Opinion
No. 11-02-00252-CR
September 25, 2003. DO NOT PUBLISH. See TEX.R.APP.P. 47.2(b).
Appeal from Palo Pinto County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The jury convicted Daniel Paul Jones of possession of methamphetamine in an amount of 4 grams or more but less that 200 grams and assessed his punishment at confinement for a term of 20 years and a fine of $10,000. Appellant raises two points of error attacking the trial court's denial of his motion to suppress physical evidence seized from his residence pursuant to a search warrant. We affirm. Appellant's points of error attack the sufficiency of the affidavit submitted in support of the requested search warrant. Officer Terry McDaniel of the Cross Timbers Narcotics Task Force executed the affidavit. As set forth in detail below, the bulk of Officer McDaniel's factual allegations were based on his examination of garbage that had been deposited into three dumpsters used by several area residents. On February 23, 2001, Officer McDaniel found three bags of trash which contained mail addressed to appellant at both his residence at Possum Kingdom Lake and an address that he used in Wichita Falls. The bags also contained mail addressed to appellant's live-in girlfriend. Officer McDaniel stated that the bags contained lithium batteries which had been broken apart and empty cans of camp fuel. He further stated that the strong odor of ether and ammonia could be detected from the trash bags. Officer McDaniel asserted that these materials and odors are commonly associated with the illegal manufacture of methamphetamine. Officer McDaniel had previously received information from other peace officers that appellant was believed to be manufacturing methamphetamine. The next examination of garbage retrieved from the dumpsters occurred on April 2, 2001. The affidavit reads as follows with respect to Officer McDaniel's recovery: "Affiant found three bags, a Wal-Mart bag, a K-Mart bag, and a United Supermarket bag which had mail and literature in the names of [appellant and his live-in girlfriend]." Officer McDaniel stated that the bags contained the following items associated with the manufacture of methamphetamine: lithium batteries which had been broken apart, an empty container of camp fuel, an empty box of salt, an empty bottle of gas line antifreeze, a soft drink bottle which appeared to have been used as a hydrogen chloride gas generator, and a water bottle which appeared to contain waste material from pseudoephedrine tablets. Officer McDaniel next reported on an examination of garbage retrieved from the dumpsters on April 6, 2001. In a trash bag, he found drink bottles which appeared to contain waste material from pseudoephedrine tablets. The bag also contained an empty box of salt and coffee filters that had a white residue. A field test performed on the coffee filters showed a presumptive positive result for methamphetamine. Officer McDaniel did not find any mail in the trash bag addressed to appellant or his live-in girlfriend. He did find a Wichita Falls Times-Record Newspaper inside the trash bag. Officer McDaniel stated that the drink bottles had the same appearance as the bottles examined on April 2, 2001. Officer McDaniel also found a plastic garden pressure sprayer under the trash bag which appeared to have been adapted for use as a hydrochloric acid gas generator. Officer McDaniel concluded that he did not find any objects associated with the manufacture of methamphetamine when he checked the dumpsters on April 5, 2001. Officer McDaniel further noted that appellant was not at his residence when the officer checked the dumpsters at approximately 6:00 a.m. on April 5, 2001. On April 19, 2001, Officer McDaniel reported observing a vehicle registered to Kenneth Bruno Kocks parked at appellant's residence. Officer McDaniel stated that an officer with the North Texas Regional Drug Enforcement Task Force informed him that Kocks is a known abuser and manufacturer of methamphetamine in the Wichita Falls area and that he had been arrested for the manufacture of methamphetamine in March 2001. Kocks was also reported to be a known associate of appellant. Officer McDaniel later stated that he observed Kocks's vehicle located at appellant's residence on April 25, April 30, and May 2, 2001. The next examination of garbage occurred on April 25, 2001. Officer McDaniel found trash bags containing pieces of lithium batteries, two empty boxes of salt, and five empty blister packs of pseudoephedrine tablets. Officer McDaniel did not find any mail addressed to appellant or his live-in girlfriend inside of these trash bags. Officer McDaniel next reported examining garbage retrieved from the dumpster on May 2, 2001. Inside of a white trash bag, Officer McDaniel found an empty can of camp fuel, an empty container of drain opener, a drink bottle which appeared to contain the waste from the manufacture of methamphetamine, an empty container of salt, and an empty box of trash bags bearing a "Bill's" price tag in the amount of $1.00. Officer McDaniel then stated: "In an identical white trash bag in the same dumpster, Affiant observed a bank statement from Guarantee Bank addressed to [appellant's live-in girlfriend and] mail from Texaco addressed to [appellant]." Officer McDaniel further reported finding a receipt from Bill's Dollar Store inside the second trash bag for the purchase of a box of trash bags for $1.00. Officer McDaniel obtained the search warrant on May 2, 2001. A search of appellant's residence resulted in the seizure of the physical evidence which appellant seeks to suppress. To be valid, a search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause. TEX. CODE CRIM. PRO. ANN. arts. 1.06 18.01(b) (Vernon 1977 Supp. 2003). Probable cause to support the issuance of a search warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex.Cr.App. 1986). The magistrate is not required to find proof beyond a reasonable doubt or by a preponderance of the evidence but only a probability that contraband will be found in a particular place. Johnson v. State, 803 S.W.2d 272, 288 (Tex.Cr.App. 1990), cert. den'd, 501 U.S. 1259 (1991), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 (Tex.Cr.App. 1991). The sufficiency of a search warrant affidavit is determined by use of "totality of the circumstances" analysis. Illinois v. Gates, 462 U.S. 213, 234 (1983); Hennessy v. State, 660 S.W.2d 87, 90 (Tex.Cr.App. 1983). In reviewing a ruling on a motion to suppress, we generally: (1) afford almost total deference to the trial court's determinations of historical facts and credibility and (2) review de novo determinations that do not turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Cr.App. 2002). A trial court reviewing a magistrate's determination to issue a warrant is limited to examining only the four corners of the affidavit to determine whether probable cause exists. Jones v. State, 833 S.W.2d 118, 123 (Tex.Cr.App. 1992). Since we look only to the four corners of the supporting affidavit, we do not consider testimony presented at a pretrial motion to suppress. Massey v. State, 933 S.W.2d 141, 148 (Tex.Cr.App. 1996). Because the trial court is not required to make credibility choices in assessing the sufficiency of the affidavit, we review the trial court's ruling de novo. Wynn v. State, 996 S.W.2d 324, 326-27 (Tex.App.-Fort Worth 1999, no pet'n). In other words, we apply the same standard that the trial court applied when it evaluated the magistrate's decision to issue the warrant. Wynn v. State, supra at 326. During that review, we afford great deference to the magistrate's determination that the affidavit was sufficient to support the issuance of the warrant. Illinois v. Gates, supra at 236. Further, we remember that the magistrate may draw reasonable inferences so long as the affidavit is interpreted in a common-sense and realistic manner. Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Cr.App. 1987). In his first point of error, appellant attacks several areas of Officer McDaniel's affidavit to assert that the affidavit did not set forth sufficient facts to permit the issuance of a search warrant. Appellant scrutinizes each of the garbage examinations reported by Officer McDaniel in support of this assertion. With respect to the examination performed on February 23, 2001, appellant contends that Officer McDaniel's affidavit should have specified which items were recovered from each bag of trash. Appellant makes the same complaint with respect to the April 2, 2001, examination. He additionally complains that Officer McDaniel's report for April 2, 2001, only indicated that mail addressed to appellant or appellant's live-in girlfriend was found in one bag of trash yet he attributed items found in other trash bags to appellant. This argument focuses on the punctuation used by Officer McDaniel in discussing the April 2, 2001, examination. Our review of the affidavit indicates that the magistrate could have reasonably inferred that Officer McDaniel reported finding mail addressed to appellant or his live-in girlfriend in each of the trash bags examined on both February 23, 2001, and April 2, 2001, based on a contextual reading of the affidavit. Appellant also argues that the discoveries made on February 23, 2001, and April 2, 2001, should be excluded from consideration because they were too remote in time from the date on which the search warrant was issued. 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 by the time the magistrate issues the search warrant. Hafford v. State, 989 S.W.2d 439, 440 (Tex.App.-Houston [1st Dist.] 1999, pet'n ref'd). 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 v. State, supra at 440. When the affidavit mentions facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant. Rowell v. State, 14 S.W.3d 806, 809 (Tex.App.-Houston [1st Dist.] 2000), aff'd, 66 S.W.3d 279 (Tex.Cr.App. 2001). Officer McDaniel's discovery of items related to the manufacture of methamphetamine over an extended period of time indicated an activity of a protracted and continuous nature. Accordingly, the magistrate was not required to exclude the discoveries made on February 23, 2001, and April 2, 2001, from consideration. Appellant attacks the report for the April 6, 2001, examination in two respects. He first complains that there is insufficient information to link the drug-related items found in the trash to him because there were no papers in the trash bearing anyone's name or address. He further argues that Officer McDaniel's report for April 6, 2001, established that someone other than appellant was manufacturing methamphetamine in the vicinity. Appellant bases this argument on the notation that he was not at his residence on April 5, 2001. We disagree with appellant's reading of the affidavit in this regard. Officer McDaniel did not indicate that he maintained continual surveillance of appellant's residence on April 5 and 6, 2001. Instead, he only noted that he did not observe appellant at his residence at a single point in time on April 5, 2001. With respect to the report for the examination conducted on April 25, 2001, appellant also complains of the lack of papers in the trash bearing anyone's name or address. With respect to the examination of the trash retrieved on May 2, 2001, appellant also complains that there is insufficient evidence to link the drug-related items found in the trash to him. As noted previously, the drug-related items were found in one trash bag while the mail addressed to appellant and his live-in girlfriend were found in another trash bag. However, the trash bag containing the drug-related items contained an empty box for trash bags that matched a receipt located in a trash bag that contained mail addressed to appellant. Our review of Officer McDaniel's affidavit reveals that he provided the magistrate with information pertaining to the discovery of items associated with the manufacture of methamphetamine in dumpsters located near appellant's residence. On at least three occasions, the drug-related items were found in trash bags which also contained mail addressed to appellant or his live-in girlfriend. The last discovery occurred on the morning that Officer McDaniel obtained the search warrant. In his affidavit, Officer McDaniel further informed the magistrate that appellant and a frequent guest at his residence were known to be associated with the manufacture of methamphetamine. Under a "totality of the circumstances," the affidavit presented the magistrate with sufficient probable cause to issue a search warrant for evidence related to the manufacture of methamphetamine. Appellant's first point of error is overruled. Appellant asserts in his second point of error that Officer McDaniel's affidavit was insufficient to establish that contraband would be found at appellant's residence as opposed to some other location. Appellant references a statement in Officer McDaniel's affidavit that appellant was believed to be manufacturing methamphetamine in the woods near his home. The fact that the drug-related items which Officer McDaniel documented were found in household garbage from appellant's home on numerous occasions provided the magistrate with a sufficient basis for issuing a search warrant for appellant's residence. Appellant's second point of error is overruled. The judgment of the trial court is affirmed.
Please refer to the verbatim recitation of Officer McDaniel's report for April 2, 2001, set forth above.