                                  NUMBER 13-14-00588-CR

                                  COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                                          Appellant,

                                                     v.

CHRISTOPHER ALEXSON
PAPPILLION,                                                                                   Appellee.


                        On appeal from the 24th District Court
                             of Victoria County, Texas.


                              MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza and Longoria
                    Memorandum Opinion by Justice Garza

        Appellee, Christopher Alexon Pappillion, was charged with several drug-related

offenses1 and filed a motion to suppress evidence. The trial court granted the motion and


        1 Specifically, Pappillion was charged by indictment with: (1) possessing with intent to deliver more

than four but less than 200 grams of cocaine, a first-degree felony, see TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(d) (West, Westlaw through Ch. 46, 2015 R.S.); (2) possessing with intent to deliver more than
80 but less than 4,000 abuse units of lysergic acid diethylamide (LSD), a first-degree felony, see id.
the State of Texas now appeals, arguing by three issues that: (1) the trial court erred in

determining that there was no probable cause to search Pappillion’s residence; (2) the

trial court erred in finding that there was a “reckless disregard for truth” in the search

warrant affidavit; and (3) suppression of evidence was not the appropriate remedy for a

Franks violation. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). We reverse

and remand.

                                           I. BACKGROUND

        On January 16, 2014, Victoria Police Department officers executed a search

warrant at Pappillion’s residence. The warrant was issued by a district judge two days

prior based on a sworn affidavit by Detective Dennis Paine. The affidavit stated in

relevant part as follows:

        a. Within the past 72 hours (2014.01.13.2146 y.m.d.t) the Victoria Police
           Department Special Crimes Unit (SCU) conducted a controlled
           purchase of cocaine through the use of a Confidential Informant (CI
           #254). The information provided by the confidential informant has
           proven to be reliable and credible and has been verified by officer
           observation and monitored recordings.

        b. The identity of the CI #254 will not be placed in this affidavit for the safety
           and security of the CI.

        c. The CI #254 met with VPD Detectives at a designated staging area prior
           to the Controlled Purchase. The Cl #254 and the CI’s vehicle were
           searched by this affiant and Detective McDonald, and no contraband
           was located. The CI #254 was fitted with a body wire to provide audio
           surveillance of the controlled purchase.


§ 481.1121(b)(3) (West, Westlaw through Ch. 46, 2015 R.S.); (3) possessing with intent to deliver more
than 400 grams of “a synthetic chemical compound that is a cannabinoid receptor agonist that mimics the
pharmacological effect of naturally occurring cannibinoids,” a first-degree felony with a minimum sentence
of ten years’ imprisonment, see id. § 481.113(e) (West, Westlaw through Ch. 46, 2015 R.S.); (4) possessing
more than four ounces but less than five pounds of marihuana, a state-jail felony, see id. § 481.121(b)(3)
(West, Westlaw through Ch. 46, 2015 R.S.); (5) possessing with intent to deliver more than 28 grams but
less than 200 grams of an “anabolic steroid or a substance that is chemically or pharmacologically related
to testosterone and that promotes muscle growth,” a second-degree felony, see id. § 481.114(c) (West,
Westlaw through Ch. 46, 2015 R.S.); and (6) tampering with physical evidence, a third-degree felony, see
TEX. PENAL CODE ANN. § 37.09(d)(1) (West, Westlaw through Ch. 46, 2015 R.S.).
                                                    2
      d. The Cl #254 was issued $300.00 of US Currency from the VPD
         Narcotics fund to purchase $300.00 of cocaine. The CI #254 responded
         to 201 Wearden Dr., where the controlled Purchase took place.
         Throughout the duration of the controlled purchase the CI #254 was
         monitored physically and through the body wire. The Cl’s vehicle was
         parked in the driveway of 201 Wearden for several minutes. After the
         cocaine was purchased from the location, the CI’s vehicle left the
         location and was followed by SCU Detectives.

      e. The CI #254 then met with this affiant and the other VPD SCU
         Detectives at a designated staging area. The cocaine that was
         purchased was collected by Detective McDonald. This affiant observed
         the substance to be a white hard chunk in a clear plastic sandwich bag.
         I recognized this substance to be cocaine from many previous narcotics
         arrests/investigations.

      f. The substance was field tested by Sgt Fetters with a Nartec brand
         cocaine field tester which turned blue, indicating a positive result for the
         presence of cocaine. The substance was secured and transported to
         the VPD where it was weighed (13.26 net grams), and tagged in as
         evidence and secured in an evidence locker.

      g. Through previous investigations this affiant knows that 201 Wearden Dr.
         is the residence of Christopher Pappillion W/M 03/01/80. The VPD SCU
         has police intelligence from multiple sources that Pappillion is a drug
         dealer. The VPD SCU performed some additional surveillance at the
         location and no further action was taken at that time.

      h. An anonymous source within the past few months informed the VPD
         SCU with information provided alleged [sic] that Pappillion had a large
         safe in his bedroom that is full of Steroids, and other contraband.

          ....

      m. Based upon the above facts, through the perspective of this affiant’s
         training and experience, this affiant has reason to believe and this affiant
         does believe that illegal narcotics are inside the residence in violation of
         the Texas Health and Safety Code.

(Emphasis in original.) In executing the warrant, police discovered various illegal drugs

including cocaine, LSD, marihuana, synthetic marihuana, and steroids.

      Pappillion was charged and moved to suppress the drug evidence, alleging that

the actions of the Victoria Police Department violated his constitutional and statutory
                                            3
rights. The motion specifically alleged that the affidavit upon which the search warrant

was based was “improperly and illegally executed” because, among other things, the

affidavit “does not reflect probable cause to justify the issuance of a search warrant” and

contained information “that the affiant officer knew was false or would have known was

false except for his reckless disregard for the truth.”

       At a suppression hearing, Paine testified that he is familiar with the facts contained

in his affidavit. The following colloquy occurred:

       Q. [Defense counsel] And in that affidavit you make the claim that C.I. 254
                            made a controlled purchase, correct?

       A. [Paine]             Yes, sir.

       Q.                     What is a controlled purchase?

       A.                     It was a controlled purchase of a controlled
                              substance or any narcotic under the supervision of
                              the special crimes unit with the organization of a C.I.
                              or an undercover [o]fficer . . . .

       Q.                     And in that affidavit he made a controlled buy,
                              correct?

       A.                     Yes, sir.

       Q.                     And in reality he didn’t make a controlled buy did he?

       A.                     In actuality, no, he didn’t actually purchase the
                              substance. It was a third-party that went into the
                              location and purchased it.

       Q.                     And so just in summary of what happened you—and
                              if I say anything incorrect, please let me know. Y’all
                              searched the C.I., wired him, correct, so you can hear
                              his conversation—

       A.                     Yes.

       Q.                     —and record it? . . . . There was a known party
                              Nathan that he was going to purchase cocaine from,
                              correct?

       A.                     Yes, sir.
                                              4
Q.   And he contacted Nathan and Nathan didn’t have any
     cocaine, did he?

A.   That's correct.

Q.   So they picked up Nathan’s car and picked up one of
     Nathan’s friends, correct?

A.   They remained in the C.I.’s vehicle and then picked
     up one of Nathan’s friends, yes, sir.

Q.   So they went and picked up Ivan Casas, correct?

A.   Yes, sir.

Q.   He was supposed to get Nathan some cocaine,
     correct?

A.   Correct.

Q.   He didn’t have any?

A.   That’s correct.

Q.   So he called his friend Jose Partida (phonetic),
     correct?

A.   No. Jose was the second subject. Ivan was the last
     person they contacted, I’m sorry.

Q.   Okay. Who was the fourth person—the third person
     he picked up?

A.   Ivan.

Q.   Ivan?

A.   Yes.

Q.   C.I. picked up Nathan first or Ivan first?

A.   Nathan.

Q.   They picked up Nathan?

A.   Correct.

Q.   And they picked up Ivan?

A.   Jose.
                       5
Q.   And then they picked up Jose second?

A.   Yes, sir.

Q.   And Jose didn’t have any cocaine, correct?

A.   That’s correct.

Q.   So then he calls his supplier Ivan, right?

A.   Yes.

Q.   And they pick up Ivan and Ivan doesn’t have any
     cocaine, correct?

A.   That’s correct.

Q.   And Ivan texted to 201 Wearden?

A.   Yes, sir.

Q.   And leaves the vehicle and comes back with the
     cocaine, correct?

A.   That’s correct.

Q.   You ever dealt with Ivan before?

A.   No, sir.

Q.   Know anything about his truthfulness or veracity?

A.   No, sir.

Q.   Is he trustworthy?

A.   No, sir.

Q.   And the confidential informant didn’t witness the
     transaction, correct?

A.   I couldn’t hear you.

Q.   The Confidential Informant No. 254 he didn’t witness
     that transaction at 201 Wearden did he?

A.   No, sir, he did not go inside the residence.

Q.   And you didn’t put that in the affidavit did you?

                       6
       A.                      I don’t believe so, sir.

       Q.                      So basically the C.I. purchased cocaine from Ivan,
                               correct? You gave him money and got cocaine in
                               receipt?

       A.                      Yes.

       Q.                      And you don’t know who Ivan dealt with inside the
                               house?

       A.                      He said it was a friend, a roommate of Mr. Pappillion.

       Q.                      Who said that?

       A.                      Ivan.

       Q.                      And when did you talk to Ivan that night?

       A.                      I didn’t talk to him, sir, it was on the wire.

       Q.                      I’m sorry.

       A.                      It was on the wire. You could hear the conversation.

       Q.                      And you recently provided that wire to the D.A.’s
                               office?

       A.                      Yes, sir.

       Q.                      But not with the initial case, right?

       A.                      No, sir.

       Q.                      And this offense report you used to review for this
                               undercover buy—you didn’t initially provide that to the
                               D.A.’s office did you?

       A.                      No, sir.

       On cross-examination by the State, Paine testified that he did not put the names

of Ivan, Nathan or Jose in the affidavit in order “[t]o protect the informant’s identity.” He

testified that he was not trying to deceive the magistrate by leaving out the information

that Ivan Casas, rather than the confidential informant, was the one who went into the

location to buy the cocaine.

                                               7
       The trial court granted the motion to suppress. In its order, it stated that the

information in the affidavit “is conclusory and lacks sufficient underlying facts to establish

probable cause to issue a search warrant.” The order further stated as follows:

       Concerning the actual purchase of cocaine at 201 Wearden Dr., the affidavit
       in this case only indicates that the CI “responded to 201 Wearden Dr., where
       the controlled purchase took place”, “[t]he CI’s vehicle was parked in the
       driveway of 201 Wearden for several minutes”, and “[a]fter the cocaine was
       purchased from the location, the CI’s vehicle left the location . . .” There is
       not any indication in the affidavit whether the contraband could only have
       been obtained from inside the suspected place.

       This case is distinguishable from Athey v. State, [No. 13-06-129-CR, 2007
       WL 2389599, at *1 (Tex. App.—Corpus Christi Aug. 23, 2007, no pet.)
       (mem. op., not designated for publication)], the affiant in Athey indicating in
       the affidavit that he observed the informant “go directly into the suspected
       place” and setting forth in the affidavit that the contraband could have only
       been obtained from inside the suspected place.

       The testimony at the hearing also points out a “reckless disregard for the
       truth” Franks hearing issue. The statements in the affidavit create an
       inference that CI#254 went inside the residence at 201 Wearden and
       purchased the cocaine. The testimony at the hearing indicates that it was
       [a] person other than the CI that went inside the location and the CI then
       purchased the cocaine from this person, the CI not being a witness to any
       transaction occurring inside the location.

This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw

through Ch. 46, 2015 R.S.).

                                       II. DISCUSSION

A.     Standard of Review and Applicable Law

       “The cornerstone of the Fourth Amendment and its Texas equivalent is that a

magistrate shall not issue a search warrant without first finding ‘probable cause’ that a

particular item will be found in a particular location.” Rodriguez v. State, 232 S.W.3d 55,

60 (Tex. Crim. App. 2007) (footnote omitted). “Probable cause exists when, under the

totality of the circumstances, there is a ‘fair probability’ that contraband or evidence of a


                                              8
crime will be found at the specified location.” Id. Probable cause is a “flexible and

nondemanding” standard, but “probability cannot be based on mere conclusory

statements of an affiant’s belief.” Id. at 60–61. Instead, the affiant must present an

affidavit that “allows the magistrate to independently determine probable cause” and “the

magistrate’s action[s] cannot be a mere ratification of the bare conclusions of others.” Id.

(internal quotations omitted). Moreover, the facts stated in a search affidavit “must be so

closely related to the time of the issuance of the warrant that a finding of probable cause

is justified.” State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011).

       We do not analyze the affidavit in a hyper-technical manner; rather, we interpret it

in a common-sensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences. Rodriguez, 232 S.W.3d at 61. When in doubt, we defer to all

reasonable inferences that the magistrate could have made. McLain, 337 S.W.3d at 272;

Rodriguez, 232 S.W.3d at 61.

       Ordinarily, we 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. McLain,

337 S.W.3d at 271. However, when the trial court is determining whether probable cause

exists to support the issuance of a search warrant, it makes no credibility determinations

because the court is constrained to the four corners of the affidavit. Id. Accordingly, when

we review a magistrate’s decision to issue a warrant, we apply a “highly deferential

standard because of the constitutional preference for searches to be conducted pursuant

to a warrant as opposed to a warrantless search.” Id. “As long as the magistrate had a

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

magistrate’s probable cause determination.” Id.
                                             9
             [W]here the defendant makes a substantial preliminary showing that
      a false statement knowingly and intentionally, or with reckless disregard for
      the truth, was included by the affiant in the warrant affidavit, and if the
      allegedly false statement is necessary to the finding of probable cause, the
      Fourth Amendment requires that a hearing be held at the defendant’s
      request. In the event that at that hearing the allegation of perjury or reckless
      disregard is established by the defendant by a preponderance of the
      evidence, and, with the affidavit’s false material set to one side, the
      affidavit’s remaining content is insufficient to establish probable cause, the
      search warrant must be voided and the fruits of the search excluded to the
      same extent as if probable cause was lacking on the face of the affidavit.

Franks, 438 U.S. at 155–56. Under Franks, the false statement in the affidavit must have

been either intentional or made with reckless disregard for the truth, and must have been

necessary to the finding of probable cause, in order to render the warrant invalid. Dancy

v. State, 728 S.W.2d 772, 782 (Tex. Crim. App. 1987) (citing Franks, 438 U.S. at 155–

56). A misstatement in an affidavit that is merely the result of simple negligence or

inadvertence, as opposed to reckless disregard for the truth, will not render invalid the

warrant based on it. Id. at 783 (citing Franks, 438 U.S. at 171).

B.    Analysis

      We find that Pappillion established by a preponderance of the evidence at the

suppression hearing that Paine’s affidavit contained a false statement and that Paine

made the false statement with at least a reckless disregard for the truth. See Franks, 438

U.S. at 155–56. The affidavit stated in part that police “conducted a controlled purchase

of cocaine through the use of a Confidential Informant” and that “[t]he CI #254 responded

to 201 Wearden Dr., where the controlled Purchase took place.” This was contradicted

by Paine’s testimony at the suppression hearing that the confidential informant “didn’t

actually purchase the substance,” “did not go inside the residence,” and did not witness

the transaction at the residence.

      The State urges us to conclude that there were no false statements in the affidavit.
                                            10
The State notes that the affidavit merely stated (1) that the confidential informant

“responded to 201 Wearden Dr.,” (2) that the controlled purchase “took place” at that

location, and (3) that the confidential informant’s vehicle “left the location” after “the

cocaine was purchased from the location.” The State argues that these statements, taken

individually, are true. That may be so. But, when taken together, the statements in

Paine’s affidavit—including the statement that police “conducted a controlled purchase of

cocaine through the use of a Confidential Informant”—unmistakably implied that the

confidential informant was the one who made the controlled purchase from Pappillion’s

residence. That implication was not true, according to Paine’s suppression hearing

testimony. Instead, Ivan Casas made the purchase.

       The State points out that, according to the affidavit, the confidential informant was

“monitored physically” by police and therefore could not logically have been inside the

residence at any point. The State also notes that the affidavit stated that the confidential

informant’s vehicle was parked in the driveway of the residence for several minutes, and

it argues that there would be “no logical reason” for the affidavit to have mentioned that

fact “if the purchase did not actually take place in or near that automobile.” We disagree.

Interpreting the affidavit in this manner would be to adopt the “hyper-technical” approach

disfavored by law. See Rodriguez, 232 S.W.3d at 61. Instead, construing the affidavit in

a “common-sensical and realistic manner,” we find that it contained false statements

made with at least reckless disregard for the truth. We therefore overrule the State’s

second issue.

       Nevertheless, a Franks violation is fatal to the warrant only if, “with the affidavit’s

false material set to one side, the affidavit’s remaining content is insufficient to establish

probable cause.” Franks, 438 U.S. at 155–56. Here, even setting aside the statements
                                             11
implying that the confidential informant was the one that purchased cocaine from

Pappillion’s residence, there was still a “substantial basis” upon which the magistrate

could have found probable cause. In particular, it is undisputed that—as the affidavit

stated—cocaine was indeed purchased from Pappillion’s residence. The fact that it was

someone other than the confidential informant that actually made the purchase does not

rob this fact of its probative force.2

        The affidavit additionally stated that, according to “multiple sources,” Pappillion is

a drug dealer. These “multiple sources” were purely anonymous, and there was no

indication that their reports were credible. But, while an anonymous tip alone is generally

insufficient to support a warrant, it is “nevertheless a circumstance to be considered,

along with all of the other circumstances, in the determination of whether probable cause

existed.” Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010). Here, the

anonymous reports that Pappillion was a drug dealer were accompanied by the fact that

a drug transaction took place at Pappillion’s residence. These facts, when taken together,

established probable cause to search.

        The trial court noted in its order that there was no “indication in the affidavit whether

the contraband could only have been obtained from inside the suspected place.”                          The

affidavit did not explicitly state that the contraband could only have been obtained from

inside Pappillion’s house, but it did explicitly state that cocaine was purchased from that




        2  The affidavit emphasized that “[t]he information provided by the confidential informant has proven
to be reliable and credible and has been verified by officer observation and monitored recordings”; whereas
Paine conceded that he has never dealt with Casas before and knew nothing about his truthfulness or
veracity. Paine then testified at the suppression hearing that Casas is not trustworthy.
        But, according to the affidavit, cocaine was purchased from Pappillion’s residence, and Paine’s
testimony did not contradict that fact. Therefore, Casas’s trustworthiness was irrelevant to the
determination of probable cause.
                                                    12
location. In any event, in order to establish probable cause, the affidavit only needed to

establish a “fair probability”—not a certainty—that contraband would be found at the

residence. See Rodriguez, 232 S.W.3d at 60.

       Applying the “highly deferential” standard applicable to the issuance of warrants,

we find that the affidavit, excluding all false and misleading statements, provided a

“substantial basis” upon which the magistrate could have independently determined that

there was a “‘fair probability’ that contraband or evidence of a crime will be found at the

specified location.” See id. Accordingly, the affidavit established probable cause, and

the trial court erred in granting the motion to suppress. The State’s first and third issues

are sustained.

                                     III. CONCLUSION

       We reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion.



                                                 DORI CONTRERAS GARZA,
                                                 Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of July, 2015.




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