REVERSE and REMANI); and Opinion Filed August 20, 2013.




                                                             In The
                                                       Qintrt of Aprat
                                                    Ou1rict of LrxLu at Ja11a

                                                        No. 05-12-00065-CR

                                         THE STATE OF TEXAS, Appellant
                                                     V.
                                        ARACELI SANCHEZ-PINON, Appellee

                                 On Appeal from the 203rd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F10-21619-P

                                               MEMORANDUM OPINION
                                         Before Justices Lang-Miers and Fillmore’
                                              Opinion by Justice Lang-Miers
           Appellee Araceli Sanchez-Pinon was charged by indictment with the offense of

possession of a controlled substance with intent to deliver. See TEX. HEALTH & SAFETY CoDE

ANN.      § 48 1.112 (West 2010).                  She filed a motion to suppress, arguing that the affidavit

supporting the search warrant did not show probable cause sufficient to justify the issuance of

the warrant. The trial court granted the motion, and the State appealed. We reverse and remand

for further proceedings.

                                                          BACKGROUND

           Sanchez-Pinon was arrested during the execution of a search warrant at a residence

located at 706 Fairwood Place in Duncanville, Texas. Police officers came to suspect there may

        Justice Mary Murphy was on the panel and participated at the submission of this case, but due to her resignation from this Court, she did
not participate in the issuance of this Opinion See TEX. R. APP. P. 41.1(a), (h).
he drin:s at the Fairwood Place residence as a result ol their previous surveillance and search of

another residence located at 514 Falling Leaves Drive.

                              Sunc,lkinc e at Fallinç’ Leave.v Re.c ith’nce

        1)eteci ive Jell Pol lock with the Duncanville Police Department Criminal Investigations

Division testified at the hearing on SanchezPinon’s motion to suppress that he first noticed the

Falling Leaves residence when he and another police olhcer, I)etective Moon. were “driving in

some neighborhoods” and Moon observed a Hispanic male carrying two large flat screen

televisions from the trunk of a vehicle into the residence. Moon and Pollock set up surveillance

on the house and watched it for “an hour and a half or so.” During this time they observed a lot

of heavy traffic at the residence.

        Pollock described the traffic: a car would pull up and the occupants would get out and

stay inside the house for approximately three or four minutes. Sometimes they would stand in

the driveway, speak with what appeared to he the residents, and leave three or four minutes later.

Eight to ten vehicles came and went during their surveillance.           The vehicles included “high

profile type vehicles” such as Escalades, a Lincoln truck, and a “lot of vehicles with the extra

equipment on them, the expensive rims, the tires and wheels,” which were commonly driven by

drug users or narcotics dealers. Pollock notified his narcotics officers about the residence and

told them “they may want to add it to their list of houses” that they were currently watching.

Pollock believed narcotics were being sold at the location and he reported everything to

Detective Dan Hunt, an eighteen-year veteran police officer for the City of Duncanville who had

conducted or been involved in most of the narcotics investigations in Duncanville for the past

fourteen to fifteen years.

       The next day was a regular trash day, so Hunt went by and collected trash bags placed at

the curb in front of the Falling Leaves residence. He opened the trash bags and found a shoe box


                                                 —9—
with a white powder residue inside. The f)oWder lieldiested positive for    cocaine,   lie also saw

imprints on the bottom, sides, and      lop   of the shoe box that were rectangular in shape and

indicated that the box previously contained blocks or packages that could have been the source

of powder cocaine.      Based on his training and experience, he concluded the imprints were

consistent with the size and shape of “kilo packages.” The inside of the shoe box also contained

axle grease that was semitransparent and brown, which he said indicated it had not been used to

pack hearings or in an axle, Hunt testified that “quite frequently” drug traffickers smear axle

grease to prevent the odor of controlled substances from reaching the K—9 dogs. The use of axle

grease also indicated to Hunt that the package contained a large quantity of controlled substance;

he had “never seen anybody smear axilel grease all over a one grain package, because you dont

want to deal with the axilel grease, for something that’s going to be consumed sometime soon.”

Hunt believed that the box contained two kilograms of cocaine, which is “consistent with large

scale trafficking.”

                             Connection   to Fairwood Place Residence

        Hunt also found a piece of mail for “Rafael Sanchez” with the address of “706 Fairwood

Place, Duncanville, Texas” inside the trash bag. He conducted a search of Dallas County records

and found that a “Rafael Sanchez” living at 706 Fairwood Place had been arrested previously for

possession of a controlled substance. He also discovered that a “Leodegario Sanchez” had been

arrested previously at the Fairwood Place residence for narcotics-related warrants and had

multiple arrests for drug-related offenses.

       In addition to the mail in the trash hag, Hunt discovered another connection between the

Falling Leaves and Fairwood Place residences: when he picked up the trash from the front of the

Falling Leaves residence, he noticed that the car previously used to transport the television sets

was parked in the driveway. He ran the license plate, which was registered to a “Reyna Pinon”


                                                 —3—
residine at 7()6 Fairwood Place. hunt hean surveillance of 7 Fairwood Place based on the

inlormation lound durmg the surveillance of the Falling Leaves residence.

                             Scare/i   Warn mi for Pa1li,,c Lcai’cs Rcidencc

         I-hunt secured a search warrant for the Falling Leaves residence, which was executed on

October 29. During the search, police officers found over twenty grams of methampheramine.

over   OflC   hundred grams of cOcaine, approximately SI 0.000      ii   cash, three handguns, an assault

rifle, and a stolen rifle. Officers also found several documents addressed to various individuals

at 706 Fairwood Place, including a police citation issued to “Nicanor Depaz Cardenas”; another

police citation issued to “Rodrigo Caligua”; a police citation “payment document” for “Roberto

Moto”: two car insurance documents for “Reyna              Pinon”    and “Roberto Mob”; a second

insurance document for “Roberto Moto”; a Kohl’s “store payment document” bearing the name

of “Reyna Pinon”: an unidentified bill to “Araceli Sanchez”; four unidentified mailings

addressed to “Rafael Sanchez”: a currency transfer record for “Rodrigo Moto”; and an

unidentified document bearing the name of “Araceli Sanchez.” All of these documents showed

the address of 706 Fairwood Place. Hunt testified that there were as many documents found

during the search addressed to individuals at 706 Fairwood Place as there were for the Falling

Leaves residence.

         While the search of the Falling Leaves residence was being conducted, Roberto Moto

Caligua arrived there, parked in the driveway, and was detained by officers. But the address on

his matricula identification card was listed as 706 Fairwood Place, and he was driving the car

previously discovered to be registered to “Reyna Pinon” at 706 Fairwood Place.

                             Surveillance of Fairwood Place Residence

        Hunt continued his surveillance of 706 Fairwood Place after the search of the Falling

Leaves residence. He seized two trash bags from in front of the Fairwood Place residence on


                                                  -4-
November 2, a regularly scheduled garbage-collection day. He discovered a (juart-sized plastic

zip bag with “a crvsl al residue” that tested positive for methamphetamine in one of the bags.

The “crystal meth” appeared to be consistent with the methamphetarnine seized from the

residence on Falling Leaves. It was ground “pretty fine” with a lot ot large sections that “had a

little bit of dusting on   it.”   lie also lound a box br a digital scale. The scale’s capacity ranged

from one gram to ten pounds. Hunt testified that “ftjhe scale is consistent with those used by

narcotics traffickers to weigh large amounts of controlled substances,” but the scale’s capacity

was larger than those typically found in possession of individuals that traffic in small quantities

of controlled substances. Inside the box for the digital scale was a small portion of a plant stern

“consistent with a marijuana stern.”

       Two cars were parked in the driveway when Hunt picked up the trash at 706 Fairwood

Place. lie ran the license plates for both cars:, one was registered to both “Araceli Sanchez” and

“Reyna Pinon” at 706 Fairwood Place. A search of previously issued citations revealed that a

citation was issued to “Nicanor Depaz Cardenas” while driving this vehicle. A criminal record

search revealed that Cardenas had several previous offenses, including one for manufacture or

delivery of a controlled substance.

                             Search   Warrant fi.r Fairwood Place Residence

       Hunt drafted an affidavit detailing the evidence discovered during the surveillance and

search of the Falling Leaves residence, the search of the trash bags from the Fairwood Place

residence, and the results of the multiple computer record and database searches. Based on that

affidavit, a search warrant for 706 Fairwood Place was issued. During that search, officers found

a large amount of methamphetamine in the residence—approximately 78 grams in all—and

almost $25,000 dollars in cash. These drugs are the basis for the possession charge against

Sanchez-Pinon, who was at the residence when the search warrant was executed.


                                                   —5—
                         Motion to Suppress Evulence Irvin hurwood Place Residence

          SanchciPinon Ilcd a motion to suppress, arguing the warrant to search the lairwood

 Place residence was illegally issued because the inlormation contained in the search warrant

 affidavit was insufficient as a matter of law to support probable cause. In her motion, she did not

 address or    mention      any of the evidence or inlormation                     found        through the surveillance and search

of the first residence, 514 FaIling Leaves Drive. She also argued that the U.S. Supreme Court

“put the bar” at two or more positive trash searches to show probable cause.

         At the hearing on the motion to suppress, Sanchez-Pinon argued that because a trial court

previously deemed the search of the Falling Leaves residence illegal and granted a motion                                        to

suppress the evidence seized in executing the search warrant at that residence, the search of 706

Fairwood Place was “the fniit of the poisonous tree” and should be suppressed as well. Sanchez

Pinon also argued that the only evidence available to support a search warrant at the Fairwood

Place address was the letters the officers found at 514 Falling Leaves Drive that were addressed

to 706 Fairwood Place and the contents of a single trash hag that was searched at the Fairwood

Place residence. She contended that “paramount and controlling in this particular issue is the

Supreme Court case that says one trash run is not enough.                               .   .




        The trial court granted Sanchez-Pinon’s motion to suppress, and this appeal followed.

                                                            I)ISC USSION

        In a single issue, the State argues that the trial court committed reversible error by

granting Sanchez-Pinon’s motion to suppress because the affidavit contained sufficient facts to

establish probable cause to issue a search warrant for the Fairwood Place residence.
                                                                          2




    Sanehez-Pinon did not tue a brief in this appeal or participate in oral argument.



                                                                    -6-
                                       Standard of Review

       The core 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 he found in a particular location, State v. Duane, 389 S.W.3d 349, 354 (Tex. Crim.

App. 2012): State v. coker, No. 0512006l6CR, 2013 WL 3728819, at *2 (Tex. App.—Dallas

July 17, 2013, no. pet. h.). The test is whether a reasonable reading by the magistrate would lead

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

warrant. Duane, 389 S.W.3d at 354; Coker, 2013 WL 3728819, at *2, 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. Duarte, 389 S.W.3d at 354; Coker,

2013 WL 3728819, at *2. A magistrate may draw reasonable inferences from the affidavit and

must interpret the affidavit in a common sense and realistic manner. Ramos v. State, 934 S.W.2d

358, 362—63 (Tex. Crim. App. 1996). We give “great deference” to a magistrate’s determination

of probable cause. See Swearingen v. State, 143 S.W.3d 808, 81 1 (Tex. Crim. App. 2004): Lane

v. State, 971 S.W.2d 748, 752 (Tex. App.—Dallas, 1998, pet. ref’d).

        The duty of the reviewing court is to determine whether, considering the totality of the

circumstances, the magistrate had a substantial basis for concluding that probable cause existed

to support the issuance of the warrant when viewing the affidavit. Illinois v. Gates, 462 U.S.

213, 236—37 (1983).      “We must defer to the magistrate’s finding of probable cause if the

affidavit demonstrates a substantial basis for his conclusion.” Id.       Statements made during a

motion to suppress hearing do not factor into the probable cause determination. Massey v. State,

933 S.W.2d 141, 148 (Tex. Crim. App. 1996).

        The trial court, in determining whether an affidavit is sufficient to support a search

warrant, examines the totality of the circumstances and gives great deference to the magistrate’s

                                                 —7—
decision to issue the warrant. Rarnos, 934 S.W.2d at 363. We review de novo the issue before

the trial court. ie. whether the magistrate, viewing the totality of the circumstances, had a

substantial basis ftr concluding that a search would uncover evidence of wrongdoing. Lane, 971

S.W.2d at 752.

                                                                   Analysis

            The Slate argued that, because the evidence gathered from the surveillance and search of

the Falling Leaves residence was included in the affidavit supporting the search of the Fairwood

Place residence, that evidence was part of the facts upon which the magistrate could rely in

deciding to issue a search warrant for 706 Fairwood Place. See Bernard                                                   t’.   State. 07 S.W.2d

359, 365 (Tex. App.—Houston 114th Dist.j 1991, no peL) (evidence of illegal distribution of

drugs discovered during search of partner’s residence along with evidence defendant was

involved in the illegal distribution of drugs adequate probable cause to support a search of

defendant’s residence).

           Sanchcz-Pinon did not discuss the evidence discovered at the Falling Leaves residence in

her motion to suppress but did maintain at the suppression hearing that a trial court had

previously concluded that the search of the Falling Leaves residence was illegal and had granted

a motion to suppress the evidence obtained during its search. While Sanchez-Pinon made clear

that she was not challenging that search, she did argue that the search of the second residence

was “the fruit of the poisonous tree” of the search of the first residence .See Reed v. State, 809

S.W.2d 940, 944 (Tex. App.—Dallas 1991, no pet.) (“The fruit of the poisonous tree doctrine

forbids the use of evidence obtained as a result of an illegal arrest                                 .   .   .   .“   and “serves to exclude

not oniy the direct products, but also the indirect products of Fourth Amendment violations.”).


         Neither the State nor Sanchez-Pinon provided a citation to or copy of a court order concluding the search of 5 14 Falling Leaves Drive was
illegal; the trial court’s basis for that determination is unclear. Htuit did acknowledge on cross-examination that he was aware that the motion to
suppress evidence obtained during the search of 514 Falling Leaves Drive was granted and “the search was deemed illegal:’



                                                                      —8--
       The Supreme Court, however, has never held that “unlawfully seized evidence is

inadmissible in all proceedings or against all persons.” Rakas v. Illinois, 439 IJ.S. 128, 134 n.3

(1978). The established principle is that suppression of the product of a Fourth Amendment

violation can be successfully urged only by those whose rights were violated by the search itself,

not by those who are aggrieved solely by the introduction of damaging evidence, Alderman v.

United States, 394 U.S. 165, 171—72 (1969).       “Coconspirators and codefendants have been

accorded no special standing.” Id. at 172. Any defendant seeking to suppress evidence obtained

in violation of the Fourth Amendment must first show that he personally had a reasonable

expectation of privacy that the government invaded. Kothe v. State, 152 S.W.3d 54, 59 (Tex.

Crim. App. 2004). A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person’s premises or property

has not had any of his Fourth Amendment rights infringed. Rakas, 439 U.S. at 133—34 (1978);

Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). As the Supreme Court explained

in recounting its decision in Wang Sun v. United States, 371 U.S. 471 (1963):

       [in Wang Sunj, two defendants were tried together; narcotics seized from a third
       party were held inadmissible against one defendant because they were the product
       of statements made by him at the time of his unlawful arrest. But the same
       narcotics were found to be admissible against the codefendant because ‘(t)he
       seizure of this heroin invaded no right of privacy of person or premises which
       would entitle (him) to object to its use at his trial.’

Alderman, 394 U.S. at 172—73. More recently, in Roeder v. State, 768 S.W.2d 745 (Tex. App.—

Houston [1St Dist. 11988, pet. ref’d), the appellant argued that evidence seized in the search of

his apartment and his confessions should not have been admitted because they were “‘tainted

fruit’ of [a third party’sI confession which the Texas Court of Criminal Appeals ruled was

illegally obtained.” Id. at 755. The Houston court of appeals, relying on Alderman, determined

that appellant had no standing to complain and overruled appellant’s issue.       Id.   Similarly,

Sanchez-Pinon has failed to show that she personally had a reasonable expectation of privacy in

                                              —9—
the Falling I eaves residence. S’ee Kothe, 152 S.W3d at 59. She has no standing to complain

about the evidence seized during the search of the Falling Leaves residence, and the magistrate

that issued the warrant along with any reviewing court could rely on that evidence in determining

whether probable cause existed to issue the warrant lou the Fairwood Place residence.

        Additionally, Sanchez-Pinon argued in her motion to suppress that the US. Supreme

Court “put the bar” at two or more positive trash runs to establish probable cause, citing

(‘alithriiin   i.   Greenwood.   486 U.S. 35 (1988). She also cited to Slate    i’.   Dickson, No. 05—07—

01542-CR, 2008 Wi. 3867643 (Tex. App.—Dallas Aug. 21. 2008, no pet.) (not designated for

publication), Sta,’e v. Davila, 169 S.W.3d 735 (Tex. App.—Austin 2005, no pet.), and Serrano r.

State, 123 S.W.3d 53 (Tex. App.—Austin 2003, pet. ref’d) as Texas cases that, following

Greenwood, found the one-time discovery of a controlled substance in a trash search insufficient

to establish probable     cause.   But this Court has recently determined that a single trash search, in

light of the totality of the circumstances in that case, was sufficient to establish probable cause to

search a residence. See Coker. 2013 WL 37288 19. at *6. And Dickson. !)avila, and                Serrano


made their determinations based on the totality of the circumstances, not simply on the fact that a

single trash search was conducted. See Davila, 169 S.W.3d at 740 (“[TIhe totality of the facts

stated in the affidavit did not give the magistrate a substantial basis for concluding that a search

of the house would uncover evidence of wrongdoing.”); Dickson, 2008 WL 3867643, at ‘2

(“After considering the totality of the circumstances, we agree with the trial court that the

affidavit was not sufficient to justify the magistrate’s conclusion that marijuana would probably

be on the premises at the time of the search.”); Serrano. 123 S.W.3d at 63 (in totality of the

circumstances analysis, court unable to ensure the magistrate had a substantial basis for

concluding that probable cause existed).




                                                   —10—
        Consequently. in determining whether probable cause exists, the test is the same

regardless of whether a single trash hag search or multiple trash bag searches were conducted:

this Court must determine whether, considering the totality of the circumstances, the magistrate

had a substantial basis br concluding that probable cause existed to support the issuance of the

warrant when viewing the affidavit. See Gates. 462 U.S. at 236 37.

        In the present case, the evidence on which the magistrate could rely in issuing the warrant

for the Fairwood Place residence included the following: (1) the suspicious foot and vehicle

traffic at 5 14 Falling Leaves Drive; (2) the vehicle parked in the driveway of 5 14 Falling Leaves

Drive registered to an individual residing at 706 Fairwood Place; (3) the cocaine and

meihamphetamine found in the trash at the Falling Leaves residence; (4) the documents found

along with the methamphetamine and cocaine in the trash at the Falling Leaves residence

addressed to the Fairwood Place residence; (5) the past criminal records involving prior drug

possession offenses of the people listed as residents of the Fairwood Place residence; (6) the

many documents found during the search of 514 Falling Leaves Drive addressed to 706

Fairwood Place; (7) the drugs, guns. and money found during the search of the Falling Leaves

residence; (8) and the evidence discovered during the trash search of the Fairwood Place

residence, including methamphetamine residue, a plant stem “consistent with” marijuana, and a

box for a digital scale consistent with scales used by narcotic traffickers.

        We conclude that this evidence, taken together, was sufficient to establish probable cause

for the search of the Fairwood Place residence.




                                                —11—
        We reverse the trial courl’s rwi1 ol the motion to suppress and remand the ease tor

I urther proceedings.




                                                 /ElizahethLang-Miers/
                                                 ELIZABETH LANGM1ERS
                                                 JUSTICE


Do Not Publish
Thx. R. App. P. 47

1 20065F.U05




                                          —12—
                                        1I             I


                                 (Court of Apiiaat
                        3FiftI! Otstrirt of ixa at kitta
                                      JUDGMENT

T[IE STATE OF TEXAS. Appellant                      On Appeal from the 203rd Judicial District
                                                    Court. Dallas Eounty. Texas
No. O5-l200O65CR           V.                       Trial Court Cause No. Fl0-216I9P.
                                                    Opinion delivered by Justice Lang-Miers.
ARACELI SANCHEZ-PINON, Appellee                     Justice Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 20th day of August. 2013.




                                                   /Elizaheth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE




                                            —13—
