                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-18-00209-CR
                                __________________

                        BRIAN KEITH BLAIR, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 411th District Court
                         Polk County, Texas
                       Trial Cause No. 25,296
__________________________________________________________________

                           MEMORANDUM OPINION

      Appellant Brian Keith Blair was charged with possession of a controlled

substance with the intent to deliver, and he filed a motion to suppress. After the trial

court denied Blair’s motion to suppress, Blair pleaded guilty pursuant to a plea

bargain agreement to the felony offense of possession of methamphetamine, and the

trial judge deferred adjudication of Blair’s guilt, placed Blair on community

supervision for five years, and assessed a $3000 fine. In his sole issue on appeal,
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Blair complains that the trial court erred by denying his pre-trial motion to suppress

the drugs and other tangible evidence because the search was conducted without

valid consent or a valid search warrant. According to Blair, the search warrant was

founded upon an affidavit that was unsupported by probable cause. We affirm the

trial court’s order denying Blair’s motion to suppress.

                                 BACKGROUND

       In his motion to suppress, Blair asked the trial court to suppress evidence

seized from his locked bedroom and locked safes located at a residence in Onalaska,

Texas. The items Blair sought to suppress included (1) methamphetamine, (2)

marijuana, (3) scales, (4) cellular telephone, (5) United States currency, and (6)

checks. Blair asserted in his motion that the search was conducted without valid

consent and without a valid search warrant because the supporting affidavit failed to

demonstrate legally sufficient facts to support probable cause. The trial court

conducted a hearing on Blair’s motion to suppress.

      During the hearing, the trial court admitted a copy of the search warrant and

its supporting affidavit. In the affidavit, Lieutenant Andy Lowrie, a Detective with

the Polk County Sheriff’s Office, stated that he had probable cause to believe that

methamphetamine, marijuana, scales used to weigh the methamphetamine and

marijuana for distribution, and other items used to distribute or use

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methamphetamine were at a residence located at a particular residence in Onalaska,

Texas. Lowrie averred that Blair and Terry Goff were among the suspected persons

who had charge and control over the residence, and they had concealed

methamphetamine and marijuana on the property and in the residence. According to

Lowrie, his probable cause was based on an investigation conducted by the Polk

County Sheriff’s Office Narcotics Division, which included a tip from an informant

concerning the use and distribution of marijuana and methamphetamine at the

described residence. The tip indicated that Blair had a safe in the kitchen where he

kept marijuana and methamphetamine and the proceeds from the sale of both.

      Lowrie also stated that probable cause was based on (1) Goff’s consent to

search the residence; (2) marijuana and methamphetamine being located inside the

residence; (3) the apprehension of a fugitive inside the residence; and (4) Lowrie’s

personal observations, which included smelling burnt marijuana and locating two

locked safes in the kitchen and a locked bedroom that Goff indicated belonged to

Blair. Lowrie sought a search warrant allowing him and other officers to search the

property for the purpose of obtaining evidence related to the investigation at hand

and for the search of methamphetamine, marijuana, and other items relating to a

criminal matter. The search warrant signed by the magistrate approved Lowrie’s

request.

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      At the hearing, the trial court heard the arguments of counsel. Defense counsel

argued that the search warrant affidavit was legally insufficient to support probable

cause because it contained conclusory statements and was “bare-bones[.]” Defense

counsel maintained that because there was no evidence concerning reliability of the

tip or the credibility of the informant, the tip was conclusory, had no basis of

knowledge, and lacked a nexus to Blair’s bedroom or safes. According to defense

counsel, Blair was never seen at the residence, and although the police saw and

smelled marijuana in the common areas of the residence, nobody in the residence

reported that there were drugs in Blair’s locked bedroom or locked safes. Defense

counsel further argued that Lowrie only mentioned Blair in the affidavit because

Goff had reported that the two locked safes in the kitchen and a locked bedroom

belonged to Blair. Lowrie averred that the tip had also indicated that Blair was

keeping methamphetamine, marijuana, and the proceeds from the sale of both in the

safe located in the kitchen. According to defense counsel, Lowrie’s affidavit does

not contain any information that would have given the magistrate probable cause to

believe that Blair likely had marijuana or any other contraband in his locked

bedroom or safes.

      The State maintained that the search of Blair’s locked bedroom and safes was

valid. The State argued that the tip from the informant spotlighted the residence that

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was the subject of the warrant, and when officers arrived at the residence, they

developed probable cause when they saw marijuana in plain sight. The State further

argued that Goff gave the officers written consent to search the residence and

informed the officers that Blair rented the locked bedroom and owned the two locked

safes in the kitchen, and the officers corroborated Goff’s statement with the initial

tip that Blair kept locked safes in the residence. The trial court denied Blair’s motion

to suppress.

                                     ANALYSIS

      In his sole appellate issue, Blair argues that the search of his locked bedroom

and locked safes violated his constitutional rights because the search was conducted

without valid consent and without a valid search warrant. Blair argues that the

supporting affidavit failed to demonstrate legally sufficient facts to support probable

cause. According to Blair, the totality of the circumstances contained within the four

corners of the affidavit failed to show a fair probability or substantial basis that

contraband or evidence of a crime would be found in his bedroom or safes.

      Generally, we review a trial court’s ruling on a motion to suppress using a

bifurcated standard of review. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.

App. 2011). We give almost total deference to the trial court’s determination of

historical facts and mixed questions of law and fact that rely on credibility

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determinations, but we review de novo questions of law and mixed questions of law

and fact that do not rely on credibility determinations. Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997). When a trial court finds probable cause to support

the issuance of a search warrant based solely on an affidavit, there are no credibility

determinations to make because the trial court ruled based on the facts that fall within

the four corners of the affidavit. McLain, 337 S.W.3d at 271. Thus, in reviewing a

magistrate’s decision to issue a search warrant, we apply a highly deferential

standard of review because of the constitutional preference of a search conducted

under a warrant over a warrantless search. Id.

       “Probable cause for a search warrant exists if, under the totality of the

circumstances presented to the magistrate, 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 v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)

(quoting Illinois v. Gates, 462 U.S. 213, 238, 243 n.13 (1983)); see Rodriguez v.

State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). We will uphold the magistrate’s

probable cause determination so long as the magistrate had a substantial basis for

concluding that probable cause existed. McLain, 337 S.W.3d at 271. We analyze the

affidavit with common sense, recognizing that the magistrate may draw reasonable

inferences from the facts and circumstances contained within the four corners of the

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affidavit. Id. If in doubt, we defer to all reasonable inferences that the magistrate

could have made. Id.

      Here, Blair argues that the tip was a mere conclusory statement that gave no

basis for the trial court’s probable cause determination because there was no

allegation that the informant had given recent and credible information. A tip by an

informant of unknown reliability, standing alone, is not a sufficient basis for a

magistrate’s probable cause determination. State v. Duarte, 389 S.W.3d 349, 353,

360-61 (Tex. Crim. App. 2012); Rivas v. State, 446 S.W.3d 575, 579 (Tex. Crim.

App.—Fort Worth 2014, no pet.). While the reliability, veracity, and the basis of

knowledge of an informant are not absolutely required, they are highly relevant

considerations in analyzing the totality of the circumstances. Gates, 462 U.S. at 233.

Corroboration of an informant’s tip through independent police investigation is also

relevant in the magistrate’s determination of probable cause. Valadez v. State, 476

S.W.3d 661, 668 (Tex. App.—San Antonio 2015, pet. ref’d). Although Lowrie’s

affidavit did not include an allegation that the informant was credible and reliable,

the affidavit contained other verifying information that corroborated the informant’s

tip, allowing the magistrate to reasonably conclude that the informant was credible.

See id. at 668-69; Rivas, 446 S.W.3d at 579-80.



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      Regarding the staleness of the informant’s tip, time is less important when an

affidavit references ongoing drug activity at a residence. See Jones v. State, 364

S.W.3d 854, 860-61 (Tex. Crim. App. 2012); Rivas, 446 S.W.3d at 579, 581. Here,

the record does not support Blair’s assertion that the information was stale; rather,

the record shows that the informant indicated that Blair was involved in ongoing

drug activity at the residence. See Jones, 364 S.W.3d at 860-61; Rivas, 446 S.W.3d

at 579, 581.

      Under the high level of deference we are to give an issuing magistrate’s

determination, and based on the totality of the circumstances as presented in

Lowrie’s affidavit, we conclude that the magistrate had a substantial basis for

determining that probable cause existed to search Blair’s locked bedroom and locked

safes. See McLain, 337 S.W.3d at 271-72; Jones, 364 S.W.3d at 860-61; Rivas, 446

S.W.3d at 579, 581. We further conclude that the trial court did not err in overruling

Blair’s motion to suppress. See McLain, 337 S.W.3d at 271. Accordingly, we

overrule Blair’s sole issue and affirm the trial court’s order denying Blair’s motion

to suppress.1




      1
        Because we affirm the trial court’s order denying Blair’s motion to suppress,
the trial court’s deferred adjudication order likewise remains in place.
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      AFFIRMED.

                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice



Submitted on February 13, 2019
Opinion Delivered April 17, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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