                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-11-00086-CR


MICHAEL RAY BONDS                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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       FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

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                                  OPINION
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                                I. INTRODUCTION

      In a single issue, Appellant Michael Ray Bonds asserts that the trial court

erred by denying his motion to suppress evidence seized pursuant to a search

warrant. The affidavit supporting the search warrant articulates probable cause

for a search of 401 Barker Street, Bowie, Montague County, Texas. But the

search warrant was not executed at 401 Barker Street. It was executed at a

neighboring home, and no probable cause existed to search that residence.
Accordingly, we will reverse the trial court‘s judgment and remand this case to

the trial court.

                            II. FACTUAL BACKGROUND

       On August 5, 2008, Texas Department of Public Safety Officer Jeff

Ashburn prepared an affidavit for a search warrant. The affidavit described the

place to be searched as

       [a] single story residence located at 401 Barker Street, Bowie,
       Montague County, Texas. Said residence is a white wooden framed
       residence with a grey composition shingle roof with the front of the
       residence facing south. Said residence has two (2) windows facing
       towards Barker Street. In addition, the property has a detached
       garage northwest of said residence. The garage has a large white
       utility door facing towards Barker Street. Parked east of the garage
       is a small white and blue camper trailer.

The affidavit stated that Bonds was in charge of the residence. The affidavit

stated that the affiant ―charge[d] and accuse[d]‖ Bonds of possessing and

concealing, at the suspected place,

       [d]rugs and/or chemicals kept, prepared, or manufactured in violation
       of the law of the State of Texas, to wit: Possession of Controlled
       Substance in Penalty Group 1, (Methamphetamine) (Cocaine) . . . [;]
       drug paraphernalia and evidence of methamphetamine and cocaine
       distribution including, but not limited to, scales for weighing drugs;
       containers, packaging materials, and other paraphernalia commonly
       used to package methamphetamine and cocaine for distribution in
       non-bulk, individualized use units; papers or records, documentary
       and electronic, indicating sales, purchases, and customers for
       methamphetamine and cocaine distribution.

The affidavit explained that Officer Ashburn possessed probable cause for his

belief that the above items could be found at 401 Barker Street ―by reason of the

following facts‖:

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• A confidential informant told Officer Ashburn in November 2007 that he had
observed Bonds in possession of methamphetamine and had observed
methamphetamine at Bonds‘s residence ―located at Texas State Highway 59 and
Barker Street in Bowie, Montague County, Texas.‖

• Officer Ashburn transported the confidential informant to Bonds‘s residence,
―which [Officer Ashburn] identified as 401 Barker Street, Bowie, Montague
County, Texas.‖

• The confidential informant picked Bonds out of a photo line-up as the person
from whom he had ―conducted a controlled purchase of methamphetamine.‖

• ―Based on records maintained by the Texas Department of Public Safety,
Bonds lists 401 Barker Street, Bowie, Montague County, Texas for Texas Driver
License [number omitted].‖

• On May 27, 2008, Officer Ashburn ―obtained care custody and control of refuse
that had been discarded and left for collection at the said residence, 401 Barker
Street, Bowie, Montague County, Texas.‖ Officer Ashburn conducted a thorough
examination of the contents and documented the following items:

       - one melted glass smoking pipe containing a white powder residue, which
       was submitted and analyzed by the Texas Department of Public Safety
       Crime Laboratory and identified as cocaine, and

       - one Mastercard credit card application addressed to Bonds at 401 Barker
       Street, Bowie, Texas.

• On July 15, 2008 and August 5, 2008, Officer Ashburn conducted additional
garbage searches of refuse ―left for collection at the said residence, 401 Barker
Street, Bowie, Montague County, Texas‖ and documented the discovery of other
drug-related items.

       Based on Officer Ashburn‘s affidavit, the magistrate issued a warrant to

search 401 Barker Street, Bowie, Montague County, Texas and to seize the

items listed in the affidavit.

       The record from the suppression hearing establishes, however, that 401

Barker Street was not the residence where the search warrant was executed.



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Instead, police searched a home next door to 401 Barker Street.              At the

suppression hearing, photos of the neighboring residences were introduced into

evidence. The photos showed that the home that was searched bore an address

placard for 422 Cowan on the front of that home and had a brown roof, rather

than a grey composition shingle roof as stated in the affidavit, and showed that

the neighboring home bore the numbers ―401‖ on the front. Officer Ashburn

identified the home searched and agreed that the neighboring home, a

prefabricated home with a grey composition shingle roof, bore the numbers 401

on the front of the home. Officer Ashburn explained that the address placard for

422 Cowan that was pictured on the front of the home that was actually searched

had been placed there since the search.

      III. STANDARD OF REVIEW AND LAW ON SEARCH WARRANT AFFIDAVITS

      The Fourth Amendment to the United States Constitution requires that ―no

warrants shall issue, but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the person or things to

be seized.‖ U.S. Const. amend. IV. Likewise, Texas Code of Criminal Procedure

article 18.01(c) requires a probable cause affidavit to set forth facts establishing

that (1) a specific offense has been committed, (2) the item to be seized

constitutes evidence of the offense or evidence that a particular person

committed the offense, and (3) the item is located at or on the person, place, or

thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp.

2011); see Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.]

                                         4
1982). Thus, a search warrant must be based on probable cause set forth in an

affidavit and must particularly describe the place to be searched. U.S. Const.

amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b), (c);

Rios v. State, 901 S.W.2d 704, 706 (Tex. App.––San Antonio 1995, no pet.)

(recognizing that both the Texas constitution and the code of criminal procedure

require that a search warrant describe the place to be searched).

      Concerning the probable cause requirement of the affidavit, under the

Fourth Amendment and the Texas constitution, an affidavit supporting a search

warrant is sufficient 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. Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex.

Crim. App. 2004); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.––Fort Worth

1994, pet. ref‘d). Probable cause for a search warrant exists if, under the totality

of the circumstances presented to the magistrate in an affidavit, there is at least a

―‗fair probability‘‖ or ―‗substantial chance‘‖ that contraband or evidence of a crime

will be found at the specified location. Flores v. State, 319 S.W.3d 697, 702

(Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238, 257 n.13,

103 S. Ct. 2317, 2332, 2342 n.13 (1983)). The affidavit must contain ―sufficient

information‖ to allow the issuing magistrate to determine probable cause because

the magistrate‘s action ―cannot be a mere ratification of the bare conclusions of

others.‖ Gates, 462 U.S. at 239, 103 S. Ct. at 2333; Morris v. State, 62 S.W.3d

817, 821 (Tex. App.—Waco 2001, no pet.). Whether probable cause exists to

                                         5
support the issuance of a search warrant is determined from the ―four corners‖ of

the affidavit alone. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App.

1996). Statements made during a pretrial hearing on the motion to suppress do

not factor into that determination. Id.

      The requirement that a search warrant particularly describe the place to be

searched is satisfied if the warrant describes the target location in sufficient detail

so that the officer can locate and distinguish it from other places in the

community. Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim. App. [Panel Op.]

1978); Haynes v. State, 475 S.W.2d 739, 740 (Tex. Crim. App. 1971); Jones v.

State, 914 S.W.2d 675, 678 (Tex. App.––Amarillo 1996, no pet.).                   The

constitutional objectives of requiring a ―particular‖ description of the place to be

searched include: (1) ensuring that the officer searches the right place;

(2) confirming that probable cause is, in fact, established for the place described

in the warrant; (3) limiting the officer‘s discretion and narrowing the scope of his

search; (4) minimizing the danger of mistakenly searching the person or property

of an innocent bystander or property owner; and (5) informing the owner of the

officer‘s authority to search that specific location. Long v. State, 132 S.W.3d 443,

447 (Tex. Crim. App. 2004).

      When reviewing a magistrate‘s decision to issue a warrant, we apply a

deferential standard in keeping with the constitutional preference for a warrant.

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Swearingen, 143

S.W.3d at 810–11; Farhat v. State, 337 S.W.3d 302, 306 (Tex. App.––Fort Worth

                                          6
2011, pet. ref‘d). No magical formula exists for determining whether an affidavit

provides a substantial basis for a magistrate‘s probable cause determination.

Tolentino, 638 S.W.2d at 501.       Instead, when a court reviews an issuing

magistrate‘s determination, the court should interpret the affidavit in a

commonsense and realistic manner, recognizing that the magistrate may draw

reasonable inferences. See Rodriguez, 232 S.W.3d at 61; see also Davis v.

State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Nichols, 877 S.W.2d at 498.

Nevertheless, a magistrate should not read into an affidavit material information

that does not otherwise appear on its face. Cassias v. State, 719 S.W.2d 585,

590 (Tex. Crim. App. 1986).

      But the deference afforded a magistrate‘s determination ―is not boundless,‖

and a reviewing court ―will not defer to a warrant based on an affidavit that does

not ‗provide the magistrate with a substantial basis for determining the existence

of probable cause.‘‖ Kennedy v. State, 338 S.W.3d 84, 93 (Tex. App.––Austin

2011, no pet.) (quoting United States v. Leon, 468 U.S. 897, 915, 104 S. Ct.

3405, 3416 (1984)).      A reviewing court is to ―conscientiously review the

sufficiency of affidavits on which warrants are issued‖ to ensure that an

abdication of the magistrate‘s duty does not occur. See Gates, 462 U.S. at 239,

103 S. Ct. at 2333; see also Leon, 468 U.S. at 914–15, 104 S. Ct. at 3416;

Farhat, 377 S.W.3d at 306.




                                        7
     IV. THE SUPPORTING AFFIDAVIT FAILS TO ESTABLISH A NEXUS BETWEEN
         THE THINGS TO BE SEIZED AND THE PLACE ACTUALLY SEARCHED

      Concerning the adequacy of the search warrant‘s description of the

residence to be searched, the State‘s position at the motion to suppress hearing

and on appeal is that the supporting affidavit and the search warrant comply with

the Fourth Amendment‘s and article 18.01‘s requirement that a warrant describe

with particularity the place to be searched.       The State contends that the

supporting affidavit and the search warrant adequately describe the residence

that was in fact searched, that being the home now bearing the address placard

for 422 Cowan.1 Assuming that the search warrant‘s description of the target

residence bearing the address placard for 422 Cowan was sufficient to enable

officers executing the warrant to locate the target residence and to distinguish it

      1
        Photos offered into evidence show the residence at 401 Barker Street and
a residence next door bearing an address placard marked 422 Cowan. Officer
Ashburn testified that the home marked with the numbers 401 is not the
residence that was searched. The home with the address 401 Barker Street has
a grey composition shingle roof, as described in the affidavit, but the home has
four windows facing towards Barker Street, whereas the affidavit described the
home as having two windows facing towards Barker Street. The home next door
to 401 Barker Street––the residence that was searched and that now displays a
placard bearing the address 422 Cowan––does not have a grey composition
shingle roof but does have two windows facing Barker Street and does have a
detached garage northwest of the residence that has a large white utility door, as
described in the affidavit. Thus, the search warrant‘s description of the place to
be searched––the home now displaying the placard for 422 Cowan––was
partially accurate (two windows facing Barker Street, detached garage northwest
of the residence with a large white utility door) and partially inaccurate (grey
composition shingle roof). Both of the residences, 401 Barker Street and 422
Cowan, are arguably white wooden framed residences. None of the photos
contain a depiction of ―a small white and blue camper trailer‖ as stated in the
affidavit.


                                        8
from other places in the community, nonetheless, as discussed below, the totality

of the circumstances set forth in Officer Ashburn‘s affidavit fail to indicate a fair

probability or a substantial chance that the items identified in the warrant would

be found at the residence searched.          We therefore need not address the

adequacy of the search warrant‘s description of the place to be searched––the

residence now bearing the address placard for 422 Cowan. See Tex. R. App. P.

47.1 (providing that opinions must address issues necessary to final disposition

of appeal).

      Turning to the discussion of whether Officer Ashburn‘s affidavit articulates

facts establishing probable cause to search the residence now bearing the 422

Cowan placard, probable cause requires the establishment of a nexus between

(1) criminal activity, (2) the things to be seized, and (3) the place to be searched.

See 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 412 (4th ed. 2004).

Concerning the object-place nexus, ―[u]nder the Fourth Amendment, the place to

be searched pursuant to a search warrant must be particularly described, but this

hardly means that it will always suffice that the place is described in definite and

certain terms.‖ See id. § 3.7(d), at 431. The described place must ―match up‖

with the probable cause showing.       Id.   Concerning the criminal activity-place

nexus, when a person is implicated in an offense and when it is clear that the

items to be seized are connected with criminal activity, a search warrant affidavit

must provide a basis for the conclusion that the residence to be searched is the

residence of an implicated person.      See id.; see also Serrano v. State, 123

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S.W.3d 53, 61 (Tex. App.––Austin 2003, pet. ref‘d) (noting that ―there was no

nexus between the tip (of criminal activity) and 8513 Cornwall,‖ the residence

searched).

      Here, the probable cause facts in Officer Ashburn‘s affidavit (dated August

5, 2008) indicate that a confidential informant observed (in November 2007)

Bonds in possession of methamphetamine ―inside ‗Mike Bonds‘s‘ residence

located at Texas State Highway 59 and Barker Street in Bowie, Montague

County, Texas.‖ When Officer Ashburn transported the confidential informant to

Bonds‘s residence, the confidential informant pointed out Bonds‘s residence and

Officer Ashburn ―identified [it] as 401 Barker Street, Bowie, Montague County,

Texas.‖ Officer Ashburn determined that Bonds had listed 401 Barker Street as

his address on his driver‘s license. On May 27, 2008, Officer Ashburn conducted

a garbage search of refuse left for collection at 401 Barker Street and found a

melted glass smoking pipe containing cocaine residue and a Mastercard credit

card application addressed to Bonds at 401 Barker Street. On July 15, 2008 and

August 5, 2008, Officer Ashburn conducted additional garbage searches of

refuse left for collection at 401 Barker Street and found other drug-related items.

The confidential informant selected Bonds‘s photo from a photo line-up as the

person from whom he had made a controlled buy of methamphetamine.

      Looking at the totality of the circumstances set forth in the supporting

affidavit that was reviewed by the magistrate and recognizing that the magistrate

may interpret the affidavit in a non-technical, common-sense manner and draw

                                        10
reasonable inferences from it, Officer Ashburn‘s affidavit nonetheless does not

provide a substantial basis to conclude that a fair probability exists that

contraband or evidence of a crime would be found at the residence actually

searched––the residence that now bears an address placard for 422 Cowan.

The information in Officer Ashburn‘s affidavit connects the items to be seized

with 401 Barker Street via the informant‘s nine-month-old tip that he had seen

drugs in Bonds‘s home––which Officer Ashburn identified as 401 Barker Street

when he transported the informant to the location to point out Bonds‘s home––

and via garbage searches of refuse left for collection at 401 Barker Street (the

object-place nexus).   The affidavit articulates criminal activity by Bonds––the

offenses of possession of methamphetamine and cocaine, possession of drug

paraphernalia, and the sale of methamphetamine to the confidential informant––

and connects Bonds, via his driver‘s license address, a credit card application,

and garbage searches, to 401 Barker Street (the criminal activity-place nexus).

See Serrano, 123 S.W.3d at 61 (explaining that in determining whether a search

warrant is supported by probable cause, the crucial element is not whether the

person targeted by the search is suspected of a crime but whether it is

reasonable to believe that the items to be seized will be found in the place to be

searched).   But virtually no facts exist in Officer Ashburn‘s probable cause

affidavit expressing any cause, much less probable cause, to search any

residence other than 401 Barker Street. The probable cause facts stated in the

affidavit (all linked to 401 Barker Street) do not ―match up‖ with the location that

                                        11
was actually searched (the home next door now displaying an address placard

for 422 Cowan). Accord Long, 132 S.W.3d at 447 (recognizing constitutional

objective that probable cause must in fact be established for the place described

in the warrant).

      The facts here are distinguishable from the cases in which a search

warrant states the wrong address or street or both but in which probable cause to

search the residence that was actually searched exists based on other facts.

See Taylor v. State, 974 S.W.2d 851, 853–54, 857 (Tex. App.––Houston [14th

Dist.] 1998, no pet.) (holding search warrant containing wrong street and address

not fatally defective when supporting affidavit established probable cause to

search residence actually searched because it stated that officer executing

warrant had previously ―observed the informant purchase cocaine from Taylor‘s

home‖ and had ―watched the informant enter the house [that was actually

searched] and reappear, several minutes later, with approximately one-eighth of

an ounce of cocaine‖); Smith v. State, 962 S.W.2d 178, 185 (Tex. App.––

Houston [1st Dist.] 1998, pet. ref‘d) (holding search warrant containing wrong

street and address not fatally defective when supporting affidavit established

probable cause existed to search residence actually searched because affidavit

stated that officer executing warrant had watched a confidential informant enter

and leave the house after purchasing drugs and that is the house that was

searched); see also Norris v. State, No. 14-96-01376-CR, 1999 WL 212126, at *4

(Tex. App.––Houston [14th Dist.] 1999, pet. ref‘d) (not designated for publication)

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(holding search warrant containing wrong street and address not fatally defective

when supporting affidavit established probable cause existed to search residence

actually searched because police officer executing warrant had twice

accompanied confidential informant to house and observed informant enter

house and purchase drugs). In each of these cases, the State conceded that the

address stated in the warrant was inaccurate, and there was no question that

probable cause existed to search the residence actually searched. See Taylor,

974 S.W.2d at 852–53 (―[Officer] noticed the address on the warrant was ‗7131

Fox Port,‘ but the actual address of the house [searched] was ‗7031 Foxport.‘‖);

Smith, 962 S.W.2d at 180 (―On appeal, the State concedes that the warrant

recites the wrong address.‖); Norris, 1999 WL 212126, at *3 (―The State

concedes that the street name and number contained in the search warrant was

inaccurate.‖). In fact, in two of these cases, the address stated in the warrant

was an address that did not exist. See Taylor, 974 S.W.2d at 854 (noting that

―both parties agreed that no house is located at the address specified in the

warrant‖); Smith, 962 S.W.2d at 179 (noting that the address on the warrant was

2400 Brooks Street and that no such address existed).

      These cases are not controlling here for two main reasons. First, in the

above cases, the officers observed the informant enter the residence actually

searched and determined that the informant had purchased drugs in the

residence. Thus, probable cause to search the location actually searched was

not an issue in the above cases.      Here, Officer Ashburn‘s probable cause

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affidavit does not state that he observed the confidential informant enter the

home actually searched. Although Officer Ashburn‘s affidavit does indicate that

the confidential informant identified Bonds as the person from whom he had

made a controlled buy of methamphetamine, it fails to indicate where that buy

occurred or whether Officer Ashburn was present or observed the buy. Thus, the

fact that the confidential informant identified Bonds as the person from whom he

had conducted a controlled buy of methamphetamine does not connect Bonds to

the residence actually searched or provide probable cause to search the

residence now bearing the address placard for 422 Cowan. See Serrano, 123

S.W.3d at 61. The State does not point to any facts in Officer Ashburn‘s affidavit

establishing probable cause to search any residence other than 401 Barker

Street.

      Second, the address in Officer Ashburn‘s affidavit––401 Barker Street––

that was connected to the probable cause facts he articulated did actually exist

and was the home next door to the residence searched. In two of the above

cases, the incorrect addresses in the affidavits and warrants did not actually

exist. This is an important fact because probable cause cannot be associated

with an address that does not actually exist; that is, when a search warrant

identifies the place to be searched by an address that does not exist, then logic

dictates that facts cannot exist connecting criminal activity to some fantasy

address. Accord United States v. Gordon, 901 F.2d 48, 50 n.3 (5th Cir.) (noting

that when an erroneous address in a warrant does not actually exist, there is no

                                       14
possibility that the wrongly noted location could have been searched), cert.

denied, 498 U.S. 981 (1990).         But here, Officer Ashburn‘s affidavit asserted

probable cause facts based on information from an informant, trash searches, a

credit card application, and a driver‘s license all connected to an address that did

actually exist, 401 Barker Street.

      Arguing on appeal that probable cause did exist to search the residence

now bearing the address placard for 422 Cowan, the State points to testimony

provided by Officer Ashburn at the suppression hearing that when the warrant

was executed, Bonds was found inside that residence, and a truck belonging to

Bonds was parked in front of that residence. These statements do not factor into

our determination of whether Officer Ashburn‘s affidavit articulates facts

establishing probable cause to believe the items identified in the warrant would

be found at the home searched. See Massey, 933 S.W.2d at 148 (explaining

that statements made during a pretrial hearing on the motion to suppress do not

factor into a probable cause determination).         A review of the magistrate‘s

probable cause determination is based on the information set forth in the four

corners of the affidavit. See State v. Jordan, 342 S.W.3d 565, 568–69 (Tex.

Crim. App. 2011). A warrant is either good or bad when it issues; probable

cause for the search cannot be justified based on what the search produces.

Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 248 (1927). Neither of

the subsequently-provided pieces of information can be considered to




                                          15
retroactively justify issuance and execution of the search warrant for the

residence now marked with the address placard 422 Cowan.

      We sustain Bonds‘s sole issue.

                                V. CONCLUSION

      Having sustained Bonds‘s sole issue and having held that the trial court

erred by denying Bonds‘s motion to suppress, we reverse the trial court‘s

judgment and remand this case to the trial court for further proceedings

consistent with this opinion.



                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: November 23, 2011




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