                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00116-CR
        ______________________________


         THE STATE OF TEXAS, Appellant

                          V.

     JAMES ALLEN HUDDLESTON, Appellee



   On Appeal from the 392rd Judicial District Court
             Henderson County, Texas
              Trial Court No. B-19,085




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                OPINION

        The State of Texas appeals an order granting James Allen Huddleston’s motion to

suppress.1 A “cooperating individual” provided Officer Greg Hill, a police officer with the

Athens Police Department and assigned to the Henderson County Sheriff’s Office, with a tip that

Huddleston possessed anhydrous ammonia in an unapproved container in violation of Section

481.124 of the Texas Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 481.124

(West 2010). Officer Hill obtained a search warrant for Huddleston’s residence and discovered a

propane tank with bluing on the valve2 and a small bag containing a trace of methamphetamine.

Huddleston filed a motion to suppress alleging the probable cause affidavit failed to provide a

substantial basis to determine probable cause existed. After a hearing, the trial court granted

Huddleston’s motion to suppress. The State has appealed and has raised two issues arguing that

the affidavit contained sufficient facts for the magistrate to conclude probable cause existed and

that the trial court erred in granting the motion.

        The Fourth Amendment to the United States Constitution and Article I, Section 9 of the

Texas Constitution guarantee the right of the people to be secure against unreasonable searches

of their persons, house, papers, and effects. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. As




1
 Originally appealed to the Tyler Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Tyler Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 Officer Hill testified that such bluing indicates the propane tank contains ammonia. We presume the bluing is the
result of corrosion or similar chemical reaction between the brass of the valve and the ammonia.

                                                        2
an exception to the general rule articulated in Guzman,3 the issuing magistrate’s decision to grant

the search warrant should be reviewed with a deferential standard of review. Swearingen v.

State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).                    Granting deference to the issuing

magistrate “encourage[s] police officers to use the warrant process rather than making a

warrantless search and later attempting to justify their actions by invoking some exception to the

warrant requirement.” Rodriguez v. State, 232 S.W.3d 55, 59–60 (Tex. Crim. App. 2007). Great

deference should be paid to a magistrate’s determination of probable cause, and warrants should

not thereafter be invalidated through “hypertechnical” interpretation of their supporting

affidavits. Illinois v. Gates, 462 U.S. 213, 236 (1983). Affidavits for arrest or search warrants

should be interpreted in a common sense and realistic manner. Crider v. State, 352 S.W.3d 704,

707 (Tex. Crim. App. 2011). Granting great deference to the issuing magistrate’s determination,

the appellate court will sustain the issuance of the warrant if the magistrate had a substantial

basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at

236; see Swearingen, 143 S.W.3d at 811.

        Although we grant great deference to the determination of a magistrate issuing a warrant,

we do not grant that same degree of deference to a reviewing trial court. A motion to suppress is

normally reviewed based on a bifurcated standard which (1) grants deference to the trial court’s

determinations of historical facts that are based on an evaluation of credibility and (2) reviews de

novo the trial court’s application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.

App. 2011). “However, when the trial court is determining probable cause to support the
3
 The general rule is that probable cause determinations are reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87
(Tex. Crim. App. 1997) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

                                                       3
issuance of a search warrant, there are no credibility determinations, rather the trial court is

constrained to the four corners of the affidavit.” Id. Because probable cause to support the

issuance of the warrant is determined from the “four corners” of the affidavit alone, there are no

credibility choices to be made by the trial court and we review de novo the court’s ruling.

McKissick v. State, 209 S.W.3d 205, 211–12 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);

Elardo v. State, 163 S.W.3d 760, 765 (Tex. App.—Texarkana 2005, pet. ref’d); Burke v. State,

27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref’d).

       An application for a search warrant must be supported by an affidavit setting forth facts

establishing probable cause. TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005), art. 18.01(b)

(West Supp. 2012). To justify the issuance of a search warrant, the supporting affidavit must set

forth facts sufficient to establish probable cause:

       (1) that a specific offense has been committed, (2) that the specifically described
       property or items that are to be searched for or seized constitute evidence of that
       offense or evidence that a particular person committed that offense, and (3) that
       the property or items constituting evidence to be searched for or seized are located
       at or on the particular person, place, or thing to be searched.

TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (West Supp. 2012). The facts contained in the

probable cause affidavit must be sufficient to justify a conclusion that the object of the search is

probably on the premises at the time the warrant is issued. State v. Delagarza, 158 S.W.3d 25,

26 (Tex. App.—Austin 2005, no pet.). The determination of the sufficiency of an arrest or

search warrant is limited to the four corners of the affidavit. Crider, 352 S.W.3d at 710. “The

issue is not whether there are other facts that could have, or even should have, been included in



                                                  4
the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those

that are omitted from the affidavit.” Rodriguez, 232 S.W.3d at 62.

       The warrant must contain “sufficient information” to allow the issuing magistrate to

determine probable cause because the magistrate’s action “cannot be a mere ratification of the

bare conclusions of others.” Gates, 462 U.S. at 238–39; Kennedy v. State, 338 S.W.3d 84, 92

(Tex. App.—Austin 2011, no pet.). As explained in Wise v. State:

       The task of the issuing magistrate is simply to make a practical, common-sense
       decision whether, given all the circumstances set forth in the affidavit, including
       the “veracity” and “basis of knowledge” of persons supplying hearsay
       information, there is a fair probability that contraband or evidence of a crime will
       be found in a particular place.

Wise v. State, 223 S.W.3d 548, 556 (Tex. App.—Amarillo 2007, pet. ref’d).

       Because of the potential unreliability of statements given by anonymous informants, the

United States Supreme Court developed the Aguilar-Spinelli analysis, which required a two-

pronged test: (1) the informant obtained the relevant information in a reliable manner; and

(2) the informant was reliable. See Gates, 462 U.S. at 230. In response to “hypertechnical”

interpretations of the Aguilar-Spinelli analysis, the United States Supreme Court subsequently

relaxed the rigid standards of the Aguilar-Spinelli analysis to allow consideration of the totality

of the circumstances. See id. Because the focus of inquiry is whether the statements are

sufficiently reliable for a finding of probable cause, a deficiency in one of the two factors of

reliability of the informant may not be fatal if the totality of the circumstances indicate

reliability. Id. However, “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all

highly relevant in determining the value of his report.” Id. Gates merely held that a deficiency

                                                 5
could be “compensated for, in determining the overall reliability of a tip, by a strong showing as

to the other, or by some other indicia of reliability. . . .” Id. at 233; Elardo, 163 S.W.3d at 767.

        The affidavit in this case fails to provide any facts upon which the magistrate could

conclude that the anonymous caller was reliable. The probable cause affidavit provides as

follows, in pertinent part:

        Affiant Greg Hill is employed with the Athens Police Department and assigned to
        the Henderson County Sheriff’s Office as a Narcotics Investigator. Affiant has
        conducted numerous narcotics investigations. On 07/21/2011 a cooperating
        individual advised Affiant that James Huddleston lives at the said suspected place.
        The cooperating individual advised Affiant that the cooperating individual did
        personally observe James Huddleston, W/M, in possession of Anhydrous
        Ammonia in an unapproved container inside the said suspected place within the
        last forty-eight (48) hours. The cooperating individual is familiar with Anhydrous
        Ammonia. The cooperating individual advised affiant that the Anhydrous
        Ammonia is being stored in a 25 gallon propane tank. Based on Affiant’s training
        and experience, affiant knows that a propane tank is rated at 240 psi and
        Anhydrous Ammonia requires a 480 psi rating. The cooperating individual has
        provided Affiant with an audio taped statement in regards to this information and
        is willing to testify. Affiant has records which show that James Huddleston has
        been arrested for Possession of Controlled Substance charges in Henderson
        County in the past.

The affidavit does not mention any independent corroboration or other indicia of reliability.

Although, as argued by the State, the issuing magistrate could have reasonably inferred that the

informant’s name was known to the police, that fact is insufficient, by itself, to establish

reliability.4



4
 See Esco v. State, 668 S.W.2d 358, 360–61 (Tex. Crim. App. [Panel Op.] 1982) (presumption of reliability requires
(1) “a named informant” and (2) “whose only contact with the police is a result of having witnessed a criminal act
committed by another, the credibility and reliability of the information is inherent.”); Morris v. State, 62 S.W.3d
817, 824 (Tex. App.––Waco 2001, no pet.); cf. State v. Duarte, No. PD-1511-11, 2012 Tex. Crim. App. LEXIS
1180 (Tex. Crim. App. Sept. 12, 2012) (known confidential informant does not qualify as citizen informer).

                                                        6
         The State argues that the lack of reliability is not fatal because the “cooperating

individual” was a citizen informant. As noted above, the Aguilar-Spinelli test, as modified by

Gates, was developed to address concerns with anonymous tips. A named informant, whose

only contact with the police is a result of having witnessed a criminal act committed by another,

is considered inherently reliable. See Elardo, 163 S.W.3d at 769; Morris, 62 S.W.3d at 824.

The Texas Court of Criminal Appeals has recently confirmed that confidential informants are not

considered citizen informants. Duarte, 2012 Tex. Crim. App. LEXIS 1180, *16. The court

observed:

         The citizen-informer is presumed to speak with the voice of honesty and
         accuracy. The criminal snitch who is making a quid pro quo trade does not enjoy
         any such presumption; his motive is entirely self-serving.

         ....

         Citizen informants are considered inherently reliable; confidential informants are
         not.

Id. at **15–16 (citations omitted) (footnotes omitted).                  The State argues that because the

informant in this case is not anonymous and is not a “confidential informant,” the “cooperating

individual” is a citizen informant.

         The State argues that the use of the term “cooperating individual” is sufficient to

conclude that the informant was a citizen informant. In essence, the State argues we should

presume an unnamed individual qualifies as a citizen informant unless the probable cause

affidavit provides otherwise.5 The law does not authorize such a presumption. Other than use of

5
 We note that the State also argues we should consider Officer Hill’s testimony at the hearing that the informant was
not a confidential informant. The probable cause affidavit cannot normally be supplemented with additional

                                                         7
the term “cooperating individual,” the warrant does not contain any facts that support such a

conclusion. The term itself does not establish that the informant is a private citizen without prior

contact with the police. In fact, the term “cooperating” could reasonably refer to a criminal

making a quid pro quo trade.

        Whether an informant is a citizen informant must be established by the facts contained in

the four corners of the affidavit—including whether the source had prior contact with the police.

Elardo, 163 S.W.3d at 771–72 & n.14 (op. on reh’g) (refusing to consider facts not in four

corners of probable cause affidavit); see Duarte, 2012 Tex. Crim. App. LEXIS 1180, at *31

(basis for determining informant’s reliability “must be demonstrated within the four corners of

the affidavit”). Because the affidavit fails to specify that the informant has not had prior contact

with the police, it fails to support a conclusion that the informant was a citizen informant.

        The affidavit does not contain any corroboration6 of the informant’s information or other

indica of reliability. As noted by Huddleston, the declarations were not against the informant’s


information not contained in the affidavit. Elardo, 163 S.W.3d at 771; see Lowery v. State, 98 S.W.3d 398, 400
(Tex. App.––Amarillo 2003, no pet.); Flores v. State, 888 S.W.2d 193, 197 (Tex. App.––Houston [1st Dist.] 1994,
pet. ref’d); but see Rogers v. State, 291 S.W.3d 148, 153 (Tex. App.––Texarkana 2009, pet. ref’d) (recognizing
limited exception to four corners rule for location of search). We are prohibited from considering Officer Hill’s
testimony at the hearing and are confined to the four corners of the affidavit. Further, we note that the defense
introduced evidence at the hearing that the “cooperating individual” has a criminal history.
6
 One method police can use to provide other indicia of reliability is independent corroboration of the informant’s
information. See Gates, 462 U.S. at 236; Cassias v. State, 719 S.W.2d 585, 590 (Tex. Crim. App. 1986).
“Corroboration by the police officer means that, in light of the circumstances, the officer confirms enough facts to
reasonably conclude that the information provided is reliable and a detention is justified.” Jones v. State, 949
S.W.2d 509, 515 (Tex. App.—Fort Worth 1997, no pet.). Except for accurate predictions of future movements of a
suspect, corroboration of mere innocent details is insufficient—the independent corroboration by the police must
establish that the anonymous tip is “reliable in its assertion of illegality.” Gilmore v. State, 323 S.W.3d 250, 258
(Tex. App.––Texarkana 2010, pet. ref’d); cf. Duarte, 2012 Tex. Crim. App. LEXIS 1180 (corroboration of address
insufficient). The State does not argue any independent corroboration of the tip provided additional indicia of
reliability.

                                                         8
own penal interest.7 It also does not specify that the informant has given reliable credible

information in the past.8 Gates suggests that a deficiency in one of the factors may not be fatal if

the totality of the circumstances indicate reliability. Gates, 462 U.S. at 230. Gates, though, does

not remove the requirement of reliability.

         We further note that the veracity and basis of knowledge of the informant’s tip is

deficient. As argued by Huddleston, the affidavit does not specify how the informant knew the

propane tank contained anhydrous ammonia.9 Was the container leaking and the informant

recognized the odor of ammonia? Even so, how did the informant know it was anhydrous

ammonia rather than just ammonia? Did the informant take a sample back to his private

chemistry laboratory to conduct a chemical analysis? Or did Huddleston admit that the tank

contained anhydrous ammonia?               Although the informant claimed personal knowledge, the

informant fails to explain how he learned what was contained in the propane container. The

probable cause affidavit fails to establish the veracity or basis of knowledge of the informant’s

conclusion that the tank contained anhydrous ammonia.




7
 A named informant’s declarations against the informant’s own penal interest may be used to corroborate the
reliability of information in an affidavit. Abercrombie v. State, 528 S.W.2d 578, 583–85 (Tex. Crim. App. 1974)
(op. on reh’g); Gilmore, 323 S.W.3d at 263.
8
 Another indicia of reliability is whether the informant has given reliable, credible information in the past. See
Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977); State v. Hill, 299 S.W.3d 240, 244 (Tex. App.––
Texarkana 2009, no pet.).
9
 We note that at the suppression hearing, Officer Hill testified that the propane tank contained bluing indicating the
presence of ammonia. Officer Hill testified that he did not know “whether [he] w[as] going to find propane bottles
with blueing [sic] around them or not.”

                                                          9
         The affidavit contained insufficient particularized facts to allow the magistrate to

determine that probable cause existed.10               The four corners of the affidavit fail to contain

sufficient facts for the magistrate to conclude that the “cooperating individual” was a citizen

informer without prior police contact. Similar to Duarte, the probable cause affidavit in this case

fails to establish either the reliability or the veracity of the unnamed “cooperating individual.”

         No effort was made to compensate for these deficiencies, i.e., the affidavit does not

contain any other indicia of reliability, such as corroboration or prior reliable information.

Although Gates permits consideration of other indicia of reliability, Gates still requires a

substantial basis to conclude probable cause exists. Gates merely held that a deficiency could be

“compensated for, in determining the overall reliability of a tip, by a strong showing as to the

other, or by some other indicia of reliability. . . .” Gates, 462 U.S. at 233.

         Even giving great deference to the issuing magistrate, a substantial basis does not exist,

under the totality of the circumstances, for the issuing magistrate to have determined probable

cause existed. We agree with the trial court that the results of the search should have been

excluded.11 See Mapp v. Ohio, 367 U.S. 643, 655 (1961); TEX. CODE CRIM. PROC. ANN. art.

38.23. The trial court correctly granted Huddleston’s motion to suppress.


10
  The magistrate’s determination “cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S.
at 239; Gilmore, 323 S.W.3d at 261. The fact that a police officer believes the tip to be true is insufficient to
establish reliability. Duarte, 2012 Tex. Crim. App. LEXIS 1180, at *30 n.46 (“affiant’s vouching statement . . .
does nothing to establish the reliability of the informant”). “An officer’s inarticulate hunch, suspicion, or good faith
is insufficient to constitute probable cause.” Wiede v. State, 157 S.W.3d 87, 95 (Tex. App.—Austin 2005, pet. ref’d)
(citing Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972)).
11
  The good-faith exception contained in Article 38.23 of the Texas Code of Criminal Procedure is more limited than
its federal counterpart. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Article 38.23 requires that the officer
have acted upon “a warrant . . . based on probable cause.” Id. If the search warrant was not based upon facts

                                                          10
         For the reasons stated, we affirm.




                                                      Bailey C. Moseley
                                                      Justice

Date Submitted:            November 16, 2012
Date Decided:              November 21, 2012

Publish




sufficient to create probable cause, Article 38.23 requires the evidence to be excluded regardless of whether the
police officer reasonably believed the warrant was valid and acted upon it in good faith. See Curry v. State, 808
S.W.2d 481, 482 (Tex. Crim. App. 1991); Carroll v. State, 911 S.W.2d 210, 223 (Tex. App.––Austin 1995, no pet.);
see Wilson v. State, 311 S.W.3d 452, 465 (Tex. Crim. App. 2010); State v. Rodriguez, No. 12-10-00118-CR, 2011
Tex. App. LEXIS 3949 (Tex. App.––Tyler May 25, 2011, pet. ref’d) (mem. op., not designated for publication).
Because the probable cause affidavit failed to provide a substantial basis to conclude probable cause existed, Article
38.23 requires the evidence to be excluded. See TEX. CODE CRIM. PROC. ANN. art. 38.23.

                                                         11
