Opinion
Nos. 05-07-01542-CR, 05-07-01543-CR
Opinion Filed August 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause Nos. 001-84875-07 and 001-84876-07.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
The State appeals an order granting appellee Kathryn Annette Dickson's motion to suppress evidence. In a single issue, the State contends the trial court erred in granting Dickson's motion because the magistrate had a substantial basis to support a finding of probable cause. For the following reasons, we affirm the trial court's order. On March 23, 2007, Officer C.D. Mayfield applied for and was issued a warrant to search a residence in Allen Texas where Dickson lived with her parents and younger sister K. Police found alprazolam (Xanax) and dihydrocodeinone (hydrocodone) in the search. Dickson was charged by information for misdemeanor possession of less than twenty-eight grams of the controlled substances. Dickson filed a motion to suppress challenging the sufficiency of the affidavit upon which the warrant was based. The trial court granted the motion to suppress. In this appeal, the State asserts the trial court erred in suppressing the drug evidence because there was a substantial basis to support the magistrate's probable cause determination. This Court reviews de novo the trial court's determination that the magistrate had probable cause to issue the search warrant. State v. Wester, 109 S.W.3d 824, 826 (Tex.App.-Dallas 2003, no pet.). In conducting this review, we give great deference to the magistrate's decision to issue the warrant. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004). We determine, considering the totality of the circumstances, whether the magistrate had a substantial basis for concluding probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause exists where 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. Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App. 2006). A search warrant affidavit must be read in a common sense and realistic manner. Id. The magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged. Id. Here, the question presented is whether the affidavit was sufficient to justify a conclusion that marijuana was probably at the Dickson residence at the time the warrant issued. In the affidavit for the search warrant, Officer C.D. Mayfield relied on tips from two confidential informants, an abandoned property search, and "criminal histories" of members of the Dickson household to establish probable cause. The first confidential informant (CI #1), a twelve year old child, informed Mayfield that on March 17, 2007 (six days before the warrant was requested) the child received "alprazolam, marijuana, alcohol, and possibly propoxyphene" from K.'s mother at the residence. According to CI #1, K.'s mother referred to herself as both "Dianne" and "Karen." CI #1 also said that a "young female" had "possibly overdosed" this past weekend, but the affidavit does not indicate the location of the overdose or the basis for CI #1's knowledge. The officer asked CI #1 to have a parent of the "overdosed child" to contact him, but no one contacted the officer. The officer also "received information" from another confidential informant (CI #2) that on March 15, 2007, in an "on-line chat" between K. and a third party, K represented that she "might" be getting "shrooms" the following day, but she was "not sure." The officer explained shrooms are a slang term for psilocybin mushrooms, a controlled substance. The officer also stated that on March 23, 2007, the day he requested the search warrant, police conducted an "abandoned property search" of a trash receptacle located in the roadway in front of the Dickson house. The trash receptacle contained two pieces of discarded mail addressed to Dickson's mother as well as several marijuana stems and a broken glass marijuana pipe with residue. Finally, the officer stated that individuals who had the same names as members of the Dickson household had "criminal histories" for possession of marijuana. The magistrate issued a search warrant authorizing a search of the Dickson residence for marijuana. Police searched the residence that day and found one and a half pills of Xanax, one pill of hydrocodone, and 0.36 grams of marijuana. Police charged Dickson for possession of the Xanax and hydrocodone. After considering the totality of the circumstances, we agree with the trial court that the affidavit was not sufficient to justify the magistrate's conclusion that marijuana would probably be on the premises at the time of the search. In Davilla, the Austin Court of Appeals concluded the issuing magistrate did not have a substantial basis to support a probable cause determination based on an affidavit that contained conclusory statements by a confidential informant that illegal drugs were possessed at the suspected residence, police observance of heavy traffic to the residence, and a report of drug traces found in a one-time search of the residence's garbage. Davila v. State, 169 S.W.3d 735, 740 (Tex.App.-Austin 2005, no pet.). The Austin court concluded the tip from the CI did not support issuance of the warrant because the CI was not shown to be reliable or credible. It further declined to give significant weight to the single discovery of drug residue in the abandoned trash. It explained garbage containers left outside a residence for collection are readily accessible to the public, "including neighbors and passers-by with overflow or undesirable trash" and other "unwelcome meddlers." Davila, 169 S.W.3d at 740 (citing California v. Greenwood, 486 U.S. 35 (1988) (Brennan, J., dissenting)); see also Serrano v. State, 123 S.W.3d 53, 62 (Tex.App.-Austin 2003, pet. ref'd). It concluded that, considering the totality of the circumstances, the magistrate did not have a substantial basis for concluding probable cause existed In this case, drawing reasonable inferences from the affidavit, the magistrate had information that CI #1 told police CI #1 received marijuana, alcohol, and other prescription drugs from Dickson's mother at the residence about four days before the warrant issued. The only facts that would allow the magistrate to consider whether CI #1 was reliable or credible were that CI #1 knew where K lived and that her mother's name was "Karen" or "Dianne." Information received from a confidential informant is not subject to a rigid test for veracity and basis of knowledge, but it is nevertheless highly relevant in determining probable cause. See Davila, 169 S.W.3d at 739. Moreover, even if the affidavit provided a basis for crediting CI #1, the substance of the tip provided little factual basis to conclude drugs would remain on the premises days later. Specifically, CI #1 did not provide any facts concerning any amounts of marijuana observed or whether the child observed any growing, selling or large scale use of marijuana. The information given by CI #2, that the defendant's younger sister K. had chatted with a third party, about a week before the search warrant was issued, stating she "might" be getting mushrooms with no facts concerning amount or location, does not support a determination that any controlled substance, much less marijuana, would probably be in the residence on the date of the search. Finally, we cannot agree that the conclusory statements that members of the Dickson household had "criminal histories" for possession of marijuana provides any basis to conclude marijuana would be on the premises. We are left with a single abandoned property search. In this regard, Officer Mayfield stated police searched a trash receptacle left in the roadway in front of the Dickson residence and found several marijuana stems and a broken marijuana pipe with residue. There was nothing in the officer's affidavit that would enable the magistrate to determine how long the trash receptacle had sat in the roadway. Nor were there any facts in the affidavit to suggest large quantities, sales, or cultivation of marijuana was involved to support an inference that contraband probably remained in the residence. Cf. Blake v. State, 125 S.W.3d 717, 725 (Tex.App.-Houston [1st Dist] 2003, no pet.) (probable cause existed that contraband remained on premises when police had recent information methamphetamine was being manufactured on premises). We conclude that the totality of the circumstances, including the information from the two CI's, the "criminal histories" and the abandoned property search, did not provide the magistrate with a substantial basis to conclude marijuana was probably in the residence at the time of the search. We affirm the trial court's order.
We disagree with the State that the child's age establishes his or her credibility. Nor can we agree reliablity is shown by the child's alleged ability to identify alprazolam, marijuana and "possibly" propoxyphene, particularly because the affidavit contained no facts to establish how CI #1 identified the drugs to the officer.
This is particularly true as the affidavit does not indicate where the officer obtained this information, whether any convictions existed, and identified the individuals only by name.