No. 04-07-00381-CR
Delivered and Filed: January 9, 2008. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. A06-69, Honorable Stephen B. Ables, Judge Presiding. AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
ALMA L. LÓPEZ, Chief Justice.
Bradley Ryan Suddith pled guilty to possession of a controlled substance after the trial court denied his motion to suppress. On appeal, Suddith challenges the trial court's ruling on the motion to suppress, contending that the affidavit in support of the search warrant used to seize evidence against Suddith contained stale information and conclusory statements. We affirm the trial court's judgment.
Standard of Review
In reviewing an affidavit in support of a search warrant on appeal, we give great deference to the magistrate's determination of probable cause. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); McKissick v. State, 209 S.W.3d 205, 211 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). The test for determination of probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Swearingen, 143 S.W.3d at 811; McKissick, 209 S.W.3d at 211. 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 to be searched at the time the warrant is issued. McKissick, 209 S.W.3d at 211. Whether the facts are sufficient to establish probable cause depends on the totality of the circumstances. McKissick, 209 S.W.3d at 211. We examine only the four corners of the affidavit to determine whether probable cause exists. Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996); McKissick, 209 S.W.3d at 212. Reasonable inferences may be drawn from the affidavit, and the affidavit must be interpreted in a common sense and realistic fashion. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004); McKissick, 209 S.W.3d at 212. 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 a crime will be found in a particular place. Ford v. State, 179 S.W.3d 203, 212 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd), cert. denied, 127 S. Ct. 281 (2006). Staleness
Suddith initially contends that the magistrate could not have a substantial basis for concluding that probable cause existed to support the issuance of the search warrant because the facts set out in the affidavit had become stale. Suddith specifically argues that the affidavit does not state when the photographs referred to in the affidavit were taken, developed, or given by the photo lab employee to Commander Bill Hill. 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 when the magistrate issues the search warrant. McKissick, 209 S.W.3d at 214; Guerra v. State, 860 S.W.2d 609, 611 (Tex.App.-Corpus Christi 1993, pet. ref'd). Facts attested to in an affidavit supporting a search warrant must have occurred recently enough to justify a finding of probable cause at the time of issuance. Guerra, 860 S.W.2d at 611. Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. McKissick, 209 S.W.3d at 214; Guerra, 860 S.W.2d at 611. 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 that elapsed between the occurrence of the events set out in the affidavit and the time the search warrant was issued. McKissick, 209 S.W.3d at 214. When the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant. McKissick, 209 S.W.3d at 214. In this case, Officer Jonathan D. Lamb was the affiant. Officer Lamb has eight years experience in law enforcement and has received training in narcotic investigations, including a sixteen hour course on indoor cannabis cultivation. Based on this training and experience, Officer Lamb stated that the growth cycle of cannabis plants is 7-10 days from a clone to a vegetative stage, 3-8 weeks from vegetative stage to flowering stage, and 3-6 weeks from flowering stage to harvest. On April 29, 2005, Commander Bill Hill presented Officer Lamb with a set of photographs and a compact disk that had been given to him by a photo lab employee. Commander Hill believed the photographs showed an indoor cannabis operation. Officer Lamb used the photographs to identify the residence depicted in the photographs, ran a license check on a vehicle parked at the residence, identified the vehicle's owner as Suddith, and positively identified Suddith as being shown in two photographs holding a large portion of a stalk of cannabis. Suddith was wearing a green hospital uniform with a Sid Peterson Memorial Hospital badge, and Officer Lamb confirmed that Suddith worked at Sid Peterson. Officer Lamb identified other photographs as depicting marijuana use, cultivation and processing, including the grooming of the flowering portion of a cannabis plant. Officer Lamb noted that indoor cannabis operations require excessive amounts of electricity, and electrical records obtained for the residence through April of 2005 showed higher than normal usage since the utility records were switched to Suddith's name in June of 2004. On May 24, 2005, Officer Lamb conducted a "knock and talk" at the residence. Although Suddith's vehicle and another vehicle were parked in the driveway, no one answered the door. Although Suddith contends that the affidavit was stale because it failed to state when Commander Hill received the photographs from the photo lab employee, the magistrate could reasonably infer that Commander Hill would not unreasonably delay in assigning an officer to investigate the photographs. See McKissick, 209 S.W.3d at 212 (noting reasonable inferences may be drawn from affidavit). Furthermore, although the affidavit did not disclose when the photographs were taken or developed, the affidavit did recite facts indicating that the activity was protracted and continuous in nature. See id. (noting passage of time less significant if activity is protracted and continuous). Officer Lamb described the length of time necessary for each stage of a cannabis operation, and the photographs depicted the indoor cannabis operation in various stages, i.e., flowering and harvesting. In addition, the electricity records also evidenced an on-going activity. The magistrate could have determined from the totality of the circumstances that the lapse in information regarding the dates on which the photographs were taken and developed was not significant given the protracted and continuous nature of the activity. Accordingly, the affidavit was sufficient to support the magistrate's determination that a probability existed that contraband would be found at the residence and that the affidavit was not stale. Conclusory Statements
Suddith also contends that the affidavit was insufficient because it contained conclusory statements "about how indoor cannabis operations operate, work and what is needed for such an operation." Suddith's affidavit, however, was not conclusory with regard to the nature of indoor cannabis operations because he disclosed the basis for his asserted knowledge. State v. Davila, 169 S.W.3d 735, 739 (Tex.App.-Austin 2005, no pet.). Furthermore, conclusory statements do not invalidate a supporting affidavit if the remaining, non-conclusory portions of the affidavit provide probable cause. See Massey v. State, 933 S.W.2d at 147-48. The electricity records and the photographs themselves, which depicted various stages of an indoor cannabis operation, indicated that the activity was continuous and on-going. Therefore, the affidavit was not insufficient due to excessive reliance on conclusory statements. Conclusion
The trial court's judgment is affirmed.