State v. Christopher Alexson Pappillion ( 2015 )

NUMBER 13-14-00588-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
CHRISTOPHER ALEXSON
PAPPILLION, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Garza
Appellee, Christopher Alexon Pappillion, was charged with several drug-related
offenses1 and filed a motion to suppress evidence. The trial court granted the motion and
1 Specifically, Pappillion was charged by indictment with: (1) possessing with intent to deliver more
than four but less than 200 grams of cocaine, a first-degree felony, see TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(d) (West, Westlaw through Ch. 46, 2015 R.S.); (2) possessing with intent to deliver more than
80 but less than 4,000 abuse units of lysergic acid diethylamide (LSD), a first-degree felony, see id.
the State of Texas now appeals, arguing by three issues that: (1) the trial court erred in
determining that there was no probable cause to search Pappillion’s residence; (2) the
trial court erred in finding that there was a “reckless disregard for truth” in the search
warrant affidavit; and (3) suppression of evidence was not the appropriate remedy for a
Franks violation. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). We reverse
and remand.
I. BACKGROUND
On January 16, 2014, Victoria Police Department officers executed a search
warrant at Pappillion’s residence. The warrant was issued by a district judge two days
prior based on a sworn affidavit by Detective Dennis Paine. The affidavit stated in
relevant part as follows:
a. Within the past 72 hours (2014.01.13.2146 y.m.d.t) the Victoria Police
Department Special Crimes Unit (SCU) conducted a controlled
purchase of cocaine through the use of a Confidential Informant (CI
#254). The information provided by the confidential informant has
proven to be reliable and credible and has been verified by officer
observation and monitored recordings.
b. The identity of the CI #254 will not be placed in this affidavit for the safety
and security of the CI.
c. The CI #254 met with VPD Detectives at a designated staging area prior
to the Controlled Purchase. The Cl #254 and the CI’s vehicle were
searched by this affiant and Detective McDonald, and no contraband
was located. The CI #254 was fitted with a body wire to provide audio
surveillance of the controlled purchase.
§ 481.1121(b)(3) (West, Westlaw through Ch. 46, 2015 R.S.); (3) possessing with intent to deliver more
than 400 grams of “a synthetic chemical compound that is a cannabinoid receptor agonist that mimics the
pharmacological effect of naturally occurring cannibinoids,” a first-degree felony with a minimum sentence
of ten years’ imprisonment, see id. § 481.113(e) (West, Westlaw through Ch. 46, 2015 R.S.); (4) possessing
more than four ounces but less than five pounds of marihuana, a state-jail felony, see id. § 481.121(b)(3)
(West, Westlaw through Ch. 46, 2015 R.S.); (5) possessing with intent to deliver more than 28 grams but
less than 200 grams of an “anabolic steroid or a substance that is chemically or pharmacologically related
to testosterone and that promotes muscle growth,” a second-degree felony, see id. § 481.114(c) (West,
Westlaw through Ch. 46, 2015 R.S.); and (6) tampering with physical evidence, a third-degree felony, see
TEX. PENAL CODE ANN. § 37.09(d)(1) (West, Westlaw through Ch. 46, 2015 R.S.).
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d. The Cl #254 was issued $300.00 of US Currency from the VPD
Narcotics fund to purchase $300.00 of cocaine. The CI #254 responded
to 201 Wearden Dr., where the controlled Purchase took place.
Throughout the duration of the controlled purchase the CI #254 was
monitored physically and through the body wire. The Cl’s vehicle was
parked in the driveway of 201 Wearden for several minutes. After the
cocaine was purchased from the location, the CI’s vehicle left the
location and was followed by SCU Detectives.
e. The CI #254 then met with this affiant and the other VPD SCU
Detectives at a designated staging area. The cocaine that was
purchased was collected by Detective McDonald. This affiant observed
the substance to be a white hard chunk in a clear plastic sandwich bag.
I recognized this substance to be cocaine from many previous narcotics
arrests/investigations.
f. The substance was field tested by Sgt Fetters with a Nartec brand
cocaine field tester which turned blue, indicating a positive result for the
presence of cocaine. The substance was secured and transported to
the VPD where it was weighed (13.26 net grams), and tagged in as
evidence and secured in an evidence locker.
g. Through previous investigations this affiant knows that 201 Wearden Dr.
is the residence of Christopher Pappillion W/M 03/01/80. The VPD SCU
has police intelligence from multiple sources that Pappillion is a drug
dealer. The VPD SCU performed some additional surveillance at the
location and no further action was taken at that time.
h. An anonymous source within the past few months informed the VPD
SCU with information provided alleged [sic] that Pappillion had a large
safe in his bedroom that is full of Steroids, and other contraband.
....
m. Based upon the above facts, through the perspective of this affiant’s
training and experience, this affiant has reason to believe and this affiant
does believe that illegal narcotics are inside the residence in violation of
the Texas Health and Safety Code.
(Emphasis in original.) In executing the warrant, police discovered various illegal drugs
including cocaine, LSD, marihuana, synthetic marihuana, and steroids.
Pappillion was charged and moved to suppress the drug evidence, alleging that
the actions of the Victoria Police Department violated his constitutional and statutory
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rights. The motion specifically alleged that the affidavit upon which the search warrant
was based was “improperly and illegally executed” because, among other things, the
affidavit “does not reflect probable cause to justify the issuance of a search warrant” and
contained information “that the affiant officer knew was false or would have known was
false except for his reckless disregard for the truth.”
At a suppression hearing, Paine testified that he is familiar with the facts contained
in his affidavit. The following colloquy occurred:
Q. [Defense counsel] And in that affidavit you make the claim that C.I. 254
made a controlled purchase, correct?
A. [Paine] Yes, sir.
Q. What is a controlled purchase?
A. It was a controlled purchase of a controlled
substance or any narcotic under the supervision of
the special crimes unit with the organization of a C.I.
or an undercover [o]fficer . . . .
Q. And in that affidavit he made a controlled buy,
correct?
A. Yes, sir.
Q. And in reality he didn’t make a controlled buy did he?
A. In actuality, no, he didn’t actually purchase the
substance. It was a third-party that went into the
location and purchased it.
Q. And so just in summary of what happened you—and
if I say anything incorrect, please let me know. Y’all
searched the C.I., wired him, correct, so you can hear
his conversation—
A. Yes.
Q. —and record it? . . . . There was a known party
Nathan that he was going to purchase cocaine from,
correct?
A. Yes, sir.
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Q. And he contacted Nathan and Nathan didn’t have any
cocaine, did he?
A. That's correct.
Q. So they picked up Nathan’s car and picked up one of
Nathan’s friends, correct?
A. They remained in the C.I.’s vehicle and then picked
up one of Nathan’s friends, yes, sir.
Q. So they went and picked up Ivan Casas, correct?
A. Yes, sir.
Q. He was supposed to get Nathan some cocaine,
correct?
A. Correct.
Q. He didn’t have any?
A. That’s correct.
Q. So he called his friend Jose Partida (phonetic),
correct?
A. No. Jose was the second subject. Ivan was the last
person they contacted, I’m sorry.
Q. Okay. Who was the fourth person—the third person
he picked up?
A. Ivan.
Q. Ivan?
A. Yes.
Q. C.I. picked up Nathan first or Ivan first?
A. Nathan.
Q. They picked up Nathan?
A. Correct.
Q. And they picked up Ivan?
A. Jose.
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Q. And then they picked up Jose second?
A. Yes, sir.
Q. And Jose didn’t have any cocaine, correct?
A. That’s correct.
Q. So then he calls his supplier Ivan, right?
A. Yes.
Q. And they pick up Ivan and Ivan doesn’t have any
cocaine, correct?
A. That’s correct.
Q. And Ivan texted to 201 Wearden?
A. Yes, sir.
Q. And leaves the vehicle and comes back with the
cocaine, correct?
A. That’s correct.
Q. You ever dealt with Ivan before?
A. No, sir.
Q. Know anything about his truthfulness or veracity?
A. No, sir.
Q. Is he trustworthy?
A. No, sir.
Q. And the confidential informant didn’t witness the
transaction, correct?
A. I couldn’t hear you.
Q. The Confidential Informant No. 254 he didn’t witness
that transaction at 201 Wearden did he?
A. No, sir, he did not go inside the residence.
Q. And you didn’t put that in the affidavit did you?
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A. I don’t believe so, sir.
Q. So basically the C.I. purchased cocaine from Ivan,
correct? You gave him money and got cocaine in
receipt?
A. Yes.
Q. And you don’t know who Ivan dealt with inside the
house?
A. He said it was a friend, a roommate of Mr. Pappillion.
Q. Who said that?
A. Ivan.
Q. And when did you talk to Ivan that night?
A. I didn’t talk to him, sir, it was on the wire.
Q. I’m sorry.
A. It was on the wire. You could hear the conversation.
Q. And you recently provided that wire to the D.A.’s
office?
A. Yes, sir.
Q. But not with the initial case, right?
A. No, sir.
Q. And this offense report you used to review for this
undercover buy—you didn’t initially provide that to the
D.A.’s office did you?
A. No, sir.
On cross-examination by the State, Paine testified that he did not put the names
of Ivan, Nathan or Jose in the affidavit in order “[t]o protect the informant’s identity.” He
testified that he was not trying to deceive the magistrate by leaving out the information
that Ivan Casas, rather than the confidential informant, was the one who went into the
location to buy the cocaine.
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The trial court granted the motion to suppress. In its order, it stated that the
information in the affidavit “is conclusory and lacks sufficient underlying facts to establish
probable cause to issue a search warrant.” The order further stated as follows:
Concerning the actual purchase of cocaine at 201 Wearden Dr., the affidavit
in this case only indicates that the CI “responded to 201 Wearden Dr., where
the controlled purchase took place”, “[t]he CI’s vehicle was parked in the
driveway of 201 Wearden for several minutes”, and “[a]fter the cocaine was
purchased from the location, the CI’s vehicle left the location . . .” There is
not any indication in the affidavit whether the contraband could only have
been obtained from inside the suspected place.
This case is distinguishable from Athey v. State, [No. 13-06-129-CR, 2007
WL 2389599, at *1 (Tex. App.—Corpus Christi Aug. 23, 2007, no pet.)
(mem. op., not designated for publication)], the affiant in Athey indicating in
the affidavit that he observed the informant “go directly into the suspected
place” and setting forth in the affidavit that the contraband could have only
been obtained from inside the suspected place.
The testimony at the hearing also points out a “reckless disregard for the
truth” Franks hearing issue. The statements in the affidavit create an
inference that CI#254 went inside the residence at 201 Wearden and
purchased the cocaine. The testimony at the hearing indicates that it was
[a] person other than the CI that went inside the location and the CI then
purchased the cocaine from this person, the CI not being a witness to any
transaction occurring inside the location.
This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw
through Ch. 46, 2015 R.S.).
II. DISCUSSION
A. Standard of Review and Applicable Law
“The cornerstone of the Fourth Amendment and its Texas equivalent is that a
magistrate shall not 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) (footnote omitted). “Probable cause exists when, under the
totality of the circumstances, there is a ‘fair probability’ that contraband or evidence of a
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crime will be found at the specified location.” Id. Probable cause is a “flexible and
nondemanding” standard, but “probability cannot be based on mere conclusory
statements of an affiant’s belief.” Id. at 60–61. Instead, the affiant must present an
affidavit that “allows the magistrate to independently determine probable cause” and “the
magistrate’s action[s] cannot be a mere ratification of the bare conclusions of others.” Id.
(internal quotations omitted). Moreover, the facts stated in a search affidavit “must be so
closely related to the time of the issuance of the warrant that a finding of probable cause
is justified.” State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011).
We do not analyze the affidavit in a hyper-technical manner; rather, we interpret it
in a common-sensical and realistic manner, recognizing that the magistrate may draw
reasonable inferences. Rodriguez, 232 S.W.3d at 61. When in doubt, we defer to all
reasonable inferences that the magistrate could have made. McLain, 337 S.W.3d at 272;
Rodriguez, 232 S.W.3d at 61.
Ordinarily, we review a trial court’s ruling on a motion to suppress by using a
bifurcated standard of review, where we give almost total deference to the historical facts
found by the trial court and review de novo the trial court's application of the law. McLain,
337 S.W.3d at 271. However, when the trial court is determining whether probable cause
exists to support the issuance of a search warrant, it makes no credibility determinations
because the court is constrained to the four corners of the affidavit. Id. Accordingly, when
we review a magistrate’s decision to issue a warrant, we apply a “highly deferential
standard because of the constitutional preference for searches to be conducted pursuant
to a warrant as opposed to a warrantless search.” Id. “As long as the magistrate had a
substantial basis for concluding that probable cause existed, we will uphold the
magistrate’s probable cause determination.” Id.
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[W]here the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s
request. In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the
evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the face of the affidavit.
Franks, 438 U.S. at 155–56. Under Franks, the false statement in the affidavit must have
been either intentional or made with reckless disregard for the truth, and must have been
necessary to the finding of probable cause, in order to render the warrant invalid. Dancy
v. State, 728 S.W.2d 772, 782 (Tex. Crim. App. 1987) (citing Franks, 438 U.S. at 155–
56). A misstatement in an affidavit that is merely the result of simple negligence or
inadvertence, as opposed to reckless disregard for the truth, will not render invalid the
warrant based on it. Id. at 783 (citing Franks, 438 U.S. at 171).
B. Analysis
We find that Pappillion established by a preponderance of the evidence at the
suppression hearing that Paine’s affidavit contained a false statement and that Paine
made the false statement with at least a reckless disregard for the truth. See Franks, 438
U.S. at 155–56. The affidavit stated in part that police “conducted a controlled purchase
of cocaine through the use of a Confidential Informant” and that “[t]he CI #254 responded
to 201 Wearden Dr., where the controlled Purchase took place.” This was contradicted
by Paine’s testimony at the suppression hearing that the confidential informant “didn’t
actually purchase the substance,” “did not go inside the residence,” and did not witness
the transaction at the residence.
The State urges us to conclude that there were no false statements in the affidavit.
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The State notes that the affidavit merely stated (1) that the confidential informant
“responded to 201 Wearden Dr.,” (2) that the controlled purchase “took place” at that
location, and (3) that the confidential informant’s vehicle “left the location” after “the
cocaine was purchased from the location.” The State argues that these statements, taken
individually, are true. That may be so. But, when taken together, the statements in
Paine’s affidavit—including the statement that police “conducted a controlled purchase of
cocaine through the use of a Confidential Informant”—unmistakably implied that the
confidential informant was the one who made the controlled purchase from Pappillion’s
residence. That implication was not true, according to Paine’s suppression hearing
testimony. Instead, Ivan Casas made the purchase.
The State points out that, according to the affidavit, the confidential informant was
“monitored physically” by police and therefore could not logically have been inside the
residence at any point. The State also notes that the affidavit stated that the confidential
informant’s vehicle was parked in the driveway of the residence for several minutes, and
it argues that there would be “no logical reason” for the affidavit to have mentioned that
fact “if the purchase did not actually take place in or near that automobile.” We disagree.
Interpreting the affidavit in this manner would be to adopt the “hyper-technical” approach
disfavored by law. See Rodriguez, 232 S.W.3d at 61. Instead, construing the affidavit in
a “common-sensical and realistic manner,” we find that it contained false statements
made with at least reckless disregard for the truth. We therefore overrule the State’s
second issue.
Nevertheless, a Franks violation is fatal to the warrant only if, “with the affidavit’s
false material set to one side, the affidavit’s remaining content is insufficient to establish
probable cause.” Franks, 438 U.S. at 155–56. Here, even setting aside the statements
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implying that the confidential informant was the one that purchased cocaine from
Pappillion’s residence, there was still a “substantial basis” upon which the magistrate
could have found probable cause. In particular, it is undisputed that—as the affidavit
stated—cocaine was indeed purchased from Pappillion’s residence. The fact that it was
someone other than the confidential informant that actually made the purchase does not
rob this fact of its probative force.2
The affidavit additionally stated that, according to “multiple sources,” Pappillion is
a drug dealer. These “multiple sources” were purely anonymous, and there was no
indication that their reports were credible. But, while an anonymous tip alone is generally
insufficient to support a warrant, it is “nevertheless a circumstance to be considered,
along with all of the other circumstances, in the determination of whether probable cause
existed.” Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010). Here, the
anonymous reports that Pappillion was a drug dealer were accompanied by the fact that
a drug transaction took place at Pappillion’s residence. These facts, when taken together,
established probable cause to search.
The trial court noted in its order that there was no “indication in the affidavit whether
the contraband could only have been obtained from inside the suspected place.” The
affidavit did not explicitly state that the contraband could only have been obtained from
inside Pappillion’s house, but it did explicitly state that cocaine was purchased from that
2 The affidavit emphasized that “[t]he information provided by the confidential informant has proven
to be reliable and credible and has been verified by officer observation and monitored recordings”; whereas
Paine conceded that he has never dealt with Casas before and knew nothing about his truthfulness or
veracity. Paine then testified at the suppression hearing that Casas is not trustworthy.
But, according to the affidavit, cocaine was purchased from Pappillion’s residence, and Paine’s
testimony did not contradict that fact. Therefore, Casas’s trustworthiness was irrelevant to the
determination of probable cause.
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location. In any event, in order to establish probable cause, the affidavit only needed to
establish a “fair probability”—not a certainty—that contraband would be found at the
residence. See Rodriguez, 232 S.W.3d at 60.
Applying the “highly deferential” standard applicable to the issuance of warrants,
we find that the affidavit, excluding all false and misleading statements, provided a
“substantial basis” upon which the magistrate could have independently determined that
there was a “‘fair probability’ that contraband or evidence of a crime will be found at the
specified location.” See id. Accordingly, the affidavit established probable cause, and
the trial court erred in granting the motion to suppress. The State’s first and third issues
are sustained.
III. CONCLUSION
We reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion.
DORI CONTRERAS GARZA,
Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of July, 2015.
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