                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00053-CR


DAVID SMITH                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1333660D

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                        MEMORANDUM OPINION 1

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      Appellant David Smith appeals his conviction for possessing between four

and two hundred grams of heroin. 2      He argues that the trial court erred by

denying his motion to suppress because the warrant authorizing the search of his



      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010).
residence was not supported by an affidavit establishing probable cause. We

affirm.

                                Background Facts

          A grand jury indicted appellant with possessing between four and two

hundred grams of heroin. 3      Before trial began, appellant filed a motion to

suppress all evidence obtained from the search of his residence. He argued that

the search violated his rights under federal and state law because it was not

supported by probable cause.      He also filed a motion to suppress evidence

obtained through a search of his cell phone, which he likewise argued occurred

without probable cause.

      At the hearing on these motions, the State stipulated that appellant had an

expectation of privacy in his residence and in his phone. Neither party opted to

call witnesses to testify concerning the motions; rather, the trial court admitted

and considered the search warrants for the residence and phone along with the

affidavits supporting the search warrants. After hearing the parties’ arguments

about the legal significance of those documents, the trial court suppressed

evidence obtained from appellant’s phone but denied suppression of evidence

obtained from his residence.




          3
       The grand jury also indicted appellant with possessing while intending to
deliver heroin. The State later waived this count of the indictment. The State
also waived a sentence-enhancement allegation.


                                        2
      After the trial court’s suppression rulings, appellant initially pled not guilty,

and the trial court began conducting voir dire of a jury panel. During that stage of

the trial, however, appellant pled guilty pursuant to a plea bargain. Following the

plea bargain, the trial court convicted appellant and sentenced him to seven

years’ confinement. As part of the plea bargain, appellant retained the right to

appeal the denial of his motion to suppress evidence obtained from his

residence. The trial court certified appellant’s right to appeal his conviction, and

he brought this appeal.

                               Motion to Suppress

      Appellant contends that the trial court erred by denying his motion to

suppress evidence obtained from the search of his residence. He argues that

the search warrant for the residence could not properly authorize the search

because it was not supported by an affidavit that established probable cause.

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

bifurcated standard, giving almost total deference to the historical facts found by

the trial court and analyzing de novo the trial court’s application of the law.

Barnett v. State, 469 S.W.3d 245, 250 (Tex. App.—Fort Worth 2015, pet. ref’d).

While this appeal involves our examination of the trial court’s ruling on appellant’s

motion to suppress, “it actually involves our secondary appellate review of the

magistrate’s probable-cause determination in issuing the search warrant, which

is a similar, yet distinct, inquiry.” State v. Crawford, 463 S.W.3d 923, 928 (Tex.

App.—Fort Worth 2015, pet. ref’d) (op. on reh’g).


                                          3
      A search warrant cannot issue unless it is based on probable cause as

determined from the four corners of a sworn affidavit. U.S. Const. amend. IV;

Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (West 2015) (“No

search warrant shall issue for any purpose in this state unless sufficient facts are

first presented to satisfy the issuing magistrate that probable cause does in fact

exist for its issuance.”); Crawford, 463 S.W.3d at 928. Probable cause for a

search warrant exists if, under the totality of the circumstances presented to the

magistrate within the four corners of an affidavit, there is a fair probability or

substantial chance that evidence of a specific crime will be found at a specific

location. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010); Crawford,

463 S.W.3d at 929; see also Tex. Code Crim. Proc. Ann. art. 18.01(c). Probable

cause “does not require that, more likely than not, the item or items in question

will be found at the specified location.”      Flores, 319 S.W.3d at 702.         In

determining probable cause, the magistrate may “interpret the probable cause

affidavit in a non-technical, common-sense manner.” Id.

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

highly deferential standard in keeping with the constitutional preference for a

warrant to determine whether the magistrate had a substantial basis for

concluding that probable cause existed. State v. McLain, 337 S.W.3d 268, 271

(Tex. Crim. App. 2011); Flores, 319 S.W.3d at 702 (stating that the magistrate’s

decision should “carry the day in doubtful or marginal cases”); see Crawford, 463

S.W.3d at 928 (“[W]e review the trial court’s probable-cause determination de


                                         4
novo, applying the same substantial-basis standard as the trial court.”);

Whitemon v. State, 460 S.W.3d 170, 174 (Tex. App.—Fort Worth 2015, pet.

ref’d) (“We must defer to the magistrate’s finding of probable cause if the affidavit

demonstrates a substantial basis for his conclusion.”); Farhat v. State, 337

S.W.3d 302, 306 (Tex. App.—Fort Worth 2011, pet. ref’d) (“No magical formula

exists for determining whether an affidavit provides a substantial basis for a

magistrate’s probable cause determination.”). The “substantial basis” standard is

flexible and undemanding; it allows a magistrate to draw reasonable,

commonsense inferences from the facts and circumstances contained in the

affidavit. Crawford, 463 S.W.3d at 929.

      Like the magistrate and the trial court, we should review the affidavit

supporting the warrant in a commonsense, realistic manner. Farhat, 337 S.W.3d

at 306; Hogan v. State, 329 S.W.3d 90, 94 (Tex. App.—Fort Worth 2010, no pet.)

(“A reviewing court should not invalidate a warrant by interpreting the affidavit in

a hypertechnical manner.”). The issue is not whether there are other facts that

could have, or even should have, been included in the affidavit; instead, we focus

on the combined logical force of facts that are in the affidavit.       Hogan, 329

S.W.3d at 94; see Nichols v. State, 877 S.W.2d 494, 498 (Tex. App.—Fort Worth

1994, pet. ref’d) (“A warrant is not invalid merely because the officer failed to

state the obvious.”).

      A Grand Prairie police officer signed the affidavit supporting the search

warrant for appellant’s residence. The police officer stated that he had been


                                          5
employed as such for fourteen years and that he is assigned to investigate

narcotics offenses by conducting undercover drug buys, managing confidential

informants, and seeking search warrants in narcotics cases. After reciting other

facts about his training and experience, including training in matters related to

drug investigations, the officer wrote,

             Over the past seven weeks, your Affiant has met with [a]
      confidential informant . . . involving the sale of Heroin . . . from the
      Suspected Place.[4] During this investigation, the CI has provided
      information that has been proven to be credible, reliable[,] and
      accurate. The CI has also been proven to be familiar with the
      appearance, packaging[,] and amounts in which . . . Heroin is being
      sold from the Suspected Place. Within this time frame, the CI
      participated in several controlled purchases of Heroin from the listed
      Suspected Persons[5] at the Suspected Place.

            Within the past week, your Affiant met the CI at an
      undisclosed location in preparation for several controlled purchases
      of Heroin from the Suspected Persons at the Suspected Place. The
      CI was searched and found to be free of any illegal contraband
      before and after each buy during this investigation. Your Affiant
      provided the CI with U.S. currency . . . to make all purchases of
      Heroin from the Suspected Place. Upon arrival at the Suspected
      Place on multiple occasions, Your Affiant or other investigators were
      in position to observe the CI approach the Suspected Place. During
      the buys, the CI was able to contact and make purchases of Heroin
      from the Suspected Persons at the Suspected Place. During the
      most recent transactions, Heroin was sold from the inside of a
      detached garage . . . and also sold from inside the Suspected Place
      ....


      4
       The police officer described the “Suspected Place” by giving an address
and stating that it was a single-family dwelling that had burglar bars covering its
windows.
      5
      The police officer named appellant as “Suspected Person #1” and another
male as “Suspected Person #2.”


                                          6
            Within the past 24 [hours], the CI was present at the location
      [and] observed Suspected [Person] #1 in possession of suspected
      Heroin . . . . During the most recent time frame, the CI was
      searched again prior to going to the Suspected Place and found to
      be free of any narcotic contraband. The CI was given U.S. currency
      by your affiant to make the purchase. Both Suspected Persons were
      present at the Suspected Place once the CI arrived. During the
      transaction, . . . Suspected Person #1 directed Suspected Person #2
      to a rear bedroom inside the Suspected Place to retrieve the
      suspected Heroin that was subsequently sold to the CI.

             After the purchases, the CI contacted your Affiant away from
      the Suspected Place and produced quantities of suspected Heroin
      the CI purchased at the Suspected Place. During this investigation,
      the CI’s purchases established that the Suspected Place is a
      location where Heroin is being sold by the Suspected Persons. Your
      Affiant took custody of the suspected Heroin from the CI on each
      purchase and conducted presumptive field tests . . . . All tests were
      presumptive positive for Heroin content.

      Appellant contends that this language is insufficient to establish probable

cause to search his residence for illegal narcotics because (1) it does not contain

factual details that establish the basis of the unnamed confidential informant’s

reliability (such as details about the informant’s history in working with the police

or his familiarity with heroin), and the statements about the informant’s reliability

are therefore conclusory; (2) it states that when the informant left the residence,

he was “free of any illegal contraband,” which leads “to the inference that the

informant did not buy drugs [at] the residence”; and (3) it does not establish that

the police maintained visual contact on the informant to ensure that he did not

make “unplanned detours” while going to or from the residence.

      Relying on the court of criminal appeals’s decision in Moreno v. State, the

State argues that because the affidavit details several controlled purchases of


                                         7
drugs made by the informant at the residence, particularized explanations about

the informant’s credibility before making the purchases were unnecessary. See

415 S.W.3d 284 (Tex. Crim. App. 2013). The State also contends that a fair

reading of the affidavit establishes that the informant bought drugs at the

residence.

      In Moreno, the police suspected that Moreno was distributing drugs from

his residence and set up a controlled purchase of drugs there. Id. at 285–86. An

affidavit signed by a police officer described that controlled purchase as follows:

             Within the past 72 hours a confidential informant was able to
      make controlled purchase of suspected crack cocaine from said
      residence. During this operation I met with the confidential informant
      face to face. The confidential informant was searched prior to and
      after the controlled purchase. No narcotics or contraband [were]
      found on the confidential informant during these searches. Constant
      surveillance was maintained on the confidential informant during the
      transaction. The confidential informant made contact with an
      unknowing participant to purchase the crack cocaine[, and] the
      unknowing participant advised the confidential informant that he/she
      would have to go to said residence to pick up the crack cocaine [sic].
      The surveillance team observed the unknowing participant leave the
      designated meet location and travel to said residence.             The
      unknowing participant went into said residence and returned to
      his/her vehicle a few minutes later. The unknowing participant
      returned to the designated location and met with the confidential
      informant again and provided the confidential informant with the
      crack cocaine. The unknowing participant did not stop at any other
      location [while] travelling . . . to and from said residence. The
      unknowing participant was under constant visual surveillance. I took
      custody of the narcotics after the completion of the operation. I am
      able to recognize crack cocaine and other illicit and controlled
      substances.

Id. at 286.




                                         8
       Moreno argued that this affidavit was insufficient to establish probable

cause because the unknowing participant—an “unidentified individual of

unknown credibility and reliability”—bought the drugs. Id. The court of criminal

appeals described the issue as being whether “a probable-cause affidavit

describing a ‘controlled purchase’ performed by an individual whose credibility or

reliability   were   unknown       was   sufficient     to   sustain   a   probable-cause

determination.”      Id. at 288.    The court held that the affidavit was sufficient

because under the facts it described, including the police’s “observations of the

controlled purchase and the reasonable inferences therefrom,” it was

“reasonable for the magistrate to infer that the unknowing participant obtained

the crack cocaine from [Moreno’s] residence,” and any previously-established

reliability of the unknowing participant was not essential. Id.

       We conclude that the reasoning in Moreno compels the same result here.

Although the affidavit in this case does not detail facts to explain whether the

informant was known to be credible or reliable before beginning the weeks-long

investigation into drug distribution at appellant’s residence, the affidavit

nonetheless establishes a substantial basis for finding probable cause by

detailing the observations of the police officers as the informant completed

several drug purchases at the residence.              Cf. id. (citing Carrillo v. State, 98

S.W.3d 789, 793 (Tex. App.—Amarillo 2003, pet. ref’d)).

       Specifically, the affidavit states generally that within seven weeks of when

the officer signed the affidavit, the informant had participated in “several”


                                            9
controlled purchases, and the affidavit explains in more specific detail how the

informant had made such purchases within a day before the affidavit’s execution.

Concerning the more recent timeframe, the affidavit states that the police

searched the confidential informant before he made the controlled purchase to

ensure that he did not already possess drugs; that the police gave him money;

that officers were in a position to watch him approach the residence; and that he

left the residence, met with the police, and produced heroin that he had bought

there.   We conclude that these facts provided a substantial basis for the

magistrate to find probable cause for a search of the residence.              See id.;

Whitemon, 460 S.W.3d at 174–75; see also Ford v. State, 179 S.W.3d 203, 206–

07, 212–13 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that there

was probable cause to search an apartment when the affidavit stated that an

informant was searched for drugs before making a controlled drug purchase, was

given money to purchase the drugs, and bought a cigarette dipped in PCP), cert.

denied, 549 U.S. 922 (2006). The circumstances of a controlled purchase of

drugs, standing alone, may provide probable cause to issue a warrant. State v.

Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d);

see also Ramirez v. State, No. 05-13-00608-CR, 2014 WL 3735290, at *2 (Tex.

App.—Dallas July 28, 2014, no pet.) (mem. op., not designated for publication)

(holding that an affidavit established probable cause on the basis of a controlled

drug purchase even though it “did not contain any information about the

informant’s credibility”). We reject appellant’s contention that the affidavit fails to


                                          10
establish probable cause because it does not contain historical details

concerning the confidential informant’s reliability and credibility before the

informant began making controlled drug purchases. 6

      We also reject appellant’s argument that the affidavit implies that the

informant did not buy heroin at the residence. 7      The affidavit states that the

informant purchased heroin several times at the residence and “produced” it to

the police, who field tested it and confirmed its content. Given these statements,

the magistrate, interpreting the affidavit in a commonsense manner—see

Whitemon, 460 S.W.3d at 174—could have reasonably construed the officer’s

description of the informant’s being “free of any illegal contraband . . . after each

buy” as referring to any contraband other than the heroin he had just purchased. 8



      6
       We note that the cases upon which appellant principally relies do not
concern a controlled purchase of drugs by a confidential informant. See State v.
Huddleston, 387 S.W.3d 33, 37–38 (Tex. App.—Texarkana 2012, pet. ref’d);
State v. Hill, 299 S.W.3d 240, 244–45 (Tex. App.—Texarkana 2009, no pet.).
      7
       Appellant contends,

      [A]t no point does the affiant establish that the confidential informant
      actually obtained any contraband during the time period from that
      location. The affidavit actually states the opposite when it reveals
      that “within the past week” the CI was searched “before and after
      each buy” and he was “free of any illegal contraband” during each of
      those searches.
      8
        As the State notes, the affidavit in Moreno contained similar language,
expressing, “The confidential informant was searched prior to and after the
controlled purchase. No narcotics or contraband [were] found on the confidential
informant during these searches.” 415 S.W.3d at 286.


                                         11
      Finally, we cannot agree with appellant’s assertion that the affidavit fails to

establish probable cause because the police failed to maintain visual contact with

the informant during the controlled drug purchases. The affidavit states, “Upon

arrival at the Suspected Place on multiple occasions, Your Affiant or other

investigators were in position to observe the CI approach the Suspected Place.”

Considering this language in a commonsense manner, we conclude that the

magistrate could have reasonably inferred that the police officers were in a

position to watch and did watch the informant’s approach of the residence. See

id.; see also State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) (“The

test is whether a reasonable reading by the magistrate would lead to the

conclusion that the four corners of the affidavit provide a ‘substantial basis’ for

issuing the warrant.”).

      And although the affidavit does not express that the police watched the

informant leave the residence, it is “not necessary that an officer maintain

constant surveillance on an informant during a controlled buy to present a

magistrate with sufficient facts to reasonably conclude that the object of the

search would probably be on the premises at the time the warrant is executed.”

Griggs, 352 S.W.3d at 305; see also Flores v. State, No. 01-11-00908-CR, 2012

WL 4741312, at *5 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, no pet.) (mem.

op., not designated for publication) (affirming the denial of a motion to suppress

although the officer did not monitor the confidential informant at all times);

Orlando v. State, No. 14-06-00912-CR, 2008 WL 1795028, at *4 (Tex. App.—


                                        12
Houston [14th Dist.] Apr. 22, 2008, no pet.) (mem. op., not designated for

publication) (holding that an affidavit established probable cause for the search of

a residence although it did not “indicate that the affiant observed the informant

either enter or leave the townhome, or that he otherwise maintained constant

surveillance of the townhome during the entire time of the controlled buy”). Here,

although the affidavit does not express that the police maintained constant

surveillance on the informant, the magistrate had a substantial basis to find

probable cause from the statements and inferences establishing that on several

occasions within the previous week, the informant had been searched before

going to the residence, had been found to be free of illegal contraband, had been

provided with money, had been monitored as he approached the residence, and

had produced heroin to police officers after leaving the residence.

      For all of these reasons, based on the facts contained in the four corners

of the affidavit and on reasonable inferences drawn from those facts, we hold

that the magistrate had a substantial basis for determining that probable cause

existed to search appellant’s residence. See McLain, 337 S.W.3d at 271. Thus,

we conclude that the trial court did not err by overruling appellant’s motion to

suppress the evidence found in his residence, and we overrule his only issue.




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                               Conclusion

      Having overruled appellant’s only issue, we affirm the trial court’s

judgment.


                                             /s/ Terrie Livingston

                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2015




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