REVERSE and REMAND; and Opinion Filed December 17, 2013.




                                            SIn The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01618-CR

                             THE STATE OF TEXAS, Appellant
                                         V.
                               JIM BOB GREEN, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                            Trial Court Cause No. F11-21582


                                            OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                 Opinion by Justice FitzGerald

       In the course of this prosecution for methamphetamine possession, the trial judge granted

appellee Jim Bob Green’s motion to suppress certain evidence. The State appeals. We reverse.

                                       I.   BACKGROUND

       In the summer of 2011, the police began investigating some incidents of prescription

fraud. Eventually their investigation led them to suspect that appellee and his wife Shauna Green

were involved in illegal, drug-related activity. After surveilling the Greens’ house for a few

days, detectives searched some trash obtained from trash cans at their residence. Based on the

contents of the trash cans and other evidence gathered in the course of the investigation, a

detective prepared an affidavit for search warrant and presented it to a magistrate.          The

magistrate issued a search warrant for the Greens’ residence, authorizing and directing the police
to search for illegal drugs and related items. The police executed the search warrant and

recovered a number of items from the residence.

          Appellee was then indicted for possession of methamphetamine in an amount between

one and four grams. Appellee filed a motion to suppress all evidence resulting from the search

pursuant to warrant. After conducting a hearing, the trial judge granted appellee’s motion. In his

order, the judge recited that “the affidavit in support of the search warrant failed to provide

probable cause.” The State timely perfected this appeal. 1

                                                         II.    ANALYSIS

          In a single issue, the State argues that the trial judge erred by granting appellee’s motion

to suppress.

A.        Applicable law

          A magistrate may not issue a search warrant without first finding that there is probable

cause that a particular item will be found at a particular location. Flores v. State, 319 S.W.3d

697, 702 (Tex. Crim. App. 2010). 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 a substantial

chance that contraband or evidence of a crime will be found at a specified location. Id. Probable

cause does not require a showing that it is more likely than not that the item or items in question

will be found at the specified location. Id. The magistrate may interpret a probable-cause

affidavit in a common-sense manner and may draw reasonable inferences from it. Id.

          We review the trial judge’s decision that the magistrate lacked probable cause to issue a

search warrant under a de novo standard of review. State v. Wester, 109 S.W.3d 824, 826 (Tex.

App.—Dallas 2003, no pet.). By contrast, we give great deference to the magistrate’s decision to


     1
       Shauna Green was indicted for possession of methamphetamine in an amount less than one gram, and she also succeeded in suppressing
evidence. We decide the State’s appeal in her case, No. 05-12-01619-CR, at the same time we decide this appeal.



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issue the warrant, inquiring whether under the totality of the circumstances the magistrate had a

substantial basis for concluding probable cause existed. Id.; see also State v. Coker, 406 S.W.3d

392, 395 (Tex. App.—Dallas 2013, pet. ref’d). The 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.” Flores, 319 S.W.3d at 702 (internal quotations

and citation omitted). We must consider the totality of the circumstances contained within the

four corners of the affidavit in reviewing the magistrate’s determination, and we should not read

any parts in isolation from the rest. See State v. Jordan, 342 S.W.3d 565, 570, 571 (Tex. Crim.

App. 2011). Moreover, we do not focus on what other facts could or should have been included

in the affidavit; rather, we focus on the combined logical force of the facts that are in the

affidavit. Coker, 406 S.W.3d at 396.

B.     The probable-cause affidavit and other evidence

       Detective Ralph Woods of the Duncanville Police Department executed the probable-

cause affidavit. The affidavit supported the following facts, which ultimately led the police to

believe appellee’s residence at 433 Vincent Street in Cedar Hill contained drugs or other

evidence.

       In August 2011, a CVS Pharmacy pharmacist reported a forged prescription for

hydrocodone-APAP to the Duncanville Police. The prescription had been presented by a woman

named Andrea Takats two days earlier.       Later, the police investigated another report of a

fraudulent hydrocodone prescription, this time at a Kroger pharmacy in Duncanville. This

prescription bore the name Andrea Takats and listed an address, 318 Shorewood in Duncanville.

In October 2011, an undercover detective recovered a plastic trash bag from the curb in front of

the residence at 318 Shorewood. Examining the bag’s contents later, the detective found a


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photocopied prescription form from Dr. Felix Starghill, D.D.S. and Associates, P.C. The patient

information appeared to have been removed during previous alterations, and the prescription

section contained liquid paper covering unknown writing. The detective contacted Dr. Starghill,

who reported that many fraudulent prescriptions had been filled recently with his name listed as

the authorizing doctor. Dr. Starghill also reported that he had written a Motrin prescription for

his patient Andrea Takats a few months earlier, and that the fraudulent prescriptions began to

appear after that time.

       Police officers obtained a search warrant for 318 Shorewood, and they executed that

warrant on October 12. Ronald Takats was present at the time and admitted that he had used

methamphetamine two days earlier.        Ronald Takats also said that Andrea Takats was his

daughter and that she was obtaining prescription medications and selling them. In the search, the

police recovered several items of interest, including some marijuana and a variety of medication

caplets and capsules. The police also recovered three bottles of prescription medication with

labels made out to “Yolanda Carr.”

       A person named Rosanna Rushing was also present at 318 Shorewood at the time of the

search. She told the police that she had been staying at the Takats residence for a couple of days,

and that an older white woman named “Sherrie,” who drove a blue Mercedes, had come to the

residence during that time. Rushing’s cell phone contained a telephone number for “Sherrie

home,” and a computer check revealed that the telephone number was registered to Ken Howell

of 1233 Sawsawi Trail in Desoto. Further investigation revealed that Sherrie Marie Howell lived

at the same residence.

       The police began surveilling 1233 Sawsawi Trail in Desoto. On two different occasions,

detectives seized and searched trash bags recovered from outside that residence. Inside the trash

bags they discovered items consistent with illegal drug use and drug trafficking. They also

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discovered a piece of paper containing apparent narcotics notations, including some names listed

in conjunction with fractional amounts and apparent dollar amounts.        The names included

“Andrea” and “Jb.” The police obtained a search warrant for 1233 Sawsawi Trail and executed

that warrant on October 21. Sherrie Howell, her son Michael Craig Lucas, Jr., and two other

people were present. During the search, the police found several items of interest, including

some marijuana, a pipe with methamphetamine residue, and some empty medicine vials. Sherrie

Howell told the police that the vials belonged to her son’s friend “JB.” Kenneth Howell arrived

at the residence during the search and told the police that he was Sherrie’s husband. He gave the

police some additional information about “JB.” He said that he had recently sold a vehicle to JB,

that JB and his wife “Shauna” were both nurses, and that JB was a white man about 50 years old.

Kenneth Howell told the police that he suspected his wife and stepson (Lucas) were getting

prescription medications from JB. Howell gave the police JB’s telephone number. The police

reviewed the text messages on a cellphone taken from one of the other people present at the

residence, Brandy Ainsworth, and there was text message from “Jb” that read, “Sorry I fell

asleep this afternoon. I’m at work but I have the cash for that quarter. ,).” The term “quarter”

is used to refer to a certain weight of drugs, usually marijuana.

       The police began to investigate “JB” and “Shauna.” They discovered that the telephone

number provided by Howell was appellee’s home telephone number at 433 Vincent Street in

Cedar Hill. Appellee and Shauna Green were both listed in the Texas nurse registry. Appellee

had two prior arrests. On October 25, the police began to surveil the residence at 433 Vincent

Street. On that date, Detective Hunt observed Sherrie Howell’s vehicle parked in the front yard

of that residence. On October 26, Detective Hunt observed a white man come out of the

residence and water the front lawn; the individual matched the description and prior arrest

photograph of appellee. On October 27, Detective Hunt observed appellee and someone who

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appeared to be Michael Lucas speaking together in the front yard. Lucas then went inside,

brought out some trash bags, and put them in a trash can on the north side of the residence.

       On the morning of October 28, Detective Hunt saw appellee drag two trash cans from a

small, fenced-in area to the curb. A few minutes later, appellee put two semi-transparent, blue

trash bags into the trash cans, on top of the trash that was already in them. A few minutes after

that, a woman matching the description of Shauna Green drove up and parked in front of the

residence. Then Detective Hunt saw a person believed to be Michael Lucas, who loaded several

large items into the back of a pick-up truck parked in the driveway. The pick-up truck then

drove away with at least two occupants inside. Detective Hunt then observed appellee doing

some yard work around the residence. Detectives Hunt and Woods maintained visual contact

with the trash cans and saw no one else approach them that morning. They obtained the trash

bags at about 10:05 that morning and searched them at a secure location. Detective Woods’s

search-warrant affidavit recites the items they recovered as follows:




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That afternoon, the police obtained a search warrant from a magistrate to search the residence at

433 Vincent. The warrant was executed, and the record contains Detective Woods’s inventory of

the items recovered in the search. Those items included numerous “meth pipes” and “marijuana

pipes,” marijuana, and containers containing “white powder.”

       Appellee called two witnesses to testify at the hearing on his motion to suppress. One

was a licensed nurse named Milton Jones, Jr. He testified that none of the items recovered from

the trash outside 433 Vincent was illegal or contraband.       He also testified that the items

recovered were common medical items that any working nurse might bring home from work in




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his or her pocket and then discard. The other witness was Detective Hunt, who agreed that none

of the items recovered from the trash was inherently illegal.

C.     Application of the law to the facts

       The State argues that the affidavit supported facts raising a fair probability that illegal

drugs and evidence related to drug trafficking would be found at 433 Vincent. Our task is to

ascertain whether a reasonable reading of the probable-cause affidavit would lead the magistrate

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

search warrant. See Coker, 406 S.W.3d at 395. We conclude that it does.

       The affidavit shows that the police initially investigated Andrea Takats for prescription

fraud. When the police searched 318 Shorewood Drive in connection with that investigation,

they discovered evidence of drug-related crimes, including but not limited to marijuana,

methamphetamine pipes, numerous pills, and three prescription bottles that had been filled for

someone named Yolanda Carr. Rosanna Rushing, who was present at 318 Shorewood when the

search took place, said that a woman named “Sherrie” had previously come to the residence

while Rushing was there. Further investigation led the police to 1233 Sawsawi Trail, a residence

associated with Kenneth and Sherrie Howell. An apparent drug ledger recovered from the trash

at 1233 Sawsawi Trail mentioned both “Andrea” and someone referred to as “Jb.” When the

police obtained a warrant and searched 1233 Sawsawi Trail, they found more evidence of drug-

related crimes, including but not limited to marijuana, “meth pipes,” pills, and vials. Sherrie

Howell told the police that the vials belonged to “JB.” When Kenneth Howell arrived at the

residence during the search, he gave the police more information about “JB.” He gave the police

JB’s phone number and a general description of JB, told them that JB and his wife Shauna were

nurses, and told them that he suspected Sherrie Howell and her son Michael Lucas were getting

prescription drugs from JB. Moreover, someone else present at 1233 Sawsawi Trail during the


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search had a cellphone containing a text message from “Jb” suggesting that “Jb” wanted to

purchase drugs.

       Using the information obtained from their investigation of 1233 Sawsawi Trail, the police

determined that “JB” and “Shauna” were probably appellee and his wife Shauna Green, who

were listed in Texas’s nurse registry and who were connected to the residence at 433 Vincent

Street through “JB’s” telephone number and through subsequent visual surveillance. The police

observed Sherrie Howell’s vehicle at 433 Vincent on one occasion and observed someone who

appeared to be Michael Lucas at 433 Vincent on two other occasions. The police observed

someone who appeared to be appellee place two blue trash bags into trash cans on the curb. The

police maintained visual contact with the trash cans to ensure that no one not associated with the

residence approached them. They later searched the contents of the trash cans, and they found a

prescription bottle with a label made out to Yolanda Carr in one of the blue trash bags. This

connected the residence at 433 Vincent to the residence at 318 Shorewood Drive where three

similarly labeled bottles had been found along with other evidence of illegal drug-related

activity. The blue trash bags also contained a syringe bearing the markings “list #1078-20” and

“RX only,” which matched the markings on a syringe previously recovered from 1233 Sawsawi

Trail along with other evidence of illegal drug-related activity.

       We conclude that the affidavit was sufficient to give the magistrate a substantial basis for

concluding that probable cause existed to search 433 Vincent. Prior searches at the residences on

Shorewood Drive and Sawsawi Trail had yielded evidence of illegal drug trafficking involving

people associated with those residences and also someone referred to as “Jb.” Kenneth Howell

identified “JB” for the police by description, occupation, and telephone number, and he informed

the police that he believed JB was supplying Sherrie Howell and Michael Lucas with

prescription narcotics. This information led the police to appellee and to the residence at 433

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Vincent. Only a few days after the search at 1233 Sawsawi Trail, the police observed Sherrie

Howell’s vehicle at 433 Vincent and also observed someone who appeared to be Michael Lucas

entering and leaving that residence. Then the police observed someone who appeared to be

appellee put two distinctive blue trash bags into the trash cans outside 433 Vincent. The police

maintained visual contact with the trash cans, and shortly thereafter they recovered their

contents. The blue trash bags contained a prescription bottle made out to Yolanda Carr, like

three bottles recovered from 318 Shorewood Drive, and a syringe bearing the same markings as a

syringe previously recovered from 1233 Sawsawi Trail. Based on the totality of the facts and

circumstances related in the affidavit, and recognizing that the magistrate’s decision is entitled to

great deference, we conclude that the magistrate had a substantial basis to conclude that the

residence at 433 Vincent probably contained illegal drugs or related evidence at the time of the

search.

          Our opinion in the Coker case supports our decision in the instant case. In that case, the

search-warrant affidavit recited the following facts. The police received an anonymous tip that

Coker was manufacturing methamphetamine at his residence in Garland. 406 S.W.3d at 394.

The police conducted surveillance of the residence and seized a trash can that had been placed

next to the street for collection. Id. The trash can was found to contain methamphetamine and

equipment known to be used in the manufacture of methamphetamine. Id. at 396–97. A

magistrate issued a search warrant based on these facts, but the trial court later granted Coker’s

motion to suppress. Id. at 395. The State appealed and we reversed, holding that the anonymous

tip plus the contents of Coker’s trash can were sufficient for the magistrate to conclude

methamphetamine was probably in Coker’s house. See id. at 396, 399. In the instant case, the

search-warrant affidavit proved facts connecting appellee both to illegal drug activities and to the

residence at 433 Vincent. The affidavit also proved facts connecting appellee to the trash bags

                                                –10–
recovered by the police from that address, and those trash bags contained evidence (the

prescription drug bottle made out to Yolanda Carr and the syringe) that tended to show a

connection to the two other residences where evidence of criminal drug-related activity had

previously been found.

       Appellee argues that the tip received from Kenneth Howell was conclusory, unreliable,

and should have been given no probative weight by the magistrate. We disagree. Howell told

the police that he suspected Sherrie Howell and Michael Lucas of “doing other type drugs”

besides marijuana, and that he suspected “JB” was providing prescription drugs to Sherrie

Howell and Michael Lucas. He gave the police information about JB tending to show that JB

was in fact appellee. He also told the police that on one occasion he had come home and found

JB and JB’s good friend Ronald Takats (the father of Andrea Takats, who was implicated in the

activities related to 318 Shorewood) talking to Sherrie Howell. Howell’s report that JB was

involved in drug trafficking was corroborated by the apparent drug-ledger page mentioning “Jb”

that was recovered from 1233 Sawsawi Trail, by the text message in which “Jb” appeared to be

interested in buying drugs, and by the contents of appellee’s trash. Based on the totality of the

circumstances, the magistrate was entitled to give some weight to Kenneth Howell’s tip.

       Appellee then argues that, once Howell’s tip is disregarded, the magistrate’s decision

cannot be justified solely by the results of the single trash search at 433 Vincent. We have

rejected appellee’s premise that Howell’s tip should be given no weight in the probable-cause

analysis, and we reject this argument as well. As the Supreme Court has said,

       The task of the issuing magistrate is simply to make a practical, common-sense
       decision whether, given all the circumstances set forth in the affidavit before him,
       including the “veracity” and “basis of knowledge” of persons supplying hearsay
       information, there is a fair probability that contraband or evidence of a crime will
       be found in a particular place.




                                              –11–
Illinois v. Gates, 462 U.S. 213, 238 (1983). As recounted above, the affidavit in this case proved

up several facts that connected appellee to drug trafficking and prescription fraud, and that

justified a conclusion that there was a fair probability that drugs or other evidence of drug-related

crimes would be found at 433 Vincent. Giving great deference to the magistrate as we must, see

Coker, 406 S.W.3d at 396, we conclude that the trial judge erred by granting appellee’s motion

to suppress. We sustain the State’s sole issue on appeal.

                                        III.   CONCLUSION

       We reverse the trial judge’s order granting appellee’s motion to suppress and remand this

cause for further proceedings.




                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE

Do not publish
TEX. R. APP. P. 47

121618F.U05




                                               –12–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the Criminal District Court
                                                     No. 4, Dallas County, Texas
No. 05-12-01618-CR         V.                        Trial Court Cause No. F11-21582.
                                                     Opinion delivered by Justice FitzGerald.
JIM BOB GREEN, Appellee                              Justices Francis and Myers participating.


       Based on the Court’s opinion of this date, the trial court’s order granting Jim Bob Green’s
motion to suppress is REVERSED and the cause REMANDED for further proceedings
consistent with the opinion.


Judgment entered this 17th day of December, 2013.




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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