             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         No. PD-1016-09



                                 FELIX FLORES, Appellant

                                                    v.

                                   THE STATE OF TEXAS

       ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
   IN CAUSE NO. 03-08-00342-CR FROM THE THIRD COURT OF APPEALS
                             HAYS COUNTY



       H OLCOMB, J., delivered the opinion of the Court, in which K ELLER, P.J.,
       and P RICE, W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ.,
       joined. M EYERS, J., filed a dissenting opinion.


       In this case, we must determine whether the magistrate who issued the search warrant for

Felix Flores’s residence had a substantial basis for concluding that probable cause existed. We hold

that the magistrate did have a substantial basis.

       On March 6, 2007, Detective Attila Farkas and other members of the Hays County Narcotics

Task Force obtained a magistrate’s warrant to search the residence at 1920 Ramona Circle in San
                                                                                       FLORES - 2

Marcos.1 The warrant authorized a search for cocaine, marihuana, and other evidence of drug

trafficking. The probable cause affidavit in support of the warrant read in relevant part as follows:

                “Affiant, Attila Farkas, is a peace officer employed by the Hays County
       Sheriff’s Office and is currently assigned to the Hays County Narcotics Task Force.
       Affiant has been employed as a peace officer for over 9 years. Affiant has been
       involved in numerous narcotic investigations during Affiant’s career and has received
       numerous hours of training and experience in narcotic investigations.
                “Affiant has observed cocaine, crack cocaine, methamphetamine, 3,4-
       methylenedioxy methamphetamine or ecstasy, marijuana, lysergic acid diethylamide
       or LSD, heroin, psilocybin mushrooms and other illegal narcotics in these
       investigations and is aware of how they are manufactured, cultivated, packaged for
       sale, transported, and used.
                                             * * *
                “In February of 2007, Affiant received a phone call from a concerned citizen
       regarding narcotics activity at a house located on Ramona Circle in San Marcos,
       Texas. The caller wished to remain anonymous for reasons of his/her safety. The
       concerned citizen could not give an exact address but did describe the vehicles that
       are typically found at the residence. The vehicle descriptions were a black F-150
       truck and a gold Firebird. The concerned citizen also stated that an individual by the
       name of Felix Flores resides at the residence with his girl friend. The female was
       only identified as a white female by the name of Tiffany. The concerned citizen also
       stated that he/she had observed a quantity of cocaine inside the residence in the past
       and that Child Protective Services had conducted an investigation [of] Flores
       regarding the use of marihuana in the presence of his children.
                “Affiant with the aid of Detective Ronald Verette located the suspected
       residence. Detective Verette observed a residence on Ramona Circle with vehicles
       matching the descriptions given to Affiant. Detective Verette observed the residence
       was marked 1920 and provided the license plates of the vehicles to Affiant. Affiant
       checked both vehicle registrations through the DPS, MVD data base. The black
       truck, TX registration 4WKS82 returned to a Felix Flores with a Maxwell, Texas
       address. The registration of the gold Firebird returned to a Maria Wardell at 1920
       Ramona Circle, San Marcos, TX.
                Affiant conducted a utility subscriber check to establish who had utility
       information at 1920 Ramona Circle, San Marcos, TX. Tiffany Wardell was the name
       listed on the account. The account information provided the TX drivers license
       #112437791. Affiant checked that number through the DPS data base and it returned
       to a Tiffany Wardell with the address of 1920 Ramona Circle, San Marcos, TX.
       Affiant checked the Hays County Sheriff’s Office data base for any information on


       1
         The State’s evidence at Flores’s trial established that he resided at the Ramona Circle
address at the time of the search.
                                                                                       FLORES - 3

       Felix Flores. The information obtained gave his address as being located in
       Maxwell, TX. Affiant checked the Hays County Narcotics Task Force data base for
       any information regarding Felix Flores. The only information provided stated that
       the Task Force had obtained information regarding Flores several years ago and the
       information was turned over to Caldwell County Narcotics since Flores did not live
       in this jurisdiction at that time.
                “Affiant contacted Caldwell County Narcotics and spoke with Jesse
       Hernandez regarding Felix Flores. Hernandez advised Affiant that Flores had been
       under investigation but that no charges had been filed. Affiant contacted Child
       Protective Services and spoke with Cheryl Smith regarding Flores. Smith advised
       that there had been an investigation regarding the welfare of children at Flores’
       residence but that it had occurred at his residence in Maxwell.
                “On 03-01-07, Affiant obtained the abandoned household garbage from the
       garbage can located in the street, directly in front of the residence located at 1920
       Ramona Circle, San Marcos, Hays County, Texas.[2] Affiant examined the garbage
       for any evidence of narcotics use. Affiant located two empty packages of cigarette
       rolling papers. Affiant from his experience and training knows that [this] type of
       rolling papers [is] commonly used to smoke marijuana cigarettes. Affiant also
       located a plastic bag believed to contain a small amount of marijuana residue.
       Affiant swabbed the inside of the bag using a q-tip. Affiant placed the q-tip inside
       a marijuana field test kit. The q-tip turned a purple color indicating the presence of
       marijuana.
                “On 03-05-07, Affiant again obtained the abandoned household garbage from
       the garbage can located on the street, directly in front of the residence at 1920
       Ramona Circle, San Marcos, Hays County, Texas. Affiant again examined the
       contents of the garbage for any evidence of narcotics use. Affiant located several
       marijuana stems, seeds and marijuana residue.”

       On March 7, 2007, Farkas and other members of the Task Force executed the search warrant.

In the course of their search, they discovered small quantities of marihuana and cocaine.

       On September 13, 2007, a Hays County grand jury returned an indictment charging Flores

with the felony offense of possession of more than four grams but less than 200 grams of cocaine

with intent to deliver. See Tex. Health & Safety Code § 481.112(d).



       2
          Flores has never argued that he had a reasonable expectation of privacy in the contents
of the garbage can. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Fourth Amendment
does not prohibit the warrantless search and seizure of garbage left for collection outside the
curtilage of a home).
                                                                                        FLORES - 4

       On March 10, 2008, Flores filed a written motion to suppress all of the items found during

the March 7, 2007, search of the Ramona Circle residence. In his motion, Flores, citing both the

Fourth Amendment to the United States Constitution and Article I, § 9, of the Texas Constitution,

argued that the search of the residence had been carried out without probable cause and, thus,

without a valid warrant.3 More specifically, Flores argued:

               “[T]he affidavit for the search warrant [did] not contain sufficient underlying
       facts adequately to inform the magistrate of how the alleged informant obtained
       his/her information and [did] not contain sufficient underlying facts to establish the
       credibility and reliability of the alleged informant. Additionally, the searches of the
       trash receptacles[4] outside of the residence [were] insufficient to establish probable
       cause to search the residence.”

       On May 12, 2008, immediately before Flores’s trial, the trial court held a brief, non-

evidentiary hearing on Flores’s motion to suppress, and then denied it. The jury later found Flores

guilty as charged and assessed his punishment at imprisonment for twelve years.

       On direct appeal, Flores, again citing both the Fourth Amendment and Article I, § 9, argued

that the trial court had erred in denying his motion to suppress. Flores’s argument proceeded as

follows:

               “The search warrant affidavit failed to provide a [substantial] basis for the
       magistrate to believe there was contraband in the house to be searched and at the time
       the warrant issued. An anonymous tip will rarely be sufficient to provide probable
       cause. Here, the tip did not even give a date. Although the affiant corroborated some
       information in the tip, these facts were essentially matters of public knowledge. The
       officers did find traces of marijuana in the two trash searches, but the affidavit did
       not establish an affirmative link to [Flores] or his house. Because garbage is readily


       3
         Flores has never contested that the State had a magistrate’s warrant to support its search
of the Ramona Circle residence. Thus, Flores has the burden of showing that the magistrate’s
warrant was invalid. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986).
       4
          In Flores’s written motion to suppress, he referred to “the trash receptacles” (plural),
but in Farkas’s affidavit, he referred to “the garbage can” (singular).
                                                                                        FLORES - 5

       available to the public, these two discoveries alone were insufficient to establish
       probable cause.”

       The State argued in response:

               “Contrary to [Flores’s] belief, the magistrate had a substantial basis for
       concluding that illegal drugs would be found in the residence targeted for the search,
       because the confidential informant had first-hand, detailed knowledge of the presence
       of drugs in the home and knowledge of a CPS investigation involving drug use by
       [Flores]. Moreover, the information provided by the informant was corroborated
       with vehicle identification, a utility subscription, and a [background] search which
       revealed [possible] prior drug activity by [Flores], a confirmed CPS investigation [of
       Flores], and two trash runs which produced evidence of drugs.”

       The court of appeals, after a lengthy analysis, held that “the anonymous informer’s tip and

related information did not give the magistrate a substantial basis for believing that cocaine,

marihuana, or evidence of unlawful controlled substance dealing would be found in the house at

1920 Ramona Circle on March 6, 2007.”5 Flores v. State, 287 S.W.3d 307, 313 (Tex.App.–Austin

2009). The court of appeals also held, however, that Farkas’s two “trash runs,” as described in his

affidavit, did provide the magistrate with a substantial basis for concluding that probable cause

existed:

               “[T]he fact that Farkas found marihuana residue in the trash container outside
       the residence at 1920 Ramona Circle on two different occasions suggests that the
       incriminating material had not been placed there by a neighbor or some passer-by,
       but that it actually came from inside the house. The situation is analogous to ‘the
       doctrine of chances,’ which states that unusual events are unlikely to repeat
       themselves inadvertently or by happenstance. This presents a very close case, but
       keeping in mind the deference that is due the magistrate’s determination of probable
       cause, we conclude that the affidavit gave the magistrate a substantial basis for
       concluding that there was probable cause to search the premises for marihuana.” Id.
       at 316-17 (citation omitted).6


       5
           The record reveals that the search warrant was actually executed on March 7, 2007.
       6
           The court of appeals also held that, although “the affidavit presented to the magistrate
                                                                                        (continued...)
                                                                                       FLORES - 6

       We granted Flores’s petition for discretionary review in order to determine whether the court

of appeals erred in holding that the magistrate who issued the search warrant for Flores’s residence

had a substantial basis for concluding that probable cause existed to search that residence for

marihuana.7 In his brief to this Court, Flores argues that the court of appeals erroneously “created

a bright line rule [whereby] any discovery of contraband traces in a publically available trash

container on two consecutive occasions . . . authorizes issuance of a residential search warrant.”8

The State responds that “the trash runs coupled with the [partially corroborated anonymous tip] gave

the magistrate a substantial basis for concluding that illegal drugs would probably be found on the

premises.”

       The Fourth Amendment provides:

       “The right of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures, shall not be violated, and no Warrants
       shall issue, but upon probable cause, supported by Oath or affirmation, and




       6
         (...continued)
gave him probable cause to issue a warrant to search the suspect premises for marihuana,” “the
trial court did not reversibly err by overruling the motion to suppress as it applied to cocaine”
because “[t]he officers found the cocaine in plain view while lawfully searching for marihuana.”
Flores v. State, 287 S.W.3d 307, 318 (Tex.App.–Austin 2009). Flores, in his petition for
discretionary review, did not challenge that holding, and we did not grant review to consider it.
       7
         Flores’s sole ground for review reads as follows: “When no other facts in a search
warrant affidavit establish probable cause, should Texas have a blanket rule that finding traces of
contraband in trash outside a residence on two consecutive weeks automatically supports
issuance of a warrant to search that home?”
       8
        Flores has never argued that Article I, § 9, provides more protection than the Fourth
Amendment, so we resolve this case under the Fourth Amendment only. See Heitman v. State,
815 S.W.2d 681, 690 n. 23 (Tex.Crim.App. 1991).
                                                                                           FLORES - 7

        particularly describing the place to be searched, and the persons or things to be
        seized.”9

        The cornerstone of the Fourth Amendment is that a magistrate may not issue a search warrant

without first finding “probable cause” that a particular item will be found at a particular location.

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007). Probable cause for a search warrant

exists if, under the totality of the circumstances presented to the magistrate, there is at least a “fair

probability” or “substantial chance” that contraband or evidence of a crime will be found at the

specified location. Illinois v. Gates, 462 U.S. 213, 238, 243 n. 13 (1983). Probable cause for a

search warrant does not require that, more likely than not, the item or items in question will be found

at the specified location. Texas v. Brown, 460 U.S. 730, 742 (1983). In his determination of whether

probable cause exists, the magistrate may interpret the probable cause affidavit in a non-technical,

common-sense manner and he may draw reasonable inferences from it. Illinois v. Gates, 462 U.S.

at 235-38; Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004).

        The duty of a reviewing court, including a reviewing trial court, is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462

U.S. at 238.10 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.” W.



        9
         The Fourth Amendment was made applicable to the states by the Due Process Clause of
the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).
        10
           Deference to the magistrate’s determination of probable cause “encourage[s] police
officers to use the warrant process rather than making a warrantless search and later attempting to
justify their actions by invoking some exception to the warrant requirement.” Rodriguez v. State,
232 S.W.3d 55, 59-60 (Tex.Crim.App. 2007).
                                                                                        FLORES - 8

LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7(c) at 452 (4th ed. 2004 &

Supp. 2009-2010) (internal punctuation omitted) (citing cases).

       From the four corners of Farkas’s probable cause affidavit, the magistrate could directly find

the following facts: (1) Farkas was a longtime peace officer with extensive training and experience

in narcotics investigations. (2) Farkas, in the course of his career, had observed marihuana and other

illegal drugs. (3) In February 2007, Farkas received an anonymous tip regarding “narcotics activity,”

on an unspecified date, at the Ramona Circle residence. (4) The anonymous informer also told

Farkas that he “had observed a quantity of cocaine inside the [Ramona Circle] residence in the past.”

(5) The informer gave several details about Flores and the Ramona Circle residence that were later

corroborated in whole or in part. (6) On March 1, 2007, Farkas found residue, which field-tested

positive for marihuana, in a garbage can located on the street directly in front of the Ramona Circle

residence. (7) On March 5, 2007, Farkas found what he believed to be marihuana stems, seeds, and

residue in a garbage can located on the street directly in front of the Ramona Circle residence.

       Given what the magistrate could find directly from Farkas’s affidavit, the magistrate could

also reasonably infer the following additional facts: (1) The anonymous informer had some

familiarity with Flores and his affairs. (2) The items that Farkas found in the garbage can on March

5, 2007, were in fact marihuana stems, seeds, and residue. (3) The garbage can in question was from

the Ramona Circle residence and not from a neighboring residence. (4) The marihuana residue in

the garbage can on March 1, 2007, and on March 5, 2007, originated from the Ramona Circle

residence and not from a neighbor or passer-by. The magistrate could reasonably draw that last

inference because, under the “doctrine of chances,” it was objectively unlikely that a person or

persons unconnected to the Ramona Circle residence would have placed marihuana in that
                                                                                          FLORES - 9

residence’s garbage can twice within a five-day period. See De La Paz v. State, 279 S.W.3d 336,

347-48 (Tex.Crim.App. 2009) (discussing the “doctrine of chances”); E. Imwinkelried, Uncharged

Misconduct Evidence § 5:28 (2009) (same).

        Finally, given that the magistrate could reasonably infer that the anonymous informer had

some familiarity with Flores and his affairs, the magistrate could reasonably conclude that the

informer’s tip regarding illegal drugs at the Ramona Circle residence, although perhaps insufficient

in itself to establish probable cause to search, was nevertheless a circumstance to be considered,

along with all of the other circumstances, in the determination of whether probable cause existed.

See W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3(f) at 193-94 (4th

ed. 2004) (although informer’s tip standing alone might be insufficient to establish probable cause,

magistrate may consider that tip along with other circumstances) (citing cases).

        In view of the foregoing, we hold that the magistrate had a substantial basis for concluding

that probable cause existed, i.e., that there was at least a fair probability or substantial chance that

marihuana would be found at the Ramona Circle residence on March 7, 2007. We affirm the

judgment of the court of appeals.



DELIVERED MAY 19, 2010

PUBLISH
