Lindley v. State

773 S.W.2d 579, 1989 Tex. App. LEXIS 3274, 1989 WL 26079
CourtCourt of Appeals of Texas
DecidedMarch 24, 1989
DocketNo. 12-88-00003-CR
StatusPublished
Cited by2 cases

This text of 773 S.W.2d 579 (Lindley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindley v. State, 773 S.W.2d 579, 1989 Tex. App. LEXIS 3274, 1989 WL 26079 (Tex. Ct. App. 1989).

Opinions

BILL BASS, Justice.

This appeal is from a conviction for aggravated possession of cocaine with the intent to distribute. A jury found the appellant guilty, assessed her punishment at fifty years’ confinement, and a fine of $100,000.00. We reverse.

In September of 1986, a drug investigation centered on an apartment at 110 East Hawkins Parkway in Longview, Texas. Appellant was the lessee of said apartment. From September 4 to September 12 of 1986, a twenty-four-hour surveillance was conducted by members of the Department of Public Safety’s (hereinafter DPS) narcotics unit, Gregg County Sheriff’s Department, and the Longview Police Department. The court ordered a wiretap of the incoming and outgoing phone calls at the apartment. The narcotics agents also watched the comings and goings of a black Z-28 that was driven by appellant and her husband. On September 12, 1986, appellant’s husband was followed to and from Dallas. On that same day, a search warrant was obtained to search appellant’s [580]*580apartment and “all vehicles known by the affiant to be under the care and control of John Harley Lindley and Judith Parrish Lindley.” A search of the apartment was made and 1443.6 grams (3.18 pounds) of cocaine and 17.1 grams of marihuana were found. A search of the black Z-28 was also conducted and a briefcase was found in the trunk portion of the vehicle. The briefcase contained notebooks and other various items which indicated that appellant was involved in drug trafficking.

In her first point of error, appellant contends that there was no showing of probable cause to support the issuance of the search warrant. Appellant argues that, although there might have been probable cause that John Lindley had committed a crime, there is nothing in the affidavit to support a finding of probable cause to believe that cocaine was on the premises to be searched. Specifically, she argues that the affidavit entirely fails to establish a nexus between the place to be searched and the evidence sought by the warrant.

Probable cause to believe a person has committed a crime does not automatically supply probable cause to search that person’s home for evidence of the crime. US. v. Freeman, 685 F.2d 942 (5th Cir.1982); Johnson v, State, 722 S.W.2d 417 (Tex.Cr. App.1986). Where the facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a man of reasonable caution in the belief that 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. Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986).

In the instant case, police relied upon three conversations recorded by the wiretap to establish probable cause. The affidavit shows that on September 5, 1986, the surveillance team observed an individual identified as Kathy Rector enter appellant’s apartment. Rector placed an outgoing phone call to her mother. Her mother asked, “O.K., what I’m saying is are you going to be able to get it?,” to which Rector replied, “Yeah.” Her mother then asked, “The speed or the coke?”

On September 8, 1986, John Lindley discussed the sale of “cases of champagne.” He offered to sell ten “cases of champagne” at $1,200.00 per case. The affiant of the search warrant stated that based on his experience as a narcotics investigator, he was aware that the common price of 10 ounces of cocaine would be approximately $1,200.00. Affiant further stated in the warrant that the phrase “cases of champagne” is used by drug traffickers to refer to controlled substances, especially when such controlled substances are discussed over the telephone. Also during this conversation, the caller asked appellant’s husband, “You got ten?” Appellant’s husband replied, “Right now, yeah I’m sittin’ right on here.”

On September 10, 1986, a woman named Kristie called John Lindley and said, “I have that, that fertilizer that you needed.” Appellant’s husband replied, “Well, why don’t you come by and see me?” Affiant stated in the affidavit that “fertilizer” is used by persons who distribute cocaine to mean money.

The affidavit supporting the search warrant contains factual allegations that establish a nexus between the place to be searched, the apartment, and the evidence sought by the warrant — cocaine. Applying the Cassias standard to the facts in this case, we find that there was probable cause to support the issuance of the search warrant. The first point is overruled.

In point of error number two, appellant contends that the search warrant was invalid because the facts attested to were not so closely related to the time of issuance to warrant as to justify a finding of probable cause at that time.

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. Cassias, 719 S.W.2d at 587. The amount of delay that will make information stale for purposes of obtaining a search warrant [581]*581depends upon the particular facts of a case, including the nature of the criminal activity and the type of evidence sought. Ellis v. State, 722 S.W.2d 192, 196 (Tex.App.—Dallas 1986, no pet.). A mechanical calculation of elapsed time is of little assistance in this determination. Considerable deference should be given to the magistrate’s judgment based on the facts before him, absent arbitrariness. Id.

The search warrant was issued at 4:15 p.m. on September 12, 1986. The phone calls that were the basis for the issuance of the warrant occurred on the 5th, 8th, and 10th days of September. The conversations recorded on each of these days indicated that appellant was trafficking in controlled substances from the apartment. Further, the affiant states in his affidavit that persons who distribute controlled substances commonly keep detailed records of the amounts of controlled substances that have been distributed, the amount of money that has been received, the amount of money that is to be received, and the names of those persons who are co-conspirators. The affiant stated that throughout the conduct of the court-authorized wiretap interceptions, John Lindley made reference to such records being kept by himself.

A search warrant affidavit must be read using common sense, and reasonable inferences may be drawn from the facts and circumstances contained within its four corners. Cassias, 719 S.W.2d at 587-588.

In the present case, it is a reasonable inference that an individual who, during a seven-day period, (1) is recorded trying to distribute cocaine, (2) uses drug slang in conversations, and (3) apparently keeps records of drug transactions is involved in a continuous course of conduct involving the sale of cocaine. We hold that the information relied upon to establish probable cause to search the apartment for cocaine had not grown stale. Appellant’s point of error number two is overruled.

In point of error number five, appellant claims that the search warrant was invalid because it did not sufficiently describe the items to be seized.

The Fourth Amendment to the United States Constitution and Tex.Const. art.

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Bluebook (online)
773 S.W.2d 579, 1989 Tex. App. LEXIS 3274, 1989 WL 26079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindley-v-state-texapp-1989.