Rodriguez v. State

781 S.W.2d 946, 1989 Tex. App. LEXIS 3157, 1989 WL 159968
Court of Appeals of Texas·Decided November 27, 1989·No. No. 05-88-01233-CR·Published·Cited by 5 cases

Opinion

OPINION

BAKER, Justice.

Marta Rodriguez was convicted of unlawful possession of cocaine. In three points of error, she contends that the trial [947]*947court erred in denying her motion to suppress because the search warrant affidavit lacked probable cause, was based upon eon-clusory statements, and showed a reckless disregard for the truth. We disagree and affirm the trial court’s judgment.

The search warrant in question was executed by Dallas police officers at apartment 128, Deer Creek Apartments, 8550 St. Francis Avenue, Dallas, Texas. During the search, the police seized ten kilograms of cocaine and approximately $26,000 in cash from the apartment and arrested appellant and three co-defendants. Two separate search warrants were issued; each by a different magistrate. Each of these warrants was issued based upon affidavits executed by Officer Bruce C. McDonald. Officer McDonald’s first affidavit was executed early in the morning of April 6, 1988, for a warrant to search a light blue Chrysler station wagon. The warrant was issued by the magistrate at 2:28 a.m. on that date. A copy of the affidavit is included in this opinion as Appendix A. Subsequently, Officer McDonald executed a second affidavit for a warrant to search apartment 128 in the Deer Creek Apartments located at 3550 St. Francis, Dallas, Texas. This affidavit was executed late in the afternoon of April 6, and this warrant was issued by the other magistrate at 6:35 p.m. on that date. A copy of this second affidavit is included in this opinion as Appendix B.

In the first affidavit, Officer McDonald swore that he had received information from an informant that on April 5 a quantity of cocaine was being brought from Miami, Florida, to Dallas, Texas, in a light blue Chrysler station wagon with Florida plates numbered YBT-23F. The informant told Officer McDonald that the station wagon was driven by an unknown Cuban male and a person or persons whose names, ages, and descriptions were unknown. The informant said the station wagon would be found in the parking lot of the Deer Creek Apartments at 3550 St. Francis. After locating the station wagon, Officer McDonald had another officer bring a drug-sniffing dog to the scene. When shown the light blue Chrysler station wagon, the dog alerted positive. This positive alert signified that the car contained a controlled substance. Officer McDonald’s affidavit also included information on the dog handler’s background and training with drug-sniffing dogs, together with information on the background and training of the dog itself. Based upon this affidavit, the magistrate issued a warrant for a search of the Chrysler station wagon for the suspected drug.

In the second affidavit, Officer McDonald stated that he and other officers placed the Chrysler station wagon under continuous surveillance. However, they observed no activity around the station wagon for an extended period of time. Because there was no activity around the station wagon, Officer McDonald then contacted the Deer Creek Apartments’ manager. Officer McDonald stated that the manager reported to him that the occupants of apartment 128 were a Latin male known as Humberto Lopez, approximately sixty years old, five feet eight inches tall and heavy set, a Latin female known as Angelina Lopez, approximately fifty-eight years old, and a Latin male known only as Herby. The second affidavit recites that the apartment manager told Officer McDonald that Humberto had a Florida driver’s license and drove a Dodge Caravan with Florida plates. Officer McDonald’s affidavit concludes that he believed, because of the information obtained, that the cocaine had been transferred from the station wagon and could be found in apartment 128 at the Deer Creek Apartments. As a result of this affidavit, the second magistrate issued the warrant to search that particular apartment.

At oral argument, appellant conceded that the police had probable cause to secure the search warrant on the light blue Chrysler station wagon. Appellant’s real argument is that there is nothing to connect the facts in the station wagon affidavit with the facts in the apartment affidavit [948]*948so as to demonstrate probable cause to issue the warrant for apartment 128. In her first point of error, appellant argues that the apartment affidavit fails to recite any underlying circumstances or facts to test the requirement that probable cause must be shown before a search warrant may issue. She contends that the affidavit does not establish the inference and support the belief that the cocaine was in apartment 128. We disagree.

A “totality-of-the-circumstances” analysis is made to determine probable cause under the fourth amendment of the United States Constitution. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); Bower v. State, 769 S.W.2d 887, 903 (Tex.Crim.App.1989); Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.), cert. denied, — U.S. -, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988). In conducting this analysis, a reviewing court should not conduct a de novo review to determine the sufficiency of an affidavit for probable cause. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331. The magistrate’s determination of probable cause should be paid great deference by reviewing courts. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). Reflecting this preference for the warrant process, the test for determination of probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrong-doing. The fourth amendment requires no more. Bower, 769 S.W.2d at 902, (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331).

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 v. State, 719 S.W.2d 585, 587 (Tex.Crim.App.1986). A search warrant affidavit must be read in a common-sense and realistic manner. Reasonable inferences may be drawn from the facts and circumstances contained within its four corners. Lopez v. State, 535 S.W.2d 643, 647 (Tex.Crim.App.1976). A magistrate, in assessing probable cause, may draw inferences from the facts. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Probable cause can be found to exist when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution to believe that the items to be seized were in the stated place. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); Lopez, 535 S.W.2d at 647.

Free access — add to your briefcase to read the full text and ask questions with AI

Rodriguez v. State, 781 S.W.2d 946, 1989 Tex. App. LEXIS 3157, 1989 WL 159968 (Tex. Ct. App. 1989).

781 S.W.2d 946 (Rodriguez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Grady Leroy Martin v. State
Court of Appeals of Texas, 2009
State v. Christian Sparks
Court of Appeals of Texas, 2005
George Lopez, Jr. v. State
Court of Appeals of Texas, 1994