                                  NO. 07-06-0280-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  OCTOBER 17, 2008

                          ______________________________


                       JERRY WAYNE BANNISTER, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. 2 OF HENDERSON COUNTY;

      NO. 2005-0854CL2; HONORABLE NANCY ADAMS PERRYMAN, JUDGE

                         _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                        OPINION


      Appellant, Jerry Wayne Bannister, was convicted of possession of a controlled

substance, to-wit: anabolic steroids,1 and sentenced to 365 days confinement in the county



      1
          See Tex. Health & Safety Code Ann. § 481.117(b) (Vernon 1994).
jail and a fine of $1,000, with the period of confinement and $500 of the fine being

suspended in favor of one year of community supervision. The controlled substance in

question was found during a search of Appellant’s residence, conducted pursuant to a

search warrant issued on the basis of an affidavit from Kevin Hanes, an investigator with

the Henderson County Sheriff’s Office. By two issues, Appellant contends the trial court

erred by (1) denying his request for a Franks v. Delaware2 hearing concerning the

truthfulness of allegations contained in Hanes’s affidavit, and (2) overruling his motion to

suppress. We reverse and remand.


       By his second issue, Appellant maintains the affidavit in support of the search

warrant in question was deficient under the Fourth and Fourteenth Amendments of the

United States Constitution and Article 1, Section 9 of the Texas Constitution, in three

particulars: (1) proximity of time, (2) possession by Appellant, and (3) connection to the

place to be searched.


       The affidavit, sworn to on May 4, 2005, reads in relevant part as follows:


       1. THERE IS IN HENDERSON COUNTY, TEXAS, A SUSPECTED PLACE
       AND PREMISES DESCRIBED AND LOCATED AS FOLLOWS: [A
       description of the location and description of the property follows.] This
       residence is located in Trinidad, Henderson County, Texas. Also including
       any vehicles located at said residence.




       2
           Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 667 (1978).

                                             2
2. THERE IS AT SAID SUSPECTED PLACE AND PREMISES PROPERTY
CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF TEXAS AND
DESCRIBED AS FOLLOWS: Drug paraphernalia kept, prepared, or
manufactured in violation of the laws of this State.


3. SAID SUSPECTED PERSONAL PROPERTY IS IN CHARGE OF AND
CONTROLLED BY EACH OF THE FOLLOWING PERSONS: Jerry
Bannister, a white male and/or Jennifer Bannister, a white female.


4. Affiant HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF
THE FOLLOWING FACTS:
Affiant is Kevin Hanes, an Investigator with the Henderson County Sheriff’s
Office and a certified peace officer. Affiant reviewed copies of photographs,
which were secured by a search warrant on May 3, 2005, from CVS in
Athens, Texas. Affiant knows Jerry Bannister and has been able to identity
him in several pictures. Those pictures show Bannister with three different
people helping them with what appears to be a device or apparatus,
designed or adapted to be used illegally to inhale marijuana.


Affiant has previous experience and training in drug investigations and in
apprehending individuals who use drugs including marijuana. Affiant
believes from the pictures that the above-described apparatus is in fact a
form of a marijuana pipe, which is drug paraphernalia. Affiant has also seen
marijuana in his experience as a peace officer and that one of the pictures
shows what Affiant believes to be marijuana in the hand of Bannister. Affiant
has assisted in the execution of a number of search warrants, has
interviewed a number of individuals who used marijuana and has arrested
a number of people for the offense of possession of marijuana and
possession of drug paraphernalia. Affiant knows from his experience
individuals that have drug paraphernalia do not destroy the same after the
marijuana is gone.


Affiant has attached to this affidavit photocopies of five of the photographs
which Affiant has viewed. These copies are incorporated by reference in this
affidavit. [Five photographs were attached. Four photographs depict three
different individuals wearing what appears to be an oxygen mask with a pipe-
like device attached. Those photographs appear to have been taken at


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      night. The fifth photograph (the relevance of which escapes this Court)
      depicts three individuals seated on two chairs. This photograph appears to
      have been taken during the daytime.]


      In Affiant’s experience individuals that have and maintain drug paraphernalia,
      take pride in the same and therefore do not want it destroyed. Affiant also
      know from his experience that paraphernalia is often stored or transported
      in vehicles.


      Affiant believes the pictures he viewed were from the wedding reception of
      Bannister and Jennifer Bannister. Affiant has learned they were married on
      April 23, 2005. Affiant is familiar with the home of Bannister. The pictures
      Affiant has viewed are pictures taken of the home, carport and outbuildings
      of Jerry Bannister. Affiant has been to the above-described residence,
      carport and outbuildings and it is the same residence, carport and
      outbuildings where Jerry Bannister presently lives.


      On this date, Affiant went by the above described residence, carport and
      outbuildings and saw that the wedding decorations are still present.


      Affiant believes based upon his training and experience and the foregoing,
      that the smoking apparatus or paraphernalia will still be present at the
      residence, carport, outbuilding or vehicle(s) belonging to Jerry Bannister or
      his wife, Jennifer Bannister. Affiant knows such paraphernalia is against the
      law and requests a search warrant to search the above described residence,
      carport, and outbuildings for the same.


      Probable cause to support the issuance of a search warrant exists where 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.

Ramos v. State, 934 S.W.2d 358, 363 (Tex.Crim.App. 1996); Cassias v. State, 719

S.W.2d 585, 587 (Tex.Crim.App. 1986) (emphasis added).             When the facts and


                                            4
circumstances within the knowledge of the affiant, arising from a reasonably trustworthy

source, would warrant a person of reasonable caution to believe that the items of

contraband or evidence of a crime may presently be found in a specified place, there is

probable cause to issue a warrant to search that place. Id. A search warrant affidavit must

be read in a common sense and realistic manner, and reasonable inferences may be

drawn from the facts and circumstances contained within the four corners of the affidavit.

Id. at 587-88.


       We must decide whether under the totality of the circumstances the information

contained in the affidavit is such as to provide a “substantial basis” to support the

magistrate’s finding that a cautious person would be warranted in the belief that drug

paraphernalia would presently be found on the premises described. Illinois v. Gates, 462

U.S.213, 225-39,103 S.Ct. 2317, 2325-33, 76 L.Ed.2d 527 (1983).


                             At the Time the Warrant Is Issued


       An affidavit that does not provide a substantial basis for a magistrate to conclude

that the object of the search is presently located at the place to be searched, does not

establish sufficient probable cause for the issuance of a search warrant. Id. The only

information provided by the affidavit at issue concerning the temporal connection between

the object of the search (drug paraphernalia) and the place to be searched (Appellant’s

residence) is the Affiant’s belief that the pictures were from a wedding reception that Affiant

believed occurred some twelve days prior to presentment of the affidavit to the magistrate.

                                              5
However, the affidavit offers no support whatsoever for Affiant’s conclusion that the

photographs were from Appellant’s wedding reception.           Furthermore, assuming the

photographs were from the wedding reception, the affidavit contains no statement as to

when the wedding reception took place, nor does he postulate why he believes the

paraphernalia would still be located at the place where the photographs were taken. In

order to reach the conclusion the State supports, i.e. that the photographs were taken at

Appellant’s residence on or near the date Appellant was married (April 23rd), the magistrate

would have to place inference upon inference just to conclude the events depicted

occurred some twelve days prior.        If you then inferred that the item depicted was

contraband, and you assumed that Appellant stored the contraband on the premises

depicted and that the contraband had not been removed, you might reach the conclusion

that the object of the search was located on the premises to be searched at the time the

warrant was issued. Such inference, upon inference, upon inference is not probable

cause.


                          Possession of Contraband by Appellant


         In the affidavit in question, Affiant makes the statement that “one of the pictures

shows what Affiant believes to be marijuana in the hand of Bannister.” Notwithstanding

the fact that an examination of the photograph belies that position, there is nothing in the

affidavit to support any conclusion that the apparatus depicted was used or intended for

use in ingesting, inhaling, or otherwise introducing marijuana into the human body. See


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Tex. Health & Safety Code Ann. § 481.002 (17)(L) (Vernon 2003). The Affiant’s conclusion

that the apparatus depicted is contraband is nothing more than mere suspicion. Without

a connection to the use of a controlled substance, the assumption that the object depicted

is a “smoking apparatus used or intended to be used to ingest marijuana” is non-existent.


                               At the Place to be Searched


       Based upon “his experience,” the Affiant posits that paraphernalia is “often stored

or transported in vehicles.” The affidavit says nothing about whether paraphernalia is also

stored in residences, carports, or outbuildings; however, he reaches the conclusion that

the smoking device depicted in the photographs “will still be present at the residence,

carport, outbuilding, or vehicle(s) belonging to [Appellant] or his wife.” This conclusion is

based on pure conjecture both as to issue of storage and as to the continued storage in

the same location over an extended period of time. As such, it fails to establish a

reasonable basis upon which to conclude that drug paraphernalia could be found at

Appellant’s residence.


       To conclude that the apparatus depicted was illegal drug paraphernalia and that the

paraphernalia was stored at Appellant’s residence at the time the warrant was issued, one

would need to base inference upon inference upon inference. Such information might

suffice to corroborate an informant’s first hand tip, thus combining to establish probable

cause; however, it does not by itself provide anything more than the Affiant’s mere



                                             7
suspicion that contraband might be found there. A search warrant issued upon such feeble

premises provides no constitutional protection whatsoever.


      Because the affidavit in question does not provide sufficient probable cause to

justify the issuance of the warrant in question, Appellant’s second issue is sustained.

Disposition of Appellant’s second issue pretermits consideration of his first issue.3

Accordingly, the trial court’s judgment is reversed and this cause is remanded for further

proceedings consistent with this opinion.




                                                Patrick A. Pirtle
                                                    Justice


Quinn, C.J., concurring.

Campbell, J., dissenting.


Do not publish.




      3
          Tex. R. App. P. 47.1.

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