Sammy Page v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00120-CR No. 10-15-00121-CR No. 10-15-00122-CR

SAMMY PAGE, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law Navarro County, Texas Trial Court Nos. C35545-CR, C35546-CR and C35547-CR

MEMORANDUM OPINION

Appellant Sammy Page pleaded guilty to the following offenses: possession of a

Penalty Group 3 controlled substance in an amount of less than twenty-eight grams in a

drug-free zone, possession with intent to deliver a Penalty Group 1 controlled substance

in an amount of one gram or more but less than four grams in a drug-free zone, and

unlawful possession of a firearm by a felon. The trial court assessed his punishment at

twenty months’ confinement in state jail, thirty-six years’ imprisonment, and ten years’ imprisonment, respectively. The trial court ordered the first two sentences to run

concurrently with each other and the third sentence to run consecutively to the first two.

These appeals ensued.

Before trial, Page filed a motion to suppress evidence, arguing in part that the

search warrant affidavit was insufficient to establish probable cause for the issuance of

the search warrant. The only evidence presented at the hearing on the motion to suppress

was the affidavit for search and arrest warrant, the search warrant signed by the

magistrate, and the return and inventory. The affidavit for search and arrest warrant

states in relevant part:

4. IT IS THE BELIEF OF THE AFFIANT, AND HE HEREBY CHARGES AND ACCUSES THAT: On or about the 20th day of March 2014, the suspect Sammy Page and subjects unknown to the affiant did then and there knowingly and intentionally possess methamphetamine at the suspected location.

5. AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS: Affiant, Kenneth Dunagan, is a police officer employed by the Corsicana Police Department assigned to the Narcotics Division. On or about March, 20th 2014 the Affiant received information from a Confidential Informant (CI) That a W/M subject known to the Informant as Sammy was in possession of methamphetamine at the suspected location. CI advised that within the past 48 hours he or she had observed Sammy in possession of multiple small plastic baggies containing methamphetamine. CI advised that he or she has also observed Sammy in possession of a 9 mm pistol, which he keeps on his person or within close proximity to his person. Affiant is also aware that … Sammy Page has been arrested and convicted of Possession of Marijuana under 2 ounces on multiple occasions, Possession of Marijuana over 2 ounces under 4 ounces, Possession of a Controlled Substance PG 1 under 1 gram, Unlawful Possession of a Firearm by a felon, and Injury to a child/disabled/elderly with intent to cause bodily injury. Affiant is aware of all charges and convictions by viewing Sammy’s criminal history.

Page v. State Page 2 Affiant has also received information from a separate Confidential Source (CS) stating that Sammy Page resides at the target location and advised he drives a maroon Buick. CS stated that Sammy Page sells methamphetamine, marijuana and prescription medication.

Affiant requests a no knock warrant be issued due to Sammy Page’s criminal history and information that he is in possession of a firearm.

Affiant believes that the information so furnished is true and correct, and that the informant is credible, because said informant has furnished information to affiant on at least three occasions in Navarro County, Texas, and on each and every occasion, such information has proven true, correct, and reliable.

Affiant now has reason to believe and does believe that Sammy Page is knowingly and intentionally possessing Methamphetamine in violation of the Texas Health and Safety Code.

The magistrate found, and stated in the search warrant, that the verified facts in

the affidavit show that the affiant had probable cause for the belief he expressed therein

and established the existence of proper grounds for issuance of the warrant. Accordingly,

the search warrant commanded the affiant to enter the suspected place and premises

described in the affidavit, to search for the personal property described in the affidavit,

and to seize the personal property and bring it before the magistrate. The warrant also

commanded the affiant to arrest and bring before the magistrate each person described

and accused in the affidavit. The return and inventory states that marijuana,

methamphetamine, and a pistol, among other things, were seized during the execution

of the search warrant.1 The trial court denied Page’s motion to suppress.

1At the punishment hearing, Detective Dunagan testified that when the search warrant was executed, the officers found Page in the living room area of the suspected location with contraband near him and that no one else was found at the suspected location. Page v. State Page 3 In his sole issue in each appeal, Page contends that the trial court erred in denying

his motion to suppress the evidence seized upon execution of the search warrant because

the search warrant affidavit is not sufficiently specific to support a finding of probable

cause to issue the warrant. Page argues that the affiant failed to include information from

which the reliability and veracity of the CI and CS could be verified and that the affiant

therefore relied “entirely upon the unverified allegations of an unknown person to obtain

the warrant.” Page argues that the affiant’s assertion that the CI had been previously

reliable was conclusory and insufficient. Page asserts that the affidavit provides no

support for the reliability of the CS and that the CS was essential because he or she

provided the identity of Page as the person to be searched/seized and because, without

the surname provided by the CS, the affiant could not have run the criminal history

search and then linked the criminal history to the person identified by the CI. Page also

notes that the affiant conducted no independent verification of the allegations made by

the confidential informants.

In assessing the sufficiency of an affidavit for a search warrant, the reviewing court

is limited to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex.

Crim. App. 2011); Glaze v. State, 230 S.W.3d 258, 260 (Tex. App.—Waco 2007, pet. ref’d).

Accordingly, and because of the constitutional preference for warrants, we apply a highly

deferential standard in reviewing a magistrate’s decision to issue a warrant. Illinois v.

Gates, 462 U.S. 213, 234-37, 103 S.Ct. 2317, 2330-31, 76 L.Ed.2d 527 (1983); McLain, 337

S.W.3d at 271. As long as the magistrate had a substantial basis for concluding that

probable cause existed, the magistrate’s probable-cause determination will be upheld.

Page v. State Page 4 Gates, 462 U.S. at 236, 103 S.Ct. at 2331; McLain, 337 S.W.3d at 271. The affidavit is not to

be analyzed hypertechnically. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; McLain, 337 S.W.3d

at 271. Rather, the reviewing court should interpret the affidavit in a common-sense and

realistic manner, recognizing that the magistrate was permitted to draw reasonable

inferences. McLain, 337 S.W.3d at 271; Rodriguez v. State, 232 S.W.3d 55, 61 (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.

McLain, 337 S.W.3d at 272. It is a flexible and non-demanding standard. Id. The focus is

not on what other facts could or should have been included in the affidavit; the focus is

on the combined logical force of facts that are in the affidavit. State v. Duarte, 389 S.W.3d

349, 354-55 (Tex. Crim. App. 2012).

The affidavit need not reflect the direct observations of the affiant so long as the

magistrate is informed of some of the underlying circumstances supporting the affiant’s

belief that any informant involved, whose identity need not be disclosed, was credible or

his information reliable. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745-46,

13 L.Ed.2d 684 (1965); State v. Ozuna, 88 S.W.3d 307, 310 (Tex. App.—San Antonio 2002,

pet. ref’d). Although an informant’s veracity, reliability, and basis of knowledge are

highly relevant in reviewing the sufficiency of an affidavit, these elements are not each

independent requirements, but closely intertwined issues that simply illuminate the

overall question of whether there is probable cause to believe that contraband or evidence

is located in a particular place. Gates, 462 U.S. at 230, 103 S.Ct. at 2328; Ozuna, 88 S.W.3d

Page v. State Page 5 at 310. The unnamed informant’s credibility may be established by allegations that the

informant has proved reliable on previous occasions. Blake v. State, 125 S.W.3d 717, 726

(Tex. App.—Houston [1st Dist.] 2003, no pet.). This reliability may be established by the

general assertions of the affiant, as stated in the affidavit, concerning the informant’s prior

reliability. Id. The informant’s tip, combined with independent police investigation, may

also provide a substantial basis for the probable-cause finding. Lowery v. State, 843 S.W.2d

136, 141 (Tex. App.—Dallas 1992, pet. ref’d) (citing Janecka v. State, 739 S.W.2d 813, 825

(Tex. Crim. App. 1987)).

In Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1972), the affiant relied solely

upon information supplied by a confidential informant. Id. at 784. The affidavit reflected

that the informant had personally observed methamphetamine at the described location

within forty-eight hours of the date of the making of the affidavit. Id. The affidavit also

reflected that the affiant had received information from the “reliable and credible

informant on previous occasions and such information has proven to be true and correct.”

Id. Based on this, the Court of Criminal Appeals stated that “the magistrate was informed

of sufficient underlying circumstances from which the informer concluded that the

narcotics were where he claimed they were.” Id. at 785. The court also concluded that

“the affidavit detailed sufficient information from which the affiant concluded that the

informer was credible or his information reliable.” Id. The court thus held that the

affidavit was sufficient to reflect probable cause. Id.

Similarly, in this case, the affidavit reflects that the CI personally observed

“Sammy” with methamphetamine at the suspected location within forty-eight hours of

Page v. State Page 6 the making of the affidavit. The affidavit also reflects that the CI had furnished

information to the affiant on at least three previous occasions and that such information

had proved true, correct, and reliable on each of those occasions. We therefore conclude,

under the reasoning set forth in Hegdal, that the affidavit contains sufficient facts from

which the magistrate could have determined that the CI was reliable and that, under the

totality of the circumstances, there is a fair probability that contraband or evidence of a

crime would be found at the suspected location.

Based on Hegdal, Page’s criminal history is not necessary for the affidavit to reflect

probable cause. Furthermore, contrary to Page’s argument that the CS was essential

because he or she provided the identity of Page as the person to be searched/seized, the

search warrant actually commanded the affiant to enter the suspected place and premises

described in the affidavit (the apartment where the CI observed “Sammy” with

methamphetamine), to there search for the personal property described in the affidavit,

and to seize the personal property and bring it before the magistrate. Accordingly, the

CS was not “essential” for the affidavit to be sufficient to reflect probable cause.

Page argues that we should follow the Court of Criminal Appeals’ analysis in

Duarte. See Duarte, 389 S.W.3d at 349. In Duarte, the affidavit was based on a tip from a

first-time confidential informant who stated that Duarte had possessed cocaine at a

particular address within the past twenty-four hours. Id. at 352, 355. Although the

informant provided a “timely, first-hand tip,” the tip lacked detail, such as the quantity

and specific location of the cocaine, and police failed to corroborate the tip, except to

confirm Duarte’s address. Id. at 359-60. The court stated that “tips from anonymous or

Page v. State Page 7 first-time confidential informants of unknown reliability must be coupled with facts from

which an inference may be drawn that the informant is credible or that the information

is reliable.” Id. at 358. The court thus concluded that the tip did not create a substantial

basis upon which a magistrate could find probable cause. Id. at 360.

Here, the CI was not a first-time confidential informant; instead, he or she had a

“track record.” The affidavit in this case states that the CI had furnished information to

the affiant on at least three previous occasions and that such information had proved true,

correct, and reliable on each of those occasions. Duarte is therefore distinguishable from

this case. The Duarte court even stated that the tip “may be enough if the informant has

a track record and is known to be reliable. We have held as much [in Hegdal].” Id. at 359

n.44.

We hold that there was a substantial basis upon which the magistrate could have

determined the existence of probable cause. We overrule Page’s sole issue in each appeal.

We affirm the trial court’s judgments.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 3, 2016 Do not publish [CRPM]

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