No. 14-06-00912-CR
Memorandum Opinion filed April 22, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas, Trial Court Cause No. 1038809.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Appellant, Stephen Salvador Orlando, was indicted on the offense of possession of methamphetamine with intent to deliver. After his motion to suppress was denied, appellant plead guilty and was sentenced to ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $1,000 fine. In his sole issue on appeal, appellant contends that the officer who executed the affidavit submitted in support of the search and arrest warrant failed to establish probable cause, and therefore, the trial court erred in denying his motion to suppress. We affirm.
Factual and Procedural Background
On August 25, 2005, Officer C.D. Wall, a Houston Police Department undercover narcotics officer, submitted an affidavit to a magistrate requesting a combination search and arrest warrant. Officer Wall's affidavit recited the following statements and allegations: The Affiant, C.D. Wall, is a peace officer in and for the State of Texas, reputably employed with the Houston Police Department. The Affiant has been in the field of law enforcement for at least (23) twenty three years, with approximately 17 years time having been spent exclusively focusing/working on narcotics investigations and working in an undercover capacity. The Affiant is currently assigned to the Special Investigations Command, Narcotics Division, is an experienced veteran narcotics investigator, who has no criminal record, is credible and reliable and thus is worthy of belief. The Affiant has reasons to believe and does in fact believe that the above listed described person, hereafter styled the defendant, is currently i[n] possession of an illegal controlled substance, namely methamphetamine and intends to distribute/deliver the substance to others.
Within the past 48 hours, the Affiant and Sergeant J.F. Jansen, also assigned to the Narcotics Division, met with a credible and reliable confidential informant (CI) who was checked and found not to be in possession of any type of a controlled substance. The informant had previously advised Affiant that the accused person was known to informant as Stephen Orlando. Therefore, Affiant retrieved a Texas Department of Public Safety photograph of Stephen Salvador Orlando and the informant positively identified him as the accused person. The confidential informant was then given $50.00 with which to make purchase of methamphetamine. The informant then went to the defendant's townhome as described and listed above, address 9850 Pagewood Ln., Townhome #406. Your Affiant maintained sporadic surveillance of the C.I. and the townhome as described above. The informant advised Affiant that upon arrival to Townhome #406, Stephen Salvador Orlando allowed the informant to enter the listed townhome through the garage. Stephen Salvador Orlando then retrieved a crystal like substance from the living room area and handed it to the informant, in exchange for the $50.00 which had been provided by the Affiant. The informant returned to the Affiant and relinquished care, custody, and control of the crystal like substances which later tested positive for methamphetamine, to your Affiant. The confidential informant advised your Affiant that the methamphetamine was purchased from Stephen Salvador Orlando and who is more fully described above. Stephen Salvador Orlando told the informant to come back to the townhome anytime further purchases are needed. The confidential informant advised your Affiant that Stephen Salvador Orlando is known to carry, and to have on his person and in his premises, a pistol.
The confidential informant also advised your Affiant that the confidential informant has seen methamphetamine on a number of occasions and is a past user of methamphetamine and is aware of the physical properties and appearance of listed methamphetamine. The informant is confident that the crystal like substance, which the informant saw being kept and sold at the townhome located at 9850 Pagewood Ln, Townhome #406 is in fact methamphetamine. The informant has been to the townhome within the past 48 hours and has seen Stephen Salvador Orlando, as described above, in possession of methamphetamine for the purpose of sale and/or personal use. The informant will remain anonymous for safety and security reasons. The informant has given information on several occasions in the past which was proven to be true and correct.
That same day, the magistrate signed a warrant authorizing a search for methamphetamine and other illegal controlled substances at 9850 Pagewood Ln., Townhome #406, and the arrest of appellant and any other persons at that address found to be in unlawful possession of an illegal controlled substance. Officer Wall and seven other officers then executed the search and arrest warrant, and seized, among other things, 295.8 grams of methamphetamine, a money counter, plastic bags, and miscellaneous drug paraphernalia. The officers thereupon arrested appellant. On August 27, 2005, appellant was indicted on the offense of possession of methamphetamine with intent to deliver. He later filed a motion to suppress the evidence seized pursuant to the search and arrest warrant, which the trial court denied. Appellant then entered a guilty plea, and, after a punishment hearing, the trial court sentenced him to ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $1,000 fine. This appeal followed. Analysis
In his sole issue on appeal, appellant asserts that the officer's affidavit was insufficient to establish probable cause because the officer who conducted the controlled buy did not (1) observe the informant enter or leave the residence; or (2) keep the informant and/or the residence under surveillance during the entire time the controlled buy was underway. Appellant further asserts that the affiant's statement regarding the informant's reliability is deficient, and constitutes nothing more than uncorroborated hearsay that will not support a finding of probable cause. For the following reasons, we disagree with appellant that the affidavit submitted in support of the search and arrest warrant was insufficient to establish probable cause. We therefore overrule appellant's sole issue. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but conduct a de novo review of the trial court's application of the law to facts if resolution of those ultimate questions does not turn on evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Because probable cause to support the issuance of the warrant is determined from the four corners of the affidavit alone, the trial court does not make credibility choices in determining the sufficiency of an affidavit to establish probable cause. State v. Walker, 140 S.W.3d 761, 765 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Thus, we review de novo the trial court's ruling on the sufficiency of the affidavit. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); Guzman, 955 S.W.2d at 89. Probable Cause
The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution guarantee individuals the right to be free from unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, __ 9. In Texas, the affidavit supporting a search warrant must state probable cause. Zarychta v. State, 44 S.W.3d 155, 165 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App. 1996). The allegations in a probable cause affidavit are sufficient if they would justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d at 363. Only the facts found within the four corners of the affidavit may be considered. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). However, the magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged, and the affidavit must be interpreted in a common sense and realistic manner. Walker, 140 S.W.3d at 765 (citing Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App. 1987)). 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 or evidence of the crime will be found in a particular place. Gates, 462 U.S. at 238-39; State v. Anderson, 917 S.W.2d 92, 95 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (quoting Johnson v. State, 803 S.W.2d 272, 288 (Tex.Crim.App. 1990)). Our after-the-fact scrutiny of the sufficiency of an affidavit does not take the form of a de novo review; instead, we determine whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236; Daniels v. State, 999 S.W.2d 52, 54 (Tex.App.-Houston [14th Dist.] 1999, no pet.). In conducting this review, we give great deference to the magistrate's determination of probable cause. Ramos, 934 S.W.2d at 363; Daniels, 999 S.W.2d at 54. If in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded warrants. Walker, 140 S.W.3d at 765 (citing Lopez v. State, 535 S.W.2d 643, 647 (Tex.Crim.App. 1976)). Application of Law to the Facts
Here, the affidavit submitted in support of the search and arrest warrant detailed a controlled buy of methamphetamine from the place to be searched, 9850 Pagewood Ln., Townhome #406. The affiant is an officer with the Houston Police Department, with approximately seventeen years' experience on the narcotics task force. The affidavit stated that the informant was searched for contraband before the controlled buy took place, and was then given money with which to purchase methamphetamine from appellant. The affiant swore that the informant had given information on several occasions in the past which proved to be true and correct, and was therefore credible and reliable, and that, upon entry into the townhome, the informant handed appellant fifty dollars in exchange for methamphetamine, which appellant retrieved from the living room area. These facts supported the inference that methamphetamine was available for sale within the place named in the search and arrest warrant. See Ford v. State, 179 S.W.3d 203, 212 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Thus, there were facts within the four corners of the affidavit from which a reasonable person could infer that the informant had purchased methamphetamine inside the place named in the search warrant. See id. at 212-13 (citing Sadler v. State, 905 S.W.2d 21, 22 (Tex.App.-Houston [1st Dist.] 1995, no pet.) ("The circumstances of a `controlled buy,' standing alone, may be sufficient to reasonably confirm an informant's information and give probable cause to issue a search warrant.")). Although the affidavit does not indicate that the affiant observed the informant either enter or leave the townhome, or that he otherwise maintained constant surveillance of the townhome during the entire time of the controlled buy, these facts do not necessarily undermine a finding of probable cause. This type of observation and/or constant surveillance during a controlled buy are not absolute prerequisites to a finding that the facts alleged in a probable cause affidavit sufficiently support a search warrant. See Robinson v. State, No. 01-99-01446-CR, 2002 WL 595137, at *1, 4 (Tex.App.-Houston [1st Dist.] Apr. 11, 2002, pet. ref'd) (not designated for publication) (affirming denial of motion to suppress where the affiant did not observe the informant approach or leave the motel room where the defendant was selling crack cocaine); see also Williams v. State, 37 S.W.3d 137, 140-41 (Tex.App.-San Antonio 2001, pet. ref'd) (affirming denial of motion to suppress where affidavit did not indicate that informant was searched before or kept in view during controlled buy). Moreover, here the affiant swore that he maintained "sporadic" surveillance of the informant and the townhome during the controlled buy; this was more surveillance than that described in the affidavits held sufficient by other courts of this state in Robinson and Williams. As in those cases, the fact that the affiant did not maintain constant surveillance of the informant and the premises to be searched during the entire time of the controlled buy does not render the circumstances of the controlled buy in this case insufficient to support a finding of probable cause when considered alone. Finally, contrary to appellant's arguments, the affiant's general assertions of the informant's past reliability are sufficient to establish the reliability of the informant in this case. See Torres v. State, 552 S.W.2d 821, 823 (Tex.Crim.App. 1977) ("[T]he affiant received information from a credible and reliable person who had given information in the past regarding narcotic traffic which has proven to be true and correct."); Curtis v. State, 519 S.W.2d 883, 886 (Tex.Crim.App. 1975) ("I believe my source of information to be true and correct because my source has given information in the past which has proven to be true and correct in every instance. . . ."); Jones v. State, 522 S.W.2d 930, 931-32 (Tex.Crim.App. 1975) ("The source has given information in the past on at least five occasions and on each occasion the information has proved to be true and correct. . . ."); Barnes v. State, 504 S.W.2d 450, 454 (Tex.Crim.App. 1974) ("[The affiant believes the informant to be] reliable, credible, and trustworthy as he has given information on numerous occasions in the past concerning narcotic offenses committed by individuals in the county and on several occasions the informant has proven to be reliable, trust [sic], and correct."); Heredia v. State, 468 S.W.2d 833, 834 (Tex.Crim.App. 1971) ("Information was received . . . from a reliable and credible informer who has furnish[ed] truthful and reliable information in the past. . . ."); see also Walker, 140 S.W.3d at 766 ("An affidavit in support of a warrant to search for narcotics need not provide more specific details about the informant's reliability than to state the informant provided information in the past regarding narcotics trafficking, which information had proved correct."). The affiant need not expressly state that he has personal knowledge of the informant's past credibility to establish the informant's present credibility. See Torres, 552 S.W.2d at 823-24; Curtis, 519 S.W.2d at 886; Jones, 522 S.W.2d at 931-32; Barnes, 504 S.W.2d at 454; Heredia, 468 S.W.2d at 834; see also Walker, 140 S.W.3d at 764, 766. Furthermore, the Court of Criminal Appeals has stated that a "realistic and commonsense interpretation" of a statement of reliability analogous to that contained within Officer Wall's affidavit is "that the informant had given prior information to [the officer] who signed the search warrant and swore to the affidavit." Jones, 552 S.W.2d at 932. Therefore, we conclude that, in their totality, the allegations made within Officer Wall's affidavit support a finding of probable cause to search 9850 Pagewood Ln., Townhome #406, and arrest any persons in possession of illegal controlled substances at that address. We overrule appellant's sole issue. Conclusion
Having addressed and overruled appellant's sole issue on appeal, we affirm the judgment of the trial court.