                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 '
 THE STATE OF TEXAS,                                            No. 08-11-00116-CR
                                                 '
                        Appellant,                                  Appeal from
                                                 '
 v.                                                              30th District Court
                                                 '
 RUBEN GONZALEZ CANTU,                                       of Wichita County, Texas
                                                 '
                        Appellee.                '                (TC # 49,768-A)


                                          OPINION

       In this interlocutory appeal, the State challenges a suppression order. It contends that the

trial court erred by ignoring the reasonable inferences the magistrate could have drawn from the

facts in the search warrant affidavit, and by improperly conducting a de novo review rather than

giving great deference to the magistrate’s determination of probable cause. We reverse and

remand.

                     FACTUAL AND PROCEDURAL BACKGROUND

       On October 30, 2009, a magistrate in Wichita County issued a search warrant for Ruben

Gonzalez Cantu’s residence. The magistrate found probable cause to issue the search warrant

based on the facts contained in the supporting affidavit:

       1. There is in Wichita County, Texas a suspected place and premises described
       and located as follows: 1803 7th rear (lower) apartment, white siding, front
       door faces north with a white awning overhang, a window airconditioning
       unit is to the left of the door.

       2. Said suspected place and premises are in charge of and controlled by each of
       the following persons: Ruben Cantu 08-07-79, Juanita Cantu 02-08-41

       3. It is the belief of the Affiant that a specific criminal offense has been
       committed, and he hereby charges and accuses that: Ruben Cantu is
       manufacturing counterfeit checks and identification to commit Fraudulent
       Use or Possession of Identifying Information and Forgery.

The affidavit also stated that property and items constituting both evidence of the said offense

and evidence that Cantu committed the offense were at the suspected place and premises and

were concealed and kept in violation of the laws of Texas. Specifically, the affidavit described

the following “property and items concealed and kept”:

       Computers, check stock, ink, banking numbers, notes, electronic recording
       devices, identification cards, and any other items that constitute evidence in
       identity theft and forgery.

The affidavit then set forth the following facts as probable cause:

       On October 27, 2009, a male suspect entered a business in Wichita Falls, TX on
       three different occasions. Each time, the suspect would pass a check on the
       account of Ruben G. Cantu. A total of three check[s] were passed at the business.
       The checks were found to be counterfeit checks not authorized to be produced or
       passed by the suspect. The account and bank routing numbers printed on the
       checks are not issued to Ruben Cantu. Your affiant confirmed with the bank
       listed on the checks that the checks were counterfeit. Your affiant confirmed with
       the account holder that the checks were not authorized to be drawn from his
       account. During all three transactions Ruben Cantu used his Texas Identification
       Card to complete the transactions. On the third transaction, the check was
       questioned by the victim business. Ruben Cantu fled the business and left the
       counterfeit check and his Texas Identification Card. Ruben Cantu was identified
       on the business security video as the person passing the counterfeit check. Your
       affiant believes that Ruben Cantu is using stolen identifying information and
       electronic equipment at his residence to produce counterfeit documents to defraud
       local businesses and citizens. Your affiant confirmed with the United States
       Postal Inspection Service that Ruben Cantu is receiving mail at 1803 7th (rear
       apartment). Your affiant is requesting that this warrant be served as a ‘no knock’
       warrant based on the history of Ruben Cantu and the ability of Ruben Cantu to
       quickly destroy electronic evidence.

       That same day, the search warrant was executed and the items seized included

checkbooks for Vaudene Barrington and Brian Williams; a social security card belonging to

Dalton Wayne Williams; a birth certificate for Steven Allen Rodriguez; miscellaneous checks;

professional check writing software; multiple computers; and a printer.



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       Cantu was charged by indictment with fraudulent use or possession of identifying

information, a second-degree felony. The indictment charged that Cantu, with the intent to harm

or defraud another, and without the consent of twenty-one named individuals, “possess[ed] more

than ten (10) but less than fifty (50) pieces of identifying information for the aforesaid named

individuals.” The indictment also contained an enhancement paragraph based on a prior felony

conviction for robbery.

       Subsequently, Cantu filed a motion to suppress alleging the authorities had no legal basis

for the search because the four corners of the supporting affidavit failed to state sufficient facts.

He claimed that the State violated his rights under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and Article I, Sections 9, 10, and 19 of the Texas

Constitution. The motion also alleged that the police department’s actions violated Article 38.23

of the Texas Code of Criminal Procedure.

              PROBABLE CAUSE AND SEARCH WARRANT AFFIDAVITS

       Under the Fourth Amendment to the United States Constitution, Article I, section 9 of the

Texas Constitution, and the Texas Code of Criminal Procedure, a search warrant may only issue

upon facts sufficient to satisfy the magistrate that probable cause exists to believe the seizable

items will be found if the search is conducted. See U.S.CONST. amend. IV; TEX.CONST. art.

1, § 9; TEX.CODE CRIM.PROC.ANN. art. 18.01(b)(West 2005); see generally Swearingen v.

State, 143 S.W.3d 808, 810-11 (Tex.Crim.App. 2004). Specifically, the Fourth Amendment,

made applicable to the States by the Due Process Clause of the Fourteenth Amendment,

provides:

       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



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       particularly describing the place to be searched, and the persons or things to be
       seized.

U.S. CONST. amend. IV; see Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App. 2010). The

Texas Constitution contains its own, similarly worded provision:

       The people shall be secure in their persons, houses, papers and possessions, from
       all unreasonable seizures or searches, and no warrant to search any place, or to
       seize any person or thing, shall issue without describing them as near as may be,
       nor without probable cause, supported by oath or affirmation.

TEX.CONST. art. 1, § 9. In addition, Article 18.01(b) of the Texas Code of Criminal Procedure

provides that a search warrant may be obtained from a magistrate only after the submission of an

affidavit setting forth, “substantial facts establishing probable cause.”               TEX.CODE

CRIM.PROC. ANN. art. 18.01(b).

       “The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate

shall not issue a search warrant without first finding ‘probable cause’ that a particular item will

be found in a particular location.” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007).

Probable cause to support the issuance of a search warrant exists where, in viewing the totality of

the circumstances presented in the affidavit, the facts submitted to the magistrate are sufficient to

establish that there is at least a “fair probability” or “substantial chance” that contraband or

evidence of a crime will be found at the specified location. Flores, 319 S.W.3d at 702, quoting

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 2342 n.13, 76 L.Ed.2d 527

(1983)[internal quotations omitted]; 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). In making its

determination, a magistrate is permitted to interpret the affidavit in a non-technical,

commonsense and realistic manner and to draw reasonable inferences from the facts and

circumstances contained within its four corners. Flores, 319 S.W.3d at 702; Gates, 462 U.S. at



                                                -4-
235-238, 103 S.Ct. at 2333; Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). The

magistrate’s action “cannot be a mere ratification of the bare conclusions of others.” Gates, 462

U.S. at 239, 103 S.Ct. at 2333; Farhat v. State, 337 S.W.3d 302, 306 (Tex.App.--Fort Worth

2011, pet. ref’d). The affidavit must contain “sufficient information” from which the issuing

magistrate can determine probable cause. Gates, 462 U.S. at 239, 103 S.Ct. at 2333; Farhat, 337

S.W.3d at 306.

                                  STANDARD OF REVIEW

       “The duty of a reviewing court, including a reviewing trial court, is simply to ensure that

the magistrate had a substantial basis for concluding that probable cause existed.” Flores, 319

S.W.3d at 702, citing Gates, 462 U.S. at 238-39, 103 S.Ct. at 2317 [internal quotations omitted].

In determining whether a probable cause affidavit sufficiently supports a search warrant, the trial

court examines the totality of the circumstances and gives great deference to the magistrate’s

decision to issue the warrant. Rodriguez, 232 S.W.3d at 59-60; Ramos, 934 S.W.2d at 362-63;

see also Emenhiser v. State, 196 S.W.3d 915, 924-25 (Tex.App.--Fort Worth 2006, pet.

ref’d)(noting that when reviewing a magistrate’s decision to issue a warrant, we apply a

deferential standard in keeping with the constitutional preference for a warrant). When a court

reviews an issuing magistrate’s determination, the court should interpret the affidavit in a

commonsense and realistic manner, recognizing that the magistrate may draw reasonable

inferences. See Rodriguez, 232 S.W.3d at 61 (“When in doubt, we defer to all reasonable

inferences that the magistrate could have made.”); see also Davis v. State, 202 S.W.3d 149, 154

(Tex.Crim.App. 2006).     The rationale behind the rule requiring a trial court to give great

deference to a magistrate’s determination that a warrant should issue was explained by the

Supreme Court in Illinois v. Gates:



                                               -5-
       [The process of determining probable cause] does not deal with hard certainties,
       but with probabilities. Long before the law of probabilities was articulated as
       such, practical people formulated certain common-sense conclusions about human
       behavior; jurors as factfinders are permitted to do the same--and so are law
       enforcement officers. Finally, the evidence thus collected must be seen and
       weighed not in terms of library analysis by scholars, but as understood by those
       versed in the field of law enforcement.

Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29. Additionally, the deference given to the

magistrate’s determination of probable cause “encourage[s] police officers to use the warrant

process rather than making a warrantless search and later attempting to justify their actions by

invoking some exception to the warrant requirement.” Flores, 319 S.W.3d at 702 n.10, quoting

Rodriguez, 232 S.W.3d at 59-60.

       Under this deferential standard, “the magistrate’s decision should carry the day in

doubtful or marginal cases, even if the reviewing court might reach a different result upon de

novo review.” Flores, 319 S.W.3d at 702. However, as the court noted in Flores, “[t]his

‘substantial basis’ standard of review ‘does not mean the reviewing court should be a rubber

stamp’ . . . .” Id. In other words, “[a] magistrate should not have to resort so much to inferences

and ‘common sense’ conclusions that skirt the boundaries of what constitutes a substantial basis;

when too many inferences must be drawn, the result is a tenuous rather than a substantial basis

for the issuance of a warrant. Farhat, 337 S.W.3d at 306, citing Davis, 202 S.W.3d at 157.

       Accordingly, we review the trial court’s decision de novo, applying the same standard as

the trial court. State v. Duncan, 72 S.W.3d 803, 806 (Tex.App.--Fort Worth, 2002, pet. ref’d).

In doing so, we are required, as was the trial court, to afford great deference to the magistrate’s

decision to issue the warrant. See id. (“[W]e are to apply de novo the same standard of review

required of the trial court. That standard is consideration of the totality of the circumstances

giving great deference to the magistrate’s decision to determine whether the magistrate had a



                                               -6-
substantial basis for concluding probable cause existed.”). [Emphasis in original]. Therefore,

although we review the trial court’s probable cause determination de novo, we are still required

to view the affidavit with deference towards the magistrate’s decision that there was probable

cause to issue the warrant. Id. at 807, citing Wynn v. State, 996 S.W.2d 324, 327 (Tex.App.--

Fort Worth 1999, no pet.). In conducting our de novo review, we must “defer to the reasonable

inferences made by the magistrate in issuing the warrant, and to defer to the magistrate’s

common sense and realistic interpretation the affidavit.” Duncan, 72 S.W.3d at 807, citing Lane

v. State, 971 S.W.2d 748, 752 n.3 (Tex.App.--Dallas 1998, pet. ref’d).

  SUBSTANTIAL BASIS FOR CONCLUDING THAT PROBABLE CAUSE EXISTED

        Looking to the four corners of the affidavit, giving the magistrate’s decision to issue the

warrant great deference by deferring to the reasonable inferences from the facts expressly

articulated in the affidavit as well as the common sense and practical interpretation of such facts,

we find that, considering the totality of the circumstances, a probability existed that the items

seized would be found at Cantu’s residence.

        The affidavit requested a no-knock search warrant for Cantu’s residence based in part on

the affiant’s belief that:

        Ruben Cantu is using stolen identifying information and electronic equipment at
        his residence to produce counterfeit documents to defraud local businesses and
        citizens.

The affidavit stated that “a specific criminal offense has been committed,” and charged and

accused that Cantu, “is manufacturing counterfeit checks and identification to commit Fraudulent

Use or Possession of Identifying Information and Forgery.” The affidavit listed specific items to

be seized. While the conclusions of the affiant are not, standing alone, sufficient to establish

probable cause, the affidavit also contained specific and detailed facts regarding the alleged



                                               -7-
offense.

       The affidavit stated that on October 27, 2009, Cantu entered a business in Wichita Falls,

Texas on three separate occasions. On each of the three occasions, Cantu passed a counterfeit

check, “on the account of Ruben G. Cantu.” Each of the counterfeit checks were printed with

Cantu’s name, but with account and bank routing numbers belonging to an individual other than

Cantu. The affiant confirmed with the drawer bank listed on the checks that the checks were

counterfeit. He also confirmed with the account holder that Cantu did not have permission to

issue or pass checks on his account. The affidavit also stated that each time Cantu passed a

counterfeit check, he used his Texas Identification Card to complete the transaction. During the

third transaction, a business employee questioned Cantu about the account. In response, Cantu

fled the business and left behind the third counterfeit check and his Texas Identification Card.

Not only did Cantu leave behind a counterfeit check with his name and someone else’s account

information, as well as his Texas Identification card, Cantu “was identified on the business

security video as the person passing the counterfeit check.” Finally, the affiant stated that he

confirmed with the United States Postal Service that Cantu stated received mail at the address to

be searched.

       These facts show that Cantu possessed “identifying information,” i.e. the bank account

numbers and routing numbers of another individual, and used this information to obtain funds

without the consent or permission of the account holder to possess the information or pass the

checks. Therefore, the magistrate could reasonably infer that Cantu stole someone else’s account

and bank routing information. Accordingly, we find that in their totality, the allegations in the

affidavit clearly set forth sufficient facts to establish there was at least a fair probability or

substantial chance that a specific criminal offense had been committed.         See TEX.CODE



                                              -8-
CRIM.PROC.ANN. art. 18.01(c),(i).

       Under these facts, the affiant also provided sufficient details evidencing that Cantu was

tied to the counterfeiting scheme, and that the items to be seized constitute evidence of the

offense. See TEX.CODE CRIM.PROC.ANN. art. 18.01(c)(2). From the fact that Cantu cashed

multiple counterfeit checks with his name printed on them but with stolen account information

from another individual. the magistrate could reasonably infer that Cantu was generating or

manufacturing such counterfeit checks. It is also reasonable to infer that in manufacturing these

counterfeit checks Cantu would need a “computer, check stock, ink, and banking numbers.”

Moreover, it is a reasonable inference that someone engaged in this type of criminal activity

would possess, “notes, electronic recording devices, identification cards, and any other items that

constitute evidence in identity theft and forgery.”

       In addition, the affidavit stated that: (1) date of the alleged incident was October 27,

2009; (2) the supporting affidavit was filed three days later on October 30, 2009; (3) the search

warrant issued and executed the same day the affidavit was filed; and (4) the affiant stated that

he confirmed Cantu received mail at the address to be searched. Based on the time frame,

coupled with the fact that the affiant confirmed Cantu received mail at the address to be

searched, it is reasonable to infer that Cantu currently resided there at the address. See State v.

Cotter, 360 S.W.3d 647, 653 (Tex.App.--Amarillo 2012, no. pet.). Therefore, we conclude that

the magistrate could have reasonably inferred there was at least a “fair probability” or a

“substantial chance” that the items to be seized would be found at Cantu’s residence. See Gates,

462 U.S. at 239, 103 S.Ct. at 2333; Cotter, 360 S.W.3d at 653, citing State v. Moore, 2007 WL

4305374, at *5 (Tex.App.--Dallas Dec. 11, 2007, pet. ref’d)(not designated for publication).

       Giving due deference to the magistrate’s decision to issue the search warrant, and



                                                -9-
applying the applicable law to the facts in this case, we conclude that the affidavit provided the

magistrate with probable cause necessary for the issuance of a search warrant of appellant’s

house. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Rodriguez, 232 S.W.3d at 59-60; see also

Duncan, 72 S.W.3d at 806. Accordingly, we sustain the State’s sole point. The order of the trial

court is reversed and remanded.


July 31, 2012                        ________________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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