REVERSE and REMAND; and Opinion Filed August 6, 2015.




                                       S     In The
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                    No. 05-14-00974-CR

                            THE STATE OF TEXAS, Appellant

                                              V.

                             AMBER LASHBROOK, Appellee

                     On Appeal from the 292nd Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. F12-23860

                           MEMORANDUM OPINION
                      Before Justices Francis, Lang-Miers, and Whitehill
                               Opinion by Justice Lang-Miers

       Appellee   Amber    Lashbrook    is   charged   by   indictment     with   possession   of

methamphetamine in an amount of less than one gram. On appeal, the State of Texas challenges

the trial court’s order granting appellee’s pretrial motion to suppress evidence. Because the

issues are settled, we issue this memorandum opinion. TEX. R. APP. P. 47.4. We reverse and

remand.

                                       BACKGROUND

       Police executed a warrant to search an apartment occupied by appellee and John

Flanagan. Appellee and Flanagan filed separate pretrial motions to suppress evidence seized at
the apartment. 1           The trial court held a consolidated hearing and granted both defendants’

motions. 2

The Warrant

           The warrant at issue in the hearing on the defendants’ motions to suppress authorized the

search of an apartment located at 3208 W. Buckingham Rd. #D in the City of Garland, Dallas

County, Texas for “[m]arihuana[,] EVIDENCE SUPPORTING THE SALE OF MARIHUANA

AND PROCEEDS FROM NARCOTICS SALES.”

The Probable-Cause Affidavit

           In support of the warrant, M. Taylor, an investigator in the narcotics unit of the Garland

police department, stated that he had probable cause to believe that appellee and Flanagan “do at

this time unlawfully possess an illegal controlled substance[,]” marijuana, and evidence

supporting the sale of marijuana and proceeds from narcotics sales. Taylor stated,

                   On Monday 06/18/2012, Narcotics Investigator M. Taylor #6751, herein
           referred to as the Affiant, responded to 3208 W Buckingham Rd # D (The
           Richland Apartments located within the City of Garland, Dallas County, Texas) in
           reference to an assigned case[.] The aforementioned case was created in response
           to Child Protective Services (“CPS”) case # 42270812. CPS case # 42270812
           alleged illegal drug use at 3208 W Buckingham Rd. # D. and listed the residents
           of this location as the subjects listed in paragraph # 3 above, John Flanagan and
           Amber Lashbrook.

           Taylor stated that, once he arrived at the apartment, he observed that the front door had

been damaged so that it could no longer be properly secured. Taylor knocked and Flanagan

opened the door. Taylor stated that he “recognized [Flanagan] through police files” and that

     1
        The trial court conducted an initial hearing on appellee’s motion to suppress, at which Flanagan testified as a witness. During Flanagan’s
testimony, the trial court became aware that Flanagan “was possibly subject to an indictment for the same offense” and, as a result, stopped the
initial hearing and appointed counsel for Flanagan. The court subsequently held a consolidated hearing on the motions to suppress filed by
appellee and Flanagan and granted both motions.
      Appellee’s motion to suppress evidence alleged that evidence should be suppressed because police conducted a nonconsensual, warrantless
search, an issue appellee began to present at the discontinued initial hearing. But appellee and Flanagan confined their argument at the
consolidated hearing on their motions to suppress to whether, based on the information within the four corners of the search warrant affidavit,
there was probable cause to issue the warrant. And the trial court granted their motions based on that issue.
     2
      The State appealed the trial court’s ruling in both cases and we decide this appeal at the same time we decide State v. Flanagan, case
number 05-14-00975-CR.



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Flanagan “was listed as the resident in CPS case # 42270812[.]” Taylor asked Flanagan if

Taylor and his partner, Investigator S. Ehrman, “could come inside and speak to Flanagan about

a current investigation.” Flanagan said yes and Taylor and Ehrman entered the apartment. Once

inside, Taylor confirmed that appellee and Flanagan lived there and told Flanagan that Taylor

“was at the location in reference to a CPS case.” Appellee, who Officer Taylor said was

observed in a rear bedroom, asked the officers why they were at the apartment. Taylor told

appellee that he was at the apartment “in reference to the CPS case[.]”            Appellee then

volunteered that the apartment was “clean” and that the officers “could look through it.” Taylor

did not search the apartment, but walked around to get an overall view of the living conditions.

       Taylor said that, when he walked through the master bedroom, he “observed a green plant

stem” that he “recognized through his experience as a Narcotics investigator as a Marihuana

stem.” Taylor seized the stem and asked appellee and Flanagan for consent to search the

apartment. Both denied consent. Taylor “immediately secured” the apartment in order to

prepare the application for a warrant.

       Taylor said that he used a department issued field test kit, “Duquenois-Levine Reagent

#908[,]” to perform a field test on the “seized Marihuana stem.” The field test was positive,

“confirming that the stem was Marihuana.”

       Taylor concluded that it was his “experience as a police officer and narcotics investigator

that persons who use and sell Marihuana do possess quantities of packaged Marihuana

secreted inside their residence and out buildings.”

The Hearing on the Motions to Suppress

       During the consolidated hearing on the motions to suppress, appellee’s attorney

“accede[d] to” counsel for Flanagan arguing the issue of the sufficiency of the affidavit to

support the search warrant and “urge[d] this with him.” Flanagan’s counsel argued that “the only

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probable cause given is they found a marijuana stem” and “that alone is not sufficient for a

magistrate to issue a search warrant of a home.” Flanagan’s counsel argued that there was no

evidence in the search warrant that appellee and Flanagan were involved in the sale of drugs, no

evidence of equipment and money associated with the sale of drugs, and no evidence that the

defendants were under the influence of marijuana or that there was any immediate prior activity

of marijuana use at the location. He argued that “[a]ll we have here [was] a stem,” and, as a

result, “within the four corners of the affidavit,” there was not enough evidence to establish

probable cause.

       In response, the State argued that the court should follow constitutional principles

requiring it to defer to the magistrate’s determination of probable cause and that the stem was not

the only basis for probable cause. The State argued that the affidavit stated that the detective

went to the residence in response to a CPS case concerning suspected drug use by appellee and

Flanagan. The State contended that, once the detective saw evidence of drug use in the house,

there was probable cause for a warrant and, as a result, the warrant on its face was sufficient.

The State also contended that the CPS report was “referenced in the affidavit” and it was “in the

warrant, so [it was] evidence before the Court.”

       The defendants’ counsel argued that the CPS report was not the basis of the affidavit nor

was it in evidence. When asked by the trial court if the CPS report was presented to the

magistrate, the prosecutor responded that he did not know—to which the court replied, “Doesn’t

count.” The prosecutor argued that the report did not have to be presented to the magistrate.

And he argued that detectives and officers often use anonymous tips and information people tell

them. He said this information was not anonymous—but rather the CPS communicated the

information and the officer listed the CPS case report number and location address, and

“specifically allege[d] drug use was the basis of the CPS investigation.”

                                               –4–
       The court asked what “distinguishing characteristic” would enable an experienced

narcotics investigator to determine that a green plant stem was marijuana as opposed to another

type of green plant stem. The State replied that the detective testified that he could tell that the

stem was a marijuana stem based on his training and experience.

       The court granted the motions to suppress and the State appealed.

                         STANDARD OF REVIEW AND APPLICABLE LAW

       The Fourth Amendment establishes a constitutional preference that a search be conducted

pursuant to a warrant. Jones v. State, 364 S.W.3d 854, 856–57 (Tex. Crim. App. 2012) (citing

Illinois v. Gates, 462 U.S. 213, 236 (1983)); see U.S. CONST. amend. IV. Under Texas law, no

search warrant may issue without a sworn affidavit that sets forth facts sufficient to establish

probable cause. See TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005), art. 18.01(b), (c) (West

Supp. 2014); see also TEX. CONST. art. 1, § 9. Probable cause exists when, under the totality of

the circumstances, there is a fair probability that contraband or evidence of a crime will be found

at the specified location.    State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).

Probable cause is a “flexible and non-demanding standard.” State v. McLain, 337 S.W.3d 268,

272 (Tex. Crim. App. 2011).

       We normally review a trial court’s ruling on a motion to suppress by using a bifurcated

standard of review, where we give almost total deference to the historical facts found by the trial

court and review de novo the trial court’s application of the law. Id.at 271. But when the trial

court is determining probable cause to support the issuance of a search warrant, there are no

credibility determinations. Id. Rather the trial court is constrained to the four corners of the

affidavit. Id. Because of the constitutional preference for searches to be conducted pursuant to a

warrant, we apply a highly deferential standard of review to a magistrate’s probable-cause

determination. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); McLain, 337

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S.W.3d at 271. Under this highly deferential standard, we interpret the supporting affidavit in a

commonsensical and realistic manner, and we defer to all reasonable inferences that the

magistrate could have made. McLain, 337 S.W.3d at 271; Rodriguez v. State, 232 S.W.3d 55, 61

(Tex. Crim. App. 2007); see Bonds, 403 S.W.3d at 873.           We consider the totality of the

circumstances and determine whether there are sufficient facts stated within the four corners of

the affidavit, coupled with inferences from those facts, to establish a fair probability that

evidence of a particular crime would be found at a given location. See Rodriguez, 232 S.W.3d at

62; see also Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). As long as the

magistrate had a substantial basis for concluding that probable cause existed, we will uphold the

magistrate’s probable-cause determination. Bonds, 403 S.W.3d at 873; McLain, 337 S.W.3d at

271 (“When in doubt, we defer to all reasonable inferences that the magistrate could have

made.”); see also Gates, 462 U.S. at 238–39. Although the reviewing court is not a “rubber

stamp,” “the magistrate’s decision should carry the day in doubtful or marginal cases, even if the

reviewing court might reach a different result upon de novo review.” Jones, 364 S.W.3d at 857

(quoting Flores, 319 S.W.3d at 702).

                                          ARGUMENTS

       The State argues that the trial court erred by granting the motion to suppress because the

search warrant affidavit contained sufficient facts to provide the issuing magistrate with a

substantial basis for concluding that there was a fair probability that marijuana or evidence

related to illegal drugs would be present at the target address and that a search of that location

would yield evidence related to illegal drugs. The State argues that the affiant’s discovery of a

stem that he confirmed to be a marijuana stem in the target residence was “sufficient in and of

itself” to establish probable cause. The State also argues that (1) the trial court’s expressed

doubts concerning how a trained narcotics officer could identify that a green stem was a

                                               –6–
marijuana stem and (2) its comments indicating that the court did not consider “the existence of

the CPS report” reflected that the trial court did not give proper deference to the magistrate’s

determinations and did not consider all facts in the affidavit. The State contends that the

magistrate was entitled to find affiant Taylor’s statements concerning his discovery and

recognition of a marijuana stem and his confirmation that the stem was marijuana through a field

test to be credible.   And the State contends that the magistrate was entitled to credit the

information that CPS provided affiant Taylor, and—if the “basic factual assertions”

communicated to Taylor about the CPS report were conclusory—the magistrate was entitled to

give conclusory statements some weight.

       Appellee argues that the trial court did not err when it granted the motion to suppress

because Flanagan did not consent to Taylor entering the apartment or, if consent was given, it

was coerced or Taylor “exceeded the consent given to enter the apartment[.]” But appellee did

not rely on those arguments at the consolidated hearing at which the trial court granted the

motion based on the issue of the sufficiency of the affidavit to support probable cause and

appellee does not support her arguments with citations to the record or authorities on appeal. See

TEX. R. APP. P. 38.1(i). As a result, she presents nothing for our review on the issue of consent.

       Appellee also incorporates the brief filed by Flanagan “in its entirety” into her brief. As

we have noted, we decide Flanagan’s appeal simultaneously with our decision in this case.

Lashbrook does not raise any different facts or arguments with respect to Flanagan’s response to

the State’s issue. As a result, for the reasons stated in State v. Flanagan, case number 05-14-

00975-CR, we do not need to separately address those arguments here and, as we did with

Flanagan’s case, we decide the issue in favor of the State.




                                                –7–
                                          CONCLUSION

       We reverse the trial court’s order granting appellee’s motion to suppress and remand this

case for further proceedings consistent with this opinion.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


Do Not Publish
Tex. R. App. P. 47.2(b)

140974F.U05




                                               –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the 292nd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00974-CR        V.                       Trial Court Cause No. F12-23860.
                                                   Opinion delivered by Justice Lang-Miers,
AMBER LASHBROOK, Appellee                          Justices Francis and Whitehill participating.


       Based on the Court’s opinion of this date, the order of the trial court is REVERSED and
the cause REMANDED for further proceedings.


Judgment entered this 6th day of August, 2015.




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