                                   NO. 07-03-0096-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   MAY 10, 2004
                          ______________________________

                                  ALBERT CARDONA,

                                                        Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                 Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2000-433,643; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Appellant Albert Cardona appeals his conviction for manufacturing a controlled

substance. His three issues involve the trial court’s denial of his motion to suppress

evidence obtained upon the execution of a search warrant. Purportedly, the warrant was

not supported by probable cause since 1) the informant was not shown to be reliable, 2)

the police investigation used to corroborate the informant’s tip did not produce evidence of
an illegal act, and 3) the information given by the informant did not link his observations

to an illegal act. We reverse the judgment of the trial court.

                                       Background

       The search warrant in question was based on an affidavit executed by Deputy

Antonio Menchaca. Through it, the police sought authority to search the premises of

Cardona Machine Co., 3610 Ave. A. Allegedly, amphetamine, methamphetamine and

paraphernalia to manufacture, distribute and sell those drugs were located at the site.

       Within the affidavit, it was alleged that Menchaca and Bruce Lange (a drug

enforcement agent) interviewed, on April 13, 2000, an unnamed source who provided the

following information: 1) he spoke with a hispanic male named Albert Cardona and an

anglo male named J.C. Arnold within the last 72 hours; 2) he had been in the building at

3610 Ave. A within the last 72 hours; 3) he had observed “a large container of anhydrous

amonina [sic] placed on a two-wheel dolly hidden behind a machine press towards the rear

of the building”; 4) he saw a large and small Igloo type cooler “in the Office area of the

business,” 5) one cooler “contained numerous baggies”; 6) he saw another cooler by the

“Anhydrous amonina [sic]”; 7) he observed “at least one cardboard box” apparently

containing psuedophed; 8) he saw a “thermos, approximately two quarts in size, in the

Office area” which thermos “had writing on the exterior in permanent type ink which . . .

appeared to be a formula of some type”; and 9) he saw a white canister which he thought

contained starter fluid. Two days later, according to the affiant Menchaca, the source

contacted Lange and said that Cardona and Arnold “[w]ere ready to cook,” were in the

process of “obtaining ‘lithium batteries’ and were then going to cook ‘today.’” He also



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described the clothing of Cardona and Arnold and the vehicle that “belonged to . . .

Cardona.”

       In the affidavit, Menchaca also described how on April 15th, he and Lange

established surveillance at the 3610 Ave. A location. Furthermore, while they were there

for several hours they 1) saw someone they recognized (from the informant’s description)

to be Cardona, 2) saw a car matching the general description given by their tipster, 3) saw

Cardona and Arnold “frequently coming to the large overhead bay type door and the

wooden front door, looking around, looking up and down the street and re-entering the

business” for approximately “one and a half hours,” 4) heard a “loud bang” and saw

Cardona “come to the window and front door and look out,” 5) saw Arnold and Cardona

leave the building carrying “similar looking black nylon type long rectangular bags with

shoulder straps,” 6) noted the bay door had been “secured” while the wooden door was

being “secured” as the two suspects left, 7) saw the two suspects enter the car and drive

away, 8) eventually approached the building (about an hour after Cardona and Arnold left)

whereat Lange “detected the strong chemical odor emanating from the large overhead bay

door,” 9) noticed that the bay door was not completely closed and had a garden hose

“extending from under” it, 10) witnessed Arnold and Cardona return to the site “still carrying

the black nylon bags,” enter the building, and open the bay door, 11) saw Cardona

“frequently [come] to the door and look[] out, at one point standing in the doorway, reading

a magazine,” 12) saw Arnold step from the building wearing “white latex type gloves”

carrying “a jar” appearing to “contain a milky white liquid substance with a clear layer above

it with visible separation between the two,” and 13) saw Arnold pour the contents of the jar

onto the ground and watched the contents evaporate “leaving . . . a white in color residue.”

                                              3
       What the white substance consisted of was not described. What caused the “bang”

they heard and whether it came from within or outside the building also went unmentioned.

Nor did they describe 1) what, if anything, they saw occurring within the building once the

bay doors were opened, 2) the nature of the business conducted by a machine shop, or 3)

how the actions of Arnold and Cardona differed, if any, from the normal operation of a

machine shop. Similarly unmentioned was whether they saw (while conducting their

several hour surveillance) anhydrous ammonia, coolers, baggies, a thermos containing a

formula, starter fluid, or a box containing psuedophed. And, how any of those items, or the

“bang,” or the jar with milky white liquid, or the use by Arnold of latex gloves, or Cardona’s

reading a magazine in the doorway, or the carrying of black nylon bags by Cardona and

Arnold related to the presence or manufacture of amphetamine, methamphetamine, or

some other contraband also went utterly unmentioned in the affidavit.

       As for the chemical odor Lange smelled, no one described what it likened to,

whether the manufacture of methamphetamine or amphetamine released a peculiar odor,

whether the odor encountered was akin to that, if any, emanated while manufacturing

methamphetamine, or whether it differed from chemical odors normally encountered in the

operation of a machine shop. In short, whether the smell was somehow related to the

manufacture of methamphetamine, or to solvents or items normally used in a machine

shop, or to decaying food left in a trash can was unmentioned. The affiant also failed to

explain if any of the activity witnessed was unordinary for the operation of a machine shop

or how it related to the manufacture of a controlled substance.

       As for the statement by the tipster about the Cardona and Arnold being “ready to

cook” or that they “were then going to cook ‘today,’” it was made some two days after he

                                              4
initially spoke with Lange and Menchaca. Moreover, nothing in the affidavit disclosed how

the informant came to know that the suspects allegedly were about to cook. Whether he

had visited Cardona Machine Co. or spoken with Arnold or Cardona and garnered the

information from them or through observing their activity is unknown. Indeed, the affidavit

even fails to state where the tipster told them the cooking was to occur, assuming arguendo

that the tipster even mentioned a place. Similarly unsaid by the affiant is anything about

the tipster confirming that the items seen two days earlier at Cardona Machine Co., 3610

Ave. A were still there or at least unlikely to have been moved.

       Nonetheless, before closing, the affiant did say:

       [The tipster] knows what Amphetamine/Methamphetamine looks like and is
       familiar with the appearance, packaging, handling, use, and method by which
       the named controlled substance is introduced into the human body. In
       addition the [tipster] is familiar with paraphernalia utilized in the manufacture
       of Amphetamine/methamphetamine.

       Affiant believes the [tipster] to be credible and reliable, based on the above
       independently corroborated information, provided by the [tipster].

Yet, how the tipster came to have this knowledge, the extent of his knowledge, his prior

interactions, if any, with amphetamine or methamphetamine or its manufacture, his prior

relationship, if any, with Menchaca or Lange, or the reliability of any prior information given

the officers by him goes unmentioned. So too does the affiant fail to explain whether the

tipster informed him that the items or activity he purportedly saw in the machine shop were

related, in any way, to the manufacture or presence of a controlled substance at the locale.

Indeed, and as previously alluded to, the affiant himself also omits from the affidavit any

statement that explains how the acts of Cardona or Arnold or the presence of any item




                                              5
alluded to in the affidavit indicated, in any way, that drugs were present or being made at

the site.

                                       Applicable Law

       A search warrant may not issue unless sufficient facts are first presented upon which

a magistrate may conclude that probable cause exists supporting its issuance. TEX . CODE

CRIM . PROC . ANN . art. 18.01(b) (Vernon Supp. 2004). These facts must be contained in a

“sworn affidavit” accompanying the application for the warrant, id., and illustrate 1) that a

specific offense has been committed, 2) that the specifically described property or items

to be searched for or seized constitute evidence of that offense or evidence that a particular

person committed the offense, and 3) that the property or items in question are located at

or on the particular person, place or thing to be searched. Id. art. 18.01(c). Additionally,

whether the facts in the affidavit are adequate to establish probable cause depends on the

totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App.

1996), cert. denied, 520 U.S. 1198, 117 S. Ct. 1556, 137 L.Ed.2d 704 (1997). And, they

establish such cause when the totality of those circumstances justifies a conclusion that the

object of the search is probably on the premises. Id. at 363; Taylor v. State, 54 S.W.3d 21,

24 (Tex. App.–Amarillo 2001, no pet).

       Yet, one cannot forget that the totality of the circumstances to which we allude must

appear in the affidavit. This is so because the four corners of the affidavit comprise the

field upon which we work. See Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App.

2003) (stating that when a challenge is made “as to whether a search warrant affidavit is

legally sufficient to show probable cause, the trial court is limited to the ‘four corners’ of the

affidavit”); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507

                                                6
U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993) (stating “[i]t is well settled that, in

determining the sufficiency of an affidavit for an arrest or search warrant, a reviewing court

is limited to the ‘four corners of an affidavit’”). Furthermore, while we must read the affidavit

in a common sense, realistic manner and recognize that the magistrate to whom the

affidavit is tendered may draw reasonable inferences from its content, Jones v. State, 833

S.W.2d at 123-24; Carrillo v. State, 98 S.W.3d 789, 791 (Tex. App.--Amarillo 2003, pet.

ref’d), no one can read into the document material information “that does not otherwise

appear on its face.” Cassias v. State, 719 S.W.2d 585, 590 (Tex. Crim. App. 1986). And,

though the magistrate’s decision is entitled to deference, Carrillo v. State, 98 S.W.3d at

791, we must nonetheless assure that the affidavit provided substantial basis for the

conclusion reached. See Cassias v. State, 719 S.W.2d at 590. In other words, it must

provide a substantial basis to support the magistrate’s determination that there existed a

“fair probability that contraband or evidence of a crime [would] be found” at the locale to be

searched. Carrillo v. State, 98 S.W.3d at 791; Taylor v. State, 54 S.W.3d at 24.

       With the foregoing said, we turn to the circumstances before us and address issue

three first. Upon doing so, we also note the complete absence in the affidavit of any

statement tying the activity of Cardona or Arnold to illegal or suspicious activity. The affiant

merely describes what he and Lange saw and what the tipster told him. Yet, no one

indicated that the acts were like those undertaken by individuals engaged in any type of

criminal activity. Nor was the magistrate even told that what the affiant perceived was

unordinary or unusual conduct by those operating a machine shop or business utilizing

machinery or a “machine press.” And, like many other things omitted by the affiant, no one

explained the relationship between the anhydrous ammonia, psuedophed, baggies,

                                               7
coolers, thermos, milky white substance poured from a jar, “bang,” latex gloves, and black

nylon bags to the presence of methamphetamine, amphetamine, their manufacture or to

any other type of potential criminal activity. These omissions are pivotal for the affidavit

must illustrate not only that a specific offense has been committed but also that the

specifically described property or items to be searched for or seized constitute evidence

of that offense or evidence that a particular person committed the offense. TEX . CODE

CRIM . PROC . ANN . art. 18.01(b) (Vernon Supp. 2004). Here, this court, the trial court and

the judge who issued the warrant were left to guess at the nexus, if any, between the

matter described in the affidavit and criminal activity.

       Nor can one reasonably infer that because the tipster purportedly knew what

methamphetamine was and was familiar with the paraphernalia used in its manufacture

then the items of and matter about which he informed Menchaca and Lange constituted

such paraphernalia or criminal activity. A simple example proves the fallacy of such an

inference. An informant coupling a description of his experience with the manufacture of

methamphetamine to a statement that he not only saw ten pounds of flour in a case hidden

in a corner, three quarts of milk in a thermos containing some script, five pounds of

chocolate chips, two pounds of butter in a cooler, and a case of pecans placed behind a

portable oven and but also heard certain individuals say there were about to cook hardly

makes the ingredients for grandma’s chocolate chip cookies the contents of

methamphetamine. Without someone familiar with the process of manufacturing the drug

stating that the items seen or conduct perceived were somehow related to that process,

any attempt to conclude that the items and conduct seen must relate to the drug or its

manufacture is conjecture.

                                              8
       Nor do we accept the State’s postulation that the affidavit was sufficient because “it

is common knowledge what items are most often utilized in the manufacture of

methamphetamine.”      Common knowledge consists of matter “so well known to the

community as to be beyond dispute.” Ritz Car Wash, Inc. v. Kastis, 976 S.W.2d 812, 814

(Tex. App.–Houston [1st Dist.] 1998, pet. denied). The formula for or ingredients of

methamphetamine and amphetamine or the process by which either is made hardly falls

within that category, and we rue the day it does. That same may also be found on the

internet, according to the State, does not somehow elevate it to that status either. Indeed,

having to investigate the annals of electronic data to discover particular information itself

suggests that the subjects being researched are far from common knowledge. Moreover,

if the presence of information on the worldwide web were alone the test for labeling matter

common knowledge, then most everything would be such for most anything can be found

there if the researcher is sufficiently patient and persistent. Indeed, one can also find on

the internet information about the Superstring Theory and the manner in which it resolves

the mathematical incompatibility of the foundational pillars of quantum mechanics and the

General Theory of Relativity. Yet, that is no reason to conclude that the Superstring Theory

is now part of the everyday, incontestable knowledge of the community. So, mere

presence on the internet is far from determinative of how well-known a particular subject

is.

       Nor can the specialized knowledge of a particular magistrate or affiant be imputed

into the affidavit. Again, the rule of law prohibits us from perusing anything other than the

four corners of the document. Any specialized information lying within the mind of a police

officer or jurist and garnered through the years falls outside that realm. As said in Cassias,

                                              9
“[i]t is one thing to draw reasonable inferences from information clearly set forth within the

four corners of an affidavit . . . [and] quite another . . . to read material information into an

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

        So too do we reject the State’s suggestion on appeal that it “is a reasonable

inference based upon the hidden location of the anhydrous ammonia within a machine

shop that the . . . ammonia was illicitly acquired and was improperly stored in a receptacle

not designed for the storage” of same.1 Immediately noticeable is the absence of any

explanation regarding how one can logically jump from the proposition that something is

hidden to the conclusion that it must be contraband. Parents hide presents from their

children; that does not mean the presents were obtained unlawfully or that the presents

consist of contraband. Hiding something may permit one to infer that someone does not

want the item to be easily found. Yet, it does not alone reasonably permit one to infer that

the object being hidden is somehow tied to criminal activity. To surmise otherwise would

be to again delve into conjecture, and that we cannot do.

        Appellant’s third issue is meritorious. Thus, we conclude that the affidavit did not

provide substantial basis for the conclusion that a specific offense had been committed,

and hold that the trial court erred in failing to grant the motion to suppress. So too do we

find that the error was harmful since the evidence obtained upon execution of the defective

warrant provided the basis for appellant’s conviction. And, since appellant’s other criticisms




        1
          W e assume arguendo that the am monia was hidden. In doing so, we also note that Menchaca failed
to explain how his tipster arrived at that conc lusory observation. Also worthy of n ote is the line o f authority
holding that co nclusions appea ring in a n affida vit carry little weight. Ca ssias v. State, 719 S.W.2d 585, 588
(Tex . Crim . App . 1986) (stating tha t concluso ry uttera nce s “establish little if anything”).

                                                       10
of the affidavit need not be addressed at this time, we reverse the judgment and remand

the cause to the trial court.



                                               Brian Quinn
                                                  Justice

Publish.




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