Opinion
No. 06-05-00131-CR
Submitted: February 13, 2006.
Decided: February 22, 2006. DO NOT PUBLISH.
On Appeal from the 276th Judicial District Court, Marion County, Texas, Trial Court No. F13,518.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Johnny Louis Hughes was convicted by a jury of the second degree felony offense of possession of a controlled substance. The offense was enhanced to a first degree felony due to a prior felony conviction. The jury assessed punishment at twenty years' imprisonment, and Hughes was sentenced in accordance with the jury verdict. Hughes appeals, contending in a sole point of error that the trial court erred in refusing to suppress evidence seized in connection with the execution of a search warrant. We overrule this contention and affirm the judgment.
Background
A confidential informant told Officer Stan Buckland that Hughes was dealing crack cocaine from his car. Buckland included this information in an affidavit in support of a request for a search warrant. A magistrate issued a warrant to search Hughes' car on the basis of that information. Officers executed the search warrant and found an aspirin bottle and a plastic bag in Hughes' car. Both contained crack cocaine. Hughes was arrested and charged with possession of a controlled substance. Before his trial, Hughes filed a motion to suppress evidence that challenged the search warrant. The trial court denied the motion.Discussion
Hughes contends the affidavit in support of the search warrant failed to establish probable cause because (1) the affidavit fails to state how the informant acquired his information, and (2) the information contained in the affidavit was stale. We disagree. We review the trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review, deferring to the trial court's determination of historical facts that depend on credibility, but reviewing de novo the trial court's application of the law. Burke v. State, 27 S.W.3d 651, 654 (Tex.App.-Waco 2000, pet. ref'd). We review de novo those questions not turning on credibility and demeanor. Hernandez v. State, 957 S.W.2d 851 (Tex.Crim.App. 1998). Because probable cause to support the issuance of the warrant is determined from the "four corners" of the affidavit alone, there are no credibility choices to be made by the trial court in examining the sufficiency of an affidavit to establish probable cause. Burke, 27 S.W.3d at 654. Thus, we review de novo the court's ruling on the motion to suppress. Id. We will affirm the trial court's ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex.App.-Texarkana 1998, no pet.). Granting great deference to the issuing magistrate's determination, we will sustain the issuance of the warrant if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236 (1983); see Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004). "If in a particular case it may not be easy to determine whether an affidavit demonstrates the existence of probable cause, the resolution of such doubtful or marginal cases should be largely determined by the preference to be accorded warrants." State v. Walker, 140 S.W.3d 761, 765 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We interpret affidavits for arrest or search warrants in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App. 1991). The magistrate who reviews an affidavit may draw inferences from the facts contained therein. Id. The affidavit being questioned on appeal was signed October 1, 2004, and states in relevant part:1. There is in Marion County, Texas, a suspected vehicle described and located as follows: 1997 Dodge Intrepid Vin # 2B3HD46T1VH558542 L.P. # X46PFH purple in color. Said vehicle found to be under the control of the suspected party named below and in, on, or around which said suspected party may reasonably reposit or secrete property which is the object of the search requested herein.
2. Said suspected vehicle is in the charge of and controlled by each of the following named and/or described suspected parties (hereafter called "suspected party," whether one or more), to wit: Hughes, Johnny Louis b/m D.O.B. 10-19-67 DL# 14458994. . . .
3. It is the belief of affiant that said suspected party has possession of and is concealing in said suspected vehicle the following property: "Crack Cocaine" possession of which is in violation of HSC 481.112. . . .
4. Affiant has probable cause for said belief by reason of the following facts and circumstances:
Information obtained by this Officer from confidential informant. This Officer has used information provided by confidential informant on several occasions, always proven to be accurate and reliable. Two felony arrest [sic] with one conviction have been made using information provided by confidential informant. Said informant is a resident of Marion County and the City of Jefferson.
Said confidential informant told this Officer on several occasions, the most recent being Friday, September 24, 2004, said informant has witnessed suspected party selling "crack cocaine" from the vehicle described above. Confidential informant told this Officer suspected party will take unidentified person(s) from their place of employment to the Citizens National Bank to cash their payroll checks. Confidential informant told this Officer most of the unidentified person(s) owed most of their check to the suspected party for "crack cocaine["] supplied by him during the week. Confidential informant told this Officer suspected party will cut up "crack cocaine" for the unidentified person(s) while sitting in the above described vehicle and while parked near the Citizens National Bank on Friday afternoons.Information Provided by Informant The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Because of the potential unreliability of statements given by anonymous informants, the United States Supreme Court developed the Aguilar-Spinelli analysis, which required a two-pronged test: 1) the informant obtained the relevant information in a reliable manner, and 2) the informant was reliable. In response to "hypertechnical" interpretations of the Aguilar-Spinelli analysis, the United States Supreme Court subsequently relaxed the rigid standards in that analysis to allow consideration of the totality of the circumstances. See Gates, 462 U.S. at 230. Because the focus of inquiry is whether the statements are sufficiently reliable for a finding of probable cause, a deficiency in one of the two factors of reliability of the informant may not be fatal if the totality of the circumstances indicates reliability. Id. However, the totality of the circumstances includes the "veracity," "reliability," and the basis of knowledge of the informant and the informant's information. "An informant's `veracity,' `reliability,' and `basis of knowledge' are all highly relevant in determining the value of his report." Id. Hughes contends the affidavit fails to provide the basis for the informant's knowledge. He asserts that the information provided by the confidential informant is not a factual report of what the informant actually witnessed, but rather what the informant surmised might have happened on various occasions. Again, the case of Gates negates the necessity of a showing of the basis of knowledge and adopts a totality of the circumstances review. The affidavit in this case makes clear that the basis of the informant's knowledge was his personal observation. The affidavit states the informant "witnessed the suspected party selling `crack cocaine'" out of his vehicle. The affidavit describes in detail the car out of which the informant witnessed Hughes selling drugs, the bank to which Hughes took his customers, and the day of the week on which he made his drug transactions. The magistrate could have reasonably inferred that the informant gained this information by personally observing Hughes. Facts Supporting Search Warrant Not Stale 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. Hafford v. State, 989 S.W.2d 439, 440 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex.App.-Corpus Christi 1993, pet. ref'd). 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. 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 elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Hafford, 989 S.W.2d at 440; Guerra, 860 S.W.2d at 611. 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. Lockett v. State, 879 S.W.2d 184, 189 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). The affidavit and search warrant in this case were signed and executed October 1, 2004. The last instance in which the confidential informant witnessed Hughes selling drugs out of his car occurred September 24, 2004 — seven days before the warrant was issued. Hughes contends this lapse of time is too great to allow the magistrate a substantial basis for concluding that a search of Hughes' car would uncover wrongdoing. Facts stated in an affidavit must be so closely related to the time of the issuance of the warrant that a finding of probable cause is justified at that time. Flores v. State, 827 S.W.2d 416, 418 (Tex.App.-Corpus Christi 1992, pet. ref'd). However, the amount of delay that will make information stale for search warrant purposes depends on the particular facts of a case, including the nature of criminal activity and the type of evidence sought. Mechanical count of days is of little assistance in this determination; but, rather, common sense and reasonableness must prevail, with considerable deference to be given to the magistrate's judgment based on the facts before such magistrate, absent arbitrariness. Lockett, 879 S.W.2d at 189 (citing Ellis v. State, 722 S.W.2d 192, 196-97 (Tex.App.-Dallas 1986, no pet.)). As noted above, when the affidavit indicates activity of a continuous nature, the passage of time becomes less important. Bernard v. State, 807 S.W.2d 359, 365 (Tex.App.-Houston [14th Dist.] 1991, no pet.) (citing United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)). In such cases of continuous criminal activity, numerous decisions have upheld even greater lapses than the one in this case. Smith v. State, 114 Tex. Crim. 315, 23 S.W.2d 387, 387 (1930) (thirty days); Burke, 27 S.W.3d at 655 (ten days); Bills v. State, 855 S.W.2d 79, 82 (Tex.App.-Fort Worth 1993, no pet.) (six months); Bernard, 807 S.W.2d 359 (twelve days). Here, the affidavit states the informant witnessed Hughes selling crack cocaine on several occasions, most recently on Friday, September 24, 2004. Given the facts recited in the affidavit, the magistrate could have reasonably inferred Hughes was engaged in criminal activity of a continuous nature. The affidavit also states Hughes conducted these drug transactions on Fridays. It gives numerous details about why and how the transactions occurred on Fridays. Probable cause ceases to exist when, at the time the warrant is issued, it would be unreasonable to presume that the illegal contraband remains at the suspected place. Guerra, 860 S.W.2d at 611. The magistrate could have also reasonably presumed Hughes would be in possession of crack cocaine on the Friday following the last occasion witnessed by the informant. Reviewing the affidavit in the light of the totality of the circumstances, we find the information contained in the affidavit provided the magistrate with a substantial basis for concluding there was a fair probability that contraband or evidence of a crime would be found in a particular place. We affirm the judgment.
Although Hughes was charged in the indictment with possession of a controlled substance (cocaine in an amount of four grams or more but less than 200 grams) with intent to deliver, the court's charge instructed the jury that Hughes was "charged by indictment" with possession of a controlled substance (cocaine). The jury found Hughes guilty "as charged in the indictment." By the court's judgment, Hughes was adjudged guilty of possession of a controlled substance (cocaine in an amount of four grams or more but less than 200 grams).