Jessie Ray Rose v. State ( 2005 )

MEMORANDUM OPINION

No. 04-04-00344-CR

Jessie Ray ROSE,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. A03-219

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

Delivered and Filed: January 5, 2005

AFFIRMED

Defendant, Jessie Ray Rose, was charged by indictment with the offense of possession of a controlled substance with intent to deliver. Defendant filed a pre-trial motion to suppress, which the trial court denied. Defendant subsequently pled guilty and was sentenced to eight years' confinement in accordance with a plea agreement. On appeal, defendant challenges the trial court's denial of his motion to suppress asserting the search warrant affidavit lacked probable cause. We disagree and affirm the trial court's judgment.

STANDARD OF REVIEW

When reviewing a trial court's decision on a motion to suppress evidence based on a claim that the search warrant was not based on probable cause, we apply a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to the trial court's determination of historical facts, reviewing the trial court's application of the law de novo. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). The trial court is to look to the "totality of the circumstances" as contained within the four corners of the affidavit. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 2332, 76 L. Ed. 527 (1983). In this review, we are to determine whether there is a fair probability, not an actual showing, that contraband or evidence of a crime will be found in a particular place in light of the totality of the facts set forth in the affidavit. Id.; Hennessey v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. 1983). If the affidavit meets this "totality of the circumstances" test, we must overrule defendant's complaint. Sadler v. State, 905 S.W.2d 21, 22 (Tex. App.--Houston [1st Dist.] 1995, no pet.).

ANALYSIS

In his sole point of error, defendant challenges the overall sufficiency of the search warrant. Defendant asserts the search warrant was issued without probable cause because 1) the information contained in the affidavit was stale and conclusory; 2) the affidavit fails to allege any information linking narcotics to his residence; and 3) the affidavit is deficient for failing to demonstrate the credibility or veracity of the source of information contained within the affidavit.

SEARCH WARRANT AFFIDAVIT

James Hicks, a Kerr County Sheriff's Department Investigator assigned to the 216th Judicial District Task Force, applied for a warrant to search defendant's residence. Hicks attached his affidavit which cites sources of information, including several informants as well as a fellow officer, Sergeant Jeff McCoy, a deputy with the Kerr County Sheriff's Department. Sergeant McCoy lived across the street from defendant. In his affidavit, Hicks presented the basis for his belief that defendant was in possession of narcotics by stating the following: 1) McCoy observed "large amounts of vehicle traffic" at defendant's residence with the vehicles making shorts stops of five to seven minutes; 2) McCoy observed defendant making "hand to hand" transactions with the occupants of the vehicles; 3) McCoy stated this vehicular traffic occurs on a daily basis, but is more frequent on Friday and Saturdays; 4) on January 30, 2003, McCoy conducted a traffic stop involving a vehicle he had previously observed at defendant's residence, and found the driver in possession of marihuana and a note in the driver's pocket with defendant's telephone number; 5) on February 21, 2003, investigating officers with the Narcotics Task Force searched defendant's trash that had been placed curbside in front of defendant's house and found suspected marihuana seeds, stems, and what appeared to be packaging material that contained suspected marihuana residue in defendant's garbage; and 6) on February 27, 2003, McCoy again observed a large amount of traffic coming and going from defendant's residence.

Defendant first asserts the information contained in the search warrant affidavit was stale because the acts attested to are not closely related to the time of issuance of the search warrant. To justify a magistrate's finding that an affidavit is sufficient to establish probable cause, the facts set out in the affidavit must not have become stale by the time the magistrate issues the search warrant. Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Id. When an affidavit indicates activity of a protracted and continuous nature, the passage of time becomes less significant. Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.--Houston [14th Dist] 1994, pet. ref'd).

Here, the affidavit states an initial search warrant was issued after investigators found the suspected marihuana seeds, stems, and packaging material in defendant's trash on February 21, 2003. However, the search was delayed because on February 22nd, McCoy informed Hicks that he observed defendant waving off traffic from stopping at his residence. On February 25th, McCoy again observed traffic at defendant's residence, but due to severe weather, the warrant could not be executed and the search warrant expired. When McCoy informed Hicks that he observed the same pattern of traffic and activity at defendant's residence on February 26th and 27th, Hicks obtained the second search warrant on February 28th. We believe the lapse in time between when the facts stated by McCoy occurred and the time the warrant was issued is not significant, particularly in light of Hicks' affidavit indicating activity of a "protracted and continuous nature."

The defendant next contends statements in the affidavit were conclusory in nature and not specific enough to support probable cause to issue the warrant. Specifically, defendant argues the statements in the affidavit regarding the vehicle traffic at his residence fails to specify when the traffic was seen or what constitutes a "large amount of traffic." However, conclusory statements do not invalidate a supporting affidavit if the remaining, non-conclusory portions of the affidavit provide probable cause. See Massey v. State, 933 S.W.2d 141, 147-48 (Tex. Crim. App. 1996). Regardless of any conclusory statements that may have been in the affidavit, the non-conclusory statement that an examination of the defendant's trash resulted in the discovery of suspected marihuana seeds, stems and packaging that contained marihuana residue provided sufficient probable cause to support the issuance of the search warrant. See State v. Raymer, 786 S.W.2d 15, 17 (Tex. App.--Dallas 1990, no pet.).

Defendant further claims there is no link establishing a connection between any narcotics and his residence, and the items found in his trash and recovered from the traffic stop did not develop probable cause because there was no evidence that the items came from his residence. Defendant's argument fails to recognize the search warrant affidavit reveals the search of his trash yielded not only suspected marihuana seeds, stems, and packaging material with suspected marihuana residue, but also discarded mail addressed to defendant. This information, coupled with McCoy's report that he observed heavy vehicular traffic at defendant's residence and the driver involved in the traffic stop was in possession of marihuana and the defendant's phone number, provided the magistrate with substantial evidence to conclude there was a fair probability that narcotics would be found at defendant's residence. See Hafford, 989 S.W.2d at 440-41 (inordinate amount of foot and vehicular traffic in area of appellant's residence is an indication of narcotics activity that served as factor providing probable cause for search warrant); Nilson v. State, 106 S.W.3d 869, 875 (Tex. App.--Dallas 2003, no pet.) (under totality of circumstances, officer's affidavit detailing drug-related paraphernalia, drug residue, and appellant's mail found in contents of appellant's trash provided magistrate with substantial basis for concluding probable cause existed for issuance of search warrants); Raymer, 786 S.W.2d at 17 (search of appellant's trash yielding drugs and drug paraphernalia provided direct link between drugs in trash and appellee's house).

Finally, defendant contends the affidavit is deficient for failing to demonstrate the credibility or veracity of the source of information within the affidavit. In determining the basis of knowledge, veracity, and reliability of the informant, we review these closely related issues with the purpose of discerning whether there is a substantial basis, considering the totality of the circumstances, to lead a person with reasonable caution to believe that contraband was present in a specific location at the time the magistrate issued the warrant. Cassias v. State , 719 S.W.2d 585, 587 (Tex. Crim. App. 1986). If so, then probable cause exists to support the issuance of a warrant. Id. at 587-88.

Here, the affidavit includes statements by a fellow law enforcement officer, Sergeant McCoy, who provided information that he personally observed suspicious activity at defendant's residence. McCoy's statements were corroborated by the evidence obtained in the traffic stop and search of defendant's trash. These facts confirm McCoy's credibility and reliability, and we conclude, under the totality of the circumstances, the magistrate had a substantial basis for finding probable cause to issue the search warrant. State v. Ozuna, 88 S.W.3d 307, 311 (Tex. App.--San Antonio 2002, pet. ref'd) (trial court may determine credibility of an informant based on consideration of whether informant presented first hand observations and whether reasonable corroboration of informant's statements existed).

CONCLUSION

We overrule defendant's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH