Marcos Garcia Flores v. State

• Court: Court of Appeals of Texas
• Decided: October 4, 2012
• Docket: 01-11-00908-CR
• Status: Published

Opinion

Opinion issued October 4, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00908-CR ——————————— MARCOS GARCIA FLORES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court Brazoria County, Texas Trial Court Case No. 64780

MEMORANDUM OPINION

Appellant, Marcos Garcia Flores, was charged by indictment with two

counts of possession with intent to deliver cocaine weighing between 4 and 200 grams, enhanced as a habitual offender.1 Following an unsuccessful motion to

suppress, appellant pleaded guilty to the offense and the enhancement allegations

without an agreed recommendation for punishment. The trial court assessed

punishment at 36 years’ confinement on each count, to run concurrently. In his

sole issue on appeal, appellant argues that the trial court erred by denying his

motion to suppress.

We affirm.

Background

On February 16, 2011, Officer M. Christopoulos, with the Freeport Police

Department, sought a search warrant to search appellant’s apartment from a

Brazoria County magistrate judge. Officer Christopoulos submitted an affidavit in

support of the search warrant. Based on the affidavit, the magistrate judge issued

the search warrant. In the resulting search of appellant’s apartment, police

obtained about 14 grams of cocaine.

At the motion to suppress hearing, appellant argued that the evidence

obtained from the search should be suppressed because of the sufficiency of

Officer Christopoulos’s affidavit. The affidavit was based on the personal

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) (providing that cocaine is penalty group one substance), 481.112(a), (d) (providing that manufacturing, delivery, or possession with intent to deliver penalty group one substance between four and 200 grams is first degree felony) (Vernon 2010); TEX. PENAL CODE ANN. § 12.42(c)(1) (Vernon Supp. 2012). 2 information of Officer Christopoulos as well as information he received from

multiple confidential informants.

Officer Christopoulos set up a “controlled buy” with the first informant. He

asserted that

within 48 hours of today’s date, February 16, 2011[, I] met with a confidential informant in a secure location. The confidential informant was searched for illegal contraband at which point no illegal contraband was discovered. [I] provided the confidential informant with recorded U.S. currency along with an audio recording device for the investigation. The confidential informant provided information in reference to a subject identified as Adolfo Ramirez, Jr. . . . who is involved in the sales of narcotics including cocaine. [I have] received information in reference to Mr. Ramirez being involved in the sales and usage of narcotics in the past. The confidential informant met with Mr. Ramirez in a public place and provided Mr. Ramirez with recorded U.S. currency. Mr. Ramirez placed a telephone call to an unknown individual named “Oso” in reference to purchasing crack cocaine. [I] conducted surveillance on Mr. Ramirez as Mr. Ramirez traveled to a residence located at 1622 West 7th Street, Freeport, Brazoria County Texas. [I] observed Mr. Ramirez travel to said residence and enter the residence for a short period of time. A few moments later [I] observed Mr. Ramirez exit the residence and approach the vehicle he was operating. Mr. Ramirez traveled away from the residence and soon thereafter met with the confidential informant. [I] observed the confidential informant meet with Mr. Ramirez and Mr. Ramirez provided the confidential informant with a hard white colored rock like substance believed to be crack cocaine. The confidential informant met with [me] in a secure location and provided [me] with the hard white colored white like [sic] substance. [I] later field tested the substance with a nartec test kit. The substance revealed a positive analysis for cocaine.

Officer Christopoulos received information regarding appellant from other

confidential informants. Specifically, he asserted that he had “received 3 information from several different sources including reliable and credible

confidential informants who state that [appellant] is involved in the sales of

narcotics including cocaine.”

Finally, Officer Christopoulos received from another confidential informant

specific information about appellant actually possessing cocaine. Specifically, he

on or about the 15th day of February, 2011 [I] met with a confidential informant. The confidential informant has proven to be reliable and credible by providing information found to be true and correct. The confidential informant has provided [me] with information along with numerous controlled purchases of narcotics including crack cocaine in the past. The controlled purchases have led to numerous search warrants where narcotics have been seized. The confidential informant provided [me] with information stating that subject identified as Marcos Garcia Flores . . . was in possession of a controlled substance, namely crack cocaine on or about the 15th day of February, 2011 while in front of his residence located at 16722 West 7th Street, Freeport, Brazoria County Texas. The confidential informant further provided [me] with information stating that [appellant] was in possession of crack cocaine on several different occasions during the past week.

In addition to the information from the confidential informants, Officer

Christopoulos identified information about appellant that was within his own

knowledge. Specifically, he asserted that he had conducted surveillance on

appellant’s residence.

On [February 14, 2011, I] began conducting surveillance on [appellant’s] residence. While conducting surveillance [I] observed several individuals at said residence including [appellant]. [I] observed [appellant] at said residence on more than one occasion. 4 Based on past experience and personal knowledge [I] know[] [appellant’s] nickname to be “Oso.” . . . [I] reviewed [appellant’s] past criminal history and [it] states that [appellant] has been arrested on numerous occasions in the past for Possession of a Controlled Substance.

Based on Officer Christopoulos’s affidavit, the magistrate judge issued the

warrant and the trial court denied appellant’s motion to suppress.

Standard of Review & Applicable Law

A magistrate judge cannot “issue a search warrant without first finding

‘probable cause’ that a particular item will be found in a particular location.”

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). “Probable cause

exists when, under the totality of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found at the specified location.” State v.

McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011) The test for finding

probable cause is “whether a reasonable reading by the magistrate would lead to

the conclusion that the affidavit provided a substantial basis for the issuance of the

warrant, thus, the magistrate’s sole concern should be probability.” Rodriguez, 232

at 60. This is a “flexible and nondemanding standard.” Id. “The process does not

deal with hard certainties, but with probabilities.” United States v. Cortez, 449

U.S. 411, 418, 101 S. Ct. 690, 695 (1981). The magistrate judge performs a

totality-of-the-circumstances analysis in determining if probable cause exists.

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).

5 We follow a specific standard of review for determining whether there is

probable cause to support the issuance of a search warrant in a motion to suppress.

McLain, 337 S.W.3d at 271. In determining whether there is probable cause to

support the issuance of a search warrant, “the trial court is constrained to the four

corners of the affidavit.” Id. There are no credibility determinations affecting our

review. Id. “[B]ecause of the constitutional preference for searches to be

conducted pursuant to a warrant as opposed to a warrantless search,” however, “we

apply a highly deferential standard” of review. Id.

Under this highly deferential standard of review, we review “the affidavit in

a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences.” Rodriguez, 232 S.W.3d at 61. We do not focus on

information that is not in the affidavit but, instead, on “the combined logical force

of facts that are in the affidavit.” Id. at 62. “When in doubt, we defer to all

reasonable inferences that the magistrate could have made.” Id. at 61; see also

McLain, 337 S.W.3d at 272 (critiquing an intermediate appellate court for

“focusing on what the officer ‘implied’ rather than on what the magistrate could

have reasonably inferred”). We may not review the affidavit in a hyper-technical

manner. McLain, 337 S.W.3d at 271.

6 Probable Cause for Search Warrant

In his sole issue, appellant argues that the trial court erred by denying his

motion to suppress. Most of appellant’s brief is dedicated to looking at certain

portions of the affidavit in isolation and arguing that each portion, by itself, could

not support the issuance of the search warrant. For example, the affidavit asserts

that a confidential informant disclosed to Officer Christopoulos that appellant was

observed in possession of crack cocaine in front of his residence the day before the

date of the affidavit. Appellant argues that this fact alone is not sufficient to

support the issuance of the search warrant. This argument is unavailing. The

magistrate judge performs a totality-of-the-circumstances analysis in determining

if probable cause exists, and we perform a highly deferential review of this

determination. See Gates, 462 U.S. at 238, 103 S. Ct. at 2332 (holding magistrate

judge performs totality-of-the-circumstances analysis); Rodriguez, 232 S.W.3d at

61 (holding appellate courts perform highly deferential review of magistrate

judge’s ruling).

Appellant also makes multiple arguments about information that he believes

is missing from the affidavit. For example, Officer Christopoulos recites

information he received from a confidential informant, who saw appellant in

possession of cocaine outside his residence the day before the date of the affidavit.

Appellant argues this is insufficient to establish probable cause.

7 More information is required to make such a determination. Was Appellant selling the crack cocaine he was witnessed with? Did Appellant retrieve the crack cocaine from his home? Did Appellant advise the confidential informant he had crack cocaine in his residence? Without answers to these additional questions, Appellant may have just taken delivery himself with the intent to use the cocaine immediately, Appellant may have retrieved [it] from his vehicle, or Appellant may have been briefly holding the crack cocaine for . . . someone including the confidential informant.

This argument is also unavailing. “The issue is not whether there are other facts

that could have, or even should have, been included in the affidavit; we focus on

the combined logical force of facts that are in the affidavit, not those that are

omitted from the affidavit.” Rodriguez, 232 at 62 (emphasis in original).

Considering the information in the affidavit as a whole, the facts supporting

probable cause to issue the warrant are (1) a confidential informant obtained

cocaine through a controlled buy with an intermediary that was observed traveling

to, going into, and returning from appellant’s residence two days before the

issuance of the warrant; (2) multiple confidential informants stated that appellant

sold cocaine; and (3) another confidential informant had seen appellant in

possession of cocaine at his residence the day before the date of the affidavit and

on several different occasions within the week prior to the issuance of the search

warrant.

Appellant argues there is a conflict in the affidavit that undermines the

identity of appellant as the person possessing and selling drugs. In one part of the

8 affidavit, Officer Christopoulos asserts that, based on past experience and personal

knowledge, he knows appellant’s nickname is “Oso.” In another part of the

affidavit, Officer Christopoulos explains that the intermediary in the controlled buy

“placed a telephone call to an unknown individual named ‘Oso’ in reference to

purchasing crack cocaine.” Appellant argues that this alleged conflict creates a

credibility issue for the affidavit. We disagree.

The first statement explains that Officer Christopoulos knows appellant’s

nickname is Oso. The second statement explains that the intermediary contacted

someone named Oso about buying cocaine. From these two statements, the

magistrate judge could reasonably infer that appellant was the “Oso” involved in

the purchase of cocaine. There is no conflict in these statements.

Appellant also challenges the reliability of the controlled-buy informant and

the informant that saw appellant in possession of cocaine outside of appellant’s

residence the day before the date of the affidavit. We begin by noting that, while

the veracity, reliability, and basis of knowledge of a confidential informant are

highly relevant in determining the value of an affidavit, they do not constitute

separate inquiries. Gates, 462 U.S. at 230, 103 S. Ct. at 2328. Instead, they are

“closely intertwined issues that may usefully illuminate the commonsense,

practical question whether there is ‘probable cause’ to believe that contraband or

evidence is located in a particular place.” Id.

9 Officer Christopoulos asserted that the informant who saw appellant in

possession of cocaine had “proven to be reliable and credible by providing

information found to be true and correct” and had been involved in a number of

controlled purchases that “led to numerous search warrants where narcotics have

been seized.” An assertion in an affidavit that the officer knows a confidential

informant and that the confidential informant had provided reliable information in

the past is sufficient to establish the reliability of the confidential informant.

Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982); Blake v. State,

125 S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

For the controlled-buy informant, “[t]he circumstances of a ‘controlled buy,’

standing alone, may be sufficient to reasonably confirm an informant’s information

and give probable cause to issue a search warrant.” Sadler v. State, 905 S.W.2d

21, 22 (Tex. App.—Houston [1st Dist.] 1995, no pet.). Officer Christopoulos

asserted that he met with a confidential informant to perform a controlled buy,

searched the informant without finding any illegal contraband, and provided the

informant with recorded U.S. currency and a recording device. Officer

Christopoulos then observed the confidential informant meet with Ramirez in a

public place. The informant gave Ramirez the recorded currency. Ramirez called

appellant on his cell phone, and left. Officer Christopoulos followed Ramirez and

saw him drive to appellant’s house, enter the house, leave a short time later, and

10 return to the confidential informant in a public place. Ramirez provided the

informant with a substance that was later identified as cocaine.

Appellant argues that the controlled buy was flawed because Officer

Christopoulos did not monitor the confidential informant at all times, leaving the

confidential informant with an opportunity to obtain the cocaine from a source

other than Ramirez.

Although it may have been preferable for the officer to maintain constant surveillance in some way, it is not necessary that an officer maintain constant surveillance on an informant during a controlled buy to present a magistrate with sufficient facts to reasonably conclude that the object of the search would probably be on the premises at the time the warrant is executed.

State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d). The fact that the confidential informant met with Ramirez in a public place,

along with the fact that Ramirez called appellant about purchasing cocaine before

going to his residence militate against the possibility that the confidential

informant could have obtained the cocaine from another source. Even assuming

the facts of the controlled buy were insufficient to establish probable cause for a

search warrant, we do not review the reliability of a confidential informant in

isolation. See Gates, 462 U.S. at 230, 103 S. Ct. at 2328 (holding complaints about

veracity, reliability, and basis of knowledge of a confidential informant are one

part of the determination of whether there is ‘probable cause’ to believe that

contraband or evidence is located in a particular place); Rodriguez, 232 S.W.3d at 11 61 (holding focus of review of affidavit is on “the combined logical force of facts

that are in the affidavit”).

We hold that the cumulative weight of the information in the affidavit

supports the trial court’s and magistrate judge’s determinations that there was

probable cause to believe controlled substances would be found within appellant’s

residence. The trial court did not err by denying the motion to suppress.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. TEX. R. APP. P. 47.2(b).