No. 04-06-00579-CR
Filed: June 6, 2007. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-7944 Honorable Philip A. Kazen, Jr., Judge Presiding.
Sitting: Alma L. López, Chief Justice, Catherine Stone, Justice, Phylis J. Speedlin, Justice.
Opinion by: Catherine Stone, Justice.
AFFIRMED Daniel Wade appeals his conviction for possession of a controlled substance for which he received a punishment of 25 years incarceration. He argues that the trial court erred in failing to suppress evidence, claiming the search warrant utilized in the police search of the apartment in which he was staying lacked probable cause and was thus illegal. We disagree and affirm the judgment of the trial court.
Background
Deputy Alex DeLeon received information from a confidential informant alleging that Shonnaca Howell was in possession of or was selling drugs in her apartment. Based on this information and on his own investigation of Howell, DeLeon swore out an affidavit in support of a warrant to search Howell's apartment and arrest persons in possession of controlled substances. When the search warrant was served at Howell's apartment, officers found both Howell and Wade on the premises. Wade subsequently admitted that he was in possession of cocaine and was later arrested and charged with possession of a controlled substance. Wade now appeals, arguing that the trial court failed to suppress evidence obtained as a result of the search warrant. He alleges there is a lack of probable cause to support the seizure of items listed in the warrant affidavit and that the affidavit contained material misrepresentations about DeLeon's knowledge of the reliability of the confidential informant. Discussion Standard of Review
Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). The court gives "almost total deference to a trial court's determination of historical facts supported by the record especially when the trial court's findings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The same amount of deference will be afforded to the trial court's rulings on "mixed questions of law and fact" if the resolution of those questions turns upon the credibility and demeanor of the witnesses. Id. The court, however, reviews any of the trial court's other applications of the law de novo. Id; Carmouche, 10 S.W.3d at 327. Standing
As a preliminary matter, the State argues that Wade lacks standing to challenge the manner in which the State obtained its evidence in this case. The United States Supreme Court has held that the "capacity to claim the protection of the Fourth Amendment depends. . .upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Minnesota v. Olsen, 495 U.S. 91, 95 (1990). A person's expectation of privacy is legitimate if it is "one that society is prepared to recognize as reasonable." Id. at 95-96. Here, the record indicates that Deputy DeLeon confirmed that the apartment's utilities were in Howell's name and DeLeon swore in his affidavit that he believed the apartment was under the control and charge of Howell. However, at the time of the search, Howell and Wade were living together in Howell's residence. In response to a deputy's question, Wade stated that his address was the one listed on the search warrant and Howell confirmed that Wade lived with her. Co-habitants, like Howell and Wade, are justified in having an expectation of privacy in their shared residence because their expectations are of the type that society has recognized as reasonable. State v. McCaffery, No. 04-01-00181-CR, 2001 WL 1230449 *2 (Tex.App.-San Antonio Oct. 17, 2001), pet. dism' d per curiam, 76 S.W.3d 392 (Tex.Crim.App. 2002); see generally Olsen, 495 U.S. at 96-96 (holding that society has recognized that it is reasonable for overnight guests to have an expectation of privacy in their host's home). We therefore hold that Wade has standing to challenge the search warrant. Probable Cause
In his first issue, Wade argues that the trial court erred in failing to suppress evidence seized from the apartment because the affidavit supporting the search warrant did not establish probable cause supporting a search for evidence pertaining to the manufacture and delivery of drugs. () Probable cause to support the issuance of a search warrant exists where the facts given 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. Bower v. State, 769 S.W.2d 887, 902 (Tex.Crim.App. 1989), cert. denied, 506 U.S. 835 (1992), rev' d on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). It is enough that a person of "reasonable caution" would believe that the articles sought were located at the place to be searched. Id. A reviewing court looks at the totality of the affidavit to determine if sufficient facts have been alleged to support probable cause for a warrant to be issued. Illinois v. Gates, 462 U.S. 213 (1983); Bower, 769 S.W.2d at 904. Under this test, a reviewing court must determine whether the affiant's reliable and credible informant observed conduct that was more consistent with criminal than with innocent activity. Hall v. State, 795 S.W.2d 195, 197 (Tex.Crim.App. 1990). The magistrate is allowed to draw reasonable inferences from the alleged facts. Ramos v. State, 934 S.W.2d 358, 363 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1198 (1997). Wade argues that the State failed to allege facts sufficient to support probable cause that the offense of possession with intent to deliver was occurring or had occurred in Howell's apartment. Addressing the affidavit, Wade contends that while the affiant alleged that Howell unlawfully possessed the cocaine, the affiant also requested permission to seize items relating to trafficking narcotics and therefore it was incumbent upon the police to show probable cause that drug dealing, not merely drug possession, was taking place in Howell's apartment. Even if we accept Wade's argument as true, the entire warrant is not automatically rendered invalid. When portions of a warrant are defective, the defective allegations are removed and all evidence that is supported by the modified warrant may be considered. Walthall v. State, 594 S.W.2d 74, 79 (Tex.Crim.App. 1980); Wachter v. State, 961 S.W.2d 598, 600 (Tex.App.-San Antonio 1997, pet. ref'd). We will therefore review the affidavit allegations unrelated to drug trafficking because no evidence was seized pertaining to the delivery or sale of narcotics. The following is the substance of the remaining allegations in the affidavit: Deputy Alex DeLeon is a Texas Peace Officer with over twelve years of law enforcement experience and is currently assigned to the Bexar County Sheriff's Office Narcotics Section; he has participated in state and federal search warrants and narcotics related cases; he has made numerous arrests for narcotics violations which have resulted in successful prosecution; he has personally participated in this investigation and is thoroughly familiar with the information contained in the affidavit; he received information from a credible and reliable informant concerning narcotics possession at Howell's apartment; through personal investigation of City Public Service Energy records and the Indiana Department of Public Safety, he confirmed Howell's identity and determined that she was receiving utilities at the listed apartment; based on the information provided by the informant, verified through his investigation, and coupled with his training and experience, DeLeon had reason to believe that the information provided by the informant was correct and that Howell was in unlawful possession of the controlled substance. To be sufficient, these allegations must support a probable cause finding that the persons in possession of the controlled substance would be on the property at the time the warrant was issued. When affording proper deference to the magistrate's decision to issue the search warrant, we conclude that the probable cause affidavit in the instant case contained appropriate facts and evidence which provided the magistrate with a "substantial basis for concluding that a search would uncover evidence of wrongdoing[.]" Illinois v. Gates, 462 U.S. 213, 236 (1983). The informant stated that he/she saw cocaine unlawfully possessed by Howell within the past 48 hours and was able to accurately describe the premises where Howell and the cocaine were located. The affiant determined that the informant accurately described the premises by traveling to the premises and checking the City Public Service Energy records. Furthermore, the affiant attested to the informant's ability to identify cocaine, the paraphernalia related to its ingestion, packaging, and sale, and to the fact that the informant had given the affiant reliable information in the past regarding the trafficking of controlled substances. Based on the totality of the circumstances, the magistrate, applying a practical and nontechnical approach to the information and weighing the probabilities, was provided with sufficiently appropriate facts and circumstances in the affidavit for search warrant so as to conclude that there was a substantial basis for believing that a search of Howell's property would reveal evidence of cocaine possession. See Barton v. State, 962 S.W.2d 132, 137-38 (Tex.App.-Beaumont 1997, pet. ref'd). We therefore conclude the trial court did not abuse its discretion in denying Wade's motion to suppress and overrule his first issue. Material Misrepresentations in Search Warrant
In his second issue, Wade argues that the trial court erred in failing to suppress the seized evidence because the deputy's affidavit in support of the warrant contained material misrepresentations about his knowledge of the reliability of the confidential informant, thus rendering the search warrant illegal. The sufficiency of a search warrant and its accompanying affidavit are measured by what is contained within the four corners of the warrant and affidavit. See Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App. 1987). However, the United States Supreme Court created an exception to this general rule in Franks v. Delaware. 438 U.S. 154, 171-72 (1978). In Franks, the Supreme Court held that if an affirmative misstatement is knowingly or recklessly included in a probable cause affidavit and it is material and necessary to establishing probable cause, the warrant is rendered invalid if the remaining content is insufficient to establish probable cause under the Fourth Amendment. Id. at 155-56. In Dancy v. State, the Court of Criminal Appeals discussed the nature of the false statements that will render a warrant invalid under Franks. 728 S.W.2d 772, 779-83 (Tex.Crim.App. 1987). The statement in question must be false and must have been either intentional or made with reckless disregard for the truth. Id. at 782. If a misstatement is an instance "where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination," it falls outside the ambit of Franks. Id. at 782 (quoting Franks, 438 U.S. at 170). Additionally, while facts in search warrants should be truthful, it is not implied that every fact recited in the search warrant affidavit must necessarily be factually accurate. Id. at 780-81 (quoting Franks, 438 U.S. at 165). Because of the typical haste in preparation of an affidavit, as well as the complication of compiling the multiple sources of information often utilized, it is sufficient, in order for factual statements to fall outside the ambit of Franks, that the information in the affidavit is believed or appropriately accepted by the affiant as true. Id. Finally, the question of whether the affiant's statements were false or made with reckless disregard for the truth is a credibility issue assigned to the trial court's discretion. See Carmouche, 10 S.W.3d at 327-28. Wade specifically complains about the following statement in the affidavit: The informant has given this peace officer information in the past regarding the trafficking of controlled substances which has proven to be true and correct and has demonstrated his/her ability to identify Cocaine, and the paraphernalia related to its ingestion, packaging and sale. (Italic emphasis added; bold emphasis in original). During the suppression hearing, Wade's defense counsel asked Deputy De Leon, the affiant for the probable cause affidavit, how many times he had dealt with the informant in the past. DeLeon replied that it was the first time he had dealt with the informant. Wade now argues that DeLeon made a material misrepresentation in his affidavit. At the suppression hearing, DeLeon testified that this particular informant had dealt with Bexar County Sheriff's officers in the past and was reliable and credible when working with the other officers. DeLeon personally established the credibility of this informant by talking with other officers and by conducting his own investigation to confirm the informant's reliability. DeLeon further indicated that the affidavit was based on form language used by the Sheriff's Office. As such, DeLeon's statements do not imply more than a misstatement and are not of the character of an intentional misstatement or reckless disregard for the truth as contemplated by Franks and Dancy. See Franks, 438 U.S. at 170; Dancy, 728 S.W.2d at 780-782. We therefore hold that Franks is factually inapplicable to this case and thus the issuance of the warrant did not violate the Fourth Amendment's prohibition against unreasonable search and seizure. Wade's second issue is overruled. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.