           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD–1016–09



                              FELIX FLORES, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRD COURT OF APPEALS
                          HAYS COUNTY

              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION

       Finding marijuana stems, seeds, and residue in the trash does not provide probable

cause to search the adjacent house for drugs. While remnants of drugs in the trash may

indicate that someone possessed drugs in the past, it does not show current possession of

drugs and certainly is not an indicator that there will be drugs in the house. Drug residue

in the trash is equivalent to someone saying “I used to do drugs,” which may show prior

possession, but does not provide probable cause to arrest the person or search their home.
                                                                             Flores dissent–Page 2

Even if the drug residue in the trash did provide probable cause to arrest for possession,

that still doesn’t give probable cause to search the house for drugs.1 There must be

articulable facts sufficient to believe that there are drugs in the house in order to get a

warrant to search the house, and drug residue in a trash can doesn’t rise to that level.

       The anonymous tip from someone saying that he or she had observed cocaine in

the house in the past was also not sufficient to provide probable cause to issue a search

warrant for the house. Appellant correctly argued that there were not adequate facts to

inform the magistrate how the alleged informant obtained his or her information and not

enough information to establish the credibility or reliability of the alleged informant.

       I agree with Appellant and with the court of appeals that the anonymous informer’s

tip did not give the magistrate a substantial basis for believing that drugs would be found

in the house. I disagree, however, with the court of appeals’s determination that the drug

residue found in the searches of the trash did establish probable cause to search the house.

I understand that this is a close case, but the tie goes to the runner.

       I respectfully dissent.

                                                             Meyers, J.




Filed: May 19, 2010

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       1
        If someone is found with drugs in their car and they park their car in a garage attached to
their house, that does not give probable cause to search the house for more drugs.
