TANAYA MONTGOMERY v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

   NUMBER 13-04-019-CR AND 13-04-020-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

TANAYA MONTGOMERY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 24th District Court

of Victoria County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Tanaya Montgomery, appeals her conviction for the offenses of unlawful possession of marihuana[1] and manufacture of a controlled substance.[2] Montgomery received two concurrently-running sentences of two years= imprisonment, suspended, and was placed on five years= community supervision. She complains on appeal that the trial court erred in denying her motion to suppress evidence seized from her residence because the affidavit supporting the search warrant that led to her arrest (1) contained conclusory statements, (2) failed to establish probable cause, and (3) failed to account for the broad scope of the search warrant. Because we conclude that the trial court did not err in denying Montgomery=s motion to suppress, we affirm.

Standard of Review

We generally review a trial court's ruling on a motion to suppress evidence using a bifurcated standard of review. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88 89 (Tex. Crim. App. 1997)). Under this standard, we give great deference to the trial court's determination, expressed or implied, of historical facts, if supported by the record, and generally review de novo the court's application of the law to the facts. Id. at 856.

Applicable Law

A warrant may be issued to search for and seize property or items that are evidence of an offense or which tend to show that a particular person committed an offense. See Tex. Code Crim. Proc. Ann. art. 18.02(10) (Vernon Supp. 2004-05). A search warrant may not be issued for this kind of evidence unless supported by a sworn affidavit that sets forth the following facts sufficient to establish probable cause: (1) a specific offense has been committed; (2) the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Id. art. 18.01(c) (Vernon Supp. 2004-05).

The task of the magistrate issuing a search warrant is to make a practical, common sense decision as to whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Trevino v. State, 875 S.W.2d 373, 375 (Tex. App.BCorpus Christi 1994, no pet.) (citations omitted). An affiant must present the magistrate with sufficient information so as to allow for a determination of probable cause; a merely conclusory statement will not do. Id.; see Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Although sufficiency should be determined from the "four corners" of the affidavit, the magistrate can make reasonable inferences from the facts presented which then support a common sense conclusion. Trevino, 875 S.W.2d at 376. A magistrate is entitled to rely upon information supplied by the police officer's own observations or through other sources of information. Id.

According to the standard of review applied to questions of affidavit adequacy, the decision of the magistrate is to be accorded deference by reviewing courts, and is only to be overruled if the decision extends beyond the bounds of reasonable disagreement. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Furthermore, the decision of the trial court at the suppression hearing regarding the adequacy of the warrant is to be accorded deference by the appellate court. See Hinojosa v. State, 4 S.W.3d 240, 247 (Tex. Crim. App. 1999).

Once a magistrate has determined that probable cause exists in order to justify the issuance of a search warrant, the warrant must be limited in scope and describe with particularity the items to be seized. See Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. 1979). A Ageneral warrant@ that does not describe items to be seized with particularity is invalid as it violates a person=s constitutional rights. See id.; see also State v. Tipton, 941 S.W.2d 152, 154 (Tex. App.BCorpus Christi 1996, pet. ref=d).

Analysis

The affidavit for the search warrant in question begins by noting the extensive experience in narcotics investigations possessed by the author of the affidavit, then describes appellant=s residence and the various investigatory activities undertaken. The affidavit states that the house is owned by appellant and that Kelvin AScrappy@ Montgomery, a suspected high-level narcotics trafficker already under investigation by the Victoria Police Department and Sheriff=s Office, had been seen at appellant=s house. It also states that the Special Crimes Unit of the Victoria Police Department had received information that Kelvin had recently moved his crack cocaine manufacturing and sales operation to appellant=s home.

The affidavit then details how certain police officers, including the affiant, repeatedly surveilled appellant=s home and searched her garbage when it was placed on the curb for trash collection. The garbage revealed cigar boxes, loose tobacco and marijuana seeds, which led the affiant to believe, based on his prior narcotics experience, that the occupants of the house had been producing Ablunts,@ marijuana-filled cigars. Investigators also found a quart-size plastic bag containing a white powdery residue in appellant=s trash. A field test of the bag was positive for cocaine. The affiant noted that:

My training and experience has shown me that those involved in the distribution of illegal narcotics will often ship and/or receive those illegal narcotics in plastic bags . . . . This size of this bag indicates possible possession of a kilogram of cocaine. In a single container this quantity suggests that the suspect is involved in the manufacture and delivery of cocaine. A kilogram amount of cocaine exceeds mere possession or personal use.

We conclude this affidavit was not merely conclusory in nature. The affiant reported his background knowledge and summarized the existing, ongoing investigation that had initially led him to suspect the presence of ongoing narcotics activity at appellant=s residence. The affidavit listed the actual investigatory activities that occurred once appellant=s residence became a place of suspicion, and reported the findings from appellant=s garbage in detail, further explaining the significance of these findings based on known facts about the manufacture and sale of illegal drugs. We conclude that the affidavit was sufficient to allow a magistrate to make a reasonable determination as to probable cause. See Trevino, 875 S.W.2d at 375-76.

The search warrant that was issued by the magistrate upon the findings sworn to in the affidavit allowed for the seizure of the following:

1. Any real, personal, or tangible property to include but not limited to computers, boos [sic], records, receipts, notes, ledger, bank records, money orders, computer software, and other paper and electronic records . . . relating to the purchase, transport, and/or distribution of controlled substances and proceeds therefrom;

2. Digital and gravity scales, packaging and packaging devices, labels and labeling devices, firearms, vehicles, trailers, houses, storage buildings, and/or land used or intended to be used in commission of the above offenses;

3. Any proceeds gained from the commission of the above offenses;

4. Any tangible property acquired with the proceeds gained from the commission of the above offenses.

This list did not constitute such a broad description of potentially seizable items so as to constitute an invalid general warrant, because all of the items described could potentially provide evidence relating to the suspected narcotics manufacturing and distribution at the residence. See Gonzales, 577 S.W.2d at 228.

Appellant complains that when things to be seized are items such as books, papers, records and documents, and the reason for their seizure is Athe ideas which they contain,@ First Amendment concerns arise and the warrant must be accorded Athe most scrupulous exactitude.@ See Stanford v. Texas, 379 U.S. 476, 485 (1965). In this case, however, the search warrant did not authorize the seizure of literary material because of the ideas contained in the material. Rather, the warrant explicitly only authorized the seizure of records pertaining to Athe purchase, transport, and/or distribution of controlled substances and proceeds therefrom,@ and was not meant to trigger First Amendment freedom of expression concerns. See Porath v. State, 148 S.W.3d 402, 410 (Tex. App.BHouston [14th Dist.] 2004, no pet.).

As the affidavit was sufficient to support a finding of probable cause, and the resulting search warrant was not overbroad in scope so as to constitute an invalid Ageneral warrant,@ we conclude that the trial court did not err in denying appellant=s motion to suppress the results of the search executed on the basis on the warrant. See Hinojosa, 4 S.W.3d at 247. Appellant=s issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

[1]See Tex. Health & Safety Code Ann. ' 481.121 (Vernon 2004).

[2]See id. ' 481.112 (Vernon 2004).