Barry Francis Bellville v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BARRY FRANCIS BELLVILLE, § No. 08-13-00238-CR
Appellant, § Appeal from the
v. § County Criminal Court No. 3
THE STATE OF TEXAS, § of Denton County Texas
Appellee. § (TC# CR-2012-07153-C)
OPINION
Appellant Barry Francis Bellville was charged with possession of marijuana. He filed a
motion to suppress evidence on the ground the affidavit in support of issuing a warrant to search
his home failed to provide a substantial basis for finding probable cause that contraband would be
found in his residence. In a single issue, he appeals the trial court’s denial of his motion to
suppress. We conclude the facts contained in the search warrant affidavit, coupled with the
reasonable inferences from those facts, establish a fair probability that evidence of a particular
crime would likely be found at Appellant’s residence. Accordingly, we affirm the trial court’s
judgment.1
FACTUAL AND PROCEDURAL BACKGROUND
Carrollton Police Department Detective Fisher, an Investigator with the Carrollton Covert
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This appeal was transferred from the Second Court of Appeals pursuant to a docket equalization order issued by the
Texas Supreme Court. We apply the precedent of the Second Court as required by TEX. R. APP. P. 41.3.
Investigations Unit, stated in his affidavit for a search warrant that in late April 2012 his colleague,
Investigator Putman, had received information from a confidential informant that a family member
of Appellant was selling marijuana from Appellant’s home, that Appellant was aware of this
activity, and that Appellant was also a marijuana user. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.120 (West 2010)(delivery of marijuana). Investigator Putman obtained this information
from a confidential informant who had provided drug-related information to him on no less than
seven prior occasions and had been reliable and correct each and every time. On this basis,
Investigator Putnam believed the confidential informant’s information was reliable and correct.
Detective Fisher further averred that on May 7, 2012, Investigator Putnam collected and searched
a trash receptacle in the alley of Appellant’s residence and found marijuana stems and mail
addressed to Appellant’s wife. A field test confirmed the presence of marijuana. On July 26,
2012, two members of the “drug tip squad,” Officers Brannagan and Zabojnik, conducted a “knock
and talk” investigation and spoke with Appellant. Appellant identified the family members who
lived at the residence, but denied permission to enter the home and told Officer Brannagan to
obtain a search warrant. On August 21, 2012, Officer Brannagan and Detective Fisher retrieved a
bag of trash abandoned in a trash can located at the rear alley of the residence. In the bag, the
officers found marijuana stems and numerous marijuana seeds. The items field tested positive for
marijuana.
On August 23, 2012, Detective Fisher executed in the presence of a municipal judge an
affidavit seeking a search warrant to search Appellant’s residence and premises and to seize
marijuana and other contraband and other evidence specified in the affidavit. The magistrate
found probable cause existed and issued the search warrant that same day. On August 25, 2012,
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Officer Brannagan and five other officers executed the search warrant.
The next day, August 26, 2012, Officer Sandra Secrest prepared an affidavit requesting an
arrest warrant issue for Appellant based on her belief that Appellant had committed the offense of
possession of marijuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West
2010)(possession of marijuana). Officer Secrest based her belief upon information provided to
her by Officer Brannagan, who personally had participated in the investigation of Appellant and
the search of his home, and whose information Officer Secrest believed to be credible. Officer
Secrest’s affidavit explained that Officer Brannagan and the five other officers had executed the
search warrant on August 25, 2012. During the search pursuant to the warrant, two officers found
marijuana and a pipe in Appellant’s bedroom, and Officer Brannagan found on the kitchen table a
large zip lock bag of marijuana, a marijuana pipe containing burned marijuana, and other drug
paraphernalia. During an interview, Appellant stated that the marijuana found in his “room” and
in the kitchen belonged to him and admitted that he smokes marijuana. Appellant also admitted
that he was the primary purchaser of marijuana. The officers concluded Appellant intentionally
or knowingly possessed a useable quantity of marijuana, confirmed by field tests, having a total
weight of 8.2 grams without packaging. Secrest’s affidavit was executed by a Denton County
magistrate, who determined that probable cause existed for the issuance of the arrest warrant.
Appellant was charged by complaint and information with intentionally or knowingly
possessing a useable quantity of marijuana in an amount of two ounces or less. He filed a motion
to suppress both the evidence seized during the search of his home and any testimony regarding the
search and seizure, on the ground the search was not conducted pursuant to a lawful search warrant
in violation of his rights as established by (1) the Fourth, Fifth, Sixth, and Fourteenth Amendments
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to the U.S. Constitution, (2) Article I, Sections 9, 10, and 19 of the Texas Constitution, and (3)
Article 38.23 and Chapter 18 of the Texas Code of Criminal Procedure. See U.S. CONST. amend.
IV, V, VI, XIV; TEX. CONST. art. I, §§ 9, 10, 19; TEX. CODE CRIM. PROC. ANN. art. 38.23 (West
2005), Ch. 18 (search warrants)(West 2005, West Supp. 2014). The motion asserted the search
warrant was “not sufficiently lawful because the affidavit . . . upon which it is based fails to
establish probable cause for the issuance of the warrant [and] fails to allege sufficient underlying
facts to demonstrate that there was a fair probability that contraband or evidence would be found at
the location to be searched.” Appellant also alleged the search warrant was deficient “as to the
time element and specific articulable facts as to be unlawful [and] the affidavit was wholly
insufficient to sustain a search warrant both as to timing and lack of specific conduct.”
At the suppression hearing, the trial court heard only legal arguments, and as directed by
the trial court, Appellant and the State thereafter filed memoranda in support of their arguments.
After the trial court denied the motion to suppress, Appellant entered a plea of nolo contendere to
the charged offense and was placed on deferred-adjudication community supervision for a period
of twelve months.
DISCUSSION
In his sole issue, Appellant argues the trial court abused its discretion by denying his
motion to suppress because the affidavit in support of the search warrant failed to provide a
substantial basis for the magistrate’s conclusion that a fair probability existed that controlled
substances would be found in the suspected residence.
The Fourth Amendment establishes a constitutional preference that a search be conducted
pursuant to a warrant. See U.S. CONST., amend. IV (“The right of the people to be secure in their
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persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.”); see
Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Jones v. State, 364
S.W.3d 854, 857 (Tex.Crim.App.), cert. denied, 133 S. Ct. 370 (2012); State v. McLain, 337
S.W.3d 268, 271 (Tex.Crim.App. 2011). This warrant provision is echoed in the Texas
Constitution. TEX. CONST. art. I, § 9; see State v. Duarte, 389 S.W.3d 349, 354 (Tex.Crim.App.
2012) (citing Rodriguez v. State, 232 S.W.3d 55, 60 (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, and the facts stated in a search warrant
affidavit are “so closely related to the time of the issuance of the warrant that a finding of probable
cause is justified.” McLain, 337 S.W.3d at 272. Probable cause for a search warrant does not
require that, more likely than not, the item or items in question will be found at the specified
location. Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App. 2010).
Typically, as in this case, the warrant process involves the presentation of an affidavit to a
neutral and detached magistrate that establishes probable cause to conduct a search. Jones, 364
S.W.3d at 857 (citing Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App. 1991). When the trial
court determines probable cause exists to support the issuance of a search warrant, the trial court
restricts its consideration to the four corners of the affidavit and makes no credibility
determinations. McLain, 337 S.W.3d at 271. The focus of the inquiry is on the combined logical
force of the facts that are presented in the affidavit and not on what other facts could or should have
been included in the affidavit. Duarte, 389 S.W.3d at 354–55 (citing Rodriguez, 232 S.W.3d at
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62).
A reviewing court applies the deferential standard of review articulated by the United
States Supreme Court in Illinois v. Gates when reviewing a probable cause determination.
McLain, 337 S.W.3d at 271; Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004). It
examines the supporting affidavit in “a commonsensical and realistic manner,” and must uphold
the magistrate’s decision so long as the magistrate had a substantial basis for concluding that
probable cause existed. McLain, 337 S.W.3d at 271; see also Gates, 462 U.S. at 236, 103 S.Ct. at
2331; Flores, 319 S.W.3d at 702. The reviewing court must recognize that a magistrate may draw
reasonable inferences from the facts stated in the affidavit. Rodriguez, 232 S.W.3d at 61. The
magistrate’s decision “should carry the day in doubtful or marginal cases, even if the reviewing
court might reach a different result upon de novo review.” Jones, 364 S.W.3d at 857 (citing
Flores, 319 S.W.3d at 702).
Appellant broadly complains the magistrate’s probable cause determination was “based on
unreasonable inferences and inconsistent with State and Federal precedence[.]” He then
specifically asserts: (1) the affidavit failed to provide enough facts to permit the magistrate to
reasonably infer that contraband would be found at his home because it failed to provide the basis
of the informant’s knowledge; and (2) the two trash runs, either alone or in combination with the
informant’s tip, provided an insufficient basis for the magistrate’s ruling. We disagree.
When examining an informant’s tip, we consider the informant’s veracity, reliability, and
basis of knowledge to determine the value of his assertions. Davis v. State, 144 S.W.3d 192, 197
(Tex.App. – Fort Worth 2004, pet. ref’d)(op. on reh’g); see also Gates, 462 U.S. at 233, 103 S.Ct.
at 2329. In determining the overall reliability of a tip, the United States Supreme Court has held a
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deficiency in one of these may be compensated for by a strong showing as to the other, or by some
other indicia of reliability. Gates, 462 U.S. at 233, 103 S.Ct. at 2329.
Confidential informants may be considered reliable tipsters if they have a successful “track
record.” Duarte, 389 S.W.3d at 357-58. Officer Putman stated he believed the confidential
informant’s information was reliable and correct in this instance because he had received
drug-related information from the informant “on at least 7 prior occasions” and in each instance
the informant’s information was reliable and correct. The informant’s 100 percent “track record”
provided a strong indicia of his or her reliability.
Additionally, the informant provided the address of the suspect residence and identified the
relationship between the alleged seller and the family members who lived there, facts that were
corroborated during the police officers’ investigation. The confidential informant’s identification
of the persons residing at the suspect residence was confirmed when officers conducted a “knock
and talk” investigation at the residence, and Appellant identified to the officers the relationship
between the persons living there. The informant stated that marijuana was being sold from the
suspect residence. Although the “trash runs” did not themselves confirm that marijuana was
being sold from the home, in each instance, the two “trash runs” conducted approximately three
and one-half months apart resulted in positive field tests for marijuana stems and seeds collected
from trash cans at the end of the driveway of the residence. These facts permitted the magistrate
to draw a reasonable inference that criminal activity related to the identified contraband
(marijuana) had occurred and was ongoing at Appellant’s residence, and also tended to rule out the
possibility that the marijuana was placed in the trash cans by persons unconnected with
Appellant’s home. State v. York, 404 S.W.3d 681, 684-85 (Tex.App. – Fort Worth 2013, pet.
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ref’d)(two trash runs, one conducted a month before and other conducted days before issuance of a
search warrant, allowed magistrate to infer that drug activity had been occurring at residence and
had been continuing for some time, and tended to rule out possibility that someone from another
location had placed drugs in the trash); see also Rodriguez, 232 S.W.3d at 61.
Although his staleness argument is not entirely evident, Appellant notes, “Acts attested to
in an affidavit must be closely related to the time of the issuance of the search warrant so as to
justify the finding of probable cause by the magistrate at the time.” While this statement is
accurate, the Court of Criminal Appeals has observed that time is a less important consideration
when an affidavit recites observations that are consistent with ongoing drug activity at a
defendant’s residence. Jones, 364 S.W.3d at 860–61; see McKissick v. State, 209 S.W.3d 205,
214 (Tex.App. – Houston [1st Dist.] 2006, pet. ref’d)(when the affidavit recites facts indicating a
course of conduct, the passage of time becomes less significant). That marijuana was twice
confirmed to have been found in the trash cans at the residence diminishes the significance of the
elapse of time between the informant’s disclosure to law enforcement and the issuance of the
warrant, and as discussed, permitted the magistrate to reasonably infer that ongoing criminal
activity was afoot at Appellant’s residence. Moreover, the second trash run, which resulted in a
positive field test for marijuana and to which Detective Fisher attested in his affidavit, occurred
two days before the search warrant issued. The facts set forth in the affidavit seeking a search
warrant were sufficiently close in relation to the time of the issuance of the warrant to justify the
magistrate’s finding of probable cause.
Applying the deferential standard set out in Gates, we conclude the facts presented in the
affidavit in support of the request for a search warrant, coupled with the reasonable inferences
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from those facts, established a fair probability that evidence of a particular crime would likely be
found at the suspect place. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; McLain, 337 S.W.3d at
271-72; Rodriguez, 232 S.W.3d at 62. Because the magistrate had a substantial basis for
concluding that probable cause existed, we uphold the magistrate’s probable cause determination
and conclude the trial court did not abuse its discretion in denying Appellant’s motion to suppress
evidence. McLain, 337 S.W.3d at 271. Issue One is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
April 15, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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