conveying affiant was “in interpretation the last “in 72 hours” and not statement the last There hyper-technical 72 hours” is a one. seems, of what the search that, to have been no consideration statement). reasonably inferred from exactly just perhaps, the officer meant only concerned Reviewing previous within the what he wrote: determina- whether hours, he had conversed with his infor- drawing interpreting tion in reason- mant, that the informant had related who was done able from the affidavit inferences appellant had seen con- realistic manner. in a commonsensical and time. unspecified trolled at an substance should defer to reviewing' And no more “hyper-technical” This is that the reasonable inferences that the interpreting language to mean could have made. drugs within the informant had seen last hours. III. CONCLUSION statutes, we we use the parse When judgment of the court of We reverse of the statute because that plain language case to the trial appeals and remand this at 59. legis- what the is what we have to indicate meant, attempt and we do not
lature legislature. mind of the read the collective the affi- I am unable to read the mind of ant, and I must therefore take as fact what down, he chose to write and what he wrote that, hours, he down was within the last 72 had conversed with his informant. This is support
not sufficient to a search warrant. I respectfully dissent. BRIGGS, Individually, E. Justin Briggs Justin E. as Next Friend of Briggs, Appellants, Austin E. TOYOTA MANUFACTURING OF al., Appellees.
TEXAS, et No. 04-09-00516-CV. Texas, Appeals Court of San Antonio. Dec.