            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-0946-10


                                    THE STATE OF TEXAS

                                                 v.

                              CHRIS ALLEN MCLAIN, Appellee

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SEVENTH COURT OF APPEALS
                                HALE COUNTY

       HERVEY , J., delivered the opinion of the Court in which KELLER , P.J., MEYERS,
PRICE, WOMACK , KEASLER and COCHRAN , JJ., joined. JOHNSON , J., filed a dissenting
opinion.

                                         OPINION


       A Hale County Grand Jury indicted appellee on a charge of possession with the intent to

deliver methamphetamine, in an amount of four grams or more but less than two hundred grams.

Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search

authorized by a search warrant. The trial court granted the motion to suppress, and the court of

appeals affirmed the judgment. We will reverse and remand to the trial court.
                                                                                          Mclain–2

I. FACTUAL BACKGROUND

        Plainview Police Department police officers executed a search warrant at Appellee’s

home and business on February 27, 2009. During the execution of the search warrant, the officers

seized over 100 grams of methamphetamine. A Hale County grand jury indicted the Appellee on

April 17, 2009. Appellee’s counsel filed a motion to suppress on June 16, 2009. The trial court

granted the suppression motion on July 14, 2009. In the trial court’s findings of fact and

conclusion of law, it found that “there was no point of reference given in the affidavit for any

time frame for any of the substantive information in the affidavit” to support the magistrate’s

finding of probable cause. The affidavit supporting the search warrant, in whole, reads as follows:

       The Affiant, Ramiro Sanchez is a certified peace officer of The State Of Texas, is
       employed by the Plainview Police Department, who is assigned to the Criminal
       Investigation Division as the Narcotics Detective. The Affiant is in good standing with his
       employing agency and with the State Of Texas. The Affiant has received information
       from unknown callers through the crime line, office phone and cell phone that Chris
       McClain is storing and selling methamphetamine “meth” at his residence and business,
       which is 3607 N. Columbia. Some of the callers stated that Chris is also buying or taking
       stolen items for payment on narcotics. The Affiant has previous knowledge that Chris was
       a user of methamphetamine and had been seen with other users and dealers of
       methamphetamine, who were under investigation by the Affiant at that time. The Affiant
       set up surveillance on the suspected place and did observe some minute traffic, which is a
       sign of narcotics trafficking from the affiant’s training and experience. The Affiant
       observed some persons coming and going from the suspected place to be known users or
       dealers of narcotics, from past investigations. The time of the traffic varied but appeared to
       be most heavy at night, which is very common in the use or sale of methamphetamine. The
       Affiant then received the same information from different confidential informants. All
       informants have given true information in the past and are in good standing. The
       information received advised that Chris was using and selling methamphetamine. The
       informants advised that Chris was also buying and taking as payment for “meth”, stolen
       items like welders, generators, vehicle parts, vehicles, trailers, trucks, tools, guns and
       many other items. They also advised that Chris will hide or store the methamphetamine in
       all different kinds of places, from inside the residence and shop to the vehicles and trailers
       on property. Inside the residence there is a fireplace and some of the bricks around it are
       loose and used to hide the “meth”. In the shop, some of the tool boxes are used to store it
       and also the office in the shop. In the past 72 hours, a confidential informant advised the
                                                                                            Mclain–3

       Affiant that Chris was seen in possession of a large amount of methamphetamine at his
       residence and business. The informant again advised that Chris will hide or store the
       methamphetamine in all different places on the property. The informant is trustworthy,
       credible, and reliable and holds a steady fulltime job. Therefore the Affiant has reason to
       believe and does believe that methamphetamine “meth” is being sold and stored at 3607
       N. Columbia. The Affiant asks that the identity of the informant be kept secret for security
       reasons.

       The State claimed on direct appeal that the trial court abused its discretion in granting the

suppression motion because the statement about the “past 72 hours” could imply that the

informant saw Appellee with the methamphetamine during that time. The court of appeals

disagreed, reasoning that “such implication is not supported by the plain text of the affidavit,”

and that under a common sense reading of the affidavit, the reference to the “past 72 hours”

referred to when the detective spoke to the informant, not to when the informant got the

information about the Appellee.1 Focusing solely on the “past 72 hours” statement in the search

warrant affidavit, the court of appeals decided that the “affidavit fail[ed] to give the magistrate any

idea of when any of the activity which allegedly supports the issuance of a warrant occurred”

which was “fatal to the efficacy of the affidavit.”2

II. DISCUSSION

                                        Grounds for Review

       This Court granted review of the following grounds: (1) Does an appellate court violate

the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applies rules of

grammar and syntax in its analysis? (2) Is it appropriate for an appellate court to base its opinion

on implications found within a warrant affidavit, rather than deferring to any reasonable


       1
           See State v. McLain, 310 S.W.3d 180, 183 (Tex. App.–Amarillo 2010).
       2
           See id.
                                                                                              Mclain–4

inferences the reviewing magistrate could have drawn from the affidavit? (3) Did the appellate

court err by failing to address whether the trial court afforded appropriate deference to the

reviewing magistrate’s implicit finding that the informant described in the affidavit saw the

methamphetamine “in the past 72 hours?”

                     Standard of Review And Requirement of Probable Cause

        This Court normally reviews 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.3 However, when the

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

credibility determinations, rather the trial court is constrained to the four corners of the affidavit.4

Accordingly, when we review the magistrates’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.5 As long as the magistrate had a substantial basis

for concluding that probable cause existed, we will uphold the magistrate’s probable cause

determination.6

        We are instructed not to analyze the affidavit in a hyper-technical manner.7 When



        3
            Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).
        4
            Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).
        5
        Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim. App. 2004) (citing Illinois v.
Gates, 462 U.S. 213, 234-37 (1983)).
        6
             Gates at 236.
        7
            Id.
                                                                                          Mclain–5

“reviewing a magistrate’s decision to issue a warrant, trial and appellate courts apply a highly

deferential standard in keeping with the constitutional preference for a warrant. Thus, when an

appellate court reviews an issuing magistrate’s determination, that court should interpret the

affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences. When in doubt, we defer to all reasonable inferences that the magistrate

could have made.”8

       Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search

warrants, the United States Supreme Court has provided incentives for law-enforcement officials

to obtain warrants instead of conducting warrantless searches.9 One incentive is a less-strict

standard for reviewing the propriety of a search conducted pursuant to a warrant.10 In this

situation, courts must give great deference to the magistrate’s probable-cause determination.11

Both appellate courts and trial courts alike must give great deference to a magistrate’s implicit

finding of probable cause.12

       An evaluation of the constitutionality of a search warrant should begin with the rule “the

informed and deliberate determinations of magistrates empowered to issue warrants are to be




       8
         Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007) (footnotes and citations
to authority omitted)..
       9
           Lane v. State, 971 S.W.2d 748, 750-51 (Tex. App.—Dallas 1998, pet. ref’d).
       10
            Rodriguez at 61; Ornelas v. United States, 517 U.S. 690 (1996).
       11
            Rodriguez at 61; Gates, 462 U.S. at 234-37.
       12
            Rodriguez at 61.
                                                                                           Mclain–6

preferred over the hurried action of officers who may happen to make arrests.”13 Reviewing

courts should not “invalidate the warrant by interpreting the affidavit in a hypertechnical, rather

than commonsense, manner.”14 When in doubt, the appellate court should defer to all reasonable

inferences that the magistrate could have made.15

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

particular item will be found in a particular location.16 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.17 It is a flexible and non-demanding standard.18 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.”19

                                              Analysis

       The court of appeals violated the prohibition on “hypertechnical” review of a warrant

       13
            Rodriguez at 59.
       14
            Rodriguez at 59.
       15
            Id. at 61
       16
          Id. at 61; U.S. CONST. amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.”)
       17
            Rodriguez at 61.
       18
            Id.
       19
             Flores v. State, 827 S.W.2d 416, 418 (Tex. App.— Corpus Christi 1992, pet. ref’d.);
see also Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. 1982) (affidavit is “inadequate
if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that
the event upon which the probable cause was founded was not so remote as to render it
ineffective”) (internal quotes omitted).
                                                                                           Mclain–7

affidavit when it strictly applied rules of grammar and syntax in its analysis. Further, the court of

appeals reviewed the affidavit by focusing on what the officer “implied” rather than on what the

magistrate could have reasonably inferred. The words “implies” and “inference” speak to

information not specifically stated.20 However, it is the reasonableness of the magistrate’s

conclusions based on facts and inferences which is the proper standard. The Supreme Court has

explained how we must review determinations of probable cause:

         [A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the
         form of de novo review. A magistrate’s determination of probable cause should be paid
         great deference by reviewing courts. . . . A grudging or negative attitude by reviewing
         courts toward warrants . . . is inconsistent with the Fourth Amendment’s strong preference
         for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by
         interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.”21

         The court of appeals acknowledged that a highly deferential standard applies to the

magistrate’s decision in an affidavit, but failed to apply that standard in the case at hand. The

court of appeals analyzed, in isolation, the sentence, “In the past 72 hours, a confidential

informant advised the Affiant that Chris was seen in possession of a large amount of

methamphetamine at his residence and business.” The court of appeals agreed with the trial court

that the affidavit “lacked any specificity regarding when the matters referenced” occurred and held

that a “common sense reading” indicated that the affidavit’s reference to the “past 72 hours”

referred to “when the affiant spoke to the confidential informant, not when the confidential




         20
              THE AMERICAN HERITAGE BOOK OF ENGLISH USAGE (Houghton Mifflin,
1996).
         21
         Gates, 462 U.S. at 236 (citations and internal quotes omitted); United States v.
Ventresca, 380 U.S. 102, 108 (1965).
                                                                                           Mclain–8
informant acquired the information.”22 The court of appeals’s analysis conflicts with the

established requirement that courts review warrant affidavits as a whole.23 As a result, it found

that the affidavit failed to provide probable cause.

       While the plain meaning of the aforementioned statement, read literally, fails to clearly

indicate exactly when the informant observed Appellee in possession of the methamphetamine,

we believe that the magistrate could have reasonably inferred that the informant observed

Appellee with the methamphetamine within the past 72 hours. By looking at the affidavit in its

entirety, and not just this one sentence in isolation, it certainly would have been reasonable for the

magistrate, considering all the facts in the affidavit along with reasonable inferences from those

facts, to conclude that there was a fair probability that there was methamphetamine at appellee’s

home at the time of the issuance of the warrant. We also believe that a magistrate’s experience

and expertise in these matters would indicate that the time at which the affiant received the

information from the confidential informant that Appellee possessed methamphetamine was

irrelevant, but that the time at which the confidential informant observed such possession was

necessary to establish probable cause. And if there was any doubt, the trial and appellate courts

both should have deferred to the magistrate’s determination.24 They failed to do so.

       We further note that other information in the affidavit from “unknown callers” stating that

appellant “is storing and selling methamphetamine ‘meth’ at his residence and business”

combined with the affiant’s statements in the affidavit regarding the affiant’s surveillance and



       22
            McLain at 183.
       23
            Hall v. State, 795 S.W.2d 195, 197 (Tex. Crim. App. 1990).
       24
            Rodriguez at 61.
                                                                                            Mclain–9
observations consistent with ongoing drug activity at appellant’s residence and business could

also justify a magistrate’s conclusion that methamphetamine was probably at the suspected place

when the warrant issued (emphasis supplied). See Flores, 827 S.W.2d 419 (use of present verb

tense in affidavit that confidential informant advised affiant that “there is stolen property at the

suspected residence” supported magistrate’s conclusion that the stolen items were at the suspected

place when he issued the warrant) (emphasis in original) and at 420 (“When stolen items have

been viewed more than once, and there is nothing to suggest that the stolen items will not be at the

suspected place in the future, the magistrate may weigh this fact in his calculations concerning the

probability that the items will be on the suspected property.”); Swearingen, 143 S.W.3d at 813

(Cochran, J., dissenting) (staleness of information in a search warrant affidavit depends on the

particular circumstances of the case: “An ongoing enterprise tends to continue over time, but a

single possession of a consumable contraband may be over with a gulp or snort and never

reoccur”); see also United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (“Where the

affidavit recites a mere isolated violation it would not be unreasonable to imply that probable

cause dwindles rather quickly with the passage of time. However, where the affidavit properly

recites facts indicating activity of a protracted and continuous nature, a course of conduct, the

passage of time becomes less significant.”).

       As stated in Rodriguez, "the informed and deliberate determinations of magistrates

empowered to issue warrants are to be preferred over the hurried action of officers who may

happen to make arrests."25 The opinion of the court of appeals chose the “hurried” words of the

officer over reasonable inferences that the magistrate could have made. Both the trial court and


       25
            Rodriguez at 59.
                                                                                         Mclain–10
the court of appeals were reviewing the affidavit in search of what the affiant was conveying as

the author of the affidavit, rather than inquiring into the reasonableness of the conclusions drawn

by the magistrate (i.e., they were reviewing the affidavit in search of what the affiant was

implying or conveying by the statement “in the last 72 hours” and not in search of what the

magistrate could have reasonably inferred from that statement). Reviewing courts should only be

concerned with whether the magistrate’s determination in interpreting and drawing reasonable

inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing

courts should defer to all reasonable inferences that the magistrate could have made.

III. CONCLUSION

        We reverse the judgment of the court of appeals and remand this case to the trial court for

further proceedings not inconsistent with this opinion.



                                                              Hervey, J.


Delivered: April 13, 2011
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