                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00279-CR


FREDDY PEREZ                                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                    TRIAL COURT NO. 1328962D

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                         MEMORANDUM OPINION1

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      Before the court, Appellant Freddy Perez entered an open plea of guilty to

possession with intent to deliver a controlled substance, methamphetamine, of

four grams or more but less than 200 grams, a first degree felony, and was

sentenced to fifteen years’ confinement in the Correctional Institutions Division of

the Texas Department of Criminal Justice. Before entering his plea, Appellant


      1
       See Tex. R. App. P. 47.4.
filed a motion to suppress the evidence obtained from his residence by a search

warrant. Appellant appeals the denial of that motion. We affirm.

                            Argument and Background

      In his motion, Appellant contended that the supporting affidavit contained

conclusory assertions; that it failed to establish the credibility, reliability, and the

bases of the informants’ knowledge; and that it was not corroborated by the

affiant.2 After a hearing, the trial court denied Appellant’s motion without an

explanation.3 Appellant filed a request for findings of fact and conclusions of law.

The State filed proposed findings of fact and conclusions of law, but the trial court

did not adopt them. In one point, Appellant argues that the trial court erred by

denying his motion to suppress because the search warrant affidavit failed to

establish probable cause.




      2
       We do not construe Appellant’s motion to suppress to encompass a
Franks argument, that is, an attack on the veracity of the affidavit. See Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978); Cates v. State, 120 S.W.3d 352,
356 (Tex. Crim. App. 2003) (setting out the three-part test for obtaining a Franks
evidentiary hearing). Similarly, we do not construe his brief to encompass a
Franks argument. Appellant does not cite Franks or any other cases addressing
a Franks argument.
      3
       Although there was an evidentiary hearing and the State’s brief details
testimony offered at the hearing by the affiant, Officer Matthew McMeans,
statements made during a hearing on a motion to suppress do not factor into the
probable cause determination. Blake v. State, 125 S.W.3d 717, 723 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).


                                           2
                               Standard of Review

      Probable cause to support the issuance of a search warrant exists when

the facts submitted to the magistrate 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.   Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App.

1986); State v. Bradley, 966 S.W.2d 871, 873 (Tex. App.—Austin 1998, no pet.).

The sufficiency of the affidavit is determined by considering the totality of the

circumstances set forth within the four corners of the document. Illinois v. Gates,

462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); Hennessy v. State, 660 S.W.2d

87, 90 (Tex. Crim. App. [Panel Op.] 1983); Bradley, 966 S.W.2d at 873. The

affidavit must be interpreted in a common sense and realistic manner,

recognizing that reasonable inferences may be drawn from the affidavit.

Hedspeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008, pet. ref’d).

The issuing magistrate’s determination of probable cause must be given great

deference and will be sustained if the magistrate had a substantial basis for

concluding that probable cause was shown. Gates, 462 U.S. at 236, 103 S. Ct.

at 2331; Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

      The essence of the Fourth Amendment’s warrant clause and its Texas

equivalent is that a magistrate may not issue a search warrant without first

finding “probable cause” that a particular item will be found in a particular

location. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). The

question is whether a reasonable reading by the magistrate would lead to the


                                         3
conclusion that the four corners of the affidavit provide a “substantial basis” for

issuing the warrant. Id. Probable cause exists when there is, under the totality of

the circumstances, a “fair probability” that evidence of a crime will be found at the

specified location. Id. The standard is flexible and not a demanding one. Id.

Neither federal nor state law defines precisely what degree of probability suffices

to establish probable cause, but a magistrate should not be a rubber stamp and

cannot merely ratify the bare conclusions of others.        Id.   To ensure that a

magistrate does its duty, courts must continue to conscientiously review the

sufficiency of affidavits on which the magistrates have issued warrants. Id.

      After reviewing the supporting affidavit realistically and with common

sense, a reviewing court must uphold the magistrate’s decision so long as the

magistrate had a substantial basis for concluding that probable cause existed.

Id. Even in close cases, reviewing courts give great deference to a magistrate’s

determination of probable cause. Id. The focus is not on what other facts could

or should have been included in the affidavit but on the combined logical force of

the facts that are in the affidavit. Id. at 354–55.

      A citizen-informer is more deserving of a presumption of reliability than an

informant from the criminal milieu. Id. at 356. When an unquestionably honest

citizen comes forward with a report of criminal activity, courts have found

rigorous scrutiny of the basis of the citizen’s knowledge unnecessary. Id. (relying

on Gates, 462 U.S. at 233–34, 103 S. Ct. at 2330). On the other hand, when

courts may question an informant’s motives, provided the informant gives an


                                           4
explicit and detailed description of alleged wrongdoing along with a statement

that the informant observed the event first-hand, courts have concluded that the

tip is entitled to greater weight than might otherwise be the case. Id. (relying on

Gates, 462 U.S. at 234, 103 S. Ct. at 2330). Confidential informants are not

considered inherently reliable.    Id. at 357. However, even if culled from the

criminal milieu, confidential informants may be considered reliable tipsters if they

have a successful “track record.” Id.

      The informants’ reliability or the bases of their knowledge is relevant when

determining the value of their assertions. See Gates, 462 U.S. at 230, 103 S. Ct.

at 2328; Davis v. State, 144 S.W.3d 192, 197 (Tex. App.—Fort Worth 2004, pet.

ref’d) (op. on reh’g). However, the veracity, reliability, and basis of knowledge of

an informant are not the exclusive means of determining probable cause. See

Gates, 462 U.S. at 230, 103 S. Ct. at 2328. Corroboration of the details of an

informant’s tips through independent police investigation or other means can also

be relevant in the magistrate’s determination of probable cause. See id. at 241,

103 S. Ct. at 2334; Davis, 144 S.W.3d at 197. Tips from informants of unknown

reliability must be coupled with facts from which an inference of reliability can be

drawn.    Duarte, 389 S.W.3d at 358.           When an informant’s reliability is

questionable, courts find probable cause for the issuance of a search warrant if

the tip is corroborated, if the statement is against penal interest, if the information

is consistent with information provided by other informants, if the informant

provides a detailed first-hand observation, if the information is coupled with an


                                          5
accurate prediction of the subject’s future behavior, or if there is a substantial

basis for crediting the hearsay. Id. at 356–57.

                                     Discussion

      Appellant complains that the affiant initially identifies an offense that

occurred on or about May 30, 2012, but thereafter recites facts that occurred in

early May 2013 and on May 30, 2013. Contextually, the reference to 2012 was a

typographical error, and inferentially the magistrate could have concluded the

affiant was actually referring to 2013. See Hedspeth, 249 S.W.3d at 737 (stating

that affidavits are to be interpreted in a common sense and realistic manner).

      In the first paragraph of the affidavit, the affiant stated:

      1.    That your affiant, MT McMeans #3489, has been a Fort Worth
      Police Officer for over 9 years and is currently assigned to the
      Special Operations Division Narcotics Unit. Your affiant has made
      numerous narcotics arrests over the course of his time as an officer,
      which includes various Controlled substances. Your affiant has the
      knowledge and the ability to recognize narcotics, which include
      methamphetamines.[4]

This paragraph established that the affiant was an experienced police officer.

More specifically, it established that the affiant was an experienced police officer

in the area of narcotics.




      4
        We have not sought to correct the spelling, punctuation, or grammar of
the affidavit in any way.


                                           6
The second paragraph introduced Pee Wee:

      2.     That your affiant was informed approximately two months ago
      that a h/m male named “Pee Wee”[5] was selling large quantities of
      methamphetamines along with black tar heroin and marijuana in the
      area of south central Fort Worth. That in the course of my
      investigation into Pee Wee, I had an arrested person advise that he
      or she had seen multiple kilograms of methamphetamines, heroin
      and marijuana inside this residence.

This paragraph showed that the affiant got his information from two independent

sources regarding a drug dealer named Pee Wee.             Although neither source

appeared particularly reliable, when taken together, one tended to corroborate

the other. See Duarte, 389 S.W.3d at 356 (stating that information consistent

with that provided by other informants provides reliability). Although the second

paragraph did not expressly tie the second informant’s information to Pee Wee’s

residence, contextually that was what the affiant intended to convey. See id. at

354 (stating that courts review affidavit with common sense); Elardo v. State, 163

S.W.3d 760, 765 (Tex. App.—Texarkana 2005, pet. ref’d) (stating that magistrate

may draw inferences from the facts contained within an affidavit).

      In the third paragraph, the affiant tied drug activity to 910 W. Bolt Street:

      3.    That in early May, 2013, your affiant observed and listened to
      a conversation between a confidential informant and a known
      narcotic trafficker. That the narcotic trafficker advised the informant
      that he had an ounce of methamphetamines on his person and that
      he was about to take it back to the house where he had picked it up.

      5
       Elsewhere in the affidavit, the affiant stated the suspect in charge of the
location he wanted to search was known as “Freddie”, also known as Pee Wee,
whom he further described as a Hispanic male between the ages of forty-five and
fifty.


                                          7
      That your affiant along with other narcotic officers then followed the
      narcotic trafficker to 910 W Bolt St where we observed him exit his
      vehicle and enter into 910 W Bolt St.

The third paragraph involved a confidential informant, but it was not the

confidential informant who provided the critical information; rather, it was the

“known narcotic trafficker” who was talking to the confidential informant and

whose conversation was being listened to by the affiant. This person, regardless

of whether he was correctly identified as a “known narcotic trafficker,” admitted

having methamphetamines and indicated he was taking the methamphetamines

back where he picked them up. This other person’s admission of possession of

a controlled substance was a statement against his penal interest, and, therefore,

lent it some reliability. See Duarte, 389 S.W.3d at 356 (stating that a statement

against penal interest lends some reliability). The affiant then followed this other

person to 910 W. Bolt Street, the location identified in the search warrant, where

this other person exited his vehicle and entered the residence.         Where this

person possessing the methamphetamines drove was something the affiant

personally observed and could, therefore, corroborate.       See id. (stating that

corroboration supports reliability). Because this other person said he was going

to return the methamphetamines to the location from which he got them and

because this person then went directly to 910 W. Bolt Street, the logical,

common-sense inference, although not foolproof, was that 910 W. Bolt Street

was the source of the methamphetamines. See id. at 354 (stating that courts

review affidavit with common sense).


                                         8
      The fourth paragraph introduced the activity that led the affiant to believe

that a drug offense occurred at 910 W. Bolt Street on May 30, 2013:

      4.     That on 05-30-2013, your affiant received information from a
      confidential informant that a h/m named Ricky Salazar aka Mono
      (whom I know to have a date of birth 09-06-1968) would be located
      at 910 W Bolt St where he would be meeting with Pee Wee. The
      confidential informant advised your affiant that Salazar would be
      buying $500.00 worth of methamphetamines from Pee Wee. This
      officer knows that amount to be roughly one half ounce worth of
      methamphetamines. This officer knows Salazar also drives a grey
      4d car with Texas license plate DYT042.               Narcotic officers
      immediately located the grey 4d in the drive way. That on 05-30-
      2013, these officers observed the grey 4d leave 910 W Bolt St. That
      these officers observed the vehicle failed to use a turn signal prior to
      100 feet at East Seminary and I-35. Your affiant then had the North
      Zero Tolerance officers stop the vehicle for said offense.

This fourth paragraph began with three pieces of information provided by a

confidential informant: (1) Ricky Salazar was at 910 W. Bolt Street; (2) Salazar

would be meeting Pee Wee at 910 W. Bolt Street, thus tying Pee Wee to that

address; and (3) Salazar would be buying $500 worth of methamphetamines

from Pee Wee, thereby inferentially tying Pee Wee to the sale of drugs out of 910

W. Bolt Street. Because there was no information regarding the reliability of the

confidential informant, this information would be considered unreliable absent

other factors. See id. at 357 (stating that confidential informants not considered

inherently reliable). There were, however, other factors. The affiant knew what

kind of car Salazar drove and knew its license plate number. Other officers

observed that vehicle in the driveway of 910 W. Bolt Street. Consequently, the

confidential informant’s tip was corroborated to the extent that the police were



                                         9
able to confirm that the car Salazar drove was at the location the confidential

informant said Salazar would be.       See id. at 356 (stating that corroboration

supports reliability). These officers saw the vehicle leave the location and later

stopped it for a traffic offense. Appellant complains that failing to use a left turn

signal is not an offense unless the driver was changing lanes or making a left

turn, neither of which was alleged in the affidavit. Once again, however, the

magistrate would be allowed to make the reasonable inference that Salazar

failed to signal a left turn when changing lanes or making a left turn.         See

Hedspeth, 249 S.W.3d at 737 (stating that affidavits are to be interpreted in a

common sense and realistic manner).

      The fifth paragraph discussed the traffic stop and provided additional

corroboration that the confidential informant’s tip was reliable:

      5.     That on 05-30-2013, North Zero Tolerance officer, Corporal
      Farmer, located Ricky Salazar in the driver seat along with his wife
      Diane Salazar. That these officers know the vehicle belongs to
      Diane Salazar through vehicle registration along with her own
      admittance on the traffic stop. Cpl Farmer then received verbal
      consent to search the vehicle from Diane Salazar. Cpl Farmer then
      located a clear plastic baggy lying in between the driver seat and the
      console. Inside the bag Cpl Farmer located an off white crystal like
      substance that he believed through training and experience to be
      methamphetamines. The field weight was 15.5 grams (half ounce,
      the amount the confidential informant advised your affiant that Ricky
      Salazar would be purchasing. The suspected narcotics were field
      tested by narcotic officer, Officer T. Verrett, using Narco Pouch 923,
      and it did test presumptive positive for methamphetamines.

In the fifth paragraph, the police found Salazar driving the car that the affiant, in

the fourth paragraph, said Salazar was known to drive, thereby corroborating the



                                         10
affiant’s assertion. The officers then determined, through vehicle registration and

through the admission of Salazar’s wife, that the car belonged to her. Salazar’s

wife then gave the police permission to search her car. This told the magistrate

that the person giving permission to search the car actually had the authority to

give it. See Pinkston v. State, 501 S.W.2d 317, 318 (Tex. Crim. App. 1973). The

police then found 15.5 grams of methamphetamines, which the affiant knew to

correspond to half an ounce, which the affiant stated corroborated the amount

the confidential informant said Salazar would be buying from Pee Wee at the 910

W. Bolt Street location Contextually, the affiant would know this by virtue of his

experience as a narcotics officer, which he set out in the first paragraph. See

Elardo, 163 S.W.3d at 765 (stating that magistrate may draw inferences from the

facts contained within an affidavit).        For the magistrate’s purposes, the

confidential informant said Salazar would be buying drugs at Pee Wee’s at 910

W. Bolt Street, and the police found Salazar with drugs after leaving that location,

which tended to corroborate the reliability of the confidential informant.     See

Duarte, 389 S.W.3d at 356 (stating that corroboration supports reliability).

      The affiant discussed Salazar’s verbal statement in his sixth paragraph:

      6.     That on 05-30-2013, your affiant spoke with Ricky Salazar. I
      advised him of my investigation. Ricky Salazar then screamed out
      loud the Res Gestae statement,” man I just bought it from Pee Wee
      man, I don’t want to go back to prison”. I asked him where Pee Wee
      lived and he said somewhere off W Bolt St.

Salazar, coming from the criminal milieu, was not a particularly reliable informant.

See id. (stating that citizen-informer is more deserving of a presumption of


                                        11
reliability than informant from criminal milieu). Any reliability from his statements

would have to come from other factors. There were other factors. Salazar’s

statement that the drugs were his was a statement against his penal interest,

which lent it some reliability. See id. (stating that a statement against penal

interest adds reliability).   Salazar himself became an informant on both the

identity and location of his supplier. Salazar’s information was consistent with

that of other informants regarding both the identity and the location of the drug

supplier.   This consistency with information from other sources lent his

statements some reliability. See id. (stating that information consistent with that

provided by other informants adds to reliability).

      In paragraph thirteen, the affiant explained why he wanted a “no knock”

warrant:

      13. That your affiant was advised by Ricky Salazar that within a
      week he had personally seen Pee Wee carrying a .380 caliber pistol.
      That your affiant is requesting a No Knock warrant due to these
      circumstances.

Appellant complains that nothing in this paragraph identifies where Salazar saw

Pee Wee with the gun.         Earlier portions of the affidavit, however, identified

Salazar as meeting Pee Wee at the 910 W. Bolt Street address; nothing in the

affidavit suggested Salazar met Pee Wee at any other location. Regardless, if

Pee Wee had a gun, and if Pee Wee was at the 910 W. Bolt Street address, a

reasonable inference was that the gun would be there with Pee Wee.              See

Elardo, 163 S.W.3d at 765 (stating that magistrate may draw inferences from the



                                         12
facts contained within an affidavit). The affidavit did not assert that drug dealers

frequently had guns. Nevertheless, common sense would suggest drug dealers

would likely have some form of defense. See Hedspeth, 249 S.W.3d at 737

(stating that affidavits to be interpreted in common sense and realistic manner).

Additionally, it would be difficult to imagine why Salazar would lie about that, and

it would be difficult to imagine why the police or the magistrate would ignore such

a warning on the theory that Salazar had something to gain by lying about Pee

Wee having a gun.

      After reviewing the supporting affidavit realistically and with common sense

and after giving great deference to the magistrate’s determination, we hold that

the magistrate’s decision had a substantial basis for concluding that probable

cause existed.     See Duarte, 389 S.W.3d at 354.           We reject Appellant’s

arguments, which accord no deference to the magistrate’s determination. See id.

(stating that courts give great deference to the magistrate’s determination of

probable cause). Under the totality of the circumstances, using a flexible and

non-demanding standard, we hold that there was a “fair probability” that evidence

of a narcotics offense would be found at the specified location. See id. We

reject Appellant’s arguments, which require an exacting hypertechnical review of

every flaw or perceived flaw in the affidavit. See Elardo, 163 S.W.3d at 765

(stating that courts should not invalidate warrants through “hypertechnical”

interpretations of the supporting affidavits). Finally, Appellant’s brief focuses on

what other facts could have or should have been included.          That is not the


                                        13
standard; rather, the focus is on the combined logical force of the facts that were

in the affidavit. See Duarte, 389 S.W.3d at 354–55. Probable cause does not

require hard certainties but does require probabilities as seen and weighed from

those versed in the field of law enforcement. See Gates, 462 U.S. at 231–32,

103 S. Ct. at 2328–29. Probable cause does not mean evidence sufficient to

convict but merely circumstances sufficient to warrant suspicion. See id. at 235,

103 S. Ct. at 2330.

      We overrule Appellant’s sole point and affirm the trial court’s judgment.



                                                   /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2015




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