                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-13-00066-CR


                            JORDAN ALLEN, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                       On Appeal from the County Court at Law No 2
                                  Lubbock County, Texas
              Trial Court No. 2011-466,388, Honorable Drue Farmer, Presiding

                                    August 12, 2014

                            MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant Jordan Allen appeals from his conviction for possession of marijuana

and the resulting sentence of confinement. He presents three issues. We will affirm.


                                          Background


      The parties are familiar with the facts surrounding appellant’s prosecution and in

this memorandum opinion we address only those facts necessary to disposition of the

appeal.
       Appellant was charged by information with the offense of possession of

marijuana in an amount of four ounces or less but more than two ounces.1 The

marijuana was found in his residence in Lubbock. He filed a motion to suppress and a

motion for a Franks v. Delaware2 hearing. After hearings on both motions, the trial court

denied both motions, and later filed findings of fact and conclusions of law.


       Appellant then plead guilty to the charged offense and was sentenced to 270

days of confinement in the Lubbock County Jail. He now raises issues related to his

pretrial motions.


                                                    Analysis


Applicable Law


       Ordinarily, we review a trial court's ruling on a motion to suppress under a

bifurcated standard of review, giving almost total deference to the facts found by the

court and reviewing de novo its application of the law. Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007). But when a trial court determines whether there was

probable cause to support a search warrant, the analysis is limited to the four corners of

the affidavit, and there are no credibility determinations to be made. State v. McLain,

337 S.W.3d 268, 271 (Tex. Crim. App. 2011). "[B]ecause of the constitutional

preference for searches to be conducted pursuant to a warrant as opposed to a

warrantless search," we review the sufficiency of an affidavit to determine if there is a

substantial basis on which the magistrate could have concluded that probable cause

       1
           TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(2) (West 2012).
       2
           See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed. 667 (1978).

                                                    2
existed. Id. (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527

(1983)). For the same reason, our review is highly deferential to the magistrate's

decision. Id. (citing Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim. App.

2004)). We extend this deference to the magistrate's determination to encourage the

use of warrants, which "greatly reduces the perception of unlawful or intrusive police

conduct." Gates, 462 U.S. at 236. "This 'substantial basis' standard of review 'does not

mean the reviewing court should be a rubber stamp but does mean that 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.'" Flores v. State, 319 S.W.3d 697,

702 (Tex. Crim. App. 2010), quoting W. LAFAVE, SEARCH        AND   SEIZURE: A TREATISE   ON

THE FOURTH AMENDMENT     § 11.7(c), 452 (4th ed. 2004 & Supp. 2009-2010).


       Under Texas law, no search warrant may issue without a sworn affidavit that sets

forth facts sufficient to establish probable cause. See TEX. CODE CRIM. PROC. ANN. art.

18.01(b), (c) (West 2012). When reviewing a search warrant affidavit under the

"substantial basis" standard, we must interpret the affidavit in a commonsense and

realistic manner, and defer to all reasonable inferences that the magistrate could have

made. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Jones v. State,

338 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2011), aff'd, 364 S.W.3d 854 (Tex.

Crim. App. 2012). We consider the totality of the circumstances, including whether any

tips have been corroborated by independent police work. Gates, 462 U.S. at 238, 241;

Rodriguez, 232 S.W.3d at 62. Statements that are merely conclusory will not supply a

substantial basis for such a decision. Gates, 462 U.S. at 239; see Rodriguez, 232

S.W.3d at 61. Rather, we must determine whether there are sufficient facts stated within


                                             3
the four corners of the affidavit, coupled with inferences from those facts, to establish a

"fair probability" that evidence of a particular crime will likely be found at a specified

location. Jones, 338 S.W.3d at 733 (citing Rodriguez, 232 S.W.3d at 62); Massey v.

State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). "The focus is not on what other

facts could or should have been included in the affidavit; the focus is on the combined

logical force of facts that are in the affidavit." State v. Duarte, 389 S.W.3d 349, 354-55

(Tex. Crim. App. 2012).


Application


       On June 12, 2011, Lubbock police received an anonymous tip that marijuana

was located inside a Lubbock residence, and began an investigation. The next evening,

Officer Cody Kidd examined the trash in the alley dumpster behind the residence. On

June 14, Officer Kidd submitted an affidavit in support of a request for a search warrant

to a magistrate judge. The affidavit stated in part:


       I then removed a black garbage bag from the nearest dumpster to
       [appellant’s residence]. Inside of this black trash bag I located two articles
       of mail addressed to Jordan Allen at [appellant’s address]. I also located
       an empty box that contained a CO2 regulator. CO2 regulators are
       commonly used by people growing marijuana in conjunction with CO2
       tanks to elevate carbon dioxide levels. Elevating carbon dioxide levels is
       said to increase marijuana growth speed considerably by increasing the
       plants ability to manufacture sugars that it uses to build plant tissues.

       Inside of the black trash bag I also located a document that contained the
       name Jordan Allen with the address of [appellant’s address]. This
       document is an order form from a business in Canada. The items ordered
       appeared to be marijuana seeds. There were two entries on the form. One
       from Greed House Seeds with one package of “Trainwreck Fem” and one
       from Joey Weed with one package of “Moonshadow” ordered. I believe
       that these orders are for marijuana seeds.



                                              4
        I also located a white trash bag inside of the larger black trash bag. Inside
        the white bag were two red plastic cups. Inside of the cup were several
        small seeds. There were also dozens of the same type of seeds in the
        bottom of the white bag. From my training and experience in dealing with
        marijuana and marijuana grow operations I have come into contact with
        marijuana seeds on many occasions. I believe the seeds located in the
        white trash bag to be marijuana seeds. The seeds have the same size,
        color, and odor of marijuana seeds.

        I also contacted Lubbock Power and Light who advised that the water
        consumption for [appellant’s address] was abnormally high for the months
        of February, March, and April. From my training and experience I also
        know that marijuana that is hydroponically grown does not require soil but
        instead uses a root medium and large quantities of water and a water
        soluble fertilizer.

        The affidavit also noted Officer Kidd’s current assignment to the police

department’s Special Operations Division, and recited his extensive experience with

possession and trafficking offenses.


        The magistrate judge issued the requested warrant on June 14, authorizing a

search of the residence for marijuana and evidence of “an indoor marijuana cultivation

operation.”3 The search warrant was executed the following day, where bagged

marijuana, marijuana plants, seeds and other items related to the growing of marijuana

were found. Appellant was present at the home at the time the warrant was executed.


        Appellant’s motion to suppress contended the affidavit failed to give the

magistrate a substantial basis for concluding that such contraband probably would be

        3
           The search warrant also authorized the search for “Instruments of a continuing criminal drug
distribution organization; to include but not limited to: indoor lighting equipment, water irrigation system,
vents, hoses, valves, air conditioning units, scales, electronic timers, catalogs, order books, receipts,
cultivation schedules, fertilizer, plant seeds, note books, ledgers, computers, computer disks, pictures,
weapons, drug paraphernalia, to include mobile devices and any device capable of communicating
information about narcotics transactions and any other criminal instruments used in the furtherance of an
indoor marijuana cultivation operation. Also search residents of house described as a White male named
Jordan Allen and any other occupants of said residence. Furthermore to search the vehicles, and all
outbuildings and the curtilage hereof, and to seize the same and bring it before me.”


                                                     5
found at his home. Officer Kidd was the only witness who testified at the suppression

hearing.


      Appellant’s argument that the trial court erred by denying his motion to suppress

focuses on aspects of the affidavit he contends should not have been considered in the

probable cause determination.      The State agrees that certain parts of the search

warrant affidavit cannot be considered. See Brackens v. State, 312 S.W.3d 831, 837-

38 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (when warrant issued on basis of

affidavit containing tainted information, question is whether probable cause was

established by remaining parts of affidavit). There is no dispute, however, that the items

found in the trash behind the residence properly are considered in the probable cause

analysis.


      As described in the affidavit, the large trash bag contained two articles of mail

addressed to appellant at that address and, most significantly, contained the order form

from a Canadian business, completed with appellant’s name and the residence

address, and bearing entries appearing to order two packages of marijuana seeds. The

large bag also contained an “empty box that contained a CO2 regulator.” In the small

white trash bag inside the large bag, the officer found dozens of seeds Kidd believed,

based on their size, color and odor, to be marijuana seeds.


      The affidavit told the magistrate that Kidd, in his “training and experience in

dealing with marijuana and marijuana grow operations,” had contact with marijuana

seeds on many occasions. See Davis v. State, 202 S.W.3d 149, 157-58 (Tex. Crim.

App. 2006) (recommending practice of including in affidavit “officer’s experience,


                                            6
background information, and previous associations with contraband”); Stanley v. State,

No. 02-10-00342-CR, 2011 Tex. App. LEXIS 5920, at *8-9 (Tex. App.—Fort Worth July

28, 2011, no pet.) (mem. op., not designated for publication) (applying and citing Davis,

202 S.W.3d at 157-58).


        The affidavit also told the magistrate that CO2 regulators are commonly used in

marijuana cultivation “in conjunction with CO2 tanks to elevate carbon dioxide levels.

Elevating carbon dioxide levels is said to increase marijuana growth speed considerably

by increasing the plants ability to manufacture sugars that it uses to build plant tissues.”


        In the Austin Court of Appeals’ opinion in Flores v. State, 287 S.W.3d 307

(Tex.App.—Austin 2009, aff’d 319 S.W.3d 697 (Tex. Crim. App. 2010), the court relied

on evidence of items found in household trash to establish probable cause for a search

of the house.       287 S.W.3d at 316-17.4            The focus of the Austin’s court’s analysis

concerned the connection between the trash in the garbage container and the

defendant and his residence.                The analysis addressed the possibility that the

incriminating material had been placed in the garbage by a neighbor or passer-by. Id.

at 316. Here, the presence of the two pieces of mail and the order form, all bearing

appellant’s name and the residence address, alleviates that concern. See State v.

Coker, 406 S.W.3d 392, 396 (Tex. App.—Dallas 2013, pet. ref’d) (article of mail

        4
          The Austin court found that an informer’s tip and related information did not give the magistrate
a substantial basis for believing that contraband or evidence of drug dealing would be found at the
address in question. In affirming the Austin court’s judgment, the Court of Criminal Appeals held that the
information from the tip, though perhaps insufficient to establish probable cause by itself, was
nevertheless a circumstance the magistrate could consider in the determination of probable cause. 319
S.W.3d at 703. The Court thus did not directly address the Austin court’s conclusion that the items in the
trash were sufficient to establish probable cause. We do not read the Court of Criminal Appeals’ opinion,
however, to express disagreement with the Austin court’s analysis of the inferences to be drawn from the
items in the trash, and do not consider that the higher court’s opinion diminishes the viability of the Austin
court’s analysis.

                                                      7
addressed to defendant at target residence “provided a direct link between the drugs in

[defendant’s] trash and [his] house”). The focus of our analysis instead must be on the

strength of the inferences reasonably drawn from the presence of the items found in the

trash to show the probable presence of evidence at the residence of a marijuana

cultivation operation. See Coker, 406 S.W.3d at 397-98 (evaluating inferences from

contents of trash; surveying cases); see also Waddle v. State, No. 14-06-00087-CR,

2007 Tex. App. LEXIS 809, at *19-20 (Tex. App.—Houston [14th Dist.] Jan. 30, 2007,

no pet.) (mem. op., not designated for publication); Rose v. State, No. 04-04-00344-CR,

2005 Tex. App. LEXIS 32 (Tex. App.—San Antonio Jan. 5, 2005, no pet.) (mem. op.,

not designated for publication).


       Appellant argues the only reasonable inference to be drawn from the presence in

the trash of the completed order form is that the form was not submitted to the

merchant. The State responds the magistrate also reasonably could have inferred the

order form was submitted and was returned to appellant with his order of seeds. We

agree with the State, and further find the incriminating inference supported by the

presence of dozens of seeds credibly identified in the affidavit as marijuana seeds.


       Reading the affidavit in a commonsense manner, the magistrate could have

learned that in the trash also was an empty box that, by its appearance, indicated it

formerly held a CO2 regulator.


       The affidavit also reported the information its affiant received from Lubbock

Power & Light (“LP&L”) that the residence’s water consumption was “abnormally high

for the months of February, March, and April” prior to the affidavit’s date of June 14, and


                                            8
reported the officer’s experience that growing marijuana hydroponically requires “large

quantities of water and a water soluble fertilizer.”


       Appellant argues a statement that water consumption is “abnormally high” is a

mere conclusion. He points out the affidavit contains no factual support describing

whether the consumption in those months was high compared with other months at that

residence, compared with the same months at other residences, or by some other

measure. He also points out the affidavit does not identify the person at LP&L who

provided the information, or even the department in which the person worked. We think

the absence from the affidavit of the details appellant mentions does not disqualify the

water consumption statement, attributed by the affiant to the city water utility, from

consideration in the probable cause analysis.          We do not place requirements of

“elaborate specificity” on warrant affidavits. See State v. Jordan, 342 S.W.3d 565, 569

n.8 (Tex. Crim. App. 2011) (citations omitted).        A reading of the affidavit like that

suggested by appellant, who argues the source of the information from LP&L may have

been a janitor, is not the commonsense and realistic reading we must give a warrant

affidavit. Rodriguez, 232 S.W.3d at 61; Gates, 462 U.S. at 238 (task of magistrate

includes evaluation of “’basis of knowledge’ of persons supplying hearsay information”).


       We conclude the combined logical force of the facts stated in the affidavit gave

the magistrate a substantial basis for concluding probable cause existed, and thus for

issuance of the warrant. The magistrate readily could have inferred that the marijuana

seeds were ordered for the purpose of cultivation. The presence in the same trash bag

of the order form and some seeds, along with the regulator box, combined with the

information regarding the common use of CO2 in marijuana cultivation, presented

                                              9
circumstances permitting a conclusion there was a fair probability evidence of marijuana

cultivation was to be found.     That the order form bore appellant’s name and the

residence address linked that inference of cultivation with appellant.           And the

information the residence had experienced abnormally high water usage in preceding

months, combined with the information regarding water requirements for hydroponic

cultivation, provided an additional circumstance suggesting the residence as the

probable location of the evidence. We resolve appellant’s first issue against him.


      Appellant’s second and third issues both are derived from the hearing on

appellant’s Franks motion. See Franks, 438 U.S. 154. Under Franks, a defendant bears

the burden of showing by a preponderance of the evidence that a warrant affidavit

contains a false statement made either knowingly and intentionally or with reckless

disregard for the truth. Franks, 438 U.S. at 155. The false statement must be material;

that is, without it, the affidavit would not be sufficient to establish probable cause for

issuance of the warrant. Id.


      The search warrant affidavit included information about the anonymous tip that

caused the police to begin investigating possible marijuana cultivation at appellant’s

residence.   At the hearing on his Franks motion, appellant wanted to testify but

ultimately did not, after the court agreed with the State about the extent to which

appellant could be cross examined on matters relevant to the Franks motion. On

appeal, by his second issue, appellant characterizes the events as a refusal by the trial

court to allow him to testify at the Franks hearing, and contends the trial court erred by

doing so. We need not address this issue because the testimony appellant wanted to

give at the hearing would tend to counter the affidavit’s statement of the information

                                           10
provided by the anonymous tipster. We have not relied on the tipster’s statement in our

evaluation of probable cause for issuance of the warrant.          Under Franks, a false

statement in the affidavit “must have been necessary to the finding of probable cause, in

order to render the warrant invalid.” Dancy v. State, 728 S.W.2d 772, 782 (Tex. Crim.

App. 1987) (citing Franks, 438 U.S. at 155-56). Appellant’s second issue is overruled.


       By his third issue, appellant argues Kidd’s search warrant affidavit contained

materially false information and omitted material information in reckless disregard for

the truth, and that with the exclusion of the false and inclusion of the "proper"

information, probable cause would not have existed for issuance of the search warrant.

See Franks, 438 U.S. at 155-56. With two exceptions, however, we have not relied on

the statements in the affidavit to which appellant objects, either through misstatement or

omission.    The first exception is appellant’s argument that Officer Kidd acted with

reckless disregard for the truth by omitting information about the order form; that is “that

the form he found in the trash was handwritten and wadded up (like it had never been

sent) as opposed to typed, like a receipt returned with an order.” The entries referred to

as handwritten are those containing appellant’s name and address and those describing

the items ordered. We have relied on the affidavit’s statements regarding the order

form in our analysis of probable cause, and so will address appellant’s challenge to that

aspect of the affidavit.


       As we have noted in our discussion of appellant’s first issue, he sees the fact the

order form was completed by hand as significant because, he argues, it indicates the

form was not submitted. In the same discussion, we have expressed our disagreement

with the argument.         Because we do not agree its handwritten entries carry the

                                            11
significance appellant sees, we also cannot agree the omission of that fact from the

affidavit affected its sufficiency to establish probable cause. See Renteria v. State, 206

S.W.3d 689, 704 (Tex. Crim. App. 2006) (assuming Franks applies to omissions from

an affidavit; similarly finding magistrate would have had probable cause to issue warrant

even with inclusion of omitted facts); Wise v. State, 223 S.W.3d 548, 557 (Tex. App.—

Amarillo, 2007, pet. ref’d) (same). As to the assertion the officer acted with reckless

disregard for the truth by omitting the fact the order form was “wadded up,” we note

simply that the record does not show when its crumpling occurred.5 If, as the State

posits, the order form was returned with the order of seeds, it may have been crumpled

as it was thrown in the trash. We can see no significance to the affidavit’s omission of

discussion of the form’s crumpled condition.


       Secondly, we have relied to a degree on the affidavit’s information from LP&L

regarding water consumption at the residence, so will address appellant’s argument that

Officer Kidd acted in reckless disregard of the truth by omitting from his affidavit the fact

appellant’s residence had an above-ground swimming pool in its back yard.                         The

presence of the pool, appellant argues, provides a ready explanation for increased

water consumption, negating the reported high water usage as a factor toward probable

cause. In its conclusions of law supporting its denial of Franks relief, the trial court

rejected the contention, pointing out that officer Kidd testified at the suppression hearing

he was aware of the existence of the pool, but did not say he was aware of its existence

before he signed the warrant affidavit. We agree with that assessment of the testimony.

       5
          From its depiction in the record, the single-page order form is generally legible but appears
somewhat crumpled. No testimony was taken at the Franks hearing. Appellant made an offer of proof
through statements by counsel, but the offer sheds no light toward a determination how or when the form
became crumpled.

                                                  12
And appellant’s offer of proof at the Franks hearing did not include an assertion the

officer was aware of the pool when he signed the affidavit. The record thus does not

demonstrate appellant met his burden of showing, by a preponderance of the evidence,

a material omission regarding the swimming pool. Appellant’s third issue is overruled.


                                         Conclusion


       Having resolved each of appellant’s issues against him, we affirm the judgment

of the trial court.




                                                      James T. Campbell
                                                          Justice


Do not publish.




                                           13
