         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                             NOS. PD-0674 / 0675 / 0676-11



                          RIO SHAREESE JONES, Appellant

                                           v.

                               THE STATE OF TEXAS



           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                           GALVESTON COUNTY

      P RICE, J., filed a concurring opinion in which W OMACK, J., joined.

                              CONCURRING OPINION

      In his search warrant affidavit, Officer Bjerke represented that he had “recently

received information” from a confidential informant that crack cocaine was “being sold”

from the premises at 219 North Pine Road. At some undisclosed point in time “[a]fter” he

“recently received” that information, he learned that another officer from a nearby

jurisdiction also “had information” from a confidential informant—apparently a second,

different confidential informant—to the same effect. Based on this combined information,
                                                                                           Jones — 2


Bjerke initiated a controlled buy at 219 North Pine Road and obtained a substance from that

address that field tested positive for cocaine. Although the warrant affidavit does not

expressly say so, a neutral and detached magistrate could readily infer from these

circumstances that the controlled buy occurred “[a]fter” the point in time at which Bjerke

“recently received” information from his own confidential informant. From all of this the

magistrate could reasonably conclude that information “recently” imparted by at least two

confidential informants,1 to the effect that crack cocaine was “being sold” from 219 North

Pine Road, was even more recently corroborated by a controlled buy of a substance that in

fact proved to be cocaine. That is at least marginally enough, in my estimation, to justify the

magistrate’s issuance of the search warrant.2 When two confidential informants have attested

to the fact that crack cocaine is “being sold” from an enumerated address, and a “recent”

controlled buy at that address confirms it, a neutral and detached magistrate may reasonably

determine that there is probable cause to believe crack cocaine is indeed “being sold”—and

will therefore presently be found—there.

       That said, however, it is troubling that a reviewing court should have to parse the

       1

          Bjerke’s warrant affidavit alludes to what is apparently other “information provided to [him]
by . . . other confidential informants,” without ever specifying the nature of that information or when
he learned of it.
       2

         See United States v. Ventresca, 380 U.S. 102, 109 (1965) (“Although in a particular case it
may not be easy to determine when an affidavit demonstrates the existence of probable cause, the
resolution of doubtful or marginal cases in this area should be largely determined by the preference
to be accorded to warrants.”).
                                                                                             Jones — 3


language of a search warrant affidavit as meticulously as the Court is compelled to do today

before it can conclude that a magistrate’s finding of probable cause has a substantial basis

in fact.    All that Bjerke would have had to add to his search warrant affidavit to make

probable cause manifest, after all, was the exact date upon which the controlled buy occurred

(assuming that it indeed occurred tolerably “recently”). Absent that concrete date, a neutral

and detached magistrate might just as readily have found that the warrant affidavit in this

case lacked sufficient temporal specificity to provide probable cause to believe that crack

cocaine would presently be found at 219 North Pine Road. That is not to say that the Court

today does not rightly defer to the magistrate’s determination—it does.3 But that deference

to the magistrate is not a one-way street, and it would have been equally appropriate for us

to defer to any determination the magistrate might have made that probable cause to believe

crack cocaine was presently at that address was lacking.4 Whether out of carelessness,

laziness, a tenuous grasp of the governing law, or perhaps even a deliberate coyness,5 Bjerke

        3

        See Massachusetts v. Upton, 466 U.S. 727, 733 (1984) (“A deferential [rather than a de novo]
standard of review is appropriate to further the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant.”).
        4

        See Davis v. State, 202 S.W.3d 149, 157 (Tex. Crim. App. 2006) (“We are compelled to
remark . . . that the affidavit in this case was far from exemplary. Indeed, we would just as readily
conclude that it was within the magistrate’s discretion to deny this search warrant, had he originally
done so. A magistrate should not have to resort so much to inferences and ‘common sense’
conclusions that skirt the boundaries of what constitutes a substantial basis, as they do here.”).
        5

        At oral argument there was some speculation that the exact date of the controlled buy may
have been deliberately withheld from the search warrant affidavit in order to protect the identity of the
                                                                                  Jones — 4


failed to supply the kind of temporal precision we usually expect to find in a search warrant

affidavit. A police affiant who is unable to persuade a neutral and detached magistrate of

probable cause in the wake of such imprecision should not hope to rely on the imagination

of subsequent reviewing courts to bail him out.




FILED:         March 28, 2012
PUBLISH




second confidential informant.
