           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1731-12



                             DIMAS MORENO, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SEVENTH COURT OF APPEALS
                         LUBBOCK COUNTY

      H ERVEY, J., delivered the opinion of the unanimous Court. C OCHRAN, J., filed
a concurring opinion.

                                      OPINION

       In this case, a magistrate issued a warrant to search Appellant’s house for crack

cocaine based on an affidavit detailing a controlled purchase in which police used a

reliable confidential informant to purchase narcotics through an unknown third party. The

third party was not aware of the police operation. However, because there was no

information on the credibility or reliability of the unknowing third party, Appellant argues
                                                                                      Moreno–2

that the magistrate could not have concluded that there was probable cause to believe that

the crack cocaine came from Appellant’s house. Because we conclude that the affidavit

provided a substantial basis for the magistrate to find probable cause, we affirm.

                                                    I.

       Lubbock Police initially came to suspect that Appellant, Dimas Moreno, was

distributing narcotics from his home when they received a tip from the Clovis, New

Mexico Police Department.1 Acting on this tip, officers orchestrated a controlled purchase

of drugs from Appellant. Affiant–Officer Snodgrass averred the details of this operation

in a sworn affidavit:

       Within the past 72 hours a confidential informant was able to make
       controlled purchase of suspected crack cocaine from said residence. During
       this operation I met with the confidential informant face to face. The
       confidential informant was searched prior to and after the controlled
       purchase. No narcotics or contraband was [sic] found on the confidential
       informant during these searches. Constant surveillance was maintained on
       the confidential informant during the transaction. The confidential
       informant made contact with an unknowing participant to purchase the
       crack cocaine the unknowing participant advised the confidential informant
       that he/she would have to go to said residence to pick up the crack cocaine.
       [sic] The surveillance team observed the unknowing participant leave the
       designated meet location and travel to said residence. The unknowing
       participant went into said residence and returned to his/her vehicle a few
       minutes later. The unknowing participant returned to the designated


       1
           The relevant portion of the affidavit states:

       Inv. Chavez of the City of Lubbock Police Department Narcotics Division advised
       me that he had received information within the past 90 days from the Clovis, NM
       Narcotics Division in reference to Moreno, Dimas Jr. distributing illicit narcotics
       from Lubbock to Clovis, NM. The address that the Clovis, NM narcotics division
       provided Inv. Chavez was 114 Ave V Lubbock, Lubbock County TX.
                                                                                       Moreno–3

       location and met with the confidential informant again and provided the
       confidential informant with the crack cocaine. The unknowing participant
       did not stop at any other location travelling [sic] to and from said residence.
       The unknowing participant was under constant visual surveillance. I took
       custody of the narcotics after the completion of the operation. I am able to
       recognize crack cocaine and other illicit and controlled substances. The
       suspected crack cocaine that was purchased was field tested and tested
       positive for cocaine. Said confidential informant is able to recognize crack
       cocaine and other controlled substances. Said confidential informant has
       given information in the past to the Lubbock Police Department Narcotics
       Division on previous occasions. Said confidential informant has proven to
       be credible and reliable.

       On the basis of these facts, the magistrate issued a warrant to search Appellant’s

residence for crack cocaine and any other related contraband. Police executed the warrant,

found the drugs, and arrested Appellant. Appellant was subsequently charged with

possession with intent to deliver a controlled substance in an amount of four or more but

less than 200 grams.2 See T EX. H EALTH & S AFETY C ODE §§ 481.112(d) & 481.134(c).

       Appellant filed a motion to suppress, challenging the sufficiency of the affidavit.

He claimed that there could be no probable cause when an affidavit describes a controlled

purchase in which an unidentified individual of unknown credibility and reliability

actually bought the drugs. The trial court held a hearing and denied the motion. Appellant

preserved his right to appeal, pled guilty, and was sentenced to fifteen years’

confinement.

       On appeal, Appellant raised the same suppression claim. The court of appeals


       2
        In its opinion, the court of appeals erroneously stated that Appellant was charged with
possession of a controlled substance in an amount between “two hundred and four hundred
grams.”
                                                                                    Moreno–4

affirmed, concluding that the affidavit was sufficient because probable cause was based

upon police observations rather than upon any statements made by the unknowing

participant. Moreno v. State, No. 07–11–0248–CR, 2012 WL 5511955, at *3 (Tex.

App.—Amarillo Nov. 14, 2012) (per curiam) (mem. op.) (not designated for publication).

       To support its holding, the court relied on Bibbs v. State, No. 07–11–00064–CR,

2011 WL 4104878 (Tex. App.—Amarillo Sept. 15, 2011, no pet.) (mem. op.) (not

designated for publication)3 because Bibbs presented “almost identical facts involving the

use of an unidentified participant . . . .” Moreno, 2012 WL 5511955, at *3. Bibbs, in turn,

relied on Carillo v. State, 98 S.W.3d 789 (Tex. App.—Amarillo Mar. 4, 2003, pet. ref’d),

a published opinion, for the proposition that a probable-cause affidavit was not factually

defective when police observations were sufficient to uphold the magistrate’s finding of

probable cause.

                                              II.

       To issue a search warrant, the magistrate must first find probable cause that a

particular item will be found in a particular location. Rodriguez v. State, 232 S.W.3d 55,

60 (Tex. Crim. App. 2007). This process requires that the magistrate to “make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying


       3
        Rule 47.7(a) of the Texas Rules of Appellate Procedure provides, “Opinions and
memorandum opinions not designated for publication by the court of appeals under these or prior
rules have no precedential value but may be cited with the notation, ‘(not designated for
publication).’” TEX . R. APP . P. 47.7(a).
                                                                                  Moreno–5

hearsay information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

       As a reviewing court, we apply a highly deferential standard to the magistrate’s

determination because of the constitutional preference that searches be conducted

pursuant to a warrant. Id. at 236; State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.

2011). Accordingly, our duty “is simply to ensure that the magistrate had a substantial

basis for concluding that probable cause existed” based on the four corners of the

affidavit and reasonable inferences therefrom. Gates, 462 U.S. at 238–39 (internal

quotation marks and citations omitted); Cassias v. State, 719 S.W.2d 585, 587–88 (Tex.

Crim. App. 1986).

                                            III.

       Despite Appellant’s arguments to the contrary, the court of appeals held that the

affidavit was sufficient because probable cause was based, not on the statements of the

unknowing participant, but on the observations of the police and the reasonable

inferences therefrom. Moreno, 2012 WL 5511955, at *3. That is, probable cause was

based on the constant surveillance by police of the unknowing participant and the

reasonable inference that the unknowing participant went to Appellant’s house to get the

drugs. See id. To support its holding, the court of appeals relied on Bibbs (which in turn

relied on Carillo).

       In Carillo, an undercover officer met a “subject,” who then told the officer that she
                                                                                       Moreno–6

would go to the appellant’s apartment to buy the cocaine. Carillo, 98 S.W.3d at 792. The

officer followed the subject and waited outside while she purchased the cocaine inside the

apartment. Id. She then delivered the cocaine to the officer. On the basis of those facts, a

magistrate issued a warrant to search the appellant’s apartment. Id. The Carillo Court

concluded that the only reasonable inference that could be drawn from these facts is that

the subject obtained the cocaine from the appellant’s house. Id. at 793.

       The issue in Carillo, as in this case, was whether a probable-cause affidavit

describing a “controlled purchase” performed by an individual whose credibility or

reliability were unknown was sufficient to sustain a probable-cause determination. In

analyzing this issue, the Carillo Court first noted that the initial question was whether the

affidavit was based on the informant’s statements or police observation independent of

those statements. Id. The basis for the court’s disposition of the case was unclear but our

reading of Carillo leads us to believe that the court held that the affidavit was sufficient

based on the observations of the officer and the reasonable inferences derived therefrom.

       Under the facts of this case, we agree with the court of appeals that the police

observations of the controlled purchase and the reasonable inferences therefrom were

sufficient to support a finding of probable cause. The affidavit in this case states that

Lubbock police officers initially received information from Clovis law enforcement—a

reliable source4 —that Appellant was distributing narcotics from his residence. To

       4
          See United States v. Ventresca, 380 U.S. 102, 110–11 (1965) (explaining that in contrast
to tips from“unreliable anonymous informers,” the “observations of fellow officers of the
                                                                                        Moreno–7

corroborate this tip, officers enlisted the help of a confidential informant (“CI”), who was

familiar with cocaine deals and had proven to be reliable and credible, to conduct a

controlled purchase of crack cocaine from Appellant. The CI was first searched to ensure

that he did not have any contraband on his person prior to the transaction. Then, a police

surveillance team observed the CI make contact with the unknowing participant. This

individual told the CI that he would go to Appellant’s house to pick up the crack cocaine.

Police observed the individual go to Appellant’s house, enter, and exit a few minutes

later. The unknowing participant then drove straight to the predesignated location and

delivered the crack cocaine to the CI.

       It was reasonable for the magistrate to infer that the unknowing participant

obtained the crack cocaine from Appellant’s residence. See Gates, 462 U.S. at 238.

Indeed, as the Supreme Court noted in Gates, probable cause “does not deal with hard

certainties, but with probabilities.” Id. at 231. It is based on “common-sense conclusions

about human behavior” formulated by “practical people.” Id. Although it is possible that

the third party obtained the cocaine from some other source as Appellant contends,

Appellant presents no persuasive argument as to why the magistrate’s inference that the

third party bought the crack cocaine from Appellant was unreasonable. Additionally,

unlike a confidential informant, the unknowing participant in this case appeared to be



Government engaged in a common investigation are plainly a reliable basis for a warrant . . . .”).
In this case, Clovis law enforcement and Lubbock police officers were working on a common
investigation regarding Appellant’s distribution of cocaine.
                                                                                   Moreno–8

unaware of his participation in the police-conducted controlled purchase and, therefore,

had no apparent motive to engage in subterfuge to mislead the police. Further, Appellant

presents us with no facts to indicate that the unknowing participant had such a motive.

       Even if the credibility or reliability of the unknowing participant were essential to

the probable-cause determination in this case, the unknowing participant’s statements

may be deemed reliable because they were made by the participant as “one of the actors

in the crime in the nature of admission against interest.” Spinelli v. United States, 393

U.S. 410, 425 (1969) (White, J., concurring).

                                             IV.

       Accordingly, we agree that the magistrate had a substantial basis for determining

that there was a fair probability that crack cocaine would be found at Appellant’s

residence, and we affirm the judgment of the court of appeals.


                                                         Hervey, J.

Delivered: December 11, 2013

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