Opinion
No. 05-01-01344-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-31448-RU. Affirmed.
OPINION
A jury found appellant guilty of the offense of possessing with intent to deliver methamphetamine in an amount of 400 grams or more. The trial court assessed his punishment at confinement for twenty years. In two points of error, appellant contends the trial court erred in denying his motion to suppress evidence he contends was obtained in violation of the Texas statutes and constitution and the United States Constitution. We affirm. While on patrol on May 9, 1999, Irving Police Officer Ray Carmack smelled a strong chemical odor as he drove past the house at 3310 Bryn Mawr. Although he was unfamiliar with the smell, he suspected that it came from a methamphetamine lab. He called Sergeant James Coleman who had experience with clandestine labs. Sergeant Coleman recognized the smell of ether, an odor associated with the manufacture of methamphetamine. He then contacted Officer Will Bishop, a narcotics officer. Officer Bishop walked down the sidewalk past the other houses on the street to confirm that the odor emanated from 3310 Bryn Mawr. Officer Bishop was familiar with a past history of methamphetamine manufacture by appellant at this address. Having verified the origin of the odor, Officer Bishop obtained a search warrant for the residence. Upon executing the warrant, the officers found methamphetamine, a shotgun, a badge, handcuffs, starting fluid, drug paraphernalia, and chemicals. The defendant was present during the search. Documents found by the police listed 3310 Bryn Mawr as his residence. After the search, appellant and a second man present in the residence were arrested. The affidavit supporting the issuance of the warrant that resulted in the seizure of the evidence in this case, admitted into evidence as State's exhibit one, describes the identification by Sergeant Coleman and Officer Bishop of the strong chemical odor coming from the house as an odor associated with the manufacture of methamphetamine. The affidavit further reads in pertinent part, as follows:
Your affiant knows the location listed in #1 above to be the residence of the person listed in #3 above. Your affiant knows the person listed in #3 above to be a methamphetamine/amphetamine dealer and user and that he has a criminal history for dangerous drugs. Your affiant has participated in the execution of two search warrants at the location listed in #1 above which involved the person listed in #3 above. Your affiant has also had at least one person arrested immediately after leaving the location listed in #1 above who was in possession of methamphetamine/amphetamine. Your affiant is also aware of with [sic] numerous arrests that have been made by Irving police patrol officers on other persons leaving the location listed in #1 above.The two prior searches referred to occurred on September 8, 1998 and December 3, 1998. The affidavits supporting the issuance of warrants for those searches were admitted into evidence in the suppression hearing as defendant's exhibits seven and eight. The affidavit supporting the issuance of the search warrant on September 8, 1998 contained the following language:
Your Affiant W.C. Bishop #698 is employed by the Irving Police Department as a narcotics investigator assigned to the special investigation section of the criminal investigation division.
Within 48 hours of 09-08-98 your Affiant was contacted by a confidential informant, who your Affiant has used on two or more occasions and who has always provided your Affiant with information which has proven to be accurate and reliable.
The confidential informant told your Affiant that he/she had been at the location listed in #1 above within 48 hours of 09/08/98. The confidential informant told your Affiant that the person listed in #3 above was in possession of methamphetamine at the location listed in #1 above. The confidential informant is familiar with the characteristics of methamphetamine/amphetamine from his/her past experience.
The corresponding portion of the affidavit supporting the issuance of the search warrant on December 3, 1998 reads as follows:
Your Affiant R. Hayen #607 is employed by the Irving Police Department as a narcotics investigator assigned to the special investigation section of the criminal investigation division.
Within 48 hours of 12-03-98 your Affiant was contacted by a confidential informant, who your Affiant has used on two or more occasions and who has always provided your Affiant with information which has proven to be accurate and reliable.
The confidential informant told your Affiant that he/she had been at the location listed in #1 above within 48 hours of 12/03/98. The confidential informant told your Affiant that the person listed in #3 above was in possession of methamphetamine at the location listed in #1 above. The confidential informant is familiar with the characteristics of methamphetamine/amphetamine from his/her past experience.At the hearing on appellant's motion to suppress, Officer Bishop testified that the search pursuant to the warrant in September 1998 discovered drugs in the kitchen and master bedroom and resulted in appellant's arrest. The December 1998 search did not result in any drug seizures in the house although the officers found what they believed were drug transaction notes. Appellant argues that the affidavits supporting the issuance of the September 1998 and December 1998 warrants were so similar as to constitute form affidavits, whose use has been condemned by the Court of Criminal Appeals. Moreover, he insists that because the execution of the December 1998 warrant discovered no drugs, the affidavit supporting the warrant's issuance must be presumed to have contained deliberate false accusations. Appellant argues that because the affiant making the affidavit in the instant case (the May 1999 affidavit) in order to establish probable cause, recited and relied upon the allegation of his participation in the execution of the two earlier search warrants for the same address, the affidavit shares the flaws that fatally mar those affidavits. Therefore, he claims, the affidavit was insufficient to support the warrant and evidence found during the warrant's execution should have been excluded. A reviewing court must determine whether the magistrate had a substantial basis for concluding that evidence of wrongdoing would be uncovered, and thus that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1983); Lane v. State, 971 S.W.2d 748, 751 (Tex.App.-Dallas 1998, pet. ref'd). Probable cause exists if there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois, 462 U.S. at 238. In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that if a defendant established by a preponderance of the evidence that a falsehood made knowingly, intentionally or with reckless disregard for the truth was included in a probable cause affidavit, and it was material to establish probable cause, then the falsehood must be excluded from the affidavit. Id. If the affidavit is insufficient to establish probable cause, the warrant must be voided and the evidence excluded. Id. A truthful showing of probable cause "does not mean `truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct." Id. at 165. Rather, the information must be truthful "in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id. Appellant has fallen far short of demonstrating that the affidavits in question contain falsehoods deliberately made. It is undisputed that the execution of the September 1998 warrant resulted in the seizure of contraband and the arrest of the appellant. The execution of the December warrant discovered no drugs, but disclosed evidence of drug transactions. Although the September and December 1998 affidavits are identical except for the dates and the names of the affiant, they are understandably so because the information from the informant was similar, the officers involved were partners, and both the suspected premises and the suspect were identical. Moreover, although the Court of Criminal Appeals has condemned the practice of using "one model affidavit to fit all situations," the Court also stated that the practice "does not affect the validity of the affidavit." Brown v. State, 437 S.W.2d 828, 829 (Tex.Crim.App. 1968). The record demonstrates that the affidavits supporting the issuance of the September and December search warrants did not contain deliberate or intentional falsehoods, and their validity was not affected by their similarity. Moreover, even if the reference to the two previous search warrants is excised from the May 1999 affidavit, the affidavit still alleges sufficient facts to constitute probable cause. The affidavit describes Sergeant Coleman's and Officer Bishop's recognition of the smell coming from the house as an odor associated with methamphetamine manufacture. This, together with appellant's criminal history and the drug arrests of people leaving that address, enabled the magistrate to correctly conclude that probable cause existed to search the house. The trial court properly denied appellant's motion to suppress. Appellant's first and second points are overruled. The judgment is affirmed.