William Heath Oliver v. The State of Texas--Appeal from 104th District Court of Taylor County

Opinion filed March 29, 2007

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-06-00040-CR

__________

   WILLIAM HEATH OLIVER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 15,078-B

O P I N I O N

The trial court convicted William Heath Oliver, upon his plea of guilty, of the second degree felony offense of possession of methamphetamine with intent to deliver. The trial court assessed punishment at five years confinement. Appellant waived his right to appeal as to the guilt/innocence phase of the trial, except for matters raised in pretrial motions. The trial court certified that this was not a plea-bargain case and that appellant had the right to appeal. See Tex. R. App. P. 25.2(a)(2). Appellant is appealing the trial court=s denial of his motion to suppress. We affirm.

Background Facts

 

Abilene Police Officer Jimmy Seals signed and submitted the search warrant affidavit on December 12, 2003. In his affidavit, Officer Seals named appellant as the suspected party and stated that, on or about December 12, 2003, appellant Adid then and there unlawfully possess and does at this time unlawfully possess@ methamphetamine in a residence and its curtilage. Officer Seals also provided the address of the residence, described the residence in detail, and identified the residence and its curtilage as the suspected place. Officer Seals further stated that appellant possessed and occupied the suspected place and that the suspected place was under the control and charge of appellant. The affidavit continued as follows:

MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:

That just prior to making this application for this search warrant your affiant has received information from a confidential informant whose identity must remain a secret for security reasons. Your affiant knows this same confidential informant to be credible, reliable, and trustworthy and this belief is based on the following set out facts:

I have known this same confidential informant for a period of four months.

That this same confidential informant is employed in a lawful occupation within the community.

That this same confidential informant has never been convicted of a Felony offense in the state of Texas or any other state to the best of your affiant=s knowledge.

That this same confidential informant is supplying information to your affiant on a voluntary basis, and no deals or promises of any kind have been made to the informant by your affiant.

That within the past 48 hours this same confidential informant has been inside the above described suspected place and observed [appellant], white male, date of birth 11-16-66 in possession of a white powder substance which [appellant] purported to be methamphetamine.

That this same confidential informant believes this same white powder substance to be methamphetamine.

Wherefore, I ask that a warrant to search for and seize the said controlled substance at the above-described premises be issued in accordance with the law in such cases provided.

 

On December 12, 2003, the magistrate issued a search warrant based on Officer Seals=s affidavit. Law enforcement personnel executed the search warrant and seized methamphetamine during the search. Appellant filed a motion to suppress the evidence seized during the search. After a hearing, the trial court denied appellant=s motion to suppress. The trial court made the following findings in its order denying the motion to suppress:

1. That the officer=s affidavit submitted in support of the warrant provided the magistrate with a substantial basis for concluding that probable cause existed for the issuance of a warrant;

2. That the affidavit also provided the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing; [and]

3. That the motion to suppress should be denied.

Issue Presented

In a sole appellate issue, appellant contends that the trial court erred in denying his motion to suppress because the search warrant affidavit did not establish probable cause for the issuance of the search warrant.

Probable Cause for Issuance of Search Warrant

A search warrant must be based on probable cause. U.S. Const. amend IV. An affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Probable cause to support the issuance of a search warrant exists where the facts contained within the four corners of the search warrant affidavit and the reasonable inferences drawn therefrom justify the magistrate=s conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Davisv. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); State v. Walker, 140 S.W.3d 761, 770-71 (Tex. App.CHouston [14th Dist.] 2004, no pet.). No magical formula exists for stating such information. Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim. App. 1972). A search warrant affidavit must be read in a common sense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances contained within the four corners of the affidavit. Davis, 202 S.W.3d at 154; Cassias, 719 S.W.2d at 587-88.

 

Where, as in this case, a police officer=s search warrant affidavit is based on information received from a confidential informant, the informant=s veracity or reliability and his basis of knowledge are highly relevant factors in determining, by the totality of the circumstances, whether probable cause exists. Gates, 462 U.S. at 230, 233; Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. [Panel Op.] 1983). These factors are not independent requirements for a finding of probable cause. Rather Athey should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is >probable cause= to believe that contraband or evidence is located in a particular place.@ Gates, 462 U.S. at 230. A deficiency in the affidavit in one of these factors may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other or by some other indicia of reliability. Gates, 462 U.S. at 233; Hennessy, 660 S.W.2d at 89. The task of a magistrate in determining whether to issue a search warrant is to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, 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. Gates, 462 U.S. at 238.

Standard of Review

A magistrate=s decision to issue a search warrant is subject to the deferential standard of review articulated in Gates and Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990). See Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004). A reviewing court must give deference to the trial court=s determination of probable cause and affirm that decision Aso long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.@ Id. at 810 (citing Gates, 462 U.S. at 234-37). In evaluating whether probable cause existed for the issuance of a search warrant, appellate courts must assess the totality of the circumstances presented within the four corners of the affidavit. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Elmore v. State, 116 S.W.3d 809, 812 (Tex. App.CFort Worth 2003, pet. ref=d).

Analysis

 

Appellant contends that the factual assertions contained in Officer Seals=s affidavit were insufficient to establish the confidential informant=s reliability and the basis of the confidential informant=s knowledge. Therefore, appellant argues that the factual assertions contained in the search warrant affidavit did not support a finding of probable cause. Applying the above standard of review, we look to the totality of the circumstances presented within the four corners of Officer Seals=s affidavit in determining whether probable cause existed for the issuance of the search warrant.

Officer Seals did not indicate in the affidavit that the confidential informant had provided him with reliable information in the past. Accordingly, it appears that Officer Seals was dealing with a first-time confidential informant. A number of factors are relevant to a first-time informant=s reliability and credibility, including the presence or absence of a criminal record, employment history, and reputation in the community. See Abercrombie v. State, 528 S.W.2d 578, 583-84 (Tex. Crim. App. 1974); Caldarera v. State, 504 S.W.2d 914, 916 (Tex. Crim. App. 1974); Bellah v. State, 641 S.W.2d 641, 643 (Tex. App.CEl Paso 1982), aff=d, 653 S.W.2d 795 (Tex. Crim. App. 1983). Thus, an affiant may establish the reliability of a first-time informant by demonstrating the absence of a criminal record on the part of the informant, the informant=s employment, and the informant=s reputation in the community. See Caldarera, 504 S.W.2d at 916. An affiant may not establish the reliability of a first-time informant with a mere conclusory statement that the informant is a Areliable and credible@ person. Abercrombie, 528 S.W.2d at 583-84; Barraza v. State, 900 S.W.2d 840, 842 (Tex. App.CCorpus Christi 1995, no pet.).

In his affidavit, Officer Seals provided specific details to support his belief that the confidential informant was credible, reliable, and trustworthy. Officer Seals stated that he had known the informant for four months. He also stated that the informant was gainfully employed in a lawful occupation within the community. Officer Seals further stated that, to his knowledge, the informant had never been convicted of a felony in Texas or any other state. He also stated that the informant was supplying information to him on a voluntary basis and that he had not made any deals or promises of any kind to the informant. Although Officer Seals did not specifically refer to the informant=s reputation in the community in the affidavit, the specific details set forth in the affidavit were sufficient to establish the informant=s reliability.

Officer Seals stated facts in the affidavit explaining the basis of the informant=s knowledge. Officer Seals stated that he had received the following information from the informant: (1) that the informant had been inside appellant=s residence within the past forty-eight hours; (2) that, while in the residence, the informant had observed appellant in possession of a white powder substance; and (3) that appellant had purported the white substance to be methamphetamine.

 

In Winkles v. State, 634 S.W.2d 289 (Tex. Crim. App. 1981), a police officer submitted a search warrant affidavit based on information received from a confidential informant. The police officer stated in the affidavit that the informant had observed a white powder substance in the suspected place and that the suspected party had claimed the substance to be Aspeed.@ Winkles, 634 S.W.2d at 292. The police officer also stated that Aspeed@ was a common street word for methamphetamine. Id. In an original opinion in Winkles, the Court of Criminal Appeals held that the affidavit was insufficient to establish probable cause because, among other things, the affidavit did not show that the informant had personal knowledge that the substance he had observed was methamphetamine. Id. at 293. The dissent argued that the factual assertions in the affidavit B that the informant had observed the substance and that the suspected party had claimed the substance was Aspeed@ B were sufficient to support the issuance of a search warrant. Id. at 298. Thus, the dissent stated that Athe facts submitted to the magistrate were sufficient to justify a conclusion that methamphetamine was probably on the premises at the time the warrant was issued.@ Id. at 297. On the State=s motion for rehearing in Winkles, the Court of Criminal Appeals held that the search warrant affidavit was sufficient to support the issuance of the search warrant for the reasons stated in the dissenting opinion on original submission. Id. at 299.

The factual assertions in the affidavit in this cause are similar to the factual assertions in the affidavit in Winkles. Officer Seals=s affidavit established that the informant observed the substance and that appellant purported the substance to be methamphetamine. Like the informant in Winkles, the informant in this cause saw the substance and received information from appellant that the substance was methamphetamine. These facts Bthe informant=s personal observation of the substance coupled with appellant purporting the substance to be methamphetamine B make a strong showing on the basis-of-knowledge factor. Officer Seals=s affidavit was sufficient to establish the informant=s basis of knowledge of the methamphetamine.

Appellant cites State v. Davila, 169 S.W.3d 735 (Tex. App.CAustin 2005, no pet.); Davis v. State, 144 S.W.3d 192 (Tex. App.CFort Worth 2004, pet. ref=d); and Lowery v. State, 843 S.W.2d 136 (Tex. App.CDallas 1992, pet. ref=d), in support of the contention that Officer Seals=s affidavit was insufficient to establish probable cause for the issuance of a search warrant. As shown below, these cases are distinguishable from the present case.

 

In Davila, the search warrant affidavit stated that the affiant had received information from a confidential informant regarding cocaine and marihuana being possessed at a residence. Davila, 169 S.W.3d at 738. The affidavit also stated that A[t]he aforementioned [informant] has provided information regarding narcotics trafficking and transactions to your Affiant in the past.@ Id. The affidavit did not provide any other details about the informant. In Davila, the affiant attempted to establish the reliability of the informant by stating that the informant had provided narcotics information to him in the past. However, the affiant did not state any facts demonstrating the accuracy of the prior information. For example, the affiant did not state that the past information had led to the seizure of controlled substances. Id. at 739. The Davila court held that the affidavit was insufficient to establish probable cause because it failed to show that the informant was credible or that the tip was reliable. Id. The affidavit in Davila also did not contain any facts describing the basis of the informant=s knowledge. The court explained that Athe affidavit did not state whether the informer had actually seen the alleged contraband or was merely repeating hearsay information.@ Id. The affidavit also did not state when the informant received the information or when the informant provided the tip to the affiant. Id. Unlike the affidavit in Davila, the affidavit in this cause stated facts demonstrating the reliability of the informant and the basis of the informant=s knowledge. The affidavit in this cause stated that the informant personally observed the substance.

 

In Davis, the search warrant affidavit stated that the confidential informant had never given information to a law enforcement agency before; that the informant had resided in Tarrant County for over twenty years; that the informant had been gainfully employed for over ten years; that the informant was familiar with the packaging and characteristics of marihuana because he had been arrested over six years ago on a Adrug charge@; and that the informant had identified two people at a residence who were in possession of and growing marihuana. Davis, 144 S.W.3d at 198. The affidavit, however, did not state whether the prior drug charge involved marihuana or some other drug. Therefore, the statement about the prior drug charge did not demonstrate that the informant knew what marihuana looked like or how it was packaged. Id. The affiant in Davis failed to state any facts showing how the informant knew what marihuana looked like. Therefore, the affidavit failed to provide a basis for the informant=s knowledge of marihuana. The court held that the affidavit was insufficient under the Atotality of the circumstances@ to establish probable cause for the issuance of a search warrant. Id. at 200. In this cause, the affidavit provided a basis for the informant=s knowledge of methamphetamine. The affidavit indicated that appellant told the informant the substance was methamphetamine.

In Lowery, the search warrant affidavit stated that the confidential informant had been inside a residence and had been told that amphetamines were there. Lowery, 843 S.W.2d at 139. The affidavit did not state that the informant had observed the amphetamines. Thus, the affidavit did not demonstrate that the informant had personal knowledge that amphetamines were present in the residence. Id. at 140. The court held that the affidavit failed to establish probable cause for the issuance of a search warrant. Id. at 142-43. Unlike the affidavit in Lowery, the affidavit in this cause demonstrated that the confidential informant personally observed the methamphetamine. Therefore, the affidavit established that the informant had personal knowledge of the methamphetamine.

Viewing the totality of the circumstances reflected in Officer Seals=s affidavit, we conclude that the affidavit contained sufficient facts and circumstances to provide the magistrate with a substantial basis for concluding there was a fair probability that a search would uncover evidence of wrongdoing. See Gates, 462 U.S. at 236. Therefore, probable cause existed to issue the search warrant. The trial court did not err in denying appellant=s motion to suppress evidence. We overrule appellant=s issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.