                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00116-CR
                                 No. 10-15-00117-CR

EDWARD DEAN STEWART,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 77th District Court
                            Limestone County, Texas
                      Trial Court Nos. 13281-A and 13574-A


                           MEMORANDUM OPINION


       Appellant Edward Dean Stewart pleaded guilty to continuous sexual abuse of a

child and aggravated sexual assault of a child pursuant to a plea agreement. The trial

court sentenced Stewart to forty years’ incarceration on the continuous sexual abuse

charge and eighty years’ incarceration on the aggravated assault charge, with both terms

to be served concurrently. In his sole issue in each of these appeals, Stewart contends that
the trial court erred in denying his motion to suppress.1

                                                 Background

        A search warrant was executed on Stewart’s residence in July 2012 seeking

evidence of methamphetamine trafficking. Law enforcement found no narcotics but did

discover methamphetamine paraphernalia, guns, and several electronic devices. The

electronic devices were turned over to the Secret Service for analysis, and child

pornography was discovered. A second warrant was executed at Stewart’s residence in

November 2013, seeking any other evidence of child pornography.                              Additional

information was discovered, leading to the identity of Stewart’s victims. The children

were questioned by a forensic examiner and identified Stewart as their abuser.

        Stewart’s motion to suppress challenged the sufficiency of the affidavit supporting

the July 2012 search warrant. He did not challenge the sufficiency of the November 2013

warrant, but contended that any evidence seized thereunder should be excluded as “fruit

of the poisonous tree” from the invalid July 2012 warrant.

        The affidavit supporting the July 2012 warrant, composed by Sgt. Christopher

Winkler, includes the following:

        The undersigned Affiant, being a Peace Officer under the laws of Texas and
        being duly sworn, on oath makes the following statements and accusations:

        1. THERE IS IN LIMESTONE COUNTY, TEXAS, A SUSPECTED PLACE

1
 Although no written motion to suppress was filed in Cause No. 10-15-00117-CR, the trial court entered a
written order denying the motion to suppress in both cause numbers. It is also clear from the record of the
evidentiary hearing that the trial court considered the motion to suppress in both cases.

Stewart v. State                                                                                    Page 2
          AND PREMISES DESCRIBED AND LOCATED AS FOLLOWS:

                   Suspected premise is a single family, single story dwelling located at
                   3261 Limestone County Road 460, Mexia, Texas, 76667. Suspected
                   premise is further described as having red siding. The residence has
                   a covered front porch. The residence is located at the end of a long
                   white rock drive. There are approximately 3 travel trailers on the
                   property. There is a confederate flag and a State of Texas flag at the
                   entrance to the property. See Attachment “A”.2 Also to include any
                   and all vehicles located on or about the curtilage under the control
                   of the suspected parties. To include all places, structures and
                   buildings on the property, as well as all vehicles on the property
                   under the control of the suspected parties. Hereinafter called
                   “Suspected Premises”.

          2. THERE IS IN SUSPECTED PREMISES PROPERTY CONCEALED AND
          KEPT IN VIOLATION OF THE LAWS OF TEXAS AND DESCRIBED AS
          FOLLOWS: The items and property that constitute evidence include,
          controlled substances, listing of individuals who purchase illegal controlled
          substance[s], listing of persons that sell and/or deliver illegal controlled
          substance[s] to this location, listings of telephone numbers and other
          contact information of both purchasers and sellers of illegal controlled
          substances to the occupants of the said “suspected premises,” addresses of
          locations where drugs are brought to this location from, listings of names
          of individuals who have received illegal controlled substances at this
          location and who owe money for those illegal controlled substances
          purchased, and messages and communications between the occupants of
          the said “suspected premises” and individuals to whom the illegal
          controlled substances are delivered to as well as the names, telephone
          numbers and addresses of individuals whom illegally traffic illegal
          controlled substances to and from the said “suspected premises.” Affiant
          requests to search for the items that constitute evidence of illegal
          distribution of controlled substances to wit:

          A. Controlled substances, namely methamphetamine and marijuana;

          B. Books, records, receipts, notes, ledgers, bank records, money orders,
          papers, and computer files relating to the transportation, ordering, sale,

2   Attachment “A” was not part of the affidavit introduced as an exhibit at the suppression hearing.

Stewart v. State                                                                                        Page 3
        manufacture and distribution of illegal controlled substances;

        C. Currency, financial instruments, precious metals, jewelry and/or other
        items of value and/or proceeds of drug transactions and evidence of
        financial transactions relating to obtaining, transferring, laundering,
        secreting or spending large sums of money made from engaging in illegal
        controlled substances activities;

        D. Telephone and address books, or papers as well as telephone answering
        machine tapes and information stored electronically in caller identification
        devices, which reflect names, addresses and/or telephone numbers of
        individuals associated in dealing in illegal controlled substances;

        E. Photographs of individuals, property and illegal controlled substances,
        including video recordings;

        F. Materials used in the packaging, cutting, weighing and distributing of
        illegal controlled substances;

        G. Computer disks, diskettes, tablets and digital data storage devices
        utilized to maintain drug transaction records;

        H. Firearms;

        I. Any electronic devices including but not limited to cell phones, pda’s,
        video surveillance systems, and audio recording devices.

        J. Any safes or lock boxes within the premise or curtilage of the residence.

        K. Stolen property including but not limited to all terrain vehicles, trailers
        and firearms.

        The items listed above constitute evidence of an ongoing and continuing
        involvement in the sale and distribution of illegal controlled substances in
        violation of various sections of the TEXAS HEALTH AND SAFETY CODE.

        3.    SAID SUSPECTED PREMISES ARE IN CHARGE OF AND
        CONTROLLED BY EACH OF THE FOLLOWING PERSONS: (1) Edward
        Dean Stewart, a white male, date of birth 05-12-1975, also to include person
        or persons whose names, identities and descriptions are unknown to your
Stewart v. State                                                                         Page 4
        affiant, who may reside, be found on, entering or making their escape
        therefrom, hereinafter called “suspected parties”.

        4. AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF
        THE FOLLOWING FACTS: Affiant, Investigator Christopher Winkler, is a
        Texas Peace Officer. Affiant has been employed with the Limestone County
        Sheriff’s Office for over 5 years. Affiant has received training in Narcotics
        Investigations and is currently employed as Limestone County’s Narcotics
        Officer. Affiant has undergone various training and has experience in
        narcotics investigations. Affiant has made multiple drug related arrests.
        Affiant has executed multiple narcotic search warrants in the past. Affiant
        has participated and assisted in joint investigations with law enforcement
        agents of the Federal Drug Enforcement Administration and various other
        law enforcement agencies in their investigations of individuals who traffic
        in illegal controlled substances. Affiant has talked with other experienced
        local, state and federal law enforcement officers as well as prosecuting
        attorneys representing both state and federal systems concerning narcotics
        and dangerous drug trafficking activities and criminal violations. Affiant
        has performed narcotics and dangerous drug law enforcement activities
        and functions. Affiant has participated in numerous investigations of
        individuals who have ultimately been convicted of both state and federal
        laws pertaining to narcotics and dangerous drugs.

        Affiant has participated in the execution of court ordered search warrants
        of residences and vehicles where large amounts of illegal drugs, currency
        and records were discovered and seized. During the course of these
        investigations, I have worked in the company of other experienced law
        enforcement officers and have discussed their investigative techniques and
        experiences with them. During the course of the investigations, which I
        have been a party to, I have become familiar with business practices of drug
        traffickers.

        BASED ON AFFIANT’S EXPERIENCE AND TRAINING, AFFIANT
        KNOWS THE FOLLOWING:

        A. Individuals who deal in illegal controlled substances maintain books,
        notes, receipts, ledgers, bank records, money orders and other papers
        relating to the transportation, sale and distribution of illegal controlled
        substances. These individuals commonly provide illegal controlled
        substances to their clients on consignment and therefore keep some type of
Stewart v. State                                                                        Page 5
        records concerning monies owed. The aforementioned books, records,
        receipts, notes, ledgers, etc., are maintained where the dealer in illegal
        controlled substances has ready access to them, such [as] in secure locations
        within their residences and surrounding curtilage, residences of family
        members and/or friends and associates, places in which they conduct their
        drug distribution activities such as stash houses or safe houses, or in storage
        areas;

        B. Individuals who deal in illegal controlled substances routinely conceal
        in their residence, place of operation, or motor vehicle, caches of illegal
        controlled substances, large amounts of currency, financial instruments,
        precious metals, jewelry and other items of value and/or proceeds of illegal
        controlled substance transactions relating to obtaining, transferring,
        secreting or spending large sums of money made from engaging in illegal
        controlled substances activities;

        C. Individuals who deal in illegal controlled substances routinely conceal
        illegal proceeds of drug sales and records of drug transactions in secure
        locations within their residences, place of operation, or motor vehicles for
        ready access and to conceal them from law enforcement agencies;

        D. Individuals who deal in illegal controlled substances commonly
        maintain address and/or telephone numbers in books or papers which
        reflect names, addresses, and/or telephone numbers for their associates in
        their illegal organization.

        E. Individuals who deal in illegal controlled substances take or cause to be
        taken photographs of themselves, their associates, their property and their
        illegal controlled substances. These photographs are usually maintained in
        their place of residence, or residences of family members, friends or
        associates, business locations, or in places from which they conduct their
        distribution activities.

        F. Individuals who deal in illegal controlled substances usually keep
        paraphernalia for packaging, cutting, weighing and distributing illegal
        controlled substances. This paraphernalia includes scales, plastic bags, and
        cutting agents;

        G. Narcotics traffickers keep and utilize computers and other electronic
        devices for the purpose of maintaining records, receipts, notes, ledgers,
Stewart v. State                                                                          Page 6
        bank records, money orders and other documents or records relating to the
        importation, manufacture, transportation, ordering, sale and distribution of
        illegal controlled substances. Additionally, narcotics traffickers utilize
        computers and other electronic devices as a means of communication, such
        as: the internet, in order to conduct their narcotics trafficking business.
        These computers and other electronic devices are maintained in locations
        to which narcotics traffickers have ready access, such as in secure locations
        within their residences and surrounding curtilage; residences of family
        members, friends and associates; places in which they conduct their drug
        distribution activities, such as stash houses or safe houses; in business
        locations in which the trafficker is associated, or in storage areas.

        H. Narcotics traffickers often own[,] possess and/or use weapons as a
        means of facilitating their illegal drug activities. Such weapons are most
        often secreted in their residences to include surrounding curtilage, or
        residences of family members, friends or associates, or in the places from
        which they conduct drug distribution activities, such as stash houses or safe
        houses. These individuals also often possess ammunition and other items
        pertaining to the possession of firearms, including gun cases, ammunition
        magazines, holsters, spare parts for firearms, firearms cleaning equipment,
        photographs of firearms or of persons in possession of firearms, and
        receipts for the purchase and/or repair of all these items.

        I. Based on my prior training and experience, I have observed that narcotics
        traffickers keep and use cellular telephones and technology associated with
        this type of equipment as a primary means of communications in order to
        conduct their narcotics trafficking business. Additionally, narcotics
        traffickers commonly maintain telephone numbers and address books or
        papers, which reflect names, addresses and/or telephone numbers for their
        associates. These telephone records, bills and pager numbers are often
        found in their place of residence, or in the residences of family members,
        friends and associates, business locations, or in the places from which they
        conduct their distribution activities. Narcotics traffickers keep and use co-
        conspirators[‘] addresses and telephone numbers in the memory of cellular
        telephone devices and other personal organizer type . . . electronic devices
        in order to facilitate their illegal narcotics activities. Additionally narcotics
        traffickers utilize voicemail messaging and text messaging services
        provided by cellular telephone companies systems to send and receive
        instructions, directions and the results of illicit narcotics related activities to
        other co[-]conspirators involved in said activities. Narcotics traffickers also
Stewart v. State                                                                              Page 7
        use numerous cellular telephones to communicate with co-conspirators in
        order to confuse the efforts of law enforcement.

        J. Individuals who deal in illegal controlled substances commonly use safes
        and lock boxes to maintain security of contraband items to wit: weapons,
        records and narcotics.

        K. Individuals who deal in illegal controlled substances commonly possess
        stolen property as proceeds of drug transactions.

        Your affiant states the facts which establish probable cause necessary for
        the issuance of a search warrant for the suspected premises and persons are
        as follows:

        1. On October 25, 2010, I, Sergeant Winkler, received information from a
           confidential informant about stolen property located at the address of
           3261 Limestone County Road 460 in possession of Edward Stewart. I
           traveled to the location and spoke with Stewart who gave consent to a
           search of his residence. Drug paraphernalia and guns were found at the
           location. One of the guns was determined to be stolen and Stewart was
           arrested for the violation.

        2. On August 18, 2010, Deputy Shane James was flagged down by a
           complainant on Limestone County Road 460. The complainant advised
           that he had reported a Kawasaki Mule stolen and knew of its possible
           location. On this same date, deputies from this office including myself,
           went to the location of 3261 Limestone County Road 460 to locate the
           Kawasaki Mule. The Mule was located on the property. Edward
           Stewart was later charged with its possession.

        3. On September 1, 2010, Sgt[.] Brett New returned to the property at 3261
           Limestone County Road 460 to do a follow up investigation. A trailer
           was recovered at the property which had the VIN plate removed and
           was not registered correctly and believed to be stolen.

        4. Since early in the year of 2010, Captain Agnew and I, Sergeant Winkler,
           along with other Deputies of the Limestone County Sheriff’s Office have
           been receiving information from confidential informants in relation to
           methamphetamine sales and ongoing criminal activity at the location of
           3261 Limestone County Road 460.
Stewart v. State                                                                      Page 8
        5. In late June 2012, I, Sergeant Winkler, received information from a
           confidential informant (#1) about drug activity at the location of 3261
           Limestone County Road 460. The informant advised me that he had
           been to the location on at least 4 occasions and saw methamphetamine.
           The informant advised that he had purchased methamphetamine from
           Edward Stewart on at least 8 to 10 occasions through another individual
           which is common in methamphetamine trafficking. I was able to gain
           access to Edward Stewart’s Facebook page online and did observe
           photos of Stewart with the subject that the informant claimed to use to
           buy methamphetamine from Stewart. The informant advised that the
           last time he had been at the location in person was in December of 2011.

        6. Within the last two weeks, I, Sergeant Winkler spoke with a confidential
           informant (#2) in reference to activity at the location of 3261 Limestone
           County Road 460. The informant advised of methamphetamine
           trafficking at the location. The informant advised me of the location
           where the methamphetamine was believed to be kept. The informant
           advised me of multiple individuals dealing methamphetamine at the
           location.

        7. Within the last 72 hours, I, Sergeant Winkler, spoke with a confidential
           informant (#3) in reference to activity at 3261 Limestone County Road
           460. The informant advised that they knew Edward Stewart for a
           number of years and had seen methamphetamine a number of times at
           the location along with people using methamphetamine. The informant
           advised that he had seen large amounts of methamphetamine at the
           location on a number of occasions.

        8. The Limestone County Sheriff’s Office in house computer system shows
           the following arrests for Edward Stewart: Theft of a firearm, Theft of
           property greater than or equal to $1,500.00 but less than $20,000.00,
           possession of a controlled substance penalty group 1 less than one gram
           and assault causes bodily injury.

        It is Affiant’s experience that individuals who traffic in controlled
        substances are not unlike any other individuals in our society in that they
        maintain documents and records. These documents and records will
        normally be retained for long periods of time regardless of whether their
        value to the individual had diminished. Often this type of evidence is
Stewart v. State                                                                       Page 9
        generated, maintained and is subsequently forgotten about. Hence,
        documents that one would normally think a prudent person would destroy
        because of their incriminating nature are still possessed months or even
        years after they come into the possession of the drug trafficker. In fact,
        Affiant has participated in the execution of numerous search warrants
        where documentary evidence has been found. It is Affiant’s experience that
        the larger and more complex a continuing criminal enterprise is, the more
        documentary evidence is generated during the course of commission.

        Based on all the foregoing facts, Affiant believes that there exists probable
        cause to believe that Edward Stewart is knowingly and intentionally in
        possession of items described above that constitute evidence of violations
        of the TEXAS HEALTH AND SAFETY CODE and/or the TEXAS PENAL
        CODE; there further exists probable cause to believe that the items
        described above are being concealed at the suspected premises and on the
        curtilage and on the person of Edward Dean Stewart.

        Affiant is aware that individuals who are involved in the distribution of
        Methamphetamine and/or other controlled substances fear arrest by law
        enforcement and these individuals are likely to destroy evidence that
        would assist law enforcement in the prosecution of criminal acts by these
        same individuals. Affiant fears that announcing would be dangerous, futile
        and would inhibit the effective safety and investigation of the crime
        involved in the purposes of this search if law enforcement officers are
        required to announce themselves before entering the said suspected
        premises. Considering statements by the CI’s and Stewart’s criminal
        history and past arrests, Affiant requests that law enforcement officers
        serving this search warrant be allowed to enter the said suspected premises
        without knocking and announcing.

        WHEREFORE, Affiant asks for issuance of a Warrant that will authorize
        him to search said place and premises for said property and seize the same
        and to arrest each said described and accused person.

                                    Standard of Review

        A trial court’s ruling on a motion to suppress is evaluated under a “bifurcated

standard of review.” Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016).


Stewart v. State                                                                        Page 10
        First, we afford almost total deference to a trial judge’s determination of
        historical facts. The judge is the sole trier of fact and judge of witnesses’
        credibility and the weight to be given their testimony. When findings of
        fact are not entered, we view the evidence in the light most favorable to the
        judge’s ruling and assume the judge made implicit findings of fact that
        support the ruling as [long as] the record supports those findings. Second,
        we review a judge’s application of the law to the facts de novo. We will
        sustain the judge’s ruling if the record reasonably supports that ruling and
        is correct on any theory of law applicable to the case.

Id. (footnoted citations omitted); see also Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim.

App. 2016) (footnoted citations omitted).      When the trial court makes explicit fact

findings, the reviewing court determines whether the evidence, when viewed in the light

most favorable to the trial court’s ruling, supports those fact findings. Kelly v. State, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006). The trial court’s legal ruling is then reviewed de

novo unless its explicit fact findings that are supported by the record are also dispositive

of the legal ruling. Id. at 819.

        When a defendant appeals the denial of a motion to suppress on the ground that

a warrant lacked probable cause, “a reviewing court must uphold the magistrate’s

decision so long as the magistrate had a substantial basis for concluding that probable

cause existed.” Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012). The reviewing

court may “look only to the four corners of the supporting affidavit,” and the court

should “view the magistrate’s decision to issue the warrant with great deference.” Id.

The supporting affidavit should be reviewed in “a commonsensical and realistic manner.

. . .” Id. (footnoted citations omitted). “Although the reviewing court is not a ‘rubber


Stewart v. State                                                                        Page 11
stamp,’ ‘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.’” Id.

(quoting Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)).

                                        Discussion

        As noted, Stewart challenges the denial of his motion to suppress on the ground

that the information contained in the affidavit supporting the July warrant was

insufficient to establish probable cause. Specifically, Stewart argues that the information

contained in the affidavit is insufficient to support probable cause to believe he was

involved in methamphetamine trafficking because the information was based upon

uncorroborated statements from “three untested, first-time informants of unknown

reliability.”

        A search warrant is supported by probable cause when “the facts submitted to the

magistrate are sufficient to justify a conclusion that the object of the search is probably on

the premises to be searched at the time the warrant is issued.” Davis v. State, 202 S.W.3d

149, 154 (Tex. Crim. App. 2006). The warrant must be “read in a common sense and

realistic manner,” and “[r]easonable inferences may be drawn from the facts and

circumstances contained within the four corners of the affidavit.” Id. An affidavit is

sufficient to establish probable cause “if, from the totality of the circumstances reflected

in the affidavit, the magistrate was provided with a substantial basis for concluding that

probable cause existed.” Id. at 156. “Neither federal nor Texas law defines precisely what


Stewart v. State                                                                       Page 12
degree of probability suffices to establish probable cause, but a magistrate’s action cannot

be a mere ratification of the bare conclusions of others.” State v. Duarte, 389 S.W.3d 349,

354 (Tex. Crim. App. 2012). The relevant inquiry is whether “there are sufficient facts,

coupled with inferences from those facts, to establish a ‘fair probability’ that evidence of

a particular crime will likely be found at a given location.” Rodriguez v. State, 232 S.W.3d

55, 62 (Tex. Crim. App. 2007). “The issue is not whether there are other facts that could

have, or even should have, been included in the affidavit; we focus on the combined

logical force of facts that are in the affidavit, not those that are omitted from the affidavit.”

Id. (emphasis in original); see also Johnson v. State, No. 10-14-00263-CR, *11, 2016 Tex. App.

LEXIS 2813 (Tex. App.—Waco, March 17, 2016, no pet.) (not designated for publication).

        Stewart argues that the information provided by the confidential informants

should be disregarded as Winkler failed to include any indication of their reliability or

credibility in the affidavit. He specifically argues that the affidavit fails to include any

facts that establish the basis for CI #2’s knowledge of the methamphetamine attributed to

Stewart’s residence.     The affidavit does not indicate whether CI #2 obtained his

knowledge through personal observation or whether he learned of it from others. Nor

does the affidavit indicate that CI #2 or CI #3 were qualified by experience or some other

means in identifying methamphetamine. Finally, Stewart argues that the information

provided by CI #1 is uncorroborated and is either too remote or unspecified as to time.




Stewart v. State                                                                         Page 13
        In evaluating an informant’s tip, we take into account the informant’s veracity or

reliability and his basis of knowledge to determine the value of his assertions. Illinois v.

Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983); Rivas v. State, 446

S.W.3d 575, 579 (Tex. App.—Fort Worth 2014, no pet.). The unnamed informant’s

reliability and credibility may be established by general assertions of the affiant that the

informant has proven reliable on previous occasions.          Duarte, 389 S.W.3d at 357.

“Although an informant’s veracity, reliability, and basis of knowledge are highly relevant

in reviewing the sufficiency of an affidavit, these elements are not each independent

requirements, but closely intertwined issues that illuminate the overall question of

whether there is probable cause.” Blake v. State, 125 S.W.3d 717, 726 (Tex. App.—Houston

[1st Dist.] 2003, no pet.).   “[A] deficiency in one may be compensated . . . by a strong

showing as to the other, or by some other indicia of reliability,” all of which are relevant

considerations under the totality of the circumstances. Gates, 462 U.S. at 233, 103 S.Ct. at

2329.

        If the information in the affidavit comes from “anonymous or first-time

confidential informants of unknown reliability,” the information must then “be coupled

with facts from which an inference may be drawn that the informant is credible or that

the information is reliable.” Duarte, 389 S.W.3d at 357. If the affidavit is based almost

entirely on hearsay information supplied by a first-time confidential informant, there

must be a substantial basis for crediting the hearsay that is presented. Id. at 355 (citing


Stewart v. State                                                                     Page 14
Gates, 462 U.S. at 241-42). A tip may be deemed credible if it is corroborated, if it is a

statement against the confidential informant’s penal interest, if it is consistent with

information provided by other informants, if it includes detailed first-hand observation,

or if it is coupled with an accurate prediction of the subject’s future behavior. Id., at 356-

57 (citations omitted).

        Even if an informant’s reliability or credibility is otherwise substantiated, the

information provided may be stale. The affidavit notes that although Winkler received

information from CI #1 in June of 2012, the CI had last been to Stewart’s property in

December of 2011. “[T]ime is a less important consideration when an affidavit recites

observations that are consistent with ongoing drug activity at a defendant’s residence.”

Jones v. State, 364 S.W.3d. 854, 860 (Tex. Crim. App. 2012). If an affidavit includes an

isolated incident, “it would not be unreasonable to imply that probable cause dwindles

rather quickly with the passage of time. However, where the affidavit properly recites

facts indicating activity of a protracted and continuous nature, a course of conduct, the

passage of time becomes less significant.” Id. at 861 (quoting United States v. Johnson, 461

F.2d 285, 287 (10th Cir. 1972)).      The affidavit in this case describes an ongoing

investigation and the continuous distribution of methamphetamine from Stewart’s

residence. See United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001) (where the criminal

activity occurs in a “secure operational base,” the passage of time becomes less

significant).


Stewart v. State                                                                       Page 15
        Winkler corroborated some of the information received from CI #1 in that he found

a Facebook connection between Stewart and CI #1’s source of methamphetamine.

Additionally, CI #1’s statements were against CI #1’s penal interests – he admitted to

purchasing methamphetamine. While Winkler did not provide separate corroboration

for the statements provided by CI #2 and CI #3, the information provided by each of the

CI’s corroborated that given by the others. Each of the CI’s identified the presence of

methamphetamine at Stewart’s home. Both CI #1 and CI #3 also informed Winkler that

they knew Stewart and had been to his residence on a number of occasions.

        While the affidavit does not specifically address the basis for CI #2’s knowledge of

methamphetamine, it does include information which indicates this informant had

greater familiarity with the drug than the average citizen. CI #2 was familiar enough with

Stewart and his methamphetamine trafficking to know where Stewart stored his

methamphetamine and that multiple individuals dealt methamphetamine from the

residence. Additionally, as previously noted, CI #3 had known Stewart for a number of

years, during which time he had personally observed large quantities of

methamphetamine at Stewart’s residence on a number of occasions. CI #3 also had

personally seen people using methamphetamine at the location. The activities personally

observed by CI #3 could not be confused with innocent behavior. While there may be

deficiencies with each CI, taking the information provided by them as a whole, combined

with the totality of the background information contained in the affidavit, there was


Stewart v. State                                                                     Page 16
sufficient support for the trial court’s finding of probable cause.

        The background information included in the affidavit, apart from the information

supplied by the CI’s, includes Winkler’s personal interactions with Stewart, interactions

between Stewart and other law enforcement personnel, and Stewart’s criminal history.

The majority of Stewart’s criminal history relates to possession of stolen property, but he

was also found in possession of drug paraphernalia. While the possession of the stolen

property does not, in and of itself, provide probable cause to believe narcotics trafficking

was occurring on Stewart’s property, the affidavit also includes Winkler’s professional

observation that narcotics traffickers “commonly possess stolen property as proceeds of

drug transactions.”    The stolen property, therefore, provides some support for the

allegations of methamphetamine trafficking.

        From a totality of the circumstances, the information contained in the affidavit

provides sufficient probable cause to support the issuance of the warrant. We conclude

that the trial court did not err in denying Stewart’s motion to suppress.

        We overrule Stewart’s sole issue and affirm the trial court’s judgments in both

Cause Nos. 10-15-00116-CR and 10-15-00117-CR.




                                                  REX D. DAVIS
                                                  Justice




Stewart v. State                                                                     Page 17
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed May 31, 2017
Do not publish
[CRPM]

        *(Chief Justice Gray concurs. A separate opinion will not issue. He notes: There
are three aspects of this case that bear emphasis. First, the subject of the search warrant
specifically included evidence of drug sales. As such, the remoteness-in-time argument
about the information provided by the confidential informants actually seeing drugs on
the premises is a different analysis. Probable cause to find evidence of trafficking in
illegal drugs finds a firm foundation in the affidavit and the information provided by the
confidential informants, though untethered to a specific time helps establish that
probability. Second, reliability of the confidential informants, while weak as to the
potential presence of contraband on the premises on the date of the issuance of the search
warrant, was relatively strong for the use of the location as a base of operations for the
distribution of contraband and the likelihood of finding evidence of the trafficking in
illegal drugs on the premises on the date of the issuance of the search warrant. Finally,
and of more importance for this concurring note, there were multiple grounds upon
which the State opposed the motion to suppress and thus several grounds upon which
the motion could be denied. Only one of those grounds was challenged on appeal by
Stewart. Accordingly, I find the entire discussion and analysis of the issue raised by
Stewart in this appeal to be immaterial since there were multiple other grounds that
would have supported the denial of the motion to suppress that are not challenged on
appeal. Accordingly, I join the Court’s affirmance of the judgments adjudicating Stewart
guilty though not the basis thereof.)




Stewart v. State                                                                    Page 18
