Elaine Bass v. State of Texas

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00054-CR ______________________________ ELAINE BASS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 27903-B Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Grant ______________ *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment O P I N I O N Elaine Bass appeals her conviction for possession of a controlled substance with intent to deliver. After her pretrial motion to suppress was denied, she pleaded "no contest" to intentionally and knowingly possessing cocaine in an amount of one gram or more but less than four grams with intent to deliver. Pursuant to a plea bargaining agreement, she was sentenced to three years' confinement. In her single point of error, Bass contends the trial court erred in denying her motion to suppress evidence because the search warrant was not based on the required showing of probable cause. Jason Brannon, an officer with the Kilgore Police Department assigned to the Gregg County Organized Drug Enforcement Unit, obtained a search warrant in the instant case on or about May 24, 2000. The affidavit Brannon presented in support of the search warrant read in relevant part: 1. THERE IS IN GREGG COUNTY, TEXAS A SUSPECTED PLACE DESCRIBED AND LOCATED AS FOLLOWS: A single family gray frame residence located on Wells St. in Kilgore, Gregg County, Texas. The residence is on the south side of the road and the front door faces north. The residence is the first residence on the south side of the road east of Bates St. Kilgore Police records indicate that the suspected party shows an address of 431 Wells St. 2. THE SUSPECTED PLACE IS IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING NAMED PARTIES (HEREAFTER CALLED "SUSPECTED PARTY" WHETHER ONE OR MORE) TO WIT: A black female known to affiant as Elaine Bass. The black female is described as being approximately 5'06" tall and weighing approximately 150 pounds. Kilgore Police records indicate that Bass has a date of birth of 01-03-1962. 3. IT IS THE BELIEF OF AFFIANT, AND AFFIANT HERBEY [sic] AND ACCUSE THAT SAID SUSPECTED PARTY HAS POSSESSION OF, AND IS CONCEALING WITHIN SAID SUSPECTED PLACE THE FOLLOWING DESCRIBED PERSONAL PROPERTY, TO WIT: A quantity of Cocaine kept in violation of the Texas Controlled Substance Act. 4. AFFIANT HAS PROBABLE CAUSE FOR THE SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO WIT: . . . That, Affiant was contacted by a confidential informant, who advised that he/she had been to the location listed in paragraph one within the past 48 hours prior to the issuance of this warrant, and did at that time observe the suspected party listed in paragraph two in possession of a quantity of Cocaine. That, Affiant believes the confidential informant's information to be true and reliable, because the confidential informant has provided Affiant with information in the past relating to narcotics traffic, and that information did prove to be true and correct. That, Affiant knows that the confidential informant is familiar with the appearance of Cocaine. Brannon and other officers executed the warrant and discovered certain controlled substances, possession of which the officers attributed to Bass. After a pretrial hearing, the trial court overruled Bass's motion to suppress the evidence based on lack of the required showing of probable cause to obtain the search warrant. Bass contends the affidavit in support of the search warrant fails to establish probable cause because the affidavit fails to establish the reliability of the informant, fails to provide the magistrate with sufficient information to determine the timeliness of the information, fails to sufficiently describe the location to be searched, fails to show how the informant identified the suspect as Bass, and fails to connect the informant's observations to the location to be searched. We review the trial court's decision on a motion to suppress evidence based on a claim that the search warrant was not supported by probable cause by applying a bifurcated standard of review deferring to the trial court's determination of historical facts that depend on credibility but reviewing the trial court's application of the law of probable cause de novo. See Burke v. State, 27 S.W.3d 651, 654 (Tex. App.-Waco 2000, pet. ref'd). The magistrate is confined to the four corners of the affidavit in determining whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983); see Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Burke, 27 S.W.3d at 654. In determining whether the magistrate had a substantial basis for concluding that probable cause existed, we examine the totality of the circumstances and accord deference to the reasonable inferences the magistrate was entitled to draw. See Gates, 462 U.S. at 238; see also Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Hass v. State, 790 S.W.2d 609, 612 (Tex. Crim. App. 1990); Burke, 27 S.W.3d at 654. The totality of the circumstances includes the credibility and reliability of both the informant and the informant's information, including the basis of the informant's knowledge of the facts related. See Gates, 462 U.S. at 230-31; Osban v. State, 726 S.W.2d 107 (Tex. Crim. App. 1986), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991). We affirm the trial court's ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.-Texarkana 1998, no pet.). First, Bass contends the affidavit fails to establish the reliability or credibility of the informant. She argues the affidavit provides no details that make the statement credible, that the confidential informant had provided the affiant with information in the past relating to narcotics trafficking, which proved to be true and correct, worthy of belief. She further argues the affidavit failed to state whether this information led to arrests, convictions, or cases being filed and how many times the informant had given any information or over what period of time. She also argues the affidavit provides no factual support for the statement the affiant knows that the confidential informant is familiar with the appearance of cocaine. The affidavit need not provide more specific details regarding the informant's reliability than to state the informant had given information in the past regarding narcotics trafficking which had proved correct. Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977); Hammond v. State, 898 S.W.2d 6, 7-8 (Tex. App.-Dallas 1995, no pet.); Davis v. State, 696 S.W.2d 494, 498 (Tex. App.-El Paso 1985, no pet.). Because such a statement, when interpreted in a realistic and commonsense manner, indicates the informant's familiarity with controlled substances, no further details are required to spell out the informant's qualifications in recognizing specific drugs. See Torres, 552 S.W.2d at 824; see also Palmer v. State, 614 S.W.2d 831, 832-33 (Tex. Crim. App. [Panel Op.] 1981). The affidavit clearly stated that the informant had provided information in the past relating to narcotics trafficking and that such information had proved true and correct. The affidavit went on to state the affiant knew that the informant was familiar with the appearance of cocaine. The affidavit was sufficient to provide the magistrate with facts on which to base a determination of the informant's credibility. However, a finding of credibility and reliability for the information contained within the affidavit is not enough. The information in the affidavit, found to be credible and reliable, must provide the magistrate with a substantial basis for concluding there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Gates, 462 U.S. at 238. To this end, the affidavit must be sufficient to determine the timeliness of the information contained therein. See Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. [Panel Op.] 1982) (affidavit was insufficient where there was no information regarding when the informant's observations were made); Mendiola v. State, 865 S.W.2d 540, 542 (Tex. App.-Corpus Christi 1993, no pet.) (affidavit was sufficient when it stated the informant's observation was within the past seventy-two hours). Bass contends the phrase "within the past 48 hours prior to the issuance of this warrant" fails to provide the magistrate with a meaningful basis to determine the timeliness of the information the informant provided because the warrant could not have been issued at the time the affidavit was being prepared and it would be impossible for the officer to know, at the time the affidavit was being prepared, when or whether the warrant would be issued. However, the affidavit and the search warrant were signed the same day. The magistrate, viewing the date on the affidavit, would have been able to take that into account in interpreting the affidavit and making inferences from the facts stated therein. It is unnecessary to assume the magistrate interpreted the statement to mean the officer had anticipated the hour in which he would submit the affidavit to the magistrate, as the State suggests. Even assuming the magistrate interpreted that statement to mean within forty-eight hours of the affidavit being signed, which would put the informant's observation furthest back in time, to at most seventy-two hours, the affidavit provided some indication of when the informant's observations were made. The State argues that a two-day lapse between the time of the informant's observations concerning the presence of drugs and the issuance of a warrant does not render the information stale. See Douglas v. State, 794 S.W.2d 98 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). In the Douglas case, the court found that the period of time involved did not render the information stale. This determination was made even though the lapse of time between the presence of the informant on the premises in question may have been as long as four days before the issuance of the warrant. The court in Douglas recognized that "just how long a time may be permitted to elapse without destroying the basis for a reasonable belief as to the continuance of the situation set forth in the affidavit will vary according to the facts of the individual case." Id. at 101-02 (citing Moore v. State, 456 S.W.2d 114, 115 (Tex. Crim. App. 1970). Thus, a determination of timeliness is based not only on the amount of time that elapsed since the informant obtained the information, but also on what that information was, as reflected by the affidavit. Even though the magistrate in the present case could reasonably infer that the information was obtained by the informant between forty-eight and seventy-two hours before presentment of the affidavit, this alone would not be enough for the court to determine the information was stale. There must be a substantial basis for the magistrate to have found there was a fair probability that contraband or evidence of a crime would be found in a particular place. See Gates, 462 U.S. at 238. To this end, the affidavit must also sufficiently describe the premises to be searched. See Smith v. State, 962 S.W.2d 178, 184 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). Bass contends that because the affidavit contained an incorrect address and lacked supporting facts regarding the location to be searched, it failed to provide a nexus between the information the affiant received from the informant and the location described in the affidavit. Minor discrepancies will not invalidate a warrant if the affidavit and warrant otherwise sufficiently describe the premises to be searched. See id.; see also Taylor v. State, 974 S.W.2d 851, 855-56 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Jones v. State, 914 S.W.2d 675, 678 (Tex. App.-Amarillo 1996, no pet.). The warrant must identify the place to be searched sufficiently so that the officers who execute the warrant, acting as reasonable men, can locate that place and identify it from other places in the community. See Smith, 962 S.W.2d at 184 (citing Bridges v. State, 574 S.W.2d 560 (Tex. Crim. App. 1978)). Because such discrepancies or insufficiency may not be apparent on the face of the affidavit, evidence beyond the affidavit may be required at the hearing on the motion to suppress to determine whether the description of the location to be searched was sufficient. See Jones v. State, 914 S.W.2d 675, 678 (Tex. App.-Amarillo 1996, no pet.). Although the street address was incorrect on the affidavit, the location of the residence was described in detail. Brannon, the affiant and executing officer, was the only witness at the suppression hearing. Brannon testified he had obtained the street address from the Kilgore police records, as stated in the affidavit. Brannon also testified the informant had provided the description, except for the street address. The affidavit states the informant had been to the location listed in paragraph one. Brannon testified that he did not drive by to verify the description and address of the house before he wrote the affidavit because it would have been detrimental to his investigation, but that he was familiar with the house when the informant described the house to him, and he knew which house the informant was describing. Brannon testified he would be able to follow the description to locate the residence. He testified that the officers discovered the incorrect address during the execution of the warrant, but that the numerical address was the only error regarding the description of the house. Based on the affidavit itself and the evidence adduced at the hearing on the motion to suppress as summarized above, the description of the location to be searched was sufficient. As to the contention the affidavit does not specifically show the basis of knowledge of the identity of Bass or the basis of the informant's knowledge that the premises were under Bass's control, the case of Illinois v. Gates, 462 U.S. 213, negates the necessity of a showing of the basis of knowledge and adopts a totality of the circumstances review. The affidavit states the Kilgore police records indicated the suspect's address as 431 Wells Street. On the face of the affidavit, the magistrate could have inferred the suspect would have control over the address listed in the police records. However, the officers discovered that the street number listed in the affidavit did not correspond to the residence that was otherwise described in the affidavit. Because such error was not apparent on the face of the affidavit, we consider evidence presented at the hearing on the motion to suppress. Officer Brannon testified he knew which house the informant was describing because he was familiar with the house. Bass contends the use of the term "possession" without further supporting facts was a conclusory statement that cannot support a finding of probable cause. See Hall v. State, 795 S.W.2d 195 (Tex. Crim. App. 1990); Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986); Parish v. State, 939 S.W.2d 201 (Tex. App.-Austin 1997, no pet.); Lowery v. State, 843 S.W.2d 136 (Tex. App.-Dallas 1992, pet. ref'd); Alvarez v. State, 750 S.W.2d 889 (Tex. App.-Corpus Christi 1988, pet. ref'd). The affidavit in the present case makes clear that the basis for the informant's conclusion was personal observation; thus, the magistrate could reasonably infer that the informant observed the cocaine and the suspect in some way that, based on the relation of one to the other, the informant concluded that the cocaine was in the control of the suspect. Reviewing the affidavit in the light of the totality of the circumstances, we find the information contained in the affidavit provided the magistrate with a substantial basis for concluding there was a fair probability that contraband or evidence of a crime would be found in a particular place. The judgment of the trial court is affirmed. Ben Z. Grant Justice Date Submitted: April 11, 2002 Date Decided: October 10, 2002 Do Not Publish