Opinion
No. 01-04-01183-CR
Opinion issued July 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 986977.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellee, Christian Kendall Sparks, was charged by indictment with possession of a controlled substance, namely heroin, weighing less than one gram. See TEX. HEALTH SAFETY CODE ANN. 481.115 (Vernon 2003). Appellee moved to suppress the heroin and, after a pretrial hearing, the trial court granted the motion. The State appeals the trial court's order. In its sole issue, the State contends that the trial court erred in granting appellee's motion to suppress the evidence because, the State argues, the search warrant affidavit sufficiently set forth facts to establish probable cause for the issuing magistrate to have concluded that heroin was located at the apartment identified in the warrant. Conversely, appellee argues that the affidavit failed to provide an adequate nexus between the heroin alluded to in the affidavit and any heroin likely to be found inside the premises named in the warrant. We reverse and remand for further proceedings.
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp. 2004-2005) (allowing State to appeal order granting motion to suppress evidence).
While appellee contested the credibility of the affiant at trial and also argued that the affidavit was stale, he concedes these issues on appeal.
BACKGROUND
On May 5, 2004, Houston Police Officer Frank Scoggins received information from a confidential informant concerning heroin located in an apartment and conducted surveillance. The next morning, Scoggins submitted an affidavit to a magistrate requesting a search and arrest warrant. The affidavit read, in part, as follows:There is in the incorporated City limit of Houston, Harris County, Texas, a suspected place and premise described and located as follows: a private residence apartment where the address is 3030 Elmside Rd. #201. The location can be found [described]. . . .
There is at said suspected place and premise property concealed and kept in violation of the laws of the State of Texas and described as follows: A controlled substance, namely HEROIN.
Said suspected place and premise are in charge of and controlled by each of the following person or persons: a white male known as Matt, being in his early 20's, being 6'2" to 6'3" tall, weighing 160 to 170 pounds with close cut brown hair, brown eyes and tattoos on both arms; and a white female known as Penny Charline Scott, having a birth date of 6-6-81 and being 5'05" tall weighing 140 pounds with blonde hair and blue eyes.
It is the belief of the affiant, and the affiant hereby charges and accuses that the black [sic] male known as Matt and the white female known as Penny Charline Scott, . . . are in possession of the above listed controlled substance (HEROIN), having the intent to deliver said controlled substance to person or persons unknown.My belief of the aforesaid statement is based on the following facts:
Your affiant is a Houston Police Department Narcotics Officer. Affiant receives the assistance Of [sic] confidential informants while conducting criminal investigations regarding persons who sell narcotics in the Houston, Harris County, area.
A Confidential Informant contacted Affiant on May 5, 2004. The Informant told affiant that Informant knows a place where quantities of HEROIN are being concealed. The Informant advised affiant that the location is apartment # 201 in the Stone Crossing apartments at 3030 Elmside Dr. #210 [sic]. . . .
The Informant advised Affiant that Informant had been outside the apartment within the previous twenty-four hour period. Informant stated to Affiant that he met with a white male known to the Informant as Matt. The Informant described the white male to the affiant as being in his early 20's, 6'2" to 6'3" TALL [sic], 160 to 170 pounds, with close cut brown hair, brown eyes and tattoos on both arms. The informant further described Matt as being of slim build. The Informant told Affiant that Matt lives in the apartment with a girl friend who's [sic] name is unknown to Informant. . . .
Informant stated to Affiant that Matt sells heroin and other illegal narcotics to persons unknown. Informant stated to Affiant that Matt meets persons outside his apartment when called on cell phone number. . . .
The Informant advised Affiant that Informant observed Matt come from apartment #201. Informant stated to Affiant that Informant met with Matt outside the described apartment, Informant stated to Affiant that Informant observed Matt in possession of several pieces of a black tar like substance wrapped in plastic. The Informant inspected the pieces of black tar like substance wrapped in plastic and recognized the black tar like substance to be HEROIN. The Informant stated to Affiant that Matt made it known to Informant that the HEROIN was present for the purpose of sale. Informant stated that Matt then entered apartment #201 with the heroin and remained there after Informant left.
Informant stated to affiant that Matt made it known to Informant that if he did not return to the apartment in a short period of time his girl friend would flush the remainder of the narcotics in the apartment down the toilet.
The Informant has provided Affiant with information regarding illegal narcotics activity on a number of occasions in the past. The informant has proved to be accurate in each instance. Your Affiant knows the Informant to be credible and reliable.
The Informant has told Affiant the Informant is familiar with HEROIN and can readily identify the substance by sight and odor. The Informant advised the Affiant that the black tar like substance observed in the possession of Matt and placed in the apartment located at 3030 Elmside Dr. #201, is indeed HEROIN.
. . . .
Affiant checked Penny Scott on the Houston Police Department Computer and learned the following. Penny Scott, . . . has a previous criminal history for possession of a controlled substance under 28 grams.
Affiant and Officer Fred Wood conducted surveillance on the location for short periods of time. Affiant has observed the white male described by informant exiting and entering the apartment with frequency. During the surveillance affiant has seen the described white female known as Penny Scott exiting and entering the apartment with frequency.
Affiant reviewed the leasing documents of apartment #201 at 3030 Elmside #210 [sic] and learned that Penny Scott 6-6-81 is listed as a resident in the apartment.
Based on the information received from the reliable informant and follow up investigation, and on observations while on surveillance, Affiant has reason to believe, and does believe that the white male known as Matt and the white female known as Penny Charline Scott possesses [sic] a quantity of HEROIN.
Affiant further believes that the white male known as Matt and the white female named Penny Charline Scott are concealing the HEROIN inside the described apartment, therefore committing a felony violation of the Texas Controlled Substances Act.Later the same day, the magistrate signed a warrant authorizing a search of the apartment for heroin and the arrest of Penny Scott and the person described as Matt. The warrant was executed the same day. The return states that officers seized 7.80 grams of tar heroin, in addition to "Xstacy," methamphetamine, Xanax, cocaine, marihuana, and Hydrocodone. Seven people were arrested, including appellee. At the time in question, appellee was staying as an overnight guest in the apartment. When officers entered the apartment to execute the warrant, they saw appellee holding a tinfoil of heroin up to his mouth. Scoggins stated that, in his training and experience, he believed appellee was smoking heroin. The tinfoil later tested positive for heroin and appellee was charged with possession of less than one gram. Appellee filed a pretrial motion seeking to suppress the tinfoil of heroin seized pursuant to the search warrant. Specifically, in his motion, appellee contended that the search warrant was issued in violation of his constitutional and statutory rights because the supporting affidavit failed to establish the credibility of the informant and failed to set forth sufficient facts to establish probable cause that heroin was located in the apartment. In addition, appellee contended that the information in the affidavit was stale. The trial court granted appellee's motion.
STANDARD OF REVIEW
The Court of Criminal Appeals has held that the standard to be applied to the review of a magistrate's determination of probable cause in issuing a search warrant is the deferential standard of review articulated in Gates and Johnson. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); see Illinois v. Gates, 462 U.S. 213, 236, 102 S. Ct. 2317, 2331 (1983) and Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App. 1991)); see also State v. Stone, 137 S.W.3d 167, 174 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (applying Gates standard). Under Gates, we do not conduct a de novo determination of probable cause; rather, we afford great deference to the magistrate's determination of whether the affidavit reflects a "substantial basis" for concluding that a search would uncover evidence of a crime. Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Stone, 137 S.W.3d at 174. We examine only those facts found within the four corners of the affidavit to determine whether probable cause exists. Stone, 137 S.W.3d at 175 (citing Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996)). Whether the facts stated in the affidavit are adequate to establish probable cause depends on the "totality of the circumstances." Gates, 462 U.S. at 238, 103 S. Ct. at 2332; Johnson, 803 S.W.2d at 289; Stone, 137 S.W.3d at 175. In essence, we determine whether there is a fair probability, not an actual showing, that contraband will be found in a particular place in light of the totality of the circumstances, as set forth within the affidavit. Gates, 462 U.S. at 238, 103 S. Ct. 2332. The Gates court explained:The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the" veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.Id. When, as here, the trial court did not make findings of fact and conclusions of law in granting appellee's motion to suppress, the State must address and prevail on every theory that could have supported the trial court's granting of the motion in order to prevail on appeal. See Stone, 137 S.W.3d at 174.