      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-06-00214-CR



                                      State of Texas, Appellant

                                                    v.

                                        Eloy Davila, Appellee


              FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
          NO. 075347, HONORABLE LINDA ANN RODRIGUEZ, JUDGE PRESIDING



                              MEMORANDUM OPINION


                After searching Eloy Davila’s home pursuant to a warrant, police arrested him and

charged him with the offense of possession of two ounces or less of marijuana. The district court

granted Davila’s motion to suppress evidence obtained in the search, and the State appealed.

Concluding that the affidavit supporting the application for the warrant provided the magistrate with

a substantial basis for concluding that probable cause existed for the search, we reverse the

suppression order and remand for further proceedings.

                An affidavit for a search warrant is sufficient to support issuance of a warrant if, from

the totality of the circumstances reflected in the affidavit, it provides the magistrate with a substantial

basis for concluding that probable cause to conduct the search exists. Serrano v. State, 123 S.W.3d

53, 59 (Tex. App.—Austin 2003, pet. ref’d) (citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
The magistrate may issue a search warrant if the facts contained in the four corners of the affidavit

and the reasonable inferences drawn therefrom justify the conclusion that the object of the search

is probably on the premises at the time of the warrant’s issuance. State v. Delagarza, 158 S.W.3d

25, 26 (Tex. App.—Austin 2005, no pet.) (citing Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.

App. 1986)). In determining whether there is a substantial basis for probable cause, the affidavit

must be read in a common sense and realistic manner, and reasonable inferences may be drawn from

the facts and circumstances contained within the four corners of the affidavit. Davis v. State, 202

S.W.3d 149, 154 (Tex. Crim. App. 2006).

               When reviewing a suppression order, we must determine whether the affidavit

provided the magistrate with a substantial basis for concluding that a search would uncover evidence

of wrongdoing. Gates, 462 U.S. at 236, cited by Delagarza, 158 S.W.3d at 26. We give great

deference to the magistrate’s determination of probable cause. Id.; Ramos v. State, 934 S.W.2d 358,

363 (Tex. Crim. App. 1996). When a reviewing court is faced with a doubtful or marginal case in

which it is difficult to determine if probable cause existed, the resolution should be largely

determined by the preference to be accorded warrants. Delagarza, 158 S.W.3d at 29.

               The warrant in this case was issued on August 16, 2004. It authorized the search of

the residence located at 205 Buttercup Street in San Marcos and the arrest of Davila. We summarize

the relevant portions of the probable cause affidavit as follows:


       •   Between 1998 and 2002, the Hays County Narcotics Task Force received
           information from confidential informants about illegal drug activity connected
           to Davila. These confidential informants notified the Task Force that Davila was
           distributing methamphetamine, marijuana, and cocaine.



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•   In November 2000, a confidential informant told the Task Force that Davila was
    a member of the Mexican Mafia, was extorting local businesses through the
    collection of “protection money,” and received a kilogram of cocaine every
    Thursday from an unknown source.

•   A search of Davila’s previous residence, conducted by Task Force detectives on
    October 10, 2002, yielded evidence of illegal drug activity.

•   Since the 2002 search, detectives with the Hays County Narcotics Task Force
    “have received continual intelligence information from various sources involving
    Davila,” and believe that Davila moves frequently to avoid the police because he
    knows he is under investigation.

•   In June 2004, the affiant (a 19-year officer with the San Marcos Police
    Department) received information from a Task Force confidential informant that
    Davila was residing at a trailer park on Post Road in San Marcos, Hays County,
    Texas. He went on to state that previous information provided by this particular
    informant has led to the seizure of illegal narcotics, namely cocaine, and arrests.

•   Upon investigation of this information, the affiant located Davila’s vehicle at 205
    Buttercup in San Marcos, Hays County, Texas, and observed the vehicle at this
    location on several occasions thereafter.

•   The affiant also conducted a criminal history check on Davila that revealed a
    prior drug conviction in 1992.

•   On two separate occasions, the affiant retrieved and searched the discarded
    household trash left for collection outside the residence at 205 Buttercup. The
    first search, conducted on August 10, 2004, produced “numerous pieces (corners,
    knotted ends, etc.) of sandwich baggies. The sandwich baggies were cut, tied and
    manipulated in a manner that is consistent and common with the way narcotics
    traffickers and users package cocaine.” The baggies were moist, as if they had
    been washed to remove traces of illegal substances. After several tests on the
    baggies, conducted by a chemist at the Texas Department of Public Safety Crime
    Lab, it was established that the baggies contained cocaine.

•   The affiant conducted his second search of the trash at 205 Buttercup on August
    16, 2004. It produced straws that had been cut in a manner consistent with that
    utilized by drug users who ingest cocaine using such shortened straws. Affiant
    conducted a field test on the straws and the test results were positive for cocaine.




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We find that the affidavit, when read in a common sense and realistic manner, gave the issuing

magistrate a substantial basis for determining that cocaine could be found at 205 Buttercup

on August 16, 2004. The issuing magistrate, from the four corners of the affidavit, was aware

of three things: (1) Davila’s previous links to drug activity, shown by a prior drug conviction,

Task Force investigations, and information provided by prior confidential informants;

(2) information provided by a confidential informant, corroborated by the affiant’s observance

of Davila’s vehicle at 205 Buttercup, indicating that Davila lived there; and (3) two separate

searches of the trash at 205 Buttercup yielded drug-related paraphernalia testing positive

for cocaine. These factors, viewed together, give rise to a substantial basis for believing probable

cause existed for a search of the house.

               At the pretrial hearing on the motion to suppress, Davila asserted that the affidavit

did not justify a finding of probable cause because it relied on stale information. An affidavit must

contain allegations of facts or acts that are closely related to the time of the issuance of the search

warrant. Serrano, 123 S.W.3d at 61 (citing Lopez v. State, 535 S.W.2d 643, 648 (Tex. Crim. App.

1976)). This affidavit contains assertions that twice in the previous week the affiant found cocaine-

tainted drug paraphernalia in the trash container outside the home—some of which appeared to have

been rinsed to remove traces of cocaine. In this context, the “stale” information of previous conduct

gives inferential support to the conclusion that a search of 205 Buttercup would reveal criminal

wrongdoing. See Delagarza, 158 S.W.3d at 28-29 (although drug paraphernalia obtained in trash

search at defendant’s previous residence three months earlier was stale, it offered inferential support

to magistrate’s finding of probable cause to search current residence because defendant had been

linked to both residences and other information indicated current drug-related activity).

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               Davila also argued that the trash searches do not provide a reliable basis for probable

cause. Davila relies on a previous decision of this Court that acknowledged the danger of relying

on a one-time search of garbage containers left outside for collection because such containers are

readily accessible to the public, including neighbors or passers-by with overflow or undesirable trash

and other “unwelcome meddlers.” Serrano, 123 S.W.3d at 62 (quoting California v. Greenwood,

486 U.S. 35, 54 (1988)). In Serrano, we held that a substantial basis for probable cause did not arise

based on an affidavit containing conclusory statements by a confidential informant that Serrano was

dealing drugs, police records and observations that connected Serrano to the residence in question,

and a one-time trash search revealing contents testing positive for marijuana. Id. at 62-63. This

reasoning was echoed in a more recent case in which this Court again held that probable cause was

lacking based on an affidavit that contained conclusory statements by a confidential informant that

illegal drugs were possessed at the suspected residence, police observations of heavy traffic to the

residence, and a report of drug traces found in a one-time search of the residence’s garbage. State

v. Davila, 169 S.W.3d 735, 740 (Tex. App.—Austin 2005, no pet.).

               However, when an affidavit demonstrates that more than one search of the suspected

residence’s trash yields contents consistent with drug use and possession, we have sustained the

magistrate’s finding of probable cause. Delagarza, 158 S.W.3d at 29. In Delagarza, the police had

received an anonymous “crime stoppers” tip asserting that the defendant was dealing drugs from a

specified location. Id. at 27. In their investigation of this location, the police searched the

residence’s trash on four separate occasions. Id. at 27-28. We held that the contents testing positive

for illegal drugs acquired by four separate searches of the suspected residence’s trash confirmed the

initial suspicions of the police and demonstrated probable cause. Id. at 29.

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               The case before us presents facts similar to those in Delagarza and is distinguishable

from Serrano and Davila. As stated in the affidavit, on two separate occasions, searches of the trash

at 205 Buttercup revealed contents consistent with the affiant’s knowledge of prevalent techniques

utilized by individuals dealing and using drugs (i.e., corners of plastic baggies and cut straws). In

both instances, the recovered contents tested positive for cocaine. The timing of the searches is also

relevant to our analysis. The first was conducted a week before the issuance of the warrant, and the

second was conducted on the day the warrant was issued. The recovery of contents testing positive

for cocaine in the trash at 205 Buttercup on two consecutive occasions confirmed the affiant’s

suspicion that Davila likely possessed illegal drugs at the residence. Because previous informants,

police investigations, and one prior conviction link Davila to illegal drug use and activity, and the

affidavit relies on two separate searches of the appellant’s garbage, the dangers that we cautioned

against in Serrano and Davila are not present here.

               The assertions made in the affidavit, when viewed in their totality, provide a

substantial basis for concluding that a search of 205 Buttercup would uncover evidence of

wrongdoing. We reverse the district court’s order granting the motion to suppress and remand the

cause to that court for further proceedings.




                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Reversed and Remanded

Filed: February 23, 2007

Do Not Publish


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