Opinion
No. 05-10-01289-CR No. 05-10-01290-CR No. 05-10-01291-CR
02-23-2012
WILLIAM RONALD DAVIDSON, Appellant v. THE STATE OF TEXAS, Appellee
REVERSED and REMANDED; Opinion Filed February 23, 2012.
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause Nos. 25842, 25843, 25844
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Lang
William Ronald Davidson appeals the trial court's (1) judgments convicting him of possession of methamphetamine in an amount of one gram or more, but less than four grams, and possession or transport of chemicals with the intent to manufacture methamphetamine, and (2) order of deferred adjudication for the offense of possession or transportation of anhydrous ammonia. Davidson pleaded guilty to all three offenses. The trial court assessed his punishment at six years of imprisonment for the offenses of possession of methamphetamine and possession or transport of chemicals with the intent to manufacture methamphetamine. The trial court deferred adjudication of guilt for the offense of possession or transportation of anhydrous ammonia and placed him on community supervision for a period of ten years. In one issue, Davidson appeals the trial court's judgments and order of deferred adjudication arguing that the trial court erred when it denied his motion to suppress because the affidavit failed to demonstrate that the confidential informant was reliable. We conclude the application for a warrant did not demonstrate the confidential informant was reliable. The trial court's judgments and order of deferred adjudication are reversed and the case is remanded for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND
Although neither Davidson nor the State raise this issue, we note that trial court's order of deferred adjudication states that the statute for the offense is Texas Health and Safety Code section 504.001. However, that section was repealed in 2005 and the indictment alleges that Davidson committed the charged offense on or about February 23, 2009. The offense charged is currently found in section 481.1245 of the Texas Health and Safety Code.
The Hopkins County Sheriff's Department discovered and detained a man in possession of chemical precursors, i.e., rock salt, pseudofed tablets, and a bug sprayer, used in the manufacture of methamphetamine. They contacted Sergeant Investigator Harold McClure of the Sulphur Springs Police Department and two other officers. The officers gave the man the Miranda warnings and interviewed him. During the interview, the man became cooperative and an informant. McClure did not have a history of dealing with this man.
While McClure listened in, the informant telephoned Davidson, telling Davidson that his vehicle had broken down, the sheriff's department had given him a ride, and he had his vehicle towed to his residence. The informant wanted Davidson to pick up the chemical precursors that were in his vehicle. Davidson declined to do so that night, but arrangements were made for him to get them after work the next day. The next day, the police placed the chemical precursors in the informant's car, which was at the informant's residence. They observed Davidson get them from the informant and drive away. The police followed Davidson's car to his residence. While the police maintained surveillance on Davidson, McClure met with the Hunt County Sheriff's Department and the SWAT team. Also, McClure presented the trial court with his application for a search warrant and affidavit in support thereof. The search warrant was signed by the trial judge.
At dusk, the police executed the search warrant. When they "made entry," Davidson fled by way of the adjoining property, grabbing a tank from the pump house as he did so. The police recovered the items that had been placed in the informant's vehicle from Davidson's vehicle. The police also found items associated with the manufacture of methamphetamine in a truck parked at Davidson's residence. In Davidson's bedroom, the police found methamphetamine, guns, and items used to ingest or smoke narcotics in plain view.
After Davidson returned to the property, he and his wife, Stacy Sutton Davidson, were detained. Davidson was given the Miranda warnings. Then, Davidson took the police to a small ravine on the adjoining property where he had left the tank.
Stacy Sutton Davidson was charged with possession of methamphetamine in an amount of one gram or more, but less than four grams. She filed a motion to suppress that makes the same arguments as William Davidson. Their motions to suppress were heard by the trial court in a single hearing. Stacy Sutton Davidson's appeal is cause no. 05-10-01264-CR.
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Davidson moved to suppress the evidence, in part, on the basis that the affidavit supporting the warrant did not demonstrate that the confidential informant was reliable. After a hearing before the same trial judge who signed the warrant, the trial court denied Davidson's motion to suppress.
II. MOTION TO SUPPRESS
In his sole issue on appeal, Davidson argues that the trial court erred when it denied his motion to suppress because the affidavit failed to demonstrate that the confidential informant was reliable. Davidson claims that the affidavit supporting the application for a search warrant failed to meet the standard for reliable information, which is required to be included in the affidavit when a confidential informant is the source of the information. The State responds that the affidavit was sufficient because the confidential informant's information provided specific details and was an admission against penal interest. In the alternative, the State argues that there was probable cause for the police to make a warrantless search of Davidson's vehicle, Davidson abandoned the anhydrous ammonia tank and it was found in an open field, and the probable cause that permitted the police to make a warrantless arrest of Davidson also permitted them to conduct a warrantless search of his car where the chemical precursors were found and his property where the anhydrous ammonia tank was found.
A. Standard of Review
When reviewing a magistrate's decision to issue a warrant, both trial and appellate courts apply a highly deferential standard in keeping with the constitutional preference for a warrant. See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Reviewing courts must pay great deference to a magistrate's finding of probable cause to encourage police officers to use the warrant process, rather than making a warrantless arrest or search and later attempting to justify their actions by invoking some exception to the warrant requirement. See Illinois v. Gates, 462 U.S. 213, 236 (1983); Rodriguez, 232 S.W.3d at 59-60.
A reviewing court is simply to ensure the magistrate had a substantial basis for concluding probable cause existed. See Gates, 462 U.S. at 238-39; Rodriguez, 232 S.W.3d at 60. A reviewing court should not invalidate a warrant by interpreting the affidavit or complaint in a hypertechnical manner. See Gates, 462 U.S. at 236; Rodriguez, 232 S.W.3d at 59. When a court reviews an issuing magistrate's determination, the court should interpret the affidavit or complaint in a commonsensical and realistic manner, recognizing the magistrate may draw reasonable inferences from the four corners of the affidavit. See Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011); Rodriguez, 232 S.W.3d at 61. Statements made during a suppression hearing do not factor into the probable cause determination. State v. Hill, 299 S.W.3d 240, 243 (Tex. App.-Texarkana 2009, no pet.). When in doubt, a reviewing court defers to all reasonable inferences the magistrate could have made. Id. The issue is not whether there are other factors that could have, or even should have, been included in the affidavit or complaint. See id. at 62. Rather, reviewing courts focus on the combined logical force of facts that are in the affidavit or complaint, not those that are omitted. See id. The same standards apply to any challenge to the adequacy of an affidavit or complaint presented for issuance of a search or arrest warrant. Glaze v. State, 230 S.W.3d 258, 259 (Tex. App.-Waco 2007, pet. ref'd) (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004)).
B. Applicable Law
The Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution command that no warrants, either for searches or for arrests, shall issue except on probable cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see Rodriguez, 232 S.W.3d at 59. This reflects our preference for the warrant process in which police officers present their facts to a neutral magistrate to decide if there is probable cause to issue the warrant. See Rodriguez, 232 S.W.3d at 59.
The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a warrant without first finding probable cause. See id. at 60. The probable cause standard means that the affidavit must set out facts for the magistrate to conclude that the items to be seized will be on the described premises at the time the warrant issues and the search is executed. Crider, 352 S.W.3d at 707. The magistrate's sole concern should be probability. Id. Probable cause is "a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a set of neat legal rules." Gates, 462 U.S. at 232; Rodriguez, 232 S.W.3d at 64. Neither federal nor Texas law defines precisely what degree of probability suffices to establish probable cause, but that probability cannot be based on mere conclusory statements of an affiant's beliefs. Rodriguez, 232 S.W.3d at 61.
An affidavit made before a magistrate is called a "complaint" if it charges the commission of an offense. Tex. Code Crim. Proc. Ann. art. 15.04 (West 2005). An affiant must present a complaint that allows the magistrate to independently determine probable cause and the magistrate's actions cannot be a mere ratification of the bare conclusions of others. See id. The complaint shall be sufficient, without regard to form, if it has the following substantial elements: (1) it must state the name of the accused, if known, and if not known, must give some reasonably definite description of him; (2) it must show the accused has committed some offense, either directly or the affiant has good reason to believe and does believe the accused has committed such offense; (3) it must state the time and place of the offense as definitely as can be done by the affiant; and (4) it must be signed by the affiant by writing his name or affixing his mark. Id. art. 15.05.
There is no requirement that "each and every fact which contributed to the [affiant's] conclusions be spelled out in the complaint." See Gates, 462 U.S. at 230 n.6. (quoting Jaben v. United States, 381 U.S. 214, 224-25 (1965)). Complaints are usually drafted by nonlawyers in the midst and haste of a criminal investigation. See Ventresca v. United States, 380 U.S. 102, 109 (1965); Rodriguez, 232 S.W.3d at 61 n.25. Technical requirements of elaborate specificity once exacted under common law have no proper place in this area. See Ventresca, 380 U.S. at 109; Rodriguez, 232 S.W.3d at 61 n.25. It is not surprising that a police officer, in haste, may not compose a polished complaint that dots every "i" and crosses every "t." See Rodriguez, 232 S.W.3d at 63-64.
An informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of a complaint. See Gates, 462 U.S. at 230. An affiant's basis for finding the informant reliable need not be of any certain nature. Olivarri v. State, 838 S.W.2d 902, 905 (Tex. App.-Corpus Christi 1992, no pet.). What is required is that the affiant actually have some basis for concluding that the informant is credible concerning the type of information supplied. Id. An unnamed informant's reliability may be established by the affiant's general assertions stated in the affidavit showing that the informant has given reliable and credible information in the past. See Barraza, 900 S.W.2d at 842; Hill, 299 S.W.3d at 244. However, the absence of an allegation of prior reliability is not necessarily prohibitive to a finding of probable cause if the informant's information is corroborated within the four corners of the affidavit. Hill, 299 S.W.3d at 244. Also, when evaluating a first-time informant's reliability and credibility, courts may look to other factors, including the presence or absence of a criminal record, employment history, and reputation in the community. Hill, 299 S.W.3d at 247. Further, an admission against penal interest, even by a first- time informant, is a factor indicating reliability. Lowery v. State, 843 S.W.2d 136, 140 (Tex. App.-Dallas 1992, pet. ref'd).
C. Application of the Law to the Facts
In their brief, the State concedes that the affidavit in support of the search warrant did not state that the confidential informant was reliable. However, the State argues that affidavit states that the confidential informant's statement was given to law enforcement officers under Miranda and therefore, it is a statement against penal interest. This argument is supported by the following findings of fact made by the trial court:
3.On February 22, 2009, Office McClure had received information from a confidential informant . . . that the manufacturing of Methamphetamine was occurring at William Davidson's residence in Campbell, Texas.It is also supported by the following conclusion of law made by the trial court:
4.[The confidential informant] provided the information to Officer McClure when he himself was under arrest for suspected drug trafficking.
5.While under arrest, the [confidential informant] had a phone conversation with William Davidson that was monitored by Officer McClure. During this conversation, [William] Davidson was informed that Hunt County law enforcement had an encounter with the [confidential informant] while his vehicle was broken down on the side of the road.
6.William Davidson was asked to find the [confidential informant's] vehicle and take possession of it because a list of ingredients commonly known as precursors to the production of methamphetamine were still inside.
8.Based on the [confidential informant's] phone conversation and specific details of the whereabouts of illegal narcotics and precursor chemicals, Officer McClure decided to present the search warrant affidavit to this Court.
3.Although the [confidential informant's] reliability had never been tested, the [confidential informant's] statements to Officer McClure were made against penal interest. The [confidential informant] gave specific information as to the location of illegal narcotics and precursor ingredients that could be instantly verified once upon the premises.
However, the affidavit in support of the application for a search warrant states only the following with regard to the information obtained by the confidential informant:
Further your AFFIANT has received information from a Confidential Informant . . . . The [Confidential Informant] has personally seen, in the last 72 hours, equipment and chemical precursors to produce Methamphetamine, in the possession of DAVIDSON along with controlled substances to wit: Methamphetamine. The [Confidential Informant] is familiar with Methamphetamine and the production methods to produce Methamphetamine, and how it is commonly packaged for distribution. The [Confidential Informant] has given statements to Law Enforcement under Miranda as to the production of Methamphetamine by DAVIDSON, and s[ales] of Methamphetamine by DAVIDSON. The [Confidential Informant] also told your Affiant that he, DAVIDSON[,] has a quantity of Methamphetamine in a safe underneath his bed inside a bedroom in the suspected place and Anhydrous Ammonia that is in an old propane tank that should be located in a well pump house/building that is located on the property of the suspected place.The affidavit does not include any additional information regarding the reason the confidential informant had been given the Miranda warnings. Instead, the information that the confidential informant was under arrest for suspected drug trafficking was provided by statements made during the hearing on Davidson's motion to suppress. Statements made during a suppression hearing do not factor into the probable cause determination. See Hill, 299 S.W.3d at 243. Further, during the hearing on the motion to suppress, McClure conceded that he did not include the details of his independent investigation, i.e., the monitored telephone call from the confidential informant to Davidson or the police surveillance of Davidson, in his affidavit. He also stated that the confidential informant was not charged with "any criminal activities." Applying the appropriate standard of review and looking only to the four corners of the affidavit in support of the application for a warrant, we conclude the affidavit failed to demonstrate that the confidential informant was reliable.
In the alternative, the State contends that, even if the information provided by the unnamed informant was not sufficient to support the warrant, the trial court did not err in denying Davidson's motion to suppress because the police were justified in executing a warrantless search. See Tex. Code Crim. Proc. Ann. art. 14.01 (West 2005). Although some of the State's alternative arguments were presented to the trial court in the State's brief in response to Davidson's motion to suppress, the trial court's findings of fact and conclusions of law show that these arguments were not ruled on by the trial court. Accordingly, we do not address them. Hill, 299 S.W.3d at 243. Issue one is decided in Davidson's favor. IV. CONCLUSION
The application for a warrant did not demonstrate the confidential information was reliable. The trial court erred when it denied Davidson's motion to suppress.
The trial court's judgments and order of deferred adjudication are reversed and the case is remanded for further proceedings consistent with this opinion.
DOUGLAS S. LANG
JUSTICE
101289F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RONALD DAVIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01289-CR
Appeal from the 354th Judicial District Court of Hunt County, Texas. (Tr.Ct.No. 25842).
Opinion delivered by Justice Lang, Justices Murphy and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered February 23, 2012.
DOUGLAS S. LANG
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RONALD DAVIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01290-CR
Appeal from the 354th Judicial District Court of Hunt County, Texas. (Tr.Ct.No. 25843).
Opinion delivered by Justice Lang, Justices Murphy and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered February 23, 2012.
DOUGLAS S. LANG
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RONALD DAVIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01291-CR
Appeal from the 354th Judicial District Court of Hunt County, Texas. (Tr.Ct.No. 25844).
Opinion delivered by Justice Lang, Justices Murphy and Myers participating.
Based on the Court's opinion of this date, the trial court's order of deferred adjudication is REVERSED and the cause REMANDED for further proceedings.
Judgment entered February 23, 2012.
DOUGLAS S. LANG
JUSTICE