No. 10-01-256-CR.
Opinion delivered and filed July 23, 2003. DO NOT PUBLISH.
From the 228th District Court, Harris County, Texas, Trial Court # 864,570.
Before Chief Justice Davis, Justice Vance, and Justice Gray
REX D. DAVIS, Chief Justice.
After the court denied Mary Laqueta Robertson's suppression motion, she pleaded guilty to possession of marihuana. Pursuant to a plea agreement, the court deferred an adjudication of guilt and placed Robertson on unadjudicated community supervision for two years. Robertson claims in three issues that the court abused its discretion by denying her suppression motion because: (1) her statements to officers executing a search and arrest warrant were coerced; (2) the warrant was based on information unlawfully obtained; and (3) the warrant was based on stale and unreliable information. We will affirm.
BACKGROUND
On December 6, 2000, La Porte police officers received information from a confidential informant that Robertson was growing marihuana inside her home and in her backyard. The next day, an officer flew over Robertson's property and observed plants in the backyard consistent with the tip, though he could not "substantiate without doubt" that the plants he observed were marihuana plants. The investigating officer then contacted Robertson's electricity provider and determined that the electricity usage at her residence was twice that of another residence of similar size in her neighborhood and three or four times greater than that of smaller homes in the area. On December 20, the officer retrieved two garbage bags from Robertson's property and found several marihuana plants therein. The officer prepared an affidavit for a search warrant based on this information. A magistrate issued the warrant on December 22. Officers executed the warrant that same day. They found a small quantity of marihuana in the living room and paraphernalia (lamps, fertilizer, timers, pots, and stands) in an upstairs room. They also found marihuana and assorted paraphernalia in other locations in the residence. Robertson directed them to a camper in her driveway where the officers found a larger quantity of marihuana. Robertson filed a motion to suppress the evidence seized alleging that the warrant was not based on probable cause and her statements were coerced. Her husband and she provided affidavits in support of the motion. Robertson's husband identified himself as Phillip Perkins and denied that he uses the name Phil Robertson, which is the name the investigating officer stated to be on the account with the electricity provider. Perkins denied that his wife or he had placed any garbage bags at the curb on the date the officers seized them from their property. He explained that they had higher utility costs because of window air-conditioning units, because they have appliances (televisions and computers) running virtually twenty-four hours per day, and because they have warming lamps on around the clock for some quail and chickens they were raising. Perkins stated that the officers serving the warrant forced their way into the home with a battering ram even though the front door was unlocked. He said that the officers immediately asked him if there was marihuana growing in the house and if Robertson was "a marihuana grower." Perkins denied these assertions. According to him, the officers later read him the Miranda warnings and after that threatened to arrest him if he would not admit that Robertson was growing marihuana. Robertson largely corroborated Perkins's statements in her affidavit regarding the garbage bags, the utility usage, and his name. She stated that the officers instructed Perkins and she to lay down. They complied and the officers handcuffed them. She stated that she refused to answer any of the officers' questions until they threatened to arrest Perkins. Robertson said that she then admitted to the officers that she was a marihuana grower. She also explained that she used "hemp seed" to feed her birds and smoked marihuana to "keep [the] birds in good shape for breeding." The State responded with the affidavit of the primary investigating officer R. W. Head. Officer Head reiterated what has been stated above regarding the confidential informant and the aerial surveillance. He stated that the utilities at Robertson's home are in the name of Phil Robertson. He said the garbage bags were beside the curb when the officers retrieved them. He averred that the "Robertsons" were detained "without incident"; that Mary Robertson promptly indicated that some marihuana was beside a table in the living room; that, after the officers read her the Miranda warnings, she agreed to answer questions; and that while the officers were searching the residence, she told them that there was more marihuana in a camper in her driveway and led them to it. The court denied Robertson's suppression motion without making any written findings. VALIDITY OF SEARCH WARRANT
Robertson contends in her second and third issues respectively that the search warrant was invalid because it was based in part on information officers obtained as a result of trespassing on her property and seizing the garbage bags and because it was otherwise based on stale and unreliable information. We examine the totality of the circumstances to determine whether the facts alleged in an affidavit establish probable cause for issuance of a search warrant. Ill. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App. 1996); Martin v. State, 67 S.W.3d 340, 344 (Tex.App.-Texarkana 2001, pet. ref'd); Burke v. State, 27 S.W.3d 651, 654 (Tex.App.-Waco 2000, pet. ref'd). Ordinarily, we do not go beyond the "four corners" of the affidavit. Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996); Martin, 67 S.W.3d at 344; Burke, 27 S.W.3d at 654. Thus, we usually conduct a de novo review of the affidavit to determine whether it establishes probable cause. Burke, 27 S.W.3d at 654; Wachter v. State, 961 S.W.2d 598, 600 (Tex.App.-San Antonio 1997, pet. ref'd). However, an affiant cannot use unlawfully-obtained information to secure the issuance of a search warrant. Brown v. State, 605 S.W.2d 572, 577 (Tex.Crim.App. [Panel Op.] 1980); Martin, 67 S.W.3d at 343. The presence of unlawfully-obtained information in an affidavit will not render the resulting warrant invalid unless the remainder of the information contained in the affidavit is insufficient to establish probable cause. Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App. 1991); Martin, 67 S.W.3d at 343. The issue of whether officers trespassed on Robertson's property to obtain the garbage bags requires a resolution of historical facts from the conflicting affidavits presented to the trial court. We must defer to the trial court's resolution of this disputed issue. Manzi v. State, 88 S.W.3d 240, 244 (Tex.Crim.App. 2002). Officer Head stated in his affidavit that the garbage bags were at the curb. Robertson and her husband stated in their affidavits that the garbage bags were in an enclosed area on their porch. The trial court apparently chose to resolve this factual dispute in favor of the State. The search and seizure of garbage bags placed at the curb does not violate the Fourth Amendment. Cal. v. Greenwood, 486 U.S. 35, 39-40, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 36 (1988); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.-El Paso 1997, no pet.). Accordingly, we conclude that Robertson's second issue is without merit. Robertson challenges the validity of the search warrant in her third issue on the basis that its issuance was based in part on observations made more than three weeks before issuance of the warrant, because the information regarding electric usage was unreliable due to the discrepancy in whose name was on the account and due to her alternative explanation for the higher usage, and because officers had been in her residence one week before the issuance of the warrant on a domestic violence call and did not observe any marihuana present at that time. As stated, we are generally limited to the "four corners" of the affidavit when reviewing a challenge to a search warrant. Massey, 933 S.W.2d at 148; Martin, 67 S.W.3d at 344; Burke, 27 S.W.3d at 654. We may go beyond the four corners if the defendant contends that the affidavit contains unlawfully-obtained information. See Brown, 605 S.W.2d at 577; Martin, 67 S.W.3d at 343. We may also go beyond the four corners if the defendant alleges and makes an "offer of proof" that the affidavit contains "deliberate falsehoods" or statements made with "reckless disregard for the truth." See Franks v. Del., 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682 (1978); Robuck v. State, 40 S.W.3d 650, 653 (Tex.App.-San Antonio 2001, pet. ref'd). Robertson does not allege that the complained-of statements in the affidavit constitute "deliberate falsehoods" or were made with "reckless disregard for the truth." Accordingly, we will not go beyond the four corners of the affidavit to test its sufficiency. A search warrant may not be based on "stale" information. Burke, 27 S.W.3d at 653; Rowell v. State, 14 S.W.3d 806, 809 (Tex.App.-Houston [1st Dist.] 2000), aff'd, 66 S.W.3d 279 (Tex.Crim.App. 2001); Wachter, 961 S.W.2d at 600. The information in the affidavit may be summarized as follows: (1) the confidential informant observed marihuana growing in Robertson's home and backyard in late November 2000; (2) on December 7, Officer Head observed plants growing in Robertson's backyard which could not be "substantiated without doubt" to be marihuana; (3) electricity usage at Robertson's home was twice that of another residence of similar size in her neighborhood and three or four times greater than that of smaller homes in the area; and (4) officers found marihuana plants in garbage bags discarded from Robertson's home two days before seeking the warrant. We conclude that the facts stated in the affidavit were not "stale" and under the totality of the circumstances established probable cause for issuance of the warrant. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; Ramos, 934 S.W.2d at 362-63; Burke, 27 S.W.3d at 654. Thus, Robertson's third issue is without merit. VOLUNTARINESS OF STATEMENTS
Robertson avers in her first issue that her statements to the officers regarding the location of marihuana in the house and camper were coerced. Her affidavit and that of her husband tend to support this assertion. However, Officer Head stated in his affidavit that Robertson volunteered the statements at issue. These conflicting affidavits presented the trial court a disputed issue of historical fact which it had to resolve. See Manzi, 88 S.W.3d at 244. The court apparently resolved this issue in favor of the State. We must give appropriate deference to the court's resolution of this disputed issue. Id. Accordingly, we conclude that Robertson's first issue is without merit. We affirm the judgment. Affirmed