Opinion issued June 20, 2013.




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas


                           NO. 01-12-00974-CR


                    THE STATE OF TEXAS, Appellant
                                    V.
                  BRUCE Y. MONTGOMERY, Appellee


                  On Appeal from the 25th District Court
                        Colorado County, Texas
                      Trial Court Cause No. 12095


                       MEMORANDUM OPINION

     Appellee Bruce Y. Montgomery was indicted by a grand jury for the felony

offense of possession of a controlled substance, namely cocaine. Montgomery

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moved to suppress the evidence seized from his residence during the execution of a

search warrant on the grounds that the officer’s affidavit in support of the

application for the search warrant did not establish probable cause. The trial court

granted the motion. The State appeals, contending that the trial court erred by

failing to allow for the magistrate’s reasonable determination that probable cause

existed based on the totality of the facts contained in the affidavit. We reverse and

remand.

                                   BACKGROUND

       On April 11, 2012, a magistrate found that probable cause existed to support

the issuance of a search warrant for a residence located at 803 East C Street in

Eagle Lake. The magistrate’s determination of probable cause was based on the

affidavit of Colorado County Sheriff’s Deputy Shawn Zak. In relevant part, the

affidavit recited the following:

      4.    It is the belief of affiant that said suspected party has possession
      of and is concealing drugs and controlled substances, namely Crack
      Cocaine, at said suspected place in violation of the law of the State of
      Texas . . . .

      5.    Affiant has probable cause for said belief of the following facts
      and circumstances.

      All of the following events occurred on April 10, 2012 in Colorado
      County. Affiant met with a Confidential Informant in reference to
      purchasing Crack Cocaine from the Suspected Party. Affiant has also
      received information regarding narcotic activity at the suspected place
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in the recent past. Affiant also received information this confidential
informant has given true and correct information to law enforcement.

Your Affiant thoroughly searched the Confidential Informant and the
vehicle he was operating and did not find any narcotics or controlled
substances. Affiant gave the Confidential Informant an audio
recording device and a fifty dollar bill. The Confidential Informant
advised he was going to purchase fifty dollars’ worth of Crack
Cocaine from the Suspected Party at the Suspected Place.

Affiant followed the Confidential Informant to the Suspected Place
and watched him make contact with the [S]uspected [Party]. The
Confidential Informant stayed a very short time and then got back into
his vehicle. Affiant followed the Confidential Informant to a
designated place and received six Crack rocks, which appeared to be
Crack Cocaine. The Confidential Informant advised Affiant he
bought the Crack Cocaine from the Suspected [Party], who he knew
personally. The Confidential Informant reported the Suspected
[Party] delivered the substance through the back door and retrieved
the substance from inside the Suspected Place. Affiants conducted a
second search of Confidential Informant and found no additional
narcotics or buy money.

Affiant listened to the audio recording and noted from when the
device was activated and until receiving the device back it was
recorded. Affiant could hear the Confidential Informant and the
Suspected [Party] who was identified as Bruce. From the time the
Confidential Informant left Affiant’s presence to go purchase Crack
Cocaine from the Suspected [Party] and after the Confidential
Informant left the Suspected [Party’s] presence the Confidential
Informant was not in the company of anyone else and could have only
received the Crack Cocaine from the Suspected Place.

Affiant field tested the substance purchased and the white rocks tested
positive for Cocaine. Affiant weighed the substance on a digital scale
and the substance weighed .48 grams.



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      In the affidavit, the “suspected party” was identified as Bruce Yarnell

Montgomery, and was described as a black male with black hair, approximately

6’0 tall and weighing 280 pounds, whose date of birth is May 23, 1964. The

affidavit was sworn to on April 11, 2012, and the search warrant based on the

affidavit issued that same day. Also that same day, Montgomery was arrested for

possession of a controlled substance as a result of cocaine being recovered from

the residence during the search.

      Montgomery moved to suppress the evidence, arguing that the affidavit

failed to establish probable cause for the issuance of a search warrant. After three

hearings on the motion to suppress, the trial court granted Montgomery’s motion,

ruling as follows:

      I’m going to grant it, and I’ll tell you why. The one sentence in the
      affidavit—Affiant has also received information regarding narcotic
      activity at the suspected place in the recent past—there’s no statement
      of where that information came from, that it came from a reliable
      source. So, that’s what my decision is based on and that’s what you
      can appeal on.

The State appealed.

                      Probable Cause for Search Warrant

A.    Standard of Review

      When reviewing a trial court’s decision on a motion to suppress, we

normally use a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89
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(Tex. Crim. App. 1997). We defer to the trial court’s determination of historical

fact, but we review de novo the application of the law to the facts. Id. However,

when a trial court is determining whether there is probable cause to support the

issuance of a search warrant, the court does not make any credibility

determinations. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

Instead, “the trial court is constrained to the four corners of the affidavit.” Id. We

apply a highly deferential standard when reviewing a magistrate’s decision to issue

a warrant because of the constitutional preference for searches to be conducted

pursuant to a warrant as opposed to a warrantless search. Id. The magistrate’s

probable cause determination will be upheld as long as the magistrate had a

substantial basis for concluding that probable cause existed. Id.; State v. Griggs,

352 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

      We do not analyze the affidavit in a hyper-technical manner; rather, we must

interpret the affidavit in a “commonsensical and realistic manner, recognizing that

the magistrate may draw reasonable inferences.” Griggs, 352 S.W.3d at 301

(quoting McLain, 337 S.W.3d at 271). “Both appellate courts and trial court alike

must give great deference to a magistrate’s implicit finding of probable cause.”

McLain, 337 S.W.3d at 271–72. We do not focus on the information that is not

contained in the affidavit but, instead, on “the combined logical force of facts that

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are in the affidavit.” Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App.

2007). “When in doubt, we defer to all reasonable inferences that the magistrate

could have made.” Id. at 61.

      “Whether the facts alleged in a probable-cause affidavit sufficiently support

a search warrant is determined by examining the totality of the circumstances.”

Griggs, 352 S.W.3d at 301 (citing Illinois v. Gates, 462 U.S. 213, 230–31, 103 S.

Ct. 2317, 2328 (1983)). “A search warrant is supported by probable cause when

the facts set out within the ‘four corners’ of the affidavit are ‘sufficient to justify a

conclusion that the object of the search is probably on the premises to be searched

at the time the warrant is issued.’” Id. (quoting Davis v. State, 202 S.W.3d 149,

154 (Tex. Crim. App. 2006)).

B.    Applicable Law

      A magistrate cannot “issue a search warrant without first finding ‘probable

cause’ that a particular item will be found in a particular location.” Rodriguez, 232

S.W.3d at 60.        “Probable cause exists when, under the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime

will be found at the specified location.” McLain, 337 S.W.3d at 272. The test for

finding probable cause is “whether a reasonable reading by the magistrate would

lead to the conclusion that the affidavit provided a substantial basis for the issuance

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of the warrant, thus, the magistrate’s sole concern should be probability.”

Rodriguez, 232 S.W.3d at 60. Probable cause is a “flexible and non-demanding

standard.” McLain, 337 S.W.3d at 272.

      Generally, an anonymous tip, standing alone, will not establish probable

cause. Elardo v. State, 163 S.W.3d 760, 767 (Tex. App.—Texarkana 2005, pet.

ref’d) (citing State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002)).

However, police officers may provide other indicia of reliability through

independent corroboration of the informant’s information. Id. (citing Gates, 462

U.S. at 233, 103 S. Ct. at 2329). For example, courts of appeals have held that a

controlled buy, alone, may be enough to corroborate an informant’s tip and provide

probable cause for a search warrant. See Griggs, 352 S.W.3d at 305; Ford v. State,

179 S.W.3d 203, 212 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Sadler v.

State, 905 S.W.2d 21, 22 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

C.    Analysis

      In its sole issue on appeal, the State contends that the trial court failed to

accord proper deference to the reasonable inferences the magistrate could have

drawn from the facts contained in the affidavit and to the magistrate’s

determination that probable cause supported the issuance of the search warrant.

Montgomery responds that the trial court correctly determined that the search

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warrant was invalid because the affidavit did not establish the reliability of the

source who told Deputy Zak that narcotic activity had taken place at the suspected

location in the recent past. We conclude that the affidavit contained sufficient

information to support the magistrate’s probable-cause finding.

      The affidavit reflects the following: Deputy Zak received information

“regarding narcotic activity at the suspected place [803 East C Street] in the recent

past” and identified the party suspected of controlling the residence as a black male

named Bruce Yarnell Montgomery. Although the affidavit does not reveal the

source of that information, Deputy Zak corroborated this information by

conducting a controlled buy with an informant, whom Deputy Zak described as

having previously provided true and correct information to law enforcement.1

Deputy Zak searched the informant before staging the controlled buy and found he

had no narcotics or other contraband. Deputy Zak gave him a recording device and

a fifty dollar bill and followed him to 803 East C Street, where he observed the

informant make contact with Montgomery. After the informant left the residence,

Deputy Zak followed him to a previously designated location where the informant

turned over six crack rocks. The informant told Deputy Zak that he had purchased


1
      We note that the affidavit, therefore, does address the credibility and reliability of
      the informant who participated in the controlled buy, and Montgomery does not
      challenge this informant’s credibility and reliability on appeal.
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the crack from Montgomery, whom he knew personally, and that Montgomery

retrieved the crack from inside the residence and delivered it to the informant

through the back door. Deputy Zak searched the informant again and found no

narcotics or contraband. Finally, Deputy Zak listened to the audio recording of the

controlled buy and stated that the informant was not in the company of any other

person, except for Montgomery, during and after the transaction and, therefore, the

informant could have only received the crack from the suspected residence.

      Considering the totality of the circumstances, we hold that the affidavit

sufficiently established probable cause justifying the issuance of the search

warrant. See Griggs, 352 S.W.3d at 304–05 (finding probable cause for issuance

of search warrant and rejecting appellee’s argument that original tip—that cocaine

was being “stored and sold” at the residence in question—was not credible despite

being unable to determine identity or credibility of informant because

circumstances of a controlled buy, standing alone, may establish probable cause

and affidavit addressed credibility of informant who participated in controlled buy

and appellee did not challenge credibility of that informant on appeal); Ford, 179

S.W.3d at 212 (holding affidavit detailing controlled buy of cigarettes dipped in

PCP from the place to be searched and addressing the credibility and reliability of

informant who participated in controlled buy was sufficient to support finding of

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probable cause); Sadler, 905 S.W.2d at 22 (holding that affidavit detailing

circumstances of controlled buy, including that police officer searched informant

before sending him into suspected premises and kept informant in view to insure

source of contraband, was sufficient to reasonably confirm informant’s information

and give probable cause to issue search warrant).

      We sustain the State’s issue.




                                 CONCLUSION

      We reverse the judgment of the trial court and remand for further

proceedings.



                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Do Not Publish — TEX. R. APP. P. 47.2(b).




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