Opinion issued September 26, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00026-CR
                          ———————————
                     THE STATE OF TEXAS, Appellant
                                       V.
                       EFRAIN MARTINEZ, Appellee



              On Appeal from the County Court at Law No. 3
                        Fort Bend County, Texas
                  Trial Court Case No. 12-CCR-161047



                        MEMORANDUM OPINION

     This is a State’s interlocutory appeal from the trial court’s order granting a

motion to suppress evidence.     Appellee, Efrain Martinez, was charged with

possession of less than two ounces of marijuana in a drug-free zone. See TEX.
HEALTH & SAFETY CODE ANN. §§ 481.121(b)(1); 481.134(f)(1) (West 2010).

Martinez filed a motion to suppress evidence found as a result of the search of his

house pursuant to a warrant. The trial court granted Martinez’s motion. In a single

issue, the State contends that the trial court erred by granting Martinez’s motion to

suppress. We reverse and remand.

                                   Background

      On February 22, 2012, Fort Bend Police Department Detective R. Zavala

obtained a warrant to search Martinez’s house. The affidavit identified a suspected

residence in Fort Bend County by its address and physical description. It identified

Martinez and Sheri Engelke, who lived with him, as suspected persons by physical

description and driver’s license number. The affidavit averred that “evidence

relative to the trafficking of narcotics,” including marijuana, was concealed and

kept at the suspected residence in Fort Bend County.

      The affidavit offered the following explanation in an attempt to establish

probable cause:

      III.) Your Affiant has probable cause for said belief by reason of the
      following facts:

             A.) Your Affiant, Detective R. Zavala, is a Peace Officer
                licensed by the State of Texas and employed with the Fort
                Bend County Sheriff’s Department as a Detective with the
                Fort Bend County Narcotics Task Force.

             B.) On the grounds for the issuance of this warrant are derived
                from surveillance, [p]hysical evidence, prior narcotic
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                investigations, reports, and conversations with persons
                further mentioned below that have personal knowledge of
                the events described herein. Based on my experience and
                training, and from conversations with others involved in
                narcotics law enforcement, I know the following:

                   1.) It is common for individuals who deal with
                      Marijuana to hide contraband and proceeds of drug
                      sales in secure locations within their residences and in
                      their vehicles for ready access and to conceal from
                      law enforcement authorities.

                   2.) Individuals who deal in cocaine commonly keep
                      paraphernalia for packaging, cutting, weighting,
                      ingesting, and distributing illegal controlled
                      substances.     This paraphernalia usually includes
                      scales, bags, cutting agents, pipes, and other ingesting
                      materials.

            C.) Your affiant, Detective R. Zavala, is employed by the Fort
               Bend County Sheriff’s Office and currently assigned to the
               Fort Bend County Narcotics Task Force. On Thursday,
               February 2, 2012 your affiant received information Efrain
               Martinez is possibly using and/or selling marijuana from a
               residence located at [Martinez’s address].

                Your Affiant conducted a search through the Fort Bend
                County data base and learned the Fort Bend County
                Sheriff’s Office Patrol Division had taken a report (11-
                16474) listing Efrain Martine[z] as a suspect involving
                marijuana. Your affiant also conducted a search on the
                Texas Department of Public Safety Image Retrieval System
                and located a Texas Driver License Photo of Efrain
                Martinez.

The affidavit also described the investigation that Detective Zavala conducted prior

to seeking a search warrant.



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      After receiving the tip that Martinez was “possibly using and/or selling

marijuana” at his residence, Detective Zavala conducted surveillance of the house

on February 10, February 14, and within 24 hours prior to executing the search

warrant affidavit dated February 22, 2012. Each time he observed a trash can

containing several white plastic trash bags in front of the house near the curb of the

street. Each time, Zavala identified himself to the driver of the garbage truck and

instructed him to place the trash in the truck without compacting it, drive around

the corner, and allow him to place the abandoned trash in his car.             Zavala

transported the trash to the Fort Bend County Narcotics Task Force office, where

the contents of the trash bags were photographed and examined.

      The first trash run, conducted on February 10, yielded no “illegal

contraband.” However, Zavala noted the presence of loose tobacco and several

Swisher Sweet cigarillo wrappers. Zavala averred that through his training and

experience he “has learned [that] individuals who smoke marijuana empty the

regular tobacco out of the Swisher Sweet mini cigarillos and refill[] them with

marijuana.”   The second trash run, conducted on February 14, yielded more

Swisher Sweet wrappers, some loose tobacco, a stem-like substance, mail

addressed to Sherri Engelke at the address of the suspected residence, and burnt

cigars that field-tested positive for marijuana. The third trash run, conducted

within 24 hours before execution of the search-warrant affidavit, yielded a green

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stem-like substance that Zavala believed to be marijuana and mail addressed to

both Engelke and Martinez at the suspected residence.          The green stem-like

substance field-tested positive for marijuana.

      During his investigation, Zavala observed two vehicles at Martinez’s house:

a maroon Ford F-150 pickup truck, registered to Engelke at the address of the

suspected residence, and a Dodge car registered to Martinez at the same address.

Zavala once saw Martinez retrieve “something” from the pickup truck and return

to his house, and he once saw him drive away from his house in the pickup truck.

      The search warrant was executed on the day it was signed. Police found

marijuana, glass pipes, a bong, an electronic scale, plastic bags, unknown liquid in

syringes, an unknown white powdery substance, and a metal grinder. Martinez

was charged with possession of less than two ounces of marijuana in a drug-free

zone because his house is located within 1,000 feet of a playground.

      Martinez filed a motion to suppress, which argued that his “arrest and search

. . . was conducted without legal justification or excuse in violation of the right to

be free from unlawful search and seizure.” The trial court held a hearing on the

motion.   The State argued that the motion was vague, did not identify what

evidence Martinez wanted to suppress, and did not specify how the warrant was

insufficient. The trial court stated, “My understanding is he wants a ruling as to

the viability of the affidavit on the search warrant.” Martinez’s attorney added,

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“Our position is that the four corners of the affidavit fails to establish probable

cause to believe that there was any marijuana or other illegal items in the house

that would justify the issuance of the search warrant.”      The search warrant,

inventory of items found during the search, and the search warrant affidavit were

admitted into evidence.

      The court did not hear any legal argument from either side, but said, “I have

been party to and read some of the warrants for these trash pickups that were much

more detailed and a clearer vision of probable cause. I think this one is lacking.”

The court determined that the search warrant was insufficient based on the lack of

corroboration of what appeared to be a tip from a confidential informant and the

overall substance of the affidavit. The court granted the motion to suppress, and

the State appealed.

                                     Analysis

      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. See Amador v. State,

221 S.W.3d 666, 673 (Tex. Crim. App. 2007). But when a trial court determines if

there was sufficient probable cause to support a search warrant, the court is

constrained 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.

                                        6
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 upon which

the magistrate could have concluded that probable cause existed.         Id. (citing

Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)). For the same

reason, our review is “highly deferential” to the magistrate’s decision. Id. (citing

Gates, 462 U.S. at 236, 103 S. Ct. at 2331). 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, 103 S. Ct. at 2331. “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).

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

sets forth facts sufficient to establish probable cause. TEX. CODE CRIM. PROC.

ANN. art. 18.01(b), (c) (West Supp. 2011). Probable cause exists when there is a

fair probability that contraband or evidence of a crime will be found at the

specified location at the time the warrant is issued. See McClain, 337 S.W.3d at

272. To establish probable cause, the affidavit must show:

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           (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. 2011). “The facts stated in

a search affidavit ‘must be so closely related to the time of the issuance of the

warrant that a finding of probable cause is justified.’” McLain, 337 S.W.3d at 272

(quoting Flores v. State, 827 S.W.2d 416, 418 (Tex. App.—Corpus Christi 1992,

pet. ref’d)).

       When reviewing a search warrant affidavit under the “substantial basis”

standard, we interpret the affidavit in a commonsensical and realistic manner, and

we defer to all reasonable inferences that a magistrate could have made. See

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, 103 S. Ct. at 2332, 2334; see 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, 103 S. Ct. at 2332–33; see Rodriguez, 232

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

                                          8
within 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).

      The State argues that the trial court did not accord proper deference to the

magistrate’s determination of probable cause. The State relies on Flores v. State,

319 S.W.3d 697 (Tex. Crim. App. 2010), and the following facts that were

included in the affidavit to establish probable cause: (1) “an anonymous

informant[’s] . . . tip that [Martinez] was using or selling narcotics from a known

residence,” (2) Martinez had previously been “a suspect in a marijuana case,”

(3) there was only one trash can in front of Martinez’s house, (4) vehicles in front

of Martinez’s house were registered to him and to Engelke, (5) three “trash runs”

were conducted, (6) the tobacco and Swisher Sweet wrappers found in Martinez’s

trash are “consistent with narcotics use,” (7) two of the trash runs recovered

marijuana residue, and (8) field tests showed the presence of marijuana. The State

argues that the affidavit in this case is very similar to the affidavit in Flores, which

was held to have provided a substantial basis for the magistrate to find probable

                                           9
cause to issue a search warrant. Although we disagree with the State’s contention

that this case is analogous to Flores, according proper deference to the reasonable

conclusions the magistrate could have reached, we nevertheless find that the search

warrant affidavit was sufficient.

      In Flores, a “concerned citizen” provided an anonymous tip about narcotics

activity occurring at a certain home in San Marcos, Texas. 319 S.W.3d at 698–99.

Police officers conducted an investigation to corroborate the information provided

by the confidential informant, including the identity of the people who lived at the

house in question, the vehicles normally found there, and information about a prior

investigation conducted by Child Protective Services. Id. at 699.

      In addition, the police twice examined abandoned household garbage left on

the street in front of the residence in question. Id. at 699–700. The first trash run

revealed two empty packages of cigarette rolling papers and a plastic bag

containing a small amount of marijuana residue, and the second run revealed

several marijuana stems, seeds, and residue. Id. In addition to describing the

anonymous tip and subsequent investigation, the search warrant affidavit in Flores

also noted that the affiant was “a longtime peace officer with extensive training

and experience in narcotics investigations.” Id. at 702. When the search warrant

was executed, police found small quantities of marijuana and cocaine. Id. at 700.




                                         10
       In determining whether the magistrate had a substantial basis for finding

probable cause, the Court of Criminal Appeals explained the inferences the

magistrate could reasonably make based on both the partially corroborated

informant’s tip and the physical evidence found in the abandoned garbage. Id. at

703. The Court held that the discovery of marijuana in two consecutive trash runs

within a five-day period, coupled with the “doctrine of chances,” led to the

reasonable inference that the marijuana residue found in the trash came from the

house under investigation. Id. But it was the combined force of the tip, the

corroboration of the tip which showed that the informant “had some familiarity

with Flores and his affairs,” and the physical evidence that gave the magistrate a

substantial basis on which to find probable cause. Id.

       Unlike Flores, in this case there is no corroborated confidential informant’s

tip.   The search-warrant affidavit here stated only that Zavala “received

information Efrain Martinez is possibly using and/or selling marijuana” from his

house. The affidavit does not identify the source of the information or state that

there was, in fact, any informant, be it a “concerned citizen” as in Flores, a first-

time informant of unknown reliability, or a “criminal snitch who is making a quid

pro quo trade.” Duarte, 389 S.W.3d at 356, 357–59. “The citizen-informer is

presumed to speak with the voice of honesty and accuracy.” Id. at 356. No such

presumption applies in this case, however, because there is no indication that the

                                         11
information Zavala received came from a citizen-informer.            In addition, the

information Zavala received was equivocal, i.e., that Martinez was “possibly”

using or selling marijuana from his house, and conclusory because there is no basis

given for the anonymous source’s knowledge. See Serrano v. State, 123 S.W.3d

53, 60 (Tex. App.—Austin 2003, pet. ref’d). Finally, the information that Martinez

was “possibly” using or selling drugs does not contain sufficient detail to allow an

inference that the person supplying the information was familiar with his affairs.

See Flores, 319 S.W.3d at 703. Accordingly, we do not consider the anonymous

information in the search warrant affidavit as part of the totality of circumstances

potentially giving rise to probable cause.

      Nevertheless, guided by the highly deferential standard of review dictated by

the constitutional preference for search warrants, we find the remainder of the

search warrant affidavit provided a substantial basis for the magistrate’s action.

The facts in the affidavit detail the investigation the police conducted and provide

support for the magistrate’s conclusion.       Through investigative work, Zavala

confirmed that Martinez and Engelke lived at the suspected residence, that the

pickup truck that he saw near the house belonged to Engelke, and that the Dodge

car he saw in front of the residence belonged to Martinez. Zavala saw Martinez

driving the pickup truck. He also determined that a Fort Bend County sheriff once

“had taken a report . . . listing Efrain Martine[z] as a suspect involving marijuana.”

                                          12
      The affidavit described the three trash runs that Zavala conducted. Zavala

explained the significance of the Swisher Sweet wrappers and loose tobacco that

he found in the first trash run, saying that he knew, based on his training and

experience, that “individuals who smoke marijuana empty the regular tobacco out

of the Swisher Sweet mini cigarillos and refill[] them with marijuana.”           The

affidavit states that Zavala is “employed by the Fort Bend County Sheriff’s Office

and currently assigned to the Fort Bend County Narcotics Task Force,” which

provides a basis for an inference that Zavala has had experience and training

pertaining to narcotics crimes.

      In the second trash run, Zavala discovered stem-like substances, burnt

marijuana cigars, Swisher Sweet wrappers, loose tobacco, and mail addressed to

Engelke at the address of the suspected residence. The affidavit says that Zavala

field-tested the suspected marijuana and got a positive result. In the third trash run,

Zavala found “a green stem like substance,” which field-tested positive for

marijuana. He also found mail addressed to both Martinez and Engelke at the

address under surveillance. The mail addressed to Martinez and Engelke provides

a basis for connecting the marijuana discovered in the garbage in the second and

third trash runs to the suspected residence.

      Considering the totality of the information in the four-corners of the search

warrant affidavit, a magistrate could reasonably infer that: (1) Detective Zavala has

                                          13
specialized training and experience in the area of narcotics-related crimes;

(2) Martinez had previously been suspected of some criminal activity related to

marijuana; (3) garbage that Zavala collected came from Martinez’s house; and

(4) one or more persons used marijuana in Martinez’s house over a period that

extended at least a week. See, e.g., Flores, 319 S.W.3d at 703. Because the trash

runs revealed evidence of marijuana possession and use, the magistrate could have

inferred ongoing criminal activity, as opposed to a mere isolated incident. See

Jones, 338 S.W.3d at 736–37; see also State v. Coker, No. 05-12-00616-CR, 2013

WL 3728819, at *6 (Tex. App.—Dallas July 17, 2013, no pet. h.) (holding that

single trash search coupled with other incriminating facts provided probable cause

for search of residence). Because the third trash run was conducted within 24

hours of the application for a search warrant, the magistrate could reasonably have

inferred that there was a “fair probability” that evidence of ongoing criminal

activity would be found at the suspected residence at the time the magistrate issued

the search warrant. See Jones, 338 S.W.3d at 733; Coker, 2013 WL 3728819, at

*6.

      Although the absence of a corroborated informant’s tip makes this case a

somewhat closer call than Flores, well-established constitutional principles that

inform our substantial evidence standard of review require that we defer to the

magistrate’s determination in a case such as this. See Gates, 462 U.S. at 236, 103

                                        14
S. Ct. at 2331; McLain, 337 S.W.3d at 271; Flores, 319 S.W.3d at 702. We

conclude that the trial court erred by granting Martinez’s motion to suppress.

Accordingly, we sustain the State’s sole issue, and we reverse and remand for

further proceedings.

                                   Conclusion

      We reverse the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Justice Sharp, dissenting.

Do not publish. TEX. R. APP. P. 47.2(b).




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