      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00342-CR




                                      Felix Flores, Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-07-634, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                                           OPINION


               A jury found appellant Felix Flores guilty of possessing more than four grams but less

than two hundred grams of cocaine with intent to deliver and assessed his punishment at twelve

years’ imprisonment. See Tex. Health & Safety Code Ann. § 481.112 (West 2003). In a single point

of error, appellant contends that the trial court erred by overruling his motion to suppress evidence.

We find no reversible error and affirm the conviction.

               On March 6, 2007, officers associated with the Hays County Narcotics Task Force

obtained and executed a warrant to search the residence at 1920 Ramona Circle in San Marcos for

cocaine, marihuana, and evidence of narcotics trafficking and to arrest appellant and Tiffany

Wardell. The return reflects that during the search, the officers found and seized cocaine, marihuana,

digital scales, and other items. Appellant filed two motions to suppress the evidence seized during

the search, the second of which contended that the information contained in the search warrant
affidavit did not state probable cause. The motion was considered by the court on the morning

appellant’s trial began. After hearing only brief arguments by counsel, the court took the motion

under advisement. The court overruled the motion later that day without comment.


                                 PRESERVATION OF ERROR

                Among his arguments to this Court, appellant contends that a confidential informer

who supplied hearsay information contained in the probable cause affidavit was not shown to be

reliable. He also argues that some of the information contained in the affidavit was stale. The State

argues that these contentions should not be considered because they were not presented to the trial

court. See State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (stating general rule that

appellate court may not reverse trial court decision on new theory of law not presented to trial court

for its consideration).

                In his second motion to suppress, appellant contended that the search warrant affidavit

“[did] not contain sufficient underlying facts adequately to inform the magistrate of how the alleged

informant obtained his/her information and [did] not contain sufficient underlying facts to establish

the credibility and reliability of the alleged informant.” Appellant’s counsel reasserted this

contention at the hearing before the trial court, saying, “[T]he unidentified tipster does not have any

information such as criminal informant information or reliability by a police officer with respect to

contents of their affidavit . . . . The case law is well settled that an anonymous tipster with no

corroborating facts or other indicia of reliability wouldn’t rise to the level of probable cause, as

well.” Clearly, the reliability of the informer was expressly challenged below, and the State’s

argument to the contrary is without merit.

                                                  2
                 It is true that appellant never expressly asserted, either in the motion to suppress or

at the hearing, that the information in the affidavit was stale. There was, however, no doubt that

appellant was challenging the sufficiency of the affidavit’s showing of probable cause.1 Whether

a search warrant affidavit states probable cause is determined by considering the totality of the

circumstances shown in the affidavit. Illinois v. Gates, 462 U.S. 213, 238 (1983). Time is an

important circumstance because the affidavit must establish that the object of the search is probably

on the premises at the time the warrant is sought. See Cassias v. State, 719 S.W.2d 585, 587 (Tex.

Crim. App. 1986); and see State v. Davila, 169 S.W.3d 735, 739 (Tex. App.—Austin 2005, no pet.)

(discussing timeliness of informer’s information in course of evaluating informer’s basis of

knowledge). We conclude that the timeliness of the information was necessarily included within

appellant’s challenge to the sufficiency of the probable cause affidavit, and the timeliness issue is

now properly before us on appeal.


                                SEARCH WARRANT AFFIDAVIT

                The affidavit was prepared and signed on March 6, 2007, by Officer Attila Farkas of

the Hays County Sheriff’s office, who was assigned to the Hays County Narcotics Task Force.

Farkas began the probable cause portion of the affidavit with a description of his training and

experience as a police officer generally and a narcotics investigator in particular. Then, the officer

recounted a tip he had received from an anonymous source:




   1
     In its argument to the trial court, the State urged that “the affidavit as a whole . . . does, in fact,
establish probable cause for the search warrant; therefore, we would ask that the Defendant’s Motion
to Suppress be overruled.”

                                                     3
       In February of 2007, Affiant received a phone call from a concerned citizen regarding
       narcotics activity at a house located on Ramona Circle in San Marcos, Texas. The
       caller wished to remain anonymous for reasons of his/her safety. The concerned
       citizen could not give an exact address but did describe the vehicles that are typically
       found at the residence. The vehicle descriptions were a black F-150 truck and a gold
       Firebird. The concerned citizen also stated that an individual by the name of Felix
       Flores resides at the residence with his girl friend. The female was only identified
       as a white female by the name of Tiffany. The concerned citizen also stated that
       he/she had observed a quantity of cocaine inside the residence in the past and that
       Child Protective Services had conducted an investigation on Flores regarding the use
       of marijuana in the presence of his children.


               The affidavit went on to relate that after receiving this tip, Farkas and another officer

went to Ramona Circle and found the two vehicles described by the informer parked outside the

house at 1920 Ramona Circle. A check of the license plate numbers disclosed that the pickup truck

was registered to appellant at an address in Maxwell, which is in Caldwell County. The Firebird was

registered to Maria Wardell at 1920 Ramona Circle. Farkas checked the utility records for 1920

Ramona Circle and learned that the account was in the name of Tiffany Wardell. The officer also

learned that Tiffany Wardell’s driver’s license was issued to the Ramona Circle address. The

affidavit then described what Farkas had learned about appellant:


       Affiant checked the Hays County Sheriff’s Office data base for any information on
       Felix Flores. The information obtained gave his address as being located in
       Maxwell, TX. Affiant checked the Hays County Narcotics Task Force data base for
       any information regarding Felix Flores. The only information provided stated that
       the Task Force had obtained information regarding Flores several years ago and the
       information was turned over to Caldwell County Narcotics since Flores did not live
       in this jurisdiction at that time.

       Affiant contacted Caldwell County narcotics and spoke with Jesse Hernandez
       regarding Felix Flores. Hernandez advised Affiant that Flores had been under
       investigation but that no charges had been filed. Affiant contacted Child Protective

                                                  4
       Services and spoke with Cheryl Smith regarding Flores. Smith advised that there had
       been an investigation regarding the welfare of children at Flores’s residence but that
       it had occurred at his residence in Maxwell.


               Finally, the affidavit described two garbage searches conducted by Farkas:


       On 03-01-07, Affiant obtained the abandoned household garbage from the garbage
       can located in the street, directly in front of the residence located at 1920 Ramona
       Circle, San Marcos, Hays County, Texas. Affiant examined the garbage for any
       evidence of narcotics use. Affiant located two empty packages of cigarette papers.
       Affiant from his experience and training knows that these type of rolling papers [are]
       commonly used to smoke marijuana cigarettes. Affiant also located a plastic bag
       believed to contain a small amount of marijuana residue. [A field test of this residue
       was positive for marihuana.]

       On 03-05-07, Affiant again obtained the abandoned household garbage from the
       garbage can located on the street, directly in front of the residence at 1920 Ramona
       Circle . . . . Affiant located [in this garbage] several marijuana stems, seeds and
       marijuana residue. Affiant also located an affirmative link to Tiffany Wardell at
       1920 Ramona Circle . . . .


                                          DISCUSSION

               Probable cause to support the issuance of a search warrant exists 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. Cassias,

719 S.W.2d at 587; State v. Bradley, 966 S.W.2d 871, 873 (Tex. App.—Austin 1998, no pet.). The

sufficiency of the affidavit is determined by considering the totality of the circumstances set forth

within the four corners of the document. Gates, 462 U.S. at 238; Hennessy v. State, 660 S.W.2d 87,

90 (Tex. Crim. App. 1983); Bradley, 966 S.W.2d at 873. The affidavit must be interpreted in a

common sense and realistic manner, recognizing that reasonable inferences may be drawn from the



                                                 5
affidavit. Hespeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008, pet. ref’d). The issuing

magistrate’s determination of probable cause must be given great deference and will be sustained

if the magistrate had a substantial basis for concluding that probable cause was shown.

Gates, 462 U.S. at 236-37; Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004);

Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990); Davila, 169 S.W.3d at 738.


The Informer’s Tip

               When a probable cause affidavit relies on hearsay information, the informer’s

veracity, reliability, and basis of information are highly relevant factors in determining whether

probable cause exists.    Gates, 462 U.S. at 238-39; Parish v. State, 939 S.W.2d 201, 203

(Tex. App.—Austin 1997, no pet.). Anonymously provided information must contain some indicia

of reliability or be reasonably corroborated by the police before it can be used to justify a search.

Gates, 462 U.S. at 244-46; Parish, 939 S.W.2d at 203. The information corroborated must provide

a substantial basis for crediting the informer’s hearsay; corroboration of details that are easily

obtainable at the time the information is provided will not support a finding of probable cause.

Gates, 462 U.S. at 244-46; Parish, 939 S.W.2d at 203.

               According to Farkas’s affidavit, the anonymous “concerned citizen” reported

“narcotics activity” at the suspect location. It is unclear whether the conclusion that the activity

involved narcotics was the informer’s or Farkas’s, but in either event this wholly conclusory

statement gave the magistrate no factual basis for making a judgment about probable cause. See

Gates, 462 U.S. at 239; Davila, 169 S.W.3d at 739-40. Nor did the reported presence of cocaine at

the residence “in the past” give the magistrate any basis for believing that cocaine would be present

                                                 6
on March 6, 2007. See Serrano v. State, 123 S.W.3d 53, 60 (Tex. App.—Austin 2003, pet. ref’d).

Moreover, insofar as the affidavit reflects, the informer had no history of providing reliable

information to the police or any demonstrated ability to recognize either cocaine or “narcotics

activity.” See Davila, 169 S.W.3d at 739.

               The affidavit reflects that Farkas confirmed the informer’s statement that there had

been a CPS investigation of appellant, but he apparently did not confirm the informer’s statement

that the investigation involved a suspicion of marihuana use, much less determine that the suspicion

was proved true. Moreover, the affidavit did not tell the magistrate when this CPS investigation took

place. Finally, the CPS investigation was conducted in another county and did not relate to the

suspect residence. The information regarding the CPS investigation gave the magistrate no basis for

a finding of probable cause to search the suspect premises.

               Finally, in his efforts to corroborate the informer’s tip, Farkas learned that the

narcotics task force “had obtained information regarding Flores several years ago.” In addition to

being stale, this unspecified information concerned activities in Caldwell County and did not result

in charges being filed. This recital neither bolstered the informer’s credibility nor independently

contributed to a finding of probable cause to search the premises at 1920 Ramona Circle.

               Although the informer was shown to have accurately described the two vehicles

parked in front of the suspect house, any passer-by could have done this. See Gates, 462 U.S. at

244-46; Parrish, 939 S.W.2d at 203. Similarly, it added nothing to the informer’s credibility that

the police confirmed that a woman named Tiffany lived in the suspect residence; this was a fact

that any neighbor would know or could easily learn. See Gates, 462 U.S. at 244-46; Parrish,



                                                 7
939 S.W.2d at 203. The police apparently did not confirm that appellant was a resident at

1920 Ramona Circle, although the repeated presence of his truck at the house suggests that he was

at least a regular visitor.

                We agree with appellant that the anonymous informer’s tip and related information

did not give the magistrate a substantial basis for believing that cocaine, marihuana, or evidence

of unlawful controlled substance dealing would be found in the house at 1920 Ramona Circle on

March 6, 2007. If there was probable cause to issue the challenged warrant, it had to have come

from the garbage searches.


Garbage Searches

                In his motion to suppress, appellant urged that “the searches of the trash receptacles

outside [the suspect premises] are insufficient to establish probable cause to search the residence.”

He reurges that argument on appeal.

                During the first garbage search on March 1, 2007, Farkas found evidence of

marihuana consumption in the form of an empty package of cigarette rolling papers and a bag

containing marihuana residue. He did not, however, find any evidence (beyond the location of the

trash can) that this material had come from inside the residence at 1920 Ramona Circle. During the

second garbage search on March 5, 2007, Farkas again found a bag containing marihuana residue.

The affidavit stated that Farkas also found “an affirmative link” to Wardell at 1920 Ramona Circle,

but this was merely the officer’s conclusion, and the affidavit did not describe the factual basis for

it. Like the earlier reference to “narcotics activity,” this was a wholly conclusory statement and gave




                                                  8
the magistrate no basis for making a judgment about probable cause. See Gates, 462 at 239; Davila,

169 S.W.3d at 739-40.

               In California v. Greenwood, the Supreme Court held that a person does not have a

reasonable expectation of privacy in discarded items deposited in the person’s garbage and placed

at the curb to be taken by the trash collector. 486 U.S. 35, 40-41 (1988). In so holding, the Court

noted that “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street

are readily accessible to animals, children, scavengers, snoops, and other members of the public.”

Id. at 40 (footnotes omitted); see also id. at 54 (Brennan, J., dissenting) (referring to “unwelcome

meddlers” who might open and rummage through garbage containers). Thus, under Greenwood, the

police may not need probable cause or a warrant to search through a person’s discarded curbside

refuse, but the ready accessibility of trash containers to the public diminishes the probative value of

any evidence the police might find in garbage left on the street for collection. See Davila,

169 S.W.3d at 740 (noting that garbage containers left outside for collection are readily accessible

to public, including neighbors or passers-by); Serrano, 123 S.W.3d at 62 (same).

               In Davila, the search warrant affidavit described a statement by an informer of

unknown credibility that drugs were being possessed at the suspect location at some unstated time,

contained the affiant’s unsupported assertion that narcotics transactions occurred frequently at that

address, and recounted the discovery of a plastic bag containing marihuana residue in a garbage can

sitting in the street in front of the house. 169 S.W.3d at 740. The affidavit contained no facts

tending to show that the defendant or his girlfriend who lived at the residence were marihuana users

or sellers. Id. We affirmed the trial court’s order suppressing the evidence seized pursuant to this



                                                   9
warrant, holding that the affidavit did not give the magistrate a substantial basis for finding probable

cause to search. Id. In Serrano, this Court held that the issuance of a search warrant was not

justified by an affidavit describing an anonymous conclusory tip that the defendant was dealing

cocaine in the county, police records and observations establishing a tenuous connection between

the defendant and the suspect premises, and the discovery of a plastic bag containing cocaine residue

in a garbage can outside the suspect premises. 123 S.W.3d at 63. In both Davila and Serrano, this

Court stated that in the absence of any other probative showing that controlled substances might be

found, the one-time discovery of controlled substance residue during a search of garbage found

outside the suspect location did not give the magistrate a substantial basis for concluding that there

was probable cause to search. Davila, 169 S.W.3d at 740; Serrano, 123 S.W.3d at 63.

               This Court has, in other opinions, upheld the issuance of search warrants based in part

on affidavits describing the results of garbage searches. In State v. Delagarza, a search warrant

affidavit told the magistrate that an informer had reported suspected drug dealing at the defendant’s

residence. 158 S.W.3d 25, 27 (Tex. App.—Austin 2005, no pet.). Although the informer’s

reliability was unknown, the tip contained an indicia of reliability because it described a pattern of

activity (recounted in the affidavit) that the affiant knew, from his training and experience, was

indicative of drug dealing. Id. at 28. The affiant had also conducted four recent garbage searches

at the suspect location, including one on the day the warrant issued, and had found on each occasion

cocaine, marihuana, and drug paraphernalia. Id. at 27-28. Finally, the affidavit described the

discovery of cocaine and drug paraphernalia during garbage searches three months earlier at the




                                                  10
defendant’s previous address. Id. at 27. We held that the totality of the circumstances described

in the affidavit gave the magistrate probable cause to issue a search warrant. Id. at 29.

                In Bradley, the search warrant affidavit described two tips from informers of

demonstrated reliability stating that the defendant possessed and sold cocaine at the suspect

premises. 966 S.W.2d at 874. Acting on these reliable tips, the affiant had on the day the warrant

issued conducted a garbage search at the subject location and found cocaine, documents that

appeared to describe drug transactions, and another document with the defendant’s name written on

it. Id. This Court found that there was probable cause to issue a search warrant. Id. 875-76.

                We have found one other published Texas opinion addressing the sufficiency of a

search warrant affidavit describing the results of garbage searches. In State v. Raymer, a police

officer investigating the unlawful possession and sale of anabolic steroids conducted garbage

searches at the suspect location on five different occasions over a period of five months, the last

search being on the day the warrant issued. 786 S.W.2d 15, 16 (Tex. App.—Dallas 1990, no pet.).

The affidavit stated that during each search, the officer found hypodermic needles and syringes. Id.

During one of the searches, the officer found a vial containing an anabolic steroid and papers with

notations reflecting the sale of anabolic steroids and human growth hormone by the defendant and

others living at the residence. During the most recent search, the officer found a vial containing a

human growth hormone. Id. The court of appeals determined that the affidavit stated probable cause

to search. Id. at 17.2


   2
     In Nilson v. State, a search warrant was issued on the basis of an informer’s tip and the results
of two garbage searches. 106 S.W.3d 869, 871 (Tex. App.—Dallas 2003, no pet.). The issue on
appeal was whether the garbage searches were themselves lawful; whether the results of the garbage

                                                 11
                The State relies primarily on this Court’s unpublished opinion in State v. E. Davila,

No. 03-06-00214-CR, 2007 Tex. App. LEXIS 1379 (Tex. App.—Austin Feb. 23, 2007, no pet.).3

In that case, the Court upheld a search warrant issued on the basis of an affidavit that stated: (1) for

several years, the narcotics task force had been receiving informer’s tips that the defendant was a

member of a criminal gang and engaged in extortion and drug dealing (the opinion does not say

whether the informers were known to be reliable); (2) a search of the defendant’s residence two years

earlier yielded evidence of illegal drug activity; (3) the defendant had a previous drug conviction;

(4) a reliable informer had told the affiant two months earlier that the defendant was living at the

suspect location, and the affiant had confirmed this by his own investigation; and (5) two searches

of discarded household trash at the suspect location, one conducted on the day the warrant issued and

the other conducted six days earlier, yielded straws of the sort used to consume cocaine and plastic

baggies of the sort used to package cocaine for sale, and both the straws and baggies tested positive

for cocaine. Id. at *3-5. The Court held that the affidavit at issue was distinguishable from the

affidavits found inadequate in Serrano and Davila, citing the defendant’s prior link to drug activity,

the reliable tip that he lived at the suspect location, and the results of the two trash searches.

Id. at *9-10.




searches supported a finding of probable cause to search the residence was not raised. Id. at 875.
Similarly, the opinion in Levario v. State, 964 S.W.2d 290, 295-96 (Tex. App.—El Paso 1997, no
pet.), discussed the propriety of garbage searches and not whether the results of the searches
contributed to a finding of probable cause to conduct a residence search.
  3
    We use the appellant’s initial to distinguish this opinion from State v. Davila, 169 S.W.3d 735,
739 (Tex. App.—Austin 2005, no pet.).

                                                  12
               Although the affidavit in E. Davila relied heavily on the evidence found during the

two garbage searches, the affidavit also contained probative evidence of the defendant’s prior history

of drug dealing. There was no similar showing in the affidavit at issue in this cause. In fact, we have

found no published or unpublished Texas opinion holding that the discovery of a controlled

substance or drug paraphernalia during a search or searches of garbage deposited in a publicly

accessible container outside the suspect premises is alone sufficient to support the issuance of a

search warrant without any further factual basis for inferring that the incriminating material came

from inside the premises or any other probative showing of criminal activity at the premises or by

the occupants of the premises. 4


   4
      We have found a number of unpublished opinions addressing the issue before us. See State
v. Dickson, No. 05-07-01542-CR, 2008 Tex. App. LEXIS 6333, at *3-5 (Tex. App.—Dallas
Aug. 21, 2008, no pet.) (affidavit described two tips from informers of unknown reliability and
discovery of marihuana residue and pipe during one trash search; held insufficient); Gonzalez
v. State, No. 14-06-01127-CR, 2008 Tex. App. LEXIS 4899, at *1-3 & *7-8 (Tex. App.—Houston
[14th Dist.] Jul. 1, 2008, pet. ref’d) (affidavit described tip from reliable informer, observation of
defendant placing trash in bin at curb, discovery of marihuana residue and mail addressed to
defendant in trash, and discovery of marihuana in defendant’s possession after traffic stop; held
sufficient); State v. Bobic, No. 05-06-01386-CR, 2007 Tex. App. LEXIS 2945, at *1-4 & *17-18
(Tex. App.—Dallas Apr. 18, 2007, no pet.) (affidavit described informer’s tip, information received
from DEA special agent, and discovery of cocaine and paraphernalia during four garbage searches;
held sufficient); Ortiz v. State, No. 02-03-00259-CR, 2005 Tex. App. LEXIS 6721, at *4-7
(Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d) (affidavit described anonymous tip, defendant’s
criminal history of drug possession, and discovery of methamphetamine and mail addressed to
defendant during two garbage searches; held sufficient); Rose v. State, No. 04-04-00344-CR, 2005
Tex. App. LEXIS 32, at *3-9 (Tex. App.—San Antonio Jan. 5, 2005, no pet.) (affidavit described
affiant’s repeated observation of large volumes of vehicle traffic at defendant’s residence and of
hand-to-hand transactions between defendant and drivers of these vehicles, discovery of marihuana
in possession of person seen leaving defendant’s residence, and discovery of marihuana residue
during single garbage search; held sufficient); Jones v. State, No. 11-02-00252-CR, 2003 Tex. App.
LEXIS 8361, at *1-5 & *12 (Tex. App.—Eastland Sep. 25, 2003, no pet.) (affidavit described
discovery of methamphetamine and methamphetamine manufacturing paraphernalia, together with
mail addressed to defendant, during five garbage searches, and defendant’s association with known

                                                  13
                 The garbage container in which Farkas found the marihuana residue was sitting in

front of the suspect premises, but it was also in or beside a city street and accessible to any neighbor

or passer-by. Neither appellant nor Wardell was seen placing the garbage bags in question, or any

other trash, in the container, and there was no other statement of fact in the affidavit suggesting a

connection between the marihuana residue found in the garbage and either appellant, Wardell, or the

suspect premises. On the other hand, the fact that Farkas found marihuana residue in the trash

container outside the residence at 1920 Ramona Circle on two different occasions suggests that the

incriminating material had not been placed there by a neighbor or some passer-by, but that it actually

came from inside the house. The situation is analogous to the “doctrine of chances,” which states

that unusual events are unlikely to repeat themselves inadvertently or by happenstance. See Martin

v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); see also 2 John Wigmore, Evidence § 302

(Chadbourn rev. 1979). This presents a very close question, but keeping in mind the deference that

is due the magistrate’s determination of probable cause, we conclude that the affidavit gave the

magistrate a substantial basis for concluding that there was probable cause to search the premises

for marihuana.



methamphetamine manufacturer; held sufficient); Robertson v. State, No. 10-01-00256-CR, 2003
Tex. App. LEXIS 6445, at *1-2 & 10 (Tex. App.—Waco Jul. 23, 2003, no pet.) (affidavit described
tip from informer, unusually large electricity usage, officer’s observation of marihuana plants
growing in defendant’s yard, and discovery of marihuana during garbage search; held sufficient);
Perez v. State, No. 14-95-00412-CR, 1997 Tex. App. LEXIS 3351, at *6 & *8-11 (Tex.
App.—Houston [14th Dist.] Jun. 26, 1997, no pet.) (affidavit described information from reliable
informer, telephone records, and discovery of cocaine during single garbage search; held sufficient);
Lyons v. State, No. 14-95-00791-CR, 1997 Tex. App. LEXIS 1962, at *6-11 (Tex. App.—Houston
[14th Dist.] Apr. 17, 1997, pet. ref’d) (affidavit described information received from two named law
enforcement officers, utilities records, and discovery of methamphetamine, marihuana, syringes, and
other drug paraphernalia during three garbage searches; held sufficient).

                                                  14
Severability

               The search warrant authorized the police to search the premises at 1920 Ramona

Circle for marihuana and marihuana paraphernalia, cocaine and cocaine paraphernalia, and evidence

of unlawful drug sales and distribution, including tally sheets and other documents, telephones,

photographs, currency, and firearms. The only mention of cocaine in the affidavit was a stale tip

from an anonymous informer of unknown reliability. There was no express mention of drug sales

or distribution in the affidavit, either at the premises or by the suspects, and the anonymous tip

regarding “narcotics activity” at the residence was wholly conclusory and not shown to be reliable.

Although the discovery of marihuana residue during the two garbage searches gave the magistrate

probable cause to authorize a search for marihuana, the police found no cocaine or evidence of drug

trafficking in the garbage. The results of the garbage searches did not lend any credibility to the

anonymous informer’s tip or give the magistrate any independent basis for concluding that cocaine

or evidence of drug dealing would be found at the premises. Insofar as the warrant authorized a

search of the premises for cocaine and evidence of drug distribution, it was not supported by

probable cause.

               The court of criminal appeals has adopted a rule of severability by which invalid

portions of a warrant are severable from the valid portions. Ramos v. State, 934 S.W.2d 358, 363

(Tex. Crim. App. 1996) (citing Walthall v. State, 594 S.W.2d 74, 79 (Tex. Crim. App. 1980)).

Under this rule, the search for and seizure of items listed under the valid portions of a warrant are

lawful. Id. The appropriate remedy is to strike the offending clauses and exclude only the seized

evidence that does not fit within the warrant as modified. Id.



                                                 15
                 In King v. State, for example, a warrant was issued authorizing a search for marihuana

and items “that would show the illicit distribution of controlled substances and marihuana.”

856 S.W.2d 610, 611 (Tex. App.—Waco 1993, no pet.). Police seized a quantity of marihuana

during the execution of the warrant, for the possession of which the defendant was tried and

convicted. Id. On appeal, the defendant complained that his motion to suppress the marihuana

should have been granted because the magistrate did not have probable cause to believe that evidence

of illicit narcotics distribution would be found on the premises, and therefore the search warrant was

overbroad. Id. at 612. The court of appeals applied the rule of severability, excluded the invalid

portions of the warrant, and concluded that the seizure of the marihuana was authorized by that

portion of the warrant that remained—which authorized the officers to search for marihuana. Id.

                 In the cause before us, we apply the severability rule and strike the invalid portions

of the warrant that authorized a search for cocaine, cocaine paraphernalia, and evidence of unlawful

drug sales and distribution, leaving only that portion of the warrant that validly authorized a search

for marihuana and marihuana paraphernalia. Plainly, the seizure of the marihuana found inside the

residence at 1920 Ramona Circle was lawfully authorized by the warrant, but the seizure of the

cocaine was not. The cocaine, of course, formed the basis for appellant’s prosecution and conviction

in this cause.

                 A trial court’s ruling on a motion to suppress will be upheld under any

applicable legal theory that is correct and is reasonably supported by the record. State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under the warrant, the police lawfully searched the

premises at 1920 Ramona Circle for marihuana. There is no contention that the officers exceeded



                                                  16
the lawful scope of a search for marihuana or that the cocaine was discovered in a place or places

where marihuana could not be stored or hidden. Farkas testified at the trial that a plastic bag

containing cocaine and a digital scale were found on top of a cabinet in the master bathroom, another

bag of cocaine was found in the second bathroom, and a bag of marihuana was found in the bedroom

closet.5 Because the officers were lawfully on the premises to search for marihuana, and because the

cocaine was discovered during the course of that search, the seizure of the cocaine was lawful under

the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (stating that

plain view doctrine applies where police have warrant to search for specified objects, and in course

of search come across some other article of incriminating character); Ramos, 934 S.W.2d at 364

(stating that evidence of officers’ other observations while lawfully searching premises for blood

stains was admissible). See also Wayne R. LaFave, Search and Seizure § 4.6(f) (4th ed. 2004).

                To summarize, the affidavit presented to the magistrate gave him probable cause to

issue a warrant to search the suspect premises for marihuana, but not to issue a warrant to search for

cocaine or evidence of drug trafficking. Applying the rule of severability, the police were authorized

by the warrant to search for and seize marihuana, and for that reason the trial court did not err by


   5
      The court of criminal appeals has said that as a general rule, an appellate court reviewing a
pretrial motion should consider only the evidence adduced on that motion, and not consider evidence
adduced at the subsequent trial. Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984).
We have found no opinion applying this rule when, as here, the pretrial hearing consisted solely of
the arguments of counsel regarding the adequacy of a probable cause affidavit under the four corners
rule. Moreover, the court has stated that limiting appellate review to the facts adduced at a pretrial
suppression hearing is “untenable” in the face of a trial record that supports, albeit belatedly, the trial
court’s ruling. Webb v. State, 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988); see also Rachal
v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (“it would be unreasonable to ignore trial
evidence in our review of the court’s suppression decision only to be confronted by the evidence in
our consideration of whether the error was harmless”).

                                                    17
overruling the motion to suppress as it applied to the marihuana. The officers found the cocaine in

plain view while lawfully searching for marihuana, and for that reason the trial court did not

reversibly err by overruling the motion to suppress as it applied to the cocaine.

               The point of error is overruled, and the judgment of conviction is affirmed.




                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: April 30, 2009

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