COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-355-CR
JEFFERY
SCOTT DAVIS APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
OPINION*
A
jury convicted Appellant Jeffery Scott Davis of the manufacture of more than 400
grams of methamphetamine and assessed punishment at fifty years’ confinement
and a $100,000 fine. The trial court sentenced him accordingly. In one issue,
Appellant challenges the trial court’s denial of his motion to suppress the
fruits of the search warrant subject to which the contraband was seized. Because
we hold that the trial court abused its discretion in denying Appellant’s
motion to suppress, we reverse the trial court’s judgment.
Background
Facts
We
set out in whole the affidavit in question, submitted to the magistrate by
Officer John Spragins of the Wichita Falls, Texas police department:
CASE
# TF-03-0081
WARRANT (DA) #
AFFIDAVIT FOR SEARCH AND ARREST WARRANT
THE STATE OF TEXAS
COUNTY OF
MONTAGUE
The
undersigned Affiant, being a Peace Officer under the laws of the State of Texas
and being duly sworn, on oath makes the following statement and accusations:
1.
There is in MONTAGUE County, Texas, a suspected place and premises described and
located as follows: A single family mobile home
that is know as 701 Young Street, Nocona, Montague County, Texas. Said residence
is grey in color with white trim. S[ai]d residence is located on the west side
of the roadway and the front door faces east.
Said suspected place and premises, in addition to the foregoing description, also
includes all other buildings, structures, places, vehicles on said premises and
within the curtilage, if said is a residence, that are found to be under the
control of the suspected party named below and in, on, or around which said
suspected party may reasonably reposit or secrete property that is the object of
the search requested herein.
2.
There is at said suspected place and premises property concealed and kept in
violation of the laws of the State of Texas and described as follows: drugs kept, prepared, or manufactured in violation of
the laws of this state, to-wit, Methamphetamine. Further, Affiant believes that
suspected party has at said suspected place other paraphernalia, implements, and
instruments used in the commission of the offense of Manufacture and
Distribution of Methamphetamine.
3. Said
suspected place and premises are in charge of and controlled by each of the
following persons: Jeffery Scott Davis, white
male, DOB 01-22-76[.]
4.
It is the belief of Affiant, and he hereby charges and accuses, that: Jeffery Scott Davis is intentionally and knowingly in
unlawful possession of a controlled substance listed in the Texas Health and
Safety Code, to wit, Methamphetamine.
5.
Affiant has probable cause for said belief by reason of the following facts: Your Affiant is a Texas commissioned Peace Officer and
has been so commissioned for over 10 years. Your Affiant is employed by the
Wichita Falls Police Department and assigned, as a Narcotics Investigator, to
the North Texas Regional Drug Enforcement Task Force. During the time your
Affiant has been assigned as a Narcotics Investigator, your Affiant has been
responsible for several investigations of controlled substances violations
including the Manufacture and Distribution of Methamphetamine. In addition, your
Affiant has attended training in narcotics investigations including search
warrant preparation, evidence collection and investigations of individuals who
derive substantial income from the illegal importation, manufacture,
distribution, and sale of illegal controlled substances. Your Affiant has also
attended basic and advanced training in clandestine laboratories and is
certified by the Drug Enforcement Administration to enter and seize clandestine
drug manufacturing laboratories.
Your Affiant, along with Task Force investigators and
DPS Investigators, ha[s] been conducting a joint investigation regarding Jeffery
Scott Davis[‘s] involvement in the Manufacture and Distribution of
Methamphetamine. During this investigation investigators have gathered
information that Davis was manufacturing methamphetamine at 701 Young Street,
Nocona, Texas. Investigators have received information from confidential
informants that stated Davis was manufacturing the methamphetamine inside the
residence as well as in a shed located in the backyard of said residence.
Investigators have received information that Davis was purchasing items used in
the manufacture of methamphetamine including starter fluid (ether) and coffee
filters. Investigators have received information from Crime Stoppers that
described a chemical odor emitting from the residence at 701 Young Street and
that Davis was manufacturing methamphetamine at the residence.
On 03-18-03, at approximately 0400 hrs, Officer
Mitchell Westervelt was on patrol in Nocona and drove past residence. Westervelt
stated that he could smell a strong chemical odor he has associated with the
manufacture of methamphetamine emitting from the residence at 701 Young Street.
Westervelt informed Chief Holcomb of the odor and Holcomb contacted your
Affiant.
Based on the information received from numerous
sources and the odor emitting from the residence, your Affiant firmly believes
that Jeffery Scott Davis is intentionally and knowingly in possession of a
quantity of methamphetamine at the above listed location.
Further, based on your Affiant’s experience as an
Investigator, it is known that drug dealers normally keep certain records
indicating drug quantities handled, cost, prices, names and telephone number of
buyers and suppliers as well as information regarding bank accounts. It can also
be presumed that these and other records indicating premise occupancy/residence
will be found on the said property. Your Affiant further alleges that weapons
found on the said property are seizable as indicative of drug dealings since
possession of a firearm tends to
demonstrate a likelihood that the dealer took steps to prevent contraband,
paraphernalia and the proceeds (money) from being stolen, similarly as other
tools of the trade (scales, plastic baggies, cutting equipment and narcotics
equipment) which are also seizable would be kept. Further, your Affiant alleges the above constitute
specific articulable facts from which a reasonable person could draw [a]
rational inference that large sums of cash found at the premise (absent proof to
the contrary) were derived from illegal narcotics sales and therefore subject to
seizure.
In
response to this affidavit, the magistrate issued a combination arrest and
search warrant for Appellant at the Young Street address.
Officer
Spragins, the affiant, is a police officer assigned as a narcotics investigator
to the North Texas Regional Drug Enforcement Task Force. Consequently, as his
affidavit points out, he received specialized training in narcotics
investigations, search warrant preparation, evidence collection, and
investigations of individuals in the illegal drug trade. Spragins also attended
“basic and advanced training in clandestine laboratories and is certified by
the Drug Enforcement Administration to enter and seize clandestine drug
manufacturing laboratories.”
Spragins,
task force investigators, and DPS investigators had been conducting a joint
investigation of Appellant. According to Spragins’s affidavit, during the
investigation the investigators gathered information that Appellant was
manufacturing methamphetamine at 701 Young Street in Nocona, Texas. Spragins
stated in the affidavit that
[i]nvestigators have received information from confidential informants that
stated Davis was manufacturing the methamphetamine inside the residence as well
as in a shed located in the backyard of said residence. Investigators have
received information that Davis was purchasing items used in the manufacture of
methamphetamine including starter fluid (ether) and coffee filters.
Investigators have received information from Crime Stoppers that described a
chemical odor emitting from the residence at 701 Young Street and that Davis was
manufacturing methamphetamine at the residence.
In
one issue, Appellant argues that the trial court erred by denying his motion to
suppress because, within the four corners of the affidavit, there were not
specific, credible facts to allow a magistrate to determine that the information
in the affidavit was reliable enough to provide a substantial basis for the
magistrate’s conclusion that an offense had been committed and that contraband
would probably be found at the residence at 701 Young Street in Nocona. The
State concedes that “the background information in the warrant supplied by
Spragins was conclusory and failed to provide enough detail to alone provide
probable cause for the search.” The State argues, however, that this warrant
is a “‘smell’ warrant which was never intended to . . . rise or fall upon
the corroborating facts stated in the affidavit.” Instead, the State argues
that the critical information is contained in the portion of the affidavit that
states,
On 03-18-03, at approximately 0400hrs, Officer Mitchell Westervelt was on patrol
in Nocona and drove past residence. Westervelt stated that he could smell a
strong chemical odor he has associated with the manufacture of methamphetamine
emitting from the residence at 701 Young Street. Westervelt informed Chief
Holcomb of the odor and Holcomb contacted your Affiant.
Standard of
Review
The
State argues that the affidavit in this case “rests or falls upon the adequacy
of the information supplied to Investigator Spragins by Officer Westervelt.”
As Appellant points out, this court has explained that if an affiant is seeking
a search warrant, the evidence will be considered evidence of a persuasive
character in obtaining a warrant when the magistrate finds the affiant qualified
to recognize the odor of the contraband.1
A
search warrant must be based upon probable cause.2
Under the Fourth Amendment, an affidavit is sufficient to establish probable
cause if, from the totality of the circumstances reflected in the affidavit, the
magistrate was provided with a substantial basis for concluding that probable
cause existed.3 Probable cause sufficient to
support a search warrant exists if the facts contained within the four corners
of the affidavit and the reasonable inferences drawn therefrom justify the
magistrate's conclusion that the object of the search is probably on the
premises at the time of issuance.4 No magical
formula exists for stating such information.5
In ascertaining whether a search warrant is based on probable cause, the
affidavit is interpreted in a common-sense, realistic manner, and the magistrate
is entitled to draw reasonable inferences from the facts contained therein.6 The magistrate's determination of probable cause is
given great deference by the reviewing court.7
In
this review, we are to determine whether there is a fair probability, not an
actual showing, that contraband or evidence of a crime will be found in a
particular place in light of the totality of the facts set forth in the
affidavit.8 The officer's affidavit must
provide the magistrate with a substantial basis for concluding that a search
would uncover evidence of wrongdoing.9 The
informant's reliability and basis of knowledge are relevant in determining the
value of his assertions.10 Corroboration of
the details of an informant's tip through independent police investigation can
also be relevant in the magistrate's determination of probable cause.11 Likewise, the affidavit should set forth the
foundation for the officer's belief in an informant's credibility and veracity.12 However, “a deficiency in one may be compensated
. . . by a strong showing as to the other, or by some other indicia of
reliability,” all of which are relevant considerations under the totality of
the circumstances.13 As a reviewing court, we
are to ensure that the magistrate had a substantial basis for concluding that
probable cause exists.14
Analysis of
Spragins’s Affidavit
Although
Spragins states in his affidavit that investigators had received information
from confidential informants that stated Davis was manufacturing the
methamphetamine inside the residence as well as in a shed located in the
backyard of said residence and that Davis was purchasing items used in the
manufacture of methamphetamine including starter fluid (ether) and coffee
filters, the affidavit provides no indication of a date or time frame for either
the investigation or the tips. Nor does the affidavit provide any
suggestion that the information came from reliable sources or any hint of what
the basis of their information might be. The affidavit does not show that
Spragins ever verified that Appellant lived at the Young Street address or had
ever been present at the Young Street address.
Spragins
also avers that investigators had received information from Crime Stoppers that
described a chemical odor emitting from the residence, but again, there is no
mention of a time frame, nor is there a description of the chemical odor or any
information that could tend to connect the chemical odor to the manufacture of
drugs.
Spragins
states in the affidavit that Chief Holcomb contacted him with the information
that Westervelt had smelled an odor he associated with the manufacture of
methamphetamine on the day the warrant was issued. Nowhere in the affidavit,
however, is there any explanation of Westervelt’s expertise or experience in
recognizing an odor associated with the manufacture of methamphetamine. There is
no description of Westervelt’s training or experience in general as a peace
officer or specifically in connection with drugs. There is no information
regarding the number of times Westervelt had smelled an odor he “associated
with the manufacture of methamphetamine“ or whether Westervelt was correct in
associating the odor with the manufacture of methamphetamine. Indeed,
Spragins could not recall Westervelt’s name at the suppression hearing; he
recalled only that Westervelt was a Nocona police officer. There is no
evidence in the affidavit that Spragins had any knowledge of Westervelt’s
experience or expertise or that Westervelt was part of the task force or
investigation team.
There
is also no evidence explaining why Westervelt believed the odor emanated from
the specific Young Street address in question. There is no evidence
describing the circumstances under which he smelled the odor. Did he
remain in his car in the street? Did he pull into the driveway? The
affidavit does not tell us. There is no evidence in the affidavit that
Spragins himself ever went to Appellant’s residence before swearing to the
affidavit, had any personal knowledge of any activities occurring at the
residence, or verified Westervelt’s observations. Similarly, there is no
indication that anyone from the task force or the joint investigation team went
to Appellant’s residence, had personal knowledge of activities occurring at
the residence, or verified Westervelt’s observations. Although the State
is correct that the veracity of the officer providing information to the affiant
is presumed if it is unchallenged, expertise is not presumed.
The
dissent argues that in order to give a “common sense and reasonable
interpretation” of the statement that Westervelt smelled a strong chemical
odor that he “has associated . . . with the manufacture of methamphetamine,”
we must add to the affidavit information that is contained nowhere in it.
The dissent adds to the four corners of the affidavit that Westervelt “had
enough experience and expertise that he had previously smelled the same chemical
odor and had previously associated it with the manufacture of
methamphetamine.”
We
are not permitted to create from whole cloth facts not contained within the four
corners of the affidavit. Therefore, we do not know that Westevelt had any
experience as a police officer. From the affidavit, we do not know whether
this was his first day as a peace officer or whether he had many years’
experience. The dissent claims Westervelt had previously smelled the same odor
and had previously associated it with the manufacture of methamphetamine. Again,
this is not what the affidavit says. Nowhere does the affidavit say that
Westervelt has previously smelled a chemical odor that actually was associated
with the manufacture of methamphetamine. An objective reading of the affidavit
reveals that on the morning in question, Westervelt smelled a strong chemical
odor and has associated it with the manufacture of methamphetamine. The
affidavit does not say that he ever smelled either the odor or methamphetamine
in the past, and it does not say that he correctly associated the odor with the
manufacture of methamphetamine in the past.
The
dissent also tries to use Spragins’s demonstrated experience and professional
knowledge to minimize the absence of such information about Westervelt and the
absence of any evidence that Spragins verified any evidence in the affidavit.
With all respect to the dissent’s position, it does not matter how many
years’ experience Spragins had, how many drug task forces he is a member of,
how many narcotics investigation training schools he has attended, or how many
certifications he has. The affidavit provides no evidence that Spragins ever
went to the location, smelled the odor there, or verified any information.
Spragins refers to a Crime Stoppers tip, but there is no indication that he ever
verified it. He mentions that other investigators obtained information from
confidential informants, but again, there is no evidence in the affidavit that
he ever verified the information, and the affidavit does not show the
reliability of the informants or the source of their information, nor does
Spragins state other than generally the specific information they provided.
Equally important, Spragins provides us no time frame for the Crime Stoppers tip
or the Crime Stoppers observation, the date other investigators received
information from the informants, the date the informants observed the activity
they reported, or the timing of any investigative activity on his part or that
of the task force. The only date we are provided is that of Westervelt’s
drive-by.
Our
sister court in Houston has explained,
To justify a magistrate's finding that an affidavit is sufficient to establish
probable cause to issue a search warrant, the facts set out in the affidavit
must not have become stale when the magistrate issues the search warrant.
Probable cause ceases to exist when, at the time the search warrant is issued,
it would be unreasonable to presume the items remain at the suspected place.
The
proper method to determine whether the facts supporting a search warrant have
become stale is to examine, in light of the type of criminal activity involved,
the time elapsing between the occurrence of the events set out in the affidavit
and the time the search warrant was issued. When the affidavit recites
facts indicating activity of a protracted and continuous nature, i.e., a course
of conduct, the passage of time becomes less significant.15
The
dissent apparently places importance on the fact that Spragins “swore that he
firmly believed Appellant was intentionally and knowingly in possession of a
quantity of methamphetamine at his residence.” Yet, again, the affidavit
provides no evidence that Spragins ever confirmed that Appellant was connected
in any way to the Young Street address.
The
case now before this court is in many ways similar to Lowery v. State.16 In Lowery, multiple informants provided
information, but the affidavit in support of the warrant did not detail the
reasons they were reliable or the source of their information. As the Lowery
court explained, “Probable cause does not arise by virtue of the fact that
several people, whose identity, reliability, credibility, or basis of knowledge
is unestablished, gave officers information concerning criminal activity.”17
While
information from an unnamed informant alone does not establish probable cause,
the informant's tip combined with independent police investigation may provide a
substantial basis for the probable-cause finding.18
In the case before us, even the unnamed informants’ information combined with
Westervelt’s observations do not create circumstances sufficient to provide
probable cause necessary to justify the warrant. In Lowery,
The “critical tipster” also stated that he had been in the house within
forty-eight hours and had observed persons in the house who, in his opinion,
were under the influence of amphetamines. The affidavit, however, gives no
basis in the informant's experience to lead the magistrate to accept this
assessment. Further, the affidavit provides no details concerning the
critical informant's knowledge that a female goes to the house to exchange sex
for narcotics or his basis of personal experience that the house has been used
for dealing narcotics for the past several years. Without such
information, the informant's statements fail to give rise to probable cause.19
In
Lowery, the State argued, as does the dissent in the case now before this
court, that the individual details in the affidavit, taken as a whole, reveal a
substantial basis for the magistrate to justifiably infer probable possession of
the illegal drug. In Lowery, the State specifically argued that
there was probable cause because: (1) several informants told Officer Crawford
that there was a drug lab located in an underground house where Lowery lived;
(2) subsequent investigation showed Lowery's address to be 911 Camellia Drive
and corroborated that the house had underground rooms; (3) Officer Crawford said
that Patton, Lowery’s roommate who allegedly brought in supplies for the lab,
drove a black Mercedes, and the affiant regularly observed a black Mercedes
parked at the house over a two-month period; (4) a reliable informant reported
hearing about an amphetamine lab on Camellia Drive; and (5) a relative of a drug
purchaser (the untested informant) heard about the presence of amphetamines
inside the house at 911 Camellia Drive.20 The
Lowery court, however, rejected these arguments, pointing out,
”hearsay-upon-hearsay may be utilized to show probable cause if the underlying
circumstances indicate a substantial basis for crediting the hearsay at each
level.”21
As
does the dissent in the case now before this court, the State in Lowery
also argued that the affidavit, taken as a whole, revealed a substantial basis
for the magistrate to justifiably infer the alleged perpetrators possession of
illegal drugs. The Lowery analysis addressed further argument by the
dissent in the present case:
Corroboration of the details of an informant's tip by independent police work is
another relevant consideration in the totality-of-the-circumstances analysis. An
informant's tip combined with independent corroboration by police investigation
may provide a substantial basis for the magistrate's finding of probable cause.22
We
find no case holding that probable cause existed absent any showing of the
informant's reliability, credibility, or basis of knowledge without independent
police corroboration of facts giving rise to probable cause. Absent
independent police corroboration of the reported criminal activity, there must
be some reasonable basis for crediting the information contained in the
affidavit. Here, officers did not independently corroborate any facts
supporting a reasonable belief that amphetamine was located at 911 Camellia
Drive. Thus, even if the facts provided to officers by informants, taken as a
whole, would be sufficient to establish probable cause, the affidavit still must
contain information that would allow the magistrate independently to determine
the credibility, reliability, or basis of knowledge of the sources of those
facts.23
As
the State concedes, the affidavit in this case “rests or falls upon the
adequacy of the information supplied to Investigator Spragins by Officer
Westervelt.” Because the affidavit is silent as to Westervelt’s experience,
his proximity to the residence at 701 Young Street other than the fact that he
“drove past” the residence, the length of time he spent outside the
residence, or anything else that would show the reliability of his suspicion,
the affidavit is insufficient to support the warrant.24
Conclusion
Under
the standard of review given above, the trial court abused its discretion in
denying Appellant’s motion to suppress. We therefore sustain Appellant’s
sole issue, reverse the judgment of the trial court, and remand this cause to
the trial court for a new trial without the evidence that should have been
suppressed.
LEE
ANN DAUPHINOT
JUSTICE
PANEL
B: DAUPHINOT, HOLMAN, and WALKER, JJ.
WALKER,
J., filed a dissenting opinion.
PUBLISH
DELIVERED:
March 24, 2005
COURT OF APPEALS
JEFFERY
SCOTT DAVIS APPELLANT
THE
STATE OF TEXAS STATE
DISSENTING OPINION
I
respectfully dissent. I would hold that, based on Officer Spragins’s probable
cause affidavit, the magistrate had a substantial basis for concluding that the
search warrant would uncover evidence of wrongdoing, specifically evidence of
possession and manufacture of methamphetamine, and that, therefore, the trial
court properly denied Appellant Jeffery Scott Davis’s motion to
suppress. Accordingly, I would overrule Appellant’s issue and affirm the
trial court’s judgment.
A
distinction exists between the standards of review applicable to warrantless
searches and searches pursuant to a search warrant. Swearingen v. State,
143 S.W.3d 808, 811 (Tex. Crim. App. 2004). The standard of review to be
applied to the review of a magistrate’s determination of probable cause in
issuing a search warrant is the deferential standard of review articulated in Illinois
v. Gates1 and in Johnson v. State.2 Swearingen, 143 S.W.3d at 811 (instructing
appellate courts to apply the “deferential standard of review articulated in Gates
and Johnson” in reviewing a magistrate’s decision to issue a
warrant).
The
deferential standard of review was articulated in Gates as follows:
we reaffirm the totality-of-the-circumstances analysis that traditionally has
informed probable-cause determinations. 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. And the duty of a reviewing court is
simply to ensure that the magistrate had a “substantial basis for. . .
conclud[ing]” that probable cause existed.
462
U.S. at 238-39, 103 S. Ct. at 2332 (citations omitted). In Johnson, the
standard was articulated as follows:
Appellate court review of the sufficiency of an affidavit is not a de novo
review. The magistrate's determination of probable cause should be given
great deference by the reviewing court. “[T]he traditional standard for
review of an issuing magistrate's probable cause determination has been that so
long as the magistrate had a 'substantial basis for ... conclud[ing]' that a
search would uncover evidence of wrongdoing, the Fourth Amendment requires no
more.”
803
S.W.2d at 289 (citations omitted).
The
sufficiency of a search warrant affidavit is determined by considering the
totality of the circumstances set forth in the affidavit. Gates,
462 U.S. at 238, 103 S. Ct. at 2332. The affidavit must be interpreted in
a common sense and realistic manner, and reasonable inferences may be drawn from
the facts and circumstances within the four corners of the affidavit. Jones
v. State, 833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 921 (1993).
The
majority’s thoughtful analysis is flawed, in my view, because the majority
does not interpret the affidavit in a common sense and realistic manner and does
not defer to reasonable inferences that may be drawn from the facts and
circumstances within the four corners of the affidavit. Instead, in my opinion,
the majority dissects the affidavit in a hypertechnical way, at odds with the
required standard of review, instead of focusing on the totality of the
circumstances set forth in the affidavit.
The
majority holds that the affidavit is silent as to Westervelt’s experience, his
proximity to the residence, the length of time he spent outside the residence,
or anything else that would show the reliability of Officer Westervelt’s
suspicion. Accordingly, the majority holds that the affidavit is
insufficient to support the warrant. The affidavit states, however,
On 3-18-03, at approximately 0400 hrs, Officer Mitchell Westervelt was on patrol
in Nocona and drove past [the] residence. Westervelt stated that he could
smell a strong chemical odor he has associated with the manufacture of
methamphetamine emitting from the residence at 701 Young Street.
Westervelt informed Chief Holcomb of the odor and Holcomb contacted your
Affiant.
The
majority concedes that the magistrate was entitled to rely upon this information
as reliable3 but claims the affidavit does not set
forth information establishing Westervelt’s expertise or experience in
recognizing an odor associated with the manufacture of methamphetamine.
The affidavit indicates that Westervelt is a police officer, that on March 18th
he personally smelled a strong chemical odor emitting from Appellant’s
residence, and that he “has
associated”4 that smell “with the
manufacture of methamphetamine.” A common sense and reasonable
interpretation of this statement demonstrates that Westervelt, a police officer,
has enough experience and expertise that he has previously smelled the same
chemical odor and “has associated” it previously with the manufacture of
methamphetamine. See Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim.
App. 1980) (officer affiant did not detail his expertise in recognizing smell of
ether; affidavit simply stated that he smelled it and that it was associated
with manufacture of methamphetamine). I cannot agree with the majority
that a police officer who has had the experience of previously smelling the
strong chemical odor associated with the manufacture of methamphetamine must say
more than this to establish his expertise and ability to recognize the same
smell when he smells it again. Nor can I agree with the majority that
Officer Westervelt needed to explain why he believed the odor emanated
from Appellant’s residence—the why is because he smelled it coming from that
location. Such a holding fails to interpret the affidavit in a common
sense and realistic manner and fails to permit reasonable inferences from the
facts and circumstances within the four corners of the affidavit. See
Jones, 833 S.W.2d at 123-24.
Looking
to the totality of the circumstances presented in Spragins’s affidavit and
giving great deference to the magistrate’s probable cause determination, I
would hold that the magistrate had a substantial basis for concluding that a
search would uncover evidence of wrongdoing. Officer Spragins is a ten-year
police veteran. He is a Narcotics Investigator assigned to the North Texas
Regional Drug Enforcement Task Force. He has attended training in
narcotics investigations, including the manufacture of controlled substances,
and is certified by the Drug Enforcement Agency to enter and seize clandestine
drug manufacturing laboratories. As a Narcotics Task Force Investigator,
he, along with other investigators, “have been conducting” an investigation
regarding Davis’s manufacture and distribution of methamphetamine; that is,
they were currently involved in the investigation. “During this
investigation investigators have gathered information that Davis was
manufacturing methamphetamine at 701 Young Street, Nocona, Texas.”5 Investigators obtained additional data from
confidential informants who said Appellant was manufacturing methamphetamine
inside a shed in his backyard, from Crime Stoppers who told police Appellant was
manufacturing methamphetamine at his house and described a chemical odor
emitting from Appellant’s residence, and from Appellant’s purchase of
starter fluid and coffee filters, items used in the manufacture of
methamphetamine. Officer Westervelt smelled a strong chemical odor he has
associated with the production of methamphetamine coming from Appellant’s
residence on March 18, 2003, and “[b]ased on the information received from
numerous sources and the odor emitting from the residence,” Officer Spragins
swore that he firmly believed Appellant was intentionally and knowingly in
possession of a quantity of methamphetamine at his residence. Spragins obtained
the search warrant that day, March 18, 2003, authorizing him to search
Appellant’s residence and outbuildings at 701 Young Street for methamphetamine
and evidence of its manufacture.6
Giving
great deference to the magistrate’s determination of probable cause, Officer
Spragins’s affidavit sets forth a substantial basis for the magistrate’s
conclusion that a search would uncover evidence of wrongdoing, specifically
possession or manufacture of methamphetamine.7
I would overrule Appellant’s issue and affirm the trial court’s judgment.
SUE
WALKER
NOTES
*
Majority Opinion by Justice Dauphinot; Dissenting Opinion by Justice Walker
Majority Opinion Notes
1.
Wynn v. State, 996 S.W.2d 324, 327 (Tex. App.—Fort Worth 1999, no
pet.).
2.
U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b)
(Vernon Supp. 2004-05); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim.
App.) cert. denied, 507 U.S. 921 (1993); cf. Cates v. State, 120
S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003) (setting forth the distinction
between a suppression hearing and a Franks hearing where additional
evidence may be admitted to show the falsity of assertions within an affidavit).
3.
Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332-33 (1983);
see U.S. CONST. amend. IV.
4.
Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App. 1986) (op. on
reh'g).
5.
Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim. App. 1972).
6.
Ellis v. State, 722 S.W.2d 192, 196 (Tex. App.—Dallas 1986, no pet.).
7.
Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Swearingen v. State,
143 S.W.3d 808, 811 (Tex. Crim. App. 2004).
8.
Gates, 462 U.S. at 238, 103 S. Ct. at 2332; Hennessy v. State, 660
S.W.2d 87, 89 (Tex. Crim. App. 1983) (holding that the informant's basis of
knowledge, or reliability, along with his veracity, or credibility, are relevant
considerations in the totality of the circumstances, citing Gates).
9.
Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Swearingen, 143 S.W.3d
at 809-10.
10.
Gates, 462 U.S. at 230, 103 S. Ct. at 2328.
11.
Id. at 241-42, 103 S. Ct. at 2333-34.
12.
Id. at 229, 103 S. Ct. at 2327-28.
13.
Id. at 233, 103 S. Ct. at 2329.
14.
Id. at 236, 103 S. Ct. at 2331; see Bower v. State, 769 S.W.2d
887, 902 (Tex. Crim. App.) (holding we do not conduct a de novo review but look
to the evidence as a whole and determine whether there is substantial evidence
to support the magistrate's decision), cert. denied, 492 U.S. 927 (1989),
overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685
n.6 (Tex. Crim. App. 1991); see also Cates, 120 S.W.3d at 355 n.3
(recognizing that before a Franks hearing may be held, defendant must
make a substantial preliminary showing of falsity in the “four corners” of
the probable cause affidavit).
The
foregoing discussion of the law relies heavily on Justice Livingston’s
analysis in Davis v. State, 144 S.W.3d 192, 196-98 (Tex. App.—Fort
Worth 2004, pet. filed) (op. on reh’g).
15.
Rowell v. State, 14 S.W.3d 806, 809 (Tex. App.—Houston [1st
Dist.] 2000) (citations omitted), aff’d, 66 S.W.3d 279 (Tex. Crim. App.
2001).
16.
843 S.W.2d 136 (Tex. App.—Dallas 1992, pet. ref’d).
17.
Id. at 141.
18.
Janecka v. State, 739 S.W.2d 813, 825 (Tex. Crim. App. 1987).
19.
Lowery, 843 S.W.2d at 140-41 (citations omitted).
20.
Id. at 140.
21.
Id. at 141.
22.
Id. (citations omitted).
23.
Id. at 142.
24.
Compare Gish v. State, 606 S.W.2d 883, 885-86 (Tex. Crim. App. 1980)
(upholding warrant when affiant detective stated, in addition to fact that law
enforcement smelled ether, a substance used in the manufacture of
methamphetamine, outside appellant’s rural house, that (1) affiant saw known
manufacturer of methamphetamine purchase, under suspicious circumstances, 11½
liters of phenylacetone, a substance used in the manufacture of methamphetamine;
(2) affiant saw this man take the phenylacetone to appellant's residence in
Houston; (4) affiant saw appellant with a man at the storage warehouse; (5)
according to affiant’s informer, whose information had proved correct the
previous day, the known manufacturer ordered a case of methylamine, a substance
used in conjunction with phenylacetone to manufacture methamphetamine, and then
left Houston; and (6) appellant's and the manufacturer’s cars, as well as
appellant himself, were then seen at appellant's rural residence by other law
enforcement officers); Moulden v. State, 576 S.W.2d 817, 818-19 (Tex.
Crim. App. 1978) (upholding warrantless search of automobile when both officers
at scene smelled burnt marihuana and “[i]t [wa]s apparent from the record .
. . that the searching police officer . . . knew what the smell of burnt
marihuana was) (emphasis added); Wynn, 996 S.W.2d at 327 (upholding
warrant based on affidavit of officer who smelled the odor, establishing his
expertise in the manufacture of methamphetamine, especially the unique odor
produced during the manufacturing process, and providing information from a
proven confidential informant); Chavez v. State, 769 S.W.2d 284, 287-88
(Tex. App.—Houston [1st Dist.] 1989, pet. ref’d) (upholding
warrant based on two affidavits, one from officer who stated that he smelled
odor that he knew through his past experience as a peace officer was associated
with the manufacture of methamphetamine and the other from a property manager
who explained in detail that he recognized the distinctive smell because he had
smelled it about two years earlier in a methamphetamine lab he discovered at
another rental property).
* * *
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DISSENTING OPINION NOTES
1.
462 U.S. 213, 234-38, 103 S. Ct. 2317, 2330-32 (1983).
2.
803 S.W.2d 272, 289 (Tex. Crim. App. 1990) (disapproved in part by Heitman v.
State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App.), cert. denied, 501
U.S. 1259 (1991)).
3.
United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741 (1965) (holding
information provided by other police officers is presumed reliable by
magistrate); Janecka v. State, 739 S.W.2d 813, 825 (Tex. Crim. App. 1987)
(same); Marquez v. State, 725 S.W.2d 217, 233 (Tex. Crim. App.) (same), cert.
denied, 484 U.S. 872 (1987).
4.
The majority omits the “has” from its analysis; thereby concluding that
Officer Westervelt never previously smelled the odor associated with the
manufacture of methamphetamine.
5.
I cannot agree with the majority that the affidavit fails to provide a time
frame for the mentioned investigation—the affidavit indicates this
investigation is currently ongoing—or fails to associate Appellant with the
701 Young Street residence.
6.
The majority claims that the State concedes the affidavit rests or falls on the
adequacy of the information supplied to Investigator Spragins by Officer
Westervelt, but the State’s brief argues, “The combination of information
from the two officers informed the magistrate that a police officer who
knows the smell produced by a methamphetamine lab detected the odor of a lab
coming from Appellant’s home, and that a very experienced investigator with
other corroborating facts concluded that the smell was probably coming from
methamphetamine production in the home.”
7.
The cases cited by the majority are, in my opinion, not controlling. Rowell
v. State involved a warrant to search for a firearm allegedly located at the
appellant’s residence, and the warrant was issued six months after appellant
redeemed the pawned firearm, not a warrant issued on the same date that a police
officer smelled a strong chemical odor emanating from the residence to be
searched like in this case. 14 S.W.3d 806, 810 (Tex. App.—Houston [1st Dist.]
2000), aff’d, 66 S.W.3d 279 (Tex. Crim. App. 2001) (explaining that
“[t]he warrant was not issued for another six months after the second
redemption”). Lowery v. State involves information provided by a
“tipster” who had been given the information by a third person, not
information provided by a police officer based on personal knowledge on the date
of the issuance of the warrant like in this case. 843 S.W.2d 136, 141-42 (Tex.
App.—Dallas 1992, pet. ref’d) (explaining that “the untested informant's
secondhand information” which was not corroborated was not reliable).