THE STATE OF TEXAS, Appellant v. DIANE CHERYL BOBIC, Appellee

REVERSED and REMANDED; Opinion issued April 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01386-CR
No. 05-06-01387-CR
No. 05-06-01388-CR
............................
THE STATE OF TEXAS, Appellant
V.
DIANE CHERYL BOBIC, Appellee
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 380-80529-06, 380-80530-06, and 380-80531-06
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OPINION
Before Justices O'Neill, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        The State of Texas appeals the trial court's order granting Diane Cheryl Bobic's motion to suppress. In one issue, the State argues the trial court erred in concluding the magistrate judge had no substantial basis for issuing the search warrant of Bobic's home. We reverse the trial court's order.
Background
        On December 12, 2005, Allen Police Department detective C.D. Mayfield applied for and was issued a warrant to search the home of appellee Diane Cheryl Bobic located at 15868 Grove Crest Drive, Frisco, Texas. His search warrant affidavit detailed a nine-month investigation that focused on the activities of Nina “Nico” Bobic, who sometimes lived with appellee and was the father of her child.
        According to the affidavit, Mayfield received a tip from a confidential informant in March 2005 that Nina was selling anabolic steroids. About a month later, he learned from a Drug Enforcement Administration special agent that Nina was purchasing large quantities of Finaplix, “a cattle implant from Lambriar Animal Health Care.” A chart in the affidavit described the order date of each purchase, items purchased, quantity, price per item, and total price of each shipment. According to the chart, in January of 2002 and June, July, and December of 2003, a total of 150 Finaplix “10 dose” cartridges were shipped to Nina Bobic at appellee's address for a total price of $4,845.00. During March of 2005 Nina received three separate shipments of sixty “10 dose” cartridges of Finaplix at appellee's address for a total price of $5,760.00. The DEA agent advised Mayfield that Nina was one of Lambriar's biggest purchasers of Finaplix. The DEA agent further advised Mayfield that although it is legal to buy cattle implants, body builders sometimes use them to extract an illegal steroid.   See Footnote 1  Mayfield stated he was “unable to find any legitimate affiliation between Nina Bobic and the cattle industry.”
        Mayfield conducted four searches of garbage receptacles found outside of appellee's home. During the first search on May 13, 2005, he found, among other items, three plastic straws shortened to 2.5 inches in length, one of which field-tested positive for cocaine, and two used syringes. Based on his training and experience in crimes involving controlled substances, Mayfield believed the straws were commonly used to “snort” an illegal substance and the syringes were used to inject anabolic steroids into the body. On June 10, 2005, he searched the trash receptacle at appellee's house and found, among other items, one used syringe of the type “consistent with steroid use.” On August 19, 2005, he again searched a trash receptacle at appellee's house and found, among other items, a plastic straw shortened to 3.5 inches which field-tested positive for cocaine; another used syringe; a clear plastic zip-lock baggie with a white powdery residue and “100 ” written on the baggie in black ink. The baggie field-tested negative for cocaine and methamphetamine. On December 9, 2005, Mayfield searched a trash receptacle at appellee's house and found, among other items, eight used syringes and two plastic straws shortened to 3.0 inches and 2.5 inches, one of which field-tested positive for cocaine.
        Mayfield's affidavit also states that the utilities for the house on 15868 Grove Crest Drive are in appellee's name and that she is the owner of the home according to Collin County Central Appraisal District records. The appraisal district's records also show Nina owns a home at 1516 Nest Place in Plano, Texas. The search warrant affidavit describes four separate searches of trash bin receptacles outside of Nina's Plano home and other surveillance-related activities. However, Mayfield's affidavit also refers to Nina as a resident of appellee's home. Several pieces of mail addressed to Nina at 15868 Grove Crest were found in appellee's trash. He was also seen leaving appellee's house on June 15, 2005, mail addressed to him at the Plano house was found in appellee's trash, and a note from appellee to Nina was found during the final trash search on December 9, 2005. Three days after his final search of the trash at appellee's home, Mayfield applied for and was issued the search warrant.   See Footnote 2  According to the search warrant's return and inventory,   See Footnote 3  officers seized a digital scale, less than a gram of cocaine, several boxes of syringes, several “snorting” straws, an “[u]nknown liquid,” 483 tablets of Cytotam, eight Alprazolam pills, a fur jacket, two Rolex watches, a 1971 Chevrolet Camaro, a 2004 Chevrolet pick-up, a home computer, financial documents, “paperwork for 1516 Nest” Place, money orders and wire transfers, two cellular telephones, United States mail, and “[c]omputer printouts from on-line pharmacies.”
        A grand jury returned three indictments against appellee for possessing, with the intent to deliver, three controlled substances: methandrostenolone,   See Footnote 4  oxymetholone,   See Footnote 5  and diazepam.   See Footnote 6  Each offense is a first-degree felony. See Tex. Health & Safety Ann. § 481.114(a), (e) (Vernon 2003). Her co-defendant Nina Bobic faced identical charges. Both appellee and Nina filed motions to suppress the evidence seized during the execution of the search warrants for the two residences and a U-Haul storage unit   See Footnote 7 . The trial court partially granted appellee's motion, suppressing the evidence from the U-Haul storage unit and appellee's residence. In its appeal of the trial court's order, the State abandons its defense of the storage unit and focuses on the search of appellee's house.
Discussion
        Standard of Review
        The issuing magistrate's decision to grant the search warrant should be reviewed with a deferential standard of review. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim. App. 2004). The issuing magistrate's determination of probable cause must be given great deference and will be sustained if, from the totality of the circumstances reflected in the affidavit, the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. See Illinois v. Gates, 462 U.S. 213, 236-38 (1983); Swearingen, 143 S.W.3d 810-11. This deferential standard of review of the magistrate's probable-cause determination promotes the United States Supreme Court's stated policy of preserving the incentive to peace officers to obtain a warrant instead of conducting warrantless searches. Massachusetts v. Upton, 466 U.S. 727, 733 (1984).
        An application for a search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2004-05); State v. Delagarza, 158 S.W.3d 25, 29 (Tex. App.-Austin 2005, no pet.). The facts submitted to the magistrate must be sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986) (op. on reh'g). Although we examine only the four corners of the affidavit to determine whether probable cause exists, the magistrate may draw reasonable inferences from the affidavit and must interpret the affidavit in a common sense and realistic manner when determining whether probable cause exists to issue the warrant. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim App. 1996); State v. Stone, 137 S.W.3d 167, 175 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); State v. Duncan, 72 S.W.3d 803, 805 (Tex. App.-Fort Worth 2002, pet. dism'd).
        Applicable Law
        Because garbage containers left outside a residence for collection are readily accessible to the public, “including the police and neighbors with overflow or undesirable trash” and other “unwelcome meddlers,” a single discovery of drug residue in a trash receptacle is generally insufficient to establish probable cause to search the residence. See Serrano v. State, 123 S.W.3d 53, 62 (Tex. App.-Austin 2003, pet. ref'd) (citing California v. Greenwood, 486 U.S. 35 (1988)); see also State v. Davila, 169 S.W.3d 735, 740 (Tex. App.-Austin 2005, no pet.).
        In Serrano, the search warrant affidavit was based in part on information received from a confidential informant. Serrano, 123 S.W.3d at 53. Although the informer had provided reliable information in the past, the tip stated that Serrano was dealing drugs but it did not describe the activities on which this conclusion was based, nor did it indicate when or where the drug dealing supposedly occurred. Id. at 60-61. The affidavit tenuously linked Serrano to the suspect address,   See Footnote 8  but the only evidence of drug dealing was a one-time search of the trash   See Footnote 9  that turned up two plastic bags, one of which tested positive for cocaine. Id. at 63. The court concluded the magistrate judge did not have a substantial basis for finding probable cause existed. Id.
        In Davila, the Austin court again concluded probable cause was lacking based on an affidavit that contained conclusory statements by a confidential informant that illegal drugs were possessed at the suspected residence, police observations of heavy traffic to the residence, and a report of drug traces found in a one-time search of the residence's garbage. Davila, 169 S.W.3d at 740.
        However, when the search warrant affidavit demonstrates that more than one search of the suspected residence's trash has yielded contents consistent with illegal drug use and possession, courts have generally sustained the magistrate's finding of probable cause. See Delgarza, 158 S.W.3d at 29; Nilson v. State, 106 S.W.3d 869, 875 (Tex. App.-Dallas 2003, no pet.); State v. Raymer, 786 S.W.2d 15, 16 (Tex. App.-Dallas 1990, no pet.).
        In Raymer, for example, the affidavit detailed five trash searches during a four-month period that yielded used hypodermic needles, syringes, and a single vial each of anabolic steroids and human growth hormone. Raymer, 786 S.W.2d at 16. Along with the steroids, the police also found papers with notations of drug sales involving the residents. Id. at 17. Reversing the trial court's order granting Raymer's motion to suppress, we concluded the magistrate judge had a substantial basis for determining that illegal drugs were probably in the residence. See id.
        In Nilson, a police officer received a tip from a confidential informant about drug trafficking at Nilson's home. Nilson, 106 S.W.3d at 871. The officer searched Nilson's trash and found nineteen clear plastic baggies containing either cocaine or methamphetamine residue, “drug notes,” drug paraphernalia, aluminum foil with burnt residue, and address labels showing Nilson resided at the suspect address. Id. The next day, he searched the trash again and found several pieces of aluminum foil with burnt residue and labels with “handwritten dollar amounts.” Id. The search warrant was executed the same day. Id. Five months later, the officer returned to Nilson's home to arrest her on two outstanding warrants. Id. When he did not get an answer at the front door, he went around the back of the house to knock on the garage door and found trash bags lined up along the fence, two of which contained clear plastic baggies with methamphetamine residue and mail addressed to Nilson at that residence. Id. A second search warrant was issued and executed the same day. Id. We concluded the officer's affidavits detailing the contents of the trash provided the magistrate with a substantial basis for concluding probable cause existed to issue the search warrants. Id. at 875.
        In Delagarza, the police received two anonymous tips claiming the defendant was dealing drugs from a residence. Delagarza, 158 S.W.3d at 27. Both tips were based on the number of people visiting the location and their brief stays. Id. During their investigation, the police searched the residence's trash on four separate occasions over a three-month period and found considerable evidence of drug dealing and drug use, including forty-nine pieces of burnt foil, over seventy plastic bags that tested positive for cocaine, and marijuana seeds and stems. Id. at 27-28. Reversing the trial court's order granting Delagarza's motion to suppress, the Austin court of appeals concluded that four separate searches of the suspected residence's trash which yielded contents testing positive for illegal drugs confirmed the initial suspicions of the police and established probable cause. Id. at 29.
        Analysis
        The State argues that the magistrate had probable cause to believe controlled substances would be found at appellee's residence because “on four occasions over a seven-month period and as recently as three days before the search warrant issued, the trash bin outside the residence was found to contain used syringes and shortened straws that tested positive for cocaine.”
        We conclude the totality of the circumstances as described within the four corners of the affidavit gave the magistrate a substantial basis to conclude there was probable cause to believe either cocaine or steroids would be found at appellee's residence. During four searches of appellee's trash over an eight-month period police found, among other items, twelve used syringes, three syringe wrappers, and six shortened straws, three of which tested positive for cocaine. In addition to describing the used syringes and the straws with cocaine residue found in appellee's trash, the affidavit alleged that Nina Bobic had purchased from an animal product distributor extremely large quantities of a cattle implant that could be used to extract an illegal steroid. These shipments were mailed directly to appellee's home and there was no known connection between Nina and the cattle industry. The affidavit also stated that Nina had a conviction for conspiracy to distribute cocaine and vials that once contained the controlled substance testosterone were found in the trash of his Plano home along with used syringes. Furthermore, the magistrate had reason to conclude Nina was an occupant of appellee's home because of police surveillance that placed him there on June 15, 2005; the note found in appellee's trash on December 9, 2005; and Nina's use of appellee's address for the delivery of the cattle implants as well as other pieces of mail.         Appellee points out that the affidavit does not contain any facts from which the magistrate could conclude that the informer who told Mayfield Nina was selling steroids was credible or reliable. Information received from an informant is no longer subject to the “two-pronged test” of Aguilar v. Texas,   See Footnote 10  but it is relevant in a totality of the circumstances analysis to consider what the affidavit reveals regarding the credibility of the informer, the reliability of the particular tip, and the basis of the informer's knowledge. See Gates, 462 U.S. at 229-30. Standing alone, a tip such as the one in the present case, with no apparent basis of knowledge or connection to the targeted residence, would not support a finding of probable cause to search. However, when considered together with the other evidence described within the four corners of the affidavit, it gave the issuing magistrate a substantial basis for concluding controlled substances would be found at appellee's residence on December 12, 2005.
        Appellee also argues that the facts in the affidavit pertaining to the first three searches of her trash are irrelevant to the probable cause determination because they had become stale by the time the search warrant issued. To justify a magistrate's finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become stale when the magistrate issues the search warrant. Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.-Corpus Christi 1993, pet. ref'd); see also Stone, 137 S.W.3d at 178; Rowell v. State, 14 S.W.3d 806, 809 (Tex. App.-Houston [1st Dist.] 2000), aff'd, 66 S.W.3d 279 (Tex. Crim. App. 2001). Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. Guerra, 860 S.W.2d at 611. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Id. When, as in this case, the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant. Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd).
        In the present case, the last search of appellee's trash was conducted three days before Mayfield applied for and was issued the search warrant. The discovery of used syringes and straws with cocaine residue in May, August, and December, combined with the other facts set forth in the affidavit, made it reasonable for the magistrate to conclude the illegal activity described in the affidavit was of a continuous and protracted nature, making the passage of time between this activity and appellant's arrest less relevant. Therefore, we conclude the affidavit was not insufficient to support a finding of probable cause due to staleness.
        “It is not our task, nor was it the task of the district court, to determine de novo whether the search warrant affidavit stated probable cause to search [appellee's residence], but only to ensure the issuing magistrate had a substantial basis for concluding that probable cause was shown.” Delagarza, 158 S.W.3d at 29 (citing Gates, 462 U.S. at 239; Swearingen, 143 S.W.3d at 810; State v. Bradley, 966 S.W.2d 871, 876 (Tex. App.-Austin 1998, no pet.)). “The resolution of doubtful or marginal cases should largely be determined by the preference to be accorded to warrants.” Id.
Therefore, giving great deference to the issuing magistrate's probable cause determination, we conclude the totality of the circumstances as set forth in the affidavit gave the magistrate a substantial basis for determining there was probable cause to search. Thus, the district court erred in granting appellee's motion to suppress. We sustain the State's issue.
         We reverse the trial judge's order granting appellee's motion to suppress and remand the cause to the trial court.
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061386F.U05
 
Footnote 1 Mayfield's affidavit also included information on Nina Bobic and his business partner, David Edward Bell. Nina Bobic had a 1991 conviction for conspiracy to distribute and possess with intent to distribute cocaine. The conviction stemmed from his participation in collection of payments by express mail for a cocaine distribution ring. Bell was arrested in January 2004 after a Texas highway patrolman found $19,000 hidden in a rental car that Bell and his companion, Andrea Pierce, were driving. Forty-one bottles of human growth hormone were later found in his home. Bell had a prior arrest for steroid possession and was linked (through a Federal Express receipt) to a 2004 attempt to send $28,000 in U.S. currency across the Canadian border. Officers saw Bell at Nina's Plano home on June 29, 2005. Bell's name was also found on a piece of paper found in the trash outside appellee's home in August 2005.
Footnote 2 A search warrant was also issued for Nina's Plano home on December 13, 2005. However, the search of that residence is not before us.
Footnote 3 See Tex. Code Crim. Proc. art. 18.10.
Footnote 4 Appeal number 05-06-01386-CR.
Footnote 5 Appeal number 05-06-01387-CR.
Footnote 6 Appeal number 05-06-01388-CR.
Footnote 7 In addition to both residences, a separate search warrant was issued on December 13, 2005, for a U-Haul storage unit located at 2560 Kathryn Lane, Plano, Texas.
Footnote 8 The officer found in the police files a name matching the one provided by the tipster. Id. at 63. This individual was not shown to have a narcotic criminal record. Id. Two addresses were discovered for the named individual, who was placed on the premises of the second address through surveillance and photographic identification. Id. The residence was listed in the name of another person. Id.
Footnote 9 Neither party in the present case disputes the searches of appellee's trash. The Supreme Court has held that the Fourth Amendment does not prohibit warrantless searches and seizures of garbage left for collection outside the curtilage of the home. California v. Greenwood, 486 U.S. 35, 41 (1988).
Footnote 10 378 U.S. 108 (1964).