Reversed and Remanded; Opinion Filed June 13, 2013.




                                         S  In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00529-CR

                             THE STATE OF TEXAS, Appellant
                                         V.
                               KAWANNA THAPA, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F10-50956-K

                             MEMORANDUM OPINION
                          Before Justices Moseley, O’Neill, and Lewis
                                  Opinion by Justice Moseley

       Kawanna Thapa was charged with possession with intent to deliver more than four grams

but less than 200 grams of cocaine. The trial court granted Thapa’s motion to suppress evidence,

which asserted the search warrant affidavit did not contain sufficient facts for the magistrate to

have found probable cause for issuing the warrant.     The State appeals the trial court’s order.

The background of the case and the evidence adduced at the hearing are well known to the

parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We reverse the trial

court’s order and remand the case for further proceedings.
       A magistrate may not issue a search warrant without first finding probable cause that a

particular item will be found in a particular location. Probable cause exists when, under the

totality of the circumstances, there is a fair probability that contraband or evidence of a crime

will be found at the specified location. It is a flexible and non-demanding standard. The facts

stated in a search affidavit “must be so closely related to the time of the issuance of the warrant

that a finding of probable cause is justified.” State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim.

App. 2011).

       Normally motions to suppress are reviewed using a bifurcated standard, deferring to

findings of historical facts and reviewing de novo the application of law. See id. at 271.

However, when the trial court determines probable cause to support the issuance of a search

warrant, it does not make a credibility determination; it is constrained to the four corners of the

affidavit. Id. Thus, we review the trial court’s ruling on the motion to suppress de novo and

apply the same standard as required of the trial court. When reviewing the magistrate’s decision

to issue a warrant, “we apply a highly deferential standard because of the constitutional

preference for searches to be conducted pursuant to a warrant as opposed to a warrantless

search.” Id. We do not analyze the affidavit in a hyper-technical manner. We interpret the

affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences. “When in doubt, we defer to all reasonable inferences that the magistrate

could have made.” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). As long as

the magistrate had a substantial basis for concluding that probable cause existed, we will uphold

the magistrate’s probable cause determination. McLain, 337 S.W.3d at 271.

       The search warrant was issued on January 6, 2010 supported by the affidavit of Emmitt

Jackson signed the same day. After describing the location to be searched and charging two




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described suspects with possession of cocaine on October 26, 2009 and on January 4, 2010,

Jackson stated in the affidavit:

       5.     Affiant has probable cause for said belief by reason of the following facts:
       Affiant, Emmitt R. Jackson, #8321, is employed by the City of Dallas Police
       Department and is currently assigned to the Narcotics Division.

       On January 04th, 2010, I, the Affiant received information from a reliable
       confidential informant who has been at the above described place and premises
       and observed the Suspect(s) described in paragraph #3 in possession of and
       selling cocaine. At the direction of the Affiant, the confidential and reliable
       informant purchased cocaine from the above listed suspect(s). The cocaine that
       was purchased was field tested by Detective E. Jackson #8321 in the presence of
       Sgt. J. Kaiser #4542 and had a positive result for the presence of cocaine.

       On October 26th, 2009, I, the Affiant received information from a reliable
       informant who has been at the above described place and premises and observed
       the Suspect(s) described in paragraph #3 in possession of and selling cocaine. At
       the direction of the Affiant, the confidential and reliable informant purchased
       cocaine from the above listed suspect(s). The confidential and reliable informant
       is familiar with the controlled substance cocaine in its various forms and
       appearances. The confidential and reliable informant has supplied information in
       the past to the Affiant and other Dallas Narcotics Detectives regarding state
       narcotics trafficking violations and this information has proven true, reliable, and
       correct. The informant was searched prior to and after the purchase by the Affiant.
       The cocaine that was purchased on October 26th, 2009, was field tested by
       Detective E. Jackson #8321 in the presence of Sgt. M. Maness #6232 with a
       positive result for the presence of cocaine.

       Thapa argues the paragraph about January 4, 2010 does not indicate when the informant

was inside the property or that the informant was reliable and was searched before and after the

controlled drug buy.

       Courts review warrant affidavits as a whole, not just isolated sentences. McLain, 337

S.W.3d at 273. But even looking at the portion of the affidavit cited by Thapa, the information

provided supports a reasonable inference that the events described occurred on January 4, 2010.

The affidavit states that on January 4, 2010, Jackson received information from an informant that

cocaine was being sold at the apartment. The next sentence states “At the direction of the

Affiant,” the informant purchased from the suspects a substance that Jackson field-tested


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positively as cocaine. The magistrate could reasonably infer that the drug purchase was on the

same day Jackson received the information from the informant.

       Further, the remainder of the affidavit supports reasonable inferences about the reliability

of the informant and controlled-buy procedures used. Jackson refers to the informant in the

singular throughout the affidavit.   In the second part of paragraph five, Jackson states the

informant is familiar with cocaine, has supplied true information in the past, and had been

searched before and after the purchase. Jackson details another recent drug purchase on October

26, 2009. And Jackson personally verified the information provided by the informant by field

testing the substances purchased on both occasions, before two different officers.

       Thapa argues that the affidavit does not state that the same informant was involved in

both transactions and there is no information about the reliability of the informant involved with

the January 4, 2010 incident. However, the affidavit as a whole supports a reasonable inference

that the same informant was involved. Because the magistrate could have reasonably inferred

the same informant was involved in both transactions, the trial court should have deferred to the

magistrate’s determination. See McLain, 337 S.W.3d at 273.

       Thapa contends that the information provided by the October 26, 2009 controlled buy is

too stale to support the January 6, 2010 warrant. We disagree. The magistrate could reasonably

conclude from the affidavit that over a period of sixty days, Jackson had tested substances

purchased from the suspects at the property and obtained positive results for cocaine. “If twenty-

three months could elapse before securing a warrant for the residential drug operation in Greene

without causing the information to become stale, it seems unlikely that a gap of ten months

should pose a staleness problem in the present case.” Jones v. State, 364 S.W.3d 854, 862 (Tex.




                                               –4–
Crim. App.), cert. denied, 133 S. Ct. 370 (2012). A gap of sixty days is insufficient to render the

information stale in this case.

       Based on the entire affidavit, the magistrate could reasonably have inferred that the same

reliable informant twice purchased cocaine from the suspects at the premises within the last sixty

days. Considering the totality of the circumstances presented by the entire affidavit, we conclude

the magistrate had a substantial basis for concluding that probable cause existed. See Jones, 364

S.W.3d at 862–63 (magistrate could infer from affidavit that controlled drug buy had occurred

more recently than ten months before warrant affidavit). Accordingly, the trial court erred by

granting Thapa’s motion to suppress. We sustain the State’s sole issue.

       We reverse the trial court’s order granting the motion to suppress and remand this case

for further proceedings.




                                                     /Jim Moseley/
                                                     JIM MOSELEY
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
120529F.U05




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the Criminal District Court
                                                      No. 4, Dallas County, Texas
No. 05-12-00529-CR          V.                        Trial Court Cause No. F10-50956-K.
                                                      Opinion delivered by Justice Moseley.
KAWANNA THAPA, Appellee                               Justices O’Neill and Lewis participating.

       Based on the Court’s opinion of this date, the trial court’s order granting the motion to
suppress is REVERSED and the cause REMANDED for further proceedings.


Judgment entered this 13th day of June, 2013.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE




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