THE STATE OF TEXAS, Appellant v. SAMUEL SCOTT RAYMER, Appellee

Affirmed and Opinion filed November 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01400-CR
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THE STATE OF TEXAS, Appellant
v.
SAMUEL SCOTT RAYMER, Appellee
 
.................................................................
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 2-884-88
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Burnett
        State appeals a decision of the trial court to suppress evidence seized in a search of the residence of Samuel Scott Raymer, appellee. In its sole point of error, State contends that the trial court erred in suppressing evidence that was seized pursuant to a search warrant that was supported by an affidavit showing probable cause. We disagree and, for the reasons discussed herein, affirm the judgment of the trial court.
        On November 13, 1987, a magistrate issued a search warrant for a house at 4001 Eagle Pass in Plano. Officers of the Plano Police Department conducted a search of the house the same day and found anabolic steriods. Police charged appellee with the illegal possession of anabolic steroids.
        The magistrate based his issuance of the search warrant upon information contained in an affidavit of Plano Police Officer Frank McElligott. The affidavit states in relevant part:
 
        C.    Trash was collected from [appellee's] residence on the following dates: 07/07/87, 07/17/87, 08/11/87, 08/28/87, and 11/13/87.
 
        D.    Used hypodermic needles and syringes were discovered in said trash on each of the said dates.
 
        E.    On 08/28/87 a vial containing the anabolic steriod (sic) Nandrolene was recovered from the trash of [appellee's] residence.
 
        F.    On 08/28/87 a number of papers were recovered from the trash of said residence which contain notations reflecting the sale of anabolic steriods (sic) and human growth hormones indicating that [appellee and other persons living at the residence] were engaged in a sale of said dangerous drugs to persons unknown to Affiant.
 
        G.    On 11/13/87 a vial containing Pregnyl, a human growth hormone, and a manufacturer's box that would contain said vial, were recovered from the trash of said residence. The vial contains the legend: "CAUTION: Federal (USA) law prohibits dispensing without prescription." No prescription was found in the trash on any of the dates listed above. No prescription lable (sic) was found on either the vial or the box.
        In his affidavit, Officer McElligott also states that, based upon his knowledge of the contents of the trash searched by the police, he believed that the residents of the house possessed and delivered illegal drugs. The trash that was searched by police was in bags located in an alley behind appellee's house. The affidavit was silent as to when the trash bags were placed behind the house or who placed them there.
        The trial court, in granting appellee's motion to suppress the evidence, held that the search warrant was based on information too far removed in time to have been properly considered and that there was insufficient probable cause to believe that illegal drugs were more likely than not to be in the house.
        In its sole point of error, State contends that the trial court erred in suppressing evidence of the seizure of anabolic steroids at appellee's residence pursuant to a search warrant issued by the magistrate. A search warrant may not be issued unless it is based upon probable cause. See U.S. Const. art. IV; Tex. const. art I, § 9; Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982). To establish probable cause, the affidavit must show facts and circumstances within the affiant's knowledge, arising from a reasonable trustworthy source, to warrant a person of reasonable caution to believe that the items sought are located at the place where it is proposed to search. Bower v. State, 769 S.W.2d 887, 902 (Tex. Crim. App. 1989). This determination is made by considering the totality of the circumstances set forth in the affidavit to arrive at a practical, common-sense decision as to whether there is a fair probability the items will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 230 (1983); Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App. 1988), cert. denied, 109 S. Ct. 127 (1988). However, mere belief or suspicion is not sufficient to sustain the issuance of the search warrant. Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986).
        As an appellate court, we must determine whether the magistrate had a substantial basis for issuing the search warrant. Gates, 462 U.S. at 236; Bower, 769 S.W.2d at 902. The affidavit of Officer McElligott establishes only that police searched the trash behind appellee's residence on five separate occasions and that they found hypodermic needles and syringes on each occasion, anabolic steroids on one occasion, and human growth hormones on another occasion. There is no information in the affidavit as to when the trash bags were placed behind appellee's house or who placed them there. The affidavit contains no other information establishing a nexus between appellee's house and the drugs found in the trash bags.
        State relies heavily on United States v. Herrera, 757 F.2d 144 (9th Cir. 1985), for the proposition that a recovery of drugs in a search of the garbage outside a residence establishes probable cause to believe that there are drugs in a house. In Herrera, police found heroin residue in a search of the defendant's trash bags in front of his house. However, other facts existed in Herrera to establish probable cause to believe that drugs were in the house that are not present in the case before us. An anonymous tip to police revealed that the defendant had just received and was selling a large amount of heroin and that the heroin was located at the residence of a major heroin supplier. This additional information, combined with the drug residue discovered in the trash, established probable cause existed to believe that narcotics were in the house. Id. at 149.
        We find that in the case before us, the sole affidavit supporting the search warrant did not provide the magistrate with a substantial basis to conclude that there was probable cause to believe that there were illegal drugs in appellee's residence. Therefore, we overrule State's point of error and affirm the judgment of the trial court.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881400.U05
 
 
File Date[11-17-89]
File Name[881400]