      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-07-00210-CR
                                     NO. 03-07-00211-CR



                                 The State of Texas, Appellant

                                                v.

                                  Jesse Keith James, Appellee



                                     NO. 03-07-00212-CR
                                     NO. 03-07-00213-CR



                                 The State of Texas, Appellant

                                                v.

                                   Caroline Blair, Appellee



    FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
    NOS. 5812, 5814 & 5815, 5813, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                           MEMORANDUM OPINION


               After they were indicted for manufacturing methamphetamine and endangering a

child, appellees Jesse Keith James and Caroline Blair moved to suppress evidence seized during the

execution of a warrant to search their residence. The motions were granted, and the State appeals.

See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). The question presented is whether
the affidavit supporting the search warrant stated probable cause. Because we agree with the district

court’s conclusion that the affidavit was inadequate, we affirm the court’s suppression orders.1

                No search warrant may be issued unless the issuing magistrate is presented with

a sworn affidavit setting forth substantial facts establishing probable cause. Id. art. 18.01(b)

(West 2005). Probable cause exists when the affidavit presents facts and circumstances 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); State v. Bradley,

966 S.W.2d 871, 873 (Tex. App.—Austin 1998, no pet.). The sufficiency of a search warrant

affidavit is determined by considering the totality of the circumstances set forth in the affidavit.

Bradley, 966 S.W.2d at 873 (citing Illinois v. Gates, 462 U.S. 213, 234 (1983)). The affidavit

must be interpreted in a common sense and realistic manner, and reasonable inferences may be

drawn from the facts and circumstances found within the four corners of the affidavit. Jones v. State,

833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992); Bradley, 966 S.W.2d at 873. The issuing

magistrate=s determination of probable cause must be given great deference and will be sustained if

the magistrate had a substantial basis for concluding that a search would uncover evidence of

wrongdoing. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004); Johnson v. State,

803 S.W.2d 272, 289 (Tex. Crim. App. 1990); State v. Davila, 169 S.W.3d 735, 738

(Tex. App.—Austin 2005, no pet.).




        1
          The records before us contain written orders granting the motions to suppress in cause
numbers 5812, 5813, and 5814, but it is undisputed that the district court granted the motions to
suppress in all four causes.

                                                   2
               On May 11, 2006, Llano County Deputy Ramona Faison applied for a warrant to

search a residence located at 6730 County Road 216 H7 in Llano County. The affidavit described

the residence as a single-story home and associated outbuildings located on a ranch approximately

two hundred acres in size. The property is fenced and gated. The residence is on a dirt road

approximately four hundred yards from County Road 216 and is not visible from the road.

               In her affidavit, Faison states that she had probable cause to believe that

methamphetamine, precursor chemicals, laboratory equipment, narcotics paraphernalia, and other

evidence of a conspiracy to sell and distribute methamphetamine could be found at the residence

based on these facts:


       •       James and Blair have a “criminal history” involving several offenses,
               including possession of marihuana (the only drug offense listed). The
               affidavit does not state that this history includes any convictions.

       •       Blair had resided at the suspect residence for approximately two years with
               her two children. The residence address was the one shown on Blair’s
               driver’s license. Child protective services workers had twice investigated
               James and Blair at that address for sexual assault of a child. The affidavit
               does not disclose the dates or results of those investigations.

       •       Neighbors had reported to the sheriff “on numerous occasions” that James
               “goes outside at all hours of the night and starts shooting a weapon
               randomly.” According to a “cooperating individual,” James had weapons
               hidden in several places on the ranch and had “displayed symptoms of
               paranoia.” No facts relating to this informer’s credibility or qualifications for
               diagnosing paranoia are mentioned. Based on her training and experience,
               Faison believed that James’s behavior was common among long-term
               methamphetamine users.

       •       Faison had been monitoring the sale in Llano and Burnet Counties of
               products used in the production of methamphetamine. She had verified that
               between June 2004 and August 2005, James and Blair had purchased twenty
               boxes of over-the-counter medicines containing pseudoephedrine, six bottles

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                of hydrogen peroxide, three cases of matches, five bottles of Red Devil lye,
                and a one gallon bottle and six sixteen-ounce bottles of tincture of iodine at
                five named Llano stores. The affidavit explains how these products are used
                to manufacture methamphetamine through the “red phosphorous reduction
                method.”

       •        Since August 1, 2005, James had been unable to purchase pseudoephedrine
                because he did not have a driver’s license or other photo identification.
                Between August 2005 and May 2006, Blair had purchased pseudoephedrine
                products on thirty-nine occasions, sometimes purchasing multiple boxes from
                the same store on the same day.

       •        Blair’s purchases increased beginning March 1, 2006. On March 13, 2006,
                Blair purchased one gallon of tincture of iodine, two bottles of “heat,” and a
                large package of coffee filters at a Llano hardware store.2 On the same day,
                Blair went to five different pharmacies in Llano and Burnet Counties, each
                identified in the affidavit, and purchased one or two boxes of
                pseudoephedrine or ephedrine products in each. On April 22, 2006, Blair
                returned to the same pharmacies and again purchased one or two boxes of
                pseudoephedrine in each store.

       •        On May 1, 2006, Faison was told by the an employee of the Llano hardware
                store that “about two (2) weeks ago” James, who the employee knew on
                sight, purchased two gallons of tincture of iodine, three or four bottles of
                “heat,” a large package of coffee filters, and a pan.

       •        James had been seen by several unnamed individuals and by a named
                sheriff’s deputy purchasing “large quantities” of matches, several gallons of
                distilled water, and “a couple of bottles” of isopropyl alcohol at a Llano
                grocery store. The date of these purchases is not stated.


The warrant was issued and executed on May 11, 2006. During the search, officers seized

methamphetamine and other evidence underlying the instant indictments.

                James and Blair moved to suppress the items seized on the ground that the affidavit

contained no information warranting a belief that the pseudoephedrine and other items they had


       2
           The “heat” referred to in the affidavit is not otherwise described.

                                                   4
allegedly purchased could be found at the residence or had been used there to manufacture

methamphetamine. After hearing the arguments of counsel and taking the matter under advisement,

the district court granted the motions to suppress in a ten-page order explaining its reasoning

with citations to authority. The court concluded that even giving great deference to the issuing

magistrate=s determination of probable cause, the affidavit did not provide a substantial basis for

concluding that a search of the residence would uncover evidence of wrongdoing at the time

the warrant was issued. Specifically, the court held that the affidavit “clearly establishes [that]

James Blair were involved in a conspiratorial agreement to obtain materials for the purpose of

manufacturing methamphetamine, but the affidavit does not articulate sufficient facts to establish

probable cause [to believe that] the manufacture of methamphetamine would occur at the location

sought to be searched.”

                The facts stated in the affidavit suggest that James and Blair were involved in the

unlawful manufacture of methamphetamine. But as the State concedes in its brief, the affidavit

contains no facts directly suggesting that this criminal activity was taking place at the residence at

6730 County Road 216. For example, the affidavit does not state that James or Blair had been seen

taking their suspicious purchases to the residence, that any person had seen chemicals, laboratory

equipment, or methamphetamine at the residence, or that any activities or odors associated with the

production of methamphetamine had been detected at the residence. Nevertheless, the State urges

that inferences arising from facts stated in the affidavit support the magistrate’s conclusion that there

was probable cause to search the residence.




                                                   5
               The State contends that the very location of the residence—in the country and not

visible from the road—warrants the inference that a methamphetamine lab was being operated there.

According to the State, “It is well known, and a reasonable inference, that the manufacturers of

methamphetamine have a preference for rural, isolated settings.” Next, the State argues that because

“it is well known to law enforcement that child abuse and neglect is very often associated with

criminal activity involving methamphetamines, the fact that these [child abuse] investigations

occurred at that same residence” supports an inference that methamphetamine would be found there.

Finally, the State contends that the information regarding hidden weapons, shots fired in the middle

of the night, and James’s paranoia “lead to a reasonable belief that criminal activity involving

methamphetamine was occurring at the residence.” The State argues that “it is a well established

fact that persons involved with methamphetamine often evidence signs of paranoia and ‘stay up all

hours of the night.’” The State further urges that “the gun wielding is consistent in the experience

of law enforcement to indicate clandestine drug activity was occurring at the residence.” The State

argues that the cited facts, taken together with the detailed information regarding the appellees’

purchases of products used to produce methamphetamine, reasonably warrant the conclusion that

James and Blair were manufacturing methamphetamine at the residence.

               The information regarding the C.P.S. investigations, while it serves to establish that

James and Blair lived at the location in question, does not contribute to a finding of probable cause

to believe that methamphetamine or a methamphetamine lab could be found there at the time the

warrant was sought. We do not accept the State’s assertion that child abuse, in itself, is evidence of

methamphetamine use. In any case, the affidavit does not reveal when the C.P.S. investigations took



                                                  6
place or state that any evidence of child abuse (or of methamphetamine production or use) was found

during the investigations. The affidavit’s descriptions of James’s erratic behavior and firearms

use also do not support an inference that evidence of unlawful methamphetamine-related activity

would be found at the appellees’ residence on May 11, 2006. The affidavit is silent as to when the

described activities took place, and we have already noted that the affidavit does not contain any

facts from which the issuing magistrate could conclude that the informer who supplied the

information regarding James’s hidden weapons and paranoid behavior was credible.

                In essence, the only facts stated in the affidavit having any tendency to support a

finding of probable cause to search the residence at 6730 County Road 216 are: (1) the appellees’

purchases of suspiciously large quantities of pseudoephedrine and other products associated with

the illicit production of methamphetamine, (2) the evidence that James and Blair lived at the

residence, and (3) the location of the residence in a rural area. As the district court found, the first of

these facts supports the belief that James and Blair were somehow involved in methamphetamine

production. But the additional showing that James and Blair lived in a rural location does not

alone support a finding of probable cause to believe that methamphetamine production was taking

place at that location. In the absence of any showing that James and Blair had delivered the

methamphetamine ingredients they purchased to their residence or of any other facts tending to

suggest that methamphetamine production was taking place there, the affidavit does not provide a

substantial basis for concluding that methamphetamine was being produced at that location.

                In Robuck v. State, the warrant to search Robuck’s residence was supported by an

affidavit that described how the affiants had discovered $45,000 in currency bearing a strong odor



                                                    7
of marihuana in a box at the local office of a shipping company. 40 S.W.3d 650, 654-55

(Tex. App.—San Antonio 2001, pet. ref’d). The shipper’s address on the box was fictitious. Id.

The box was addressed to Robuck at his home, and Robuck had been calling the shipper inquiring

about its delivery. Id. The affiants asserted that Robuck had “long term involvement . . . in the drug

trade” and that “quantities of currency and other evidence documents are constantly maintained” by

Robuck at his home. Id. at 655. The court of appeals held that the affidavit contained no fact

statements that would support a conclusion that contraband or evidence of a crime would be found

at Robuck’s residence. Id. The general assertion, unsupported by any facts, that currency and other

evidence were kept there was inadequate. Id.

                The affidavit before us in the instant cause is weaker than the affidavit found wanting

in Robuck. In that case, the box containing the odoriferous currency was addressed to Robuck at his

residence. In this case, there are no facts placing the appellees’ methamphetamine-related purchases

at their residence.

                In Ozuna v. State, the affidavit supporting the warrant to search Ozuna’s residence

contained statements of fact to the effect that Ozuna traded stolen items for drugs and carried heroin

on his person. 88 S.W.3d 307, 313 (Tex. App.—San Antonio 2002, pet. ref’d). Beyond the fact that

he lived there, however, the affidavit did not contain any facts suggesting that Ozuna kept, sold, or

traded stolen goods for heroin at his residence. Id. The court of appeals held that the affidavit did

not give the issuing magistrate probable cause to believe that heroin or stolen goods would be found

at that location. Id.




                                                  8
                The affidavit supporting the warrant to search the appellees’ residence is comparable

to the affidavit in Ozuna. Here, as in that case, there are facts tending to show that the appellees

were engaged in unlawful conduct, but no facts showing that the unlawful conduct was occurring

at their residence.

                “It is one thing to draw reasonable inferences from information clearly set forth within

the four corners of an affidavit. . . . It is quite another matter to read material information into an

affidavit that does not otherwise appear on its face.” Cassias, 719 S.W.2d at 590. Giving the

determination of probable cause the great deference it is due, we agree with the district court that the

affidavit did not provide the issuing magistrate a substantial basis for concluding that a search of the

appellees’ residence would uncover methamphetamine, precursor chemicals, laboratory equipment,

or other evidence of the unlawful manufacture, sale, or possession of methamphetamine.

                Citing the C.P.S. investigations mentioned in the affidavit and the dangerous

chemicals and methamphetamine found during the search, the State argues in the alternative that the

search of the appellees’ residence should be upheld pursuant to the emergency aid component of the

community caretaking doctrine. See Laney v. State, 117 S.W.3d 854, 860-61 (Tex. Crim. App.

2003) (citing Mincy v. Arizona, 437 U.S. 385, 392 (1978)). Aside from the fact that the State’s

argument relies in part on the evidence found during the search, which cannot be considered in

determining whether the search was justified at its inception, the State did not present this argument

to the district court. When appealing an order granting a motion to suppress, the State may not attack

the ruling on a legal theory it did not present to the trial court. State v. Huddleston, 164 S.W.3d 711,




                                                   9
716 (Tex. App.—Austin 2005, no pet.). The State is procedurally barred from asserting its

community caretaking argument.

              The orders granting the appellees’ motions to suppress are affirmed.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: October 31, 2007

Do Not Publish




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