Willie Charles Waddle v. State ( 2007 )

Affirmed and Memorandum Opinion filed January 30, 2007

Affirmed and Memorandum Opinion filed January 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00087-CR

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WILLIE CHARLES WADDLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1030059

M E M O R A N D U M   O P I N I O N

Challenging his conviction for possession of a controlled substance with the intent to deliver, appellant Willie Charles Waddle asserts the trial court erred in denying his motion to suppress.  We affirm.

Factual and Procedural Background

On or about June 9, 2005, Special Agent Daniel Comeaux of the Drug Enforcement Administration (ADEA@) learned from Special Agent Michael Brown that appellant was suspected of selling cocaine. Special Agent Brown received this information from a known drug trafficker who had provided reliable information on previous occasions.  Upon receiving this information, agents from the DEA began surveillance on appellant=s residence. Special Agent Andy Large saw appellant  enter the residence. A short time later, Group Supervisor Phillip Springer saw appellant leave the residence and get into a beige Mercury Sable automobile.  Several agents, including Agent Comeaux, followed appellant to a car wash.  The agents then saw a man, later identified as Ronald Hornburg, approach appellant.  Special Agent Comeaux, who had fourteen years of narcoticsBteam experience, saw what he believed to be a hand-to-hand narcotics transaction.  Hornburg passed appellant Asomething@ through the window of appellant=s vehicle, and, in return, appellant gave Hornburg Asomething.@ Immediately following this exchange, Hornburg left the car wash and appellant returned to his residence.

The agents followed Hornburg, who stopped at AHigh Times@ to purchase some drug paraphernalia.  The agents thereafter stopped Hornburg on an unrelated traffic offense.  When they saw the cocaine inside his car door, they immediately arrested him for possession of a controlled substance.  Upon being arrested, Hornburg informed the agents that he had just purchased the cocaine from appellant at the car wash, and that he purchased cocaine from appellant on a regular basis.  Hornburg then directed Special Agents Large and Eric Barnard to the residence where he believed appellant lived B the same residence from which the agents had observed appellant enter and depart earlier that day.  Hornburg also stated that appellant always had cocaine at his residence, and indeed, had seen cocaine in that residence within the last seventy-two hours.^[1]

A search warrant was issued for a search of appellant=s home.  The search yielded a large quantity of cocaine.  Appellant was arrested and indicted with the felony offense of possession with intent to deliver a controlled substance, namely, cocaine, weighing more than four grams, and less than two hundred grams, enhanced with a deadly weapon allegation and a prior felony conviction allegation.  In a pretrial motion, appellant sought to suppress evidence of the cocaine. The court denied the motion.  Appellant waived his right to a trial by jury and pleaded Aguilty@.  The trial court found appellant guilty as charged, and sentenced him to seven years= confinement in the Institutional Division of the Texas Department of Criminal Justice.

II.  Issue and analysis

In two issues, appellant contends the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant. In particular, appellant contends that the search warrant affidavit failed to establish probable cause in violation of the Fourth Amendment of the United States Constitution and article 1, section 9 of the Texas Constitution.^[2]

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  An abuse of discretion occurs when the trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement.  Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).  The court=s findings of fact are given almost total deference, and in the absence of explicit findings, we assume the trial court made whatever appropriate implicit findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327‑28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89B90 (Tex. Crim. App. 1997).  However, the application of the relevant law to the facts is reviewed de novo. Carmouche, 10 S.W.3d at 327.  When the facts are undisputed and we are presented with a pure question of law, de novo review is proper.  Oles, 993 S.W.2d at 106.  The trial court=s ruling must be upheld if it is correct under any theory of law applicable to the case.  Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

During oral argument, appellant=s counsel argued that, under a de novo review, the affidavit does not contain sufficient facts to establish probable cause.  This argument assumes the wrong standard of review.  As a reviewing court, we do not evaluate the affidavit under a de novo standard; instead, we simply determine whether the magistrate had a substantial basis for finding probable cause.  Id.  In doing so, we do not conduct our own independent or de novo review; rather, we give great deference to the magistrate=s determination of probable cause.  Illinois v. Gates, 462 U.S. 213, 236‑37, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983); Uresti v. State, 98 S.W.3d 321, 335 (Tex. App.CHouston [1st Dist.] 2003, no pet.). The test for determination of probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.  Gates, 462 U.S. at 236, 103 S. Ct. at 2331.

Did the trial court err in denying appellant=s motion to suppress the evidence seized as a result of the search warrant?    Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986). To justify the issuance of a search warrant, the affidavit submitted in support must set forth facts sufficient to establish probable cause that (1) a specific offense has been committed, (2) that specifically described property or items to be the subject of the search and seizure constitute evidence of the offense, and (3) the property or items constituting such evidence are located at the particular place to be searched.  Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp.  2005).   Whether the facts mentioned in the affidavit are adequate to establish probable cause depends on the totality of the circumstances.  Ramos v. State, 934 S.W.2d 358, 362‑63 (Tex. Crim. App. 1996).  Statements made during a motion-to-suppress hearing do not factor into the probable cause determination; rather, this determination is limited to an examination of the four corners of the affidavit.  Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).  Reasonable inferences may be drawn from the affidavit, and the affidavit must be interpreted in a common sense and realistic manner.  Wilson v. State, 98 S.W.3d 265, 271 (Tex. App.BHouston [14th Dist.] 2002, pet. ref=d).

The role of a magistrate in issuing a search warrant is to make a practical, common‑sense decision whether, given all the circumstances set forth in the warrant=s supporting affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. The duty of a reviewing court is simply to determine whether, when viewing the affidavit, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to support the issuance of the warrant.  Id.

Appellant contends that several parts of the affidavit, when considered as a whole, do not state an adequate basis for the issuance of the search warrant for his residence.  In particular, appellant complains that (1) there is no showing of  reliability and credibility of Hornburg or the information he provided to the officers; (2) the independent corroboration by the agents is insufficient; and (3) there is no nexus between the cocaine Hornburg purchased and appellant=s residence.

A[A]n affidavit need not reflect the direct personal 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 was credible or his information reliable .@ United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745B46, 13 L. Ed. 2d 684 (1965). 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 illuminate the overall question of whether there is probable cause.  Gates, 462 U.S. at 230, 103 S. Ct. at 2317.  Information provided by an informant must contain some indicia of reliability or be reasonably corroborated by police before it can be used to justify a search. Gates, 462 U.S. at 242, 103 S. Ct. at 2334.  Moreover, it is sometimes permissible to presume reliability of an informant by virtue of the detailed nature of the information he supplies.  Abercrombie v. State, 528 S.W.2d 578, 579 (Tex. Crim. App. 1975).  The magistrate also may rely on the experience and pertinent expertise of an affiant in evaluating the informant=s report.   Hackleman v. State, 919 S.W.2d 440, 449 (Tex. App.CAustin 1996, pet. ref=d).

In evaluating the affidavit, we note the following from the statements contained therein and reasonable inferences therefrom: The officers followed appellant from his residence to a car wash.  At the car wash, appellant and Hornburg made a hand-to-hand exchange through appellant=s driver=s side window. The experienced officers observed appellant drive back to his residence, and Hornburg drive in a different direction to a store that sells drug paraphernalia.  Hornburg was immediately stopped for a traffic offense and thereafter arrested for possession of cocaine.  Hornburg informed the officers that he had purchased the cocaine from appellant and did so on a regular basis and that appellant kept cocaine at his residence.  Hornburg directed the agents to appellant=s residence, which was the same place the agents themselves had seen appellant enter and depart before they witnessed the car wash transaction.

At the suppression hearing, Hornburg stated that he had never been to appellant=s residence and did not know where appellant lived.   In urging his argument, appellant focuses on Hornburg=s recantation of the foregoing statements during the suppression hearing. Statements made during a motion-to-suppress hearing do not factor into the probable-cause determination; rather, our examination is limited to the four corners of the affidavit to determine whether probable cause existed.  See Massey, 933 S.W.2d at 148.

Notably, Hornburg was not an unnamed informant but the actual purchaser of the contraband sold by appellant.  See State v. Wester, 109 S.W.3d 824, 826B27 (Tex. App.CDallas 2003, no pet.) (recognizing that being a named informant generally goes a long way toward establishing credibility); State v. Ozuna, 88 S.W.3d 307, 311 (Tex. App. CSan Antonio 2002, pet. ref=d) (concluding 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).  Generally, courts have found Acontrolled buys@ and police verification of the events taking place before and after the Acontrolled buy@ to be sufficient to connect the suspected narcotics with the defendant=s premises.  Compare Richardson v. State, 622 S.W.2d 852, 857 (Tex. Crim. App. 1981) (concluding affidavit sufficient because the affiant swore he was an eyewitness to the events immediately preceding and following the informant=s purchase of marijuana at the defendant=s home) with Dees v. State, 722 S.W.2d 209, 214B15 (Tex. App.CCorpus Christi 1986, pet. ref=d) (concluding affidavit was insufficient because it contained no information regarding the reliability of the informant and indicated no personal observations of the affiant regarding the transaction between the defendant and the affiant=s agent) and Adkins v. State, 675 S.W.2d 604, 607 (Tex. App.CEl Paso 1984) (concluding affidavit was insufficient because it did not indicate whether the source of the tip was direct observation or reliable hearsay; it did not indicate a basis for the informant's reliability, such as past performance; and it did not explain the nexus between the original tip and the officer=s corroborative details), rev'd on other grounds, 717 S.W.2d 363 (Tex. Crim. App. 1986).  We conclude that the affidavit contained sufficient information to establish that Hornburg was credible and reliable because the information he provided was not only detailed but also corroborated by the agents.  Compare Blake v. State, 125 S.W.3d 717, 727B28 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (concluding that information provided by confidential informant did not require police corroboration before it could be used to justify issuance of warrant to search for narcotics because informant provided specific reasons why he believed that defendant was manufacturing contraband), and Eillis v. State, 722 S.W.2d 192, 196 (Tex. App.CDallas 1986, no pet.) (stating that independent corroboration by the affiant or by other informants helps establish the credibility of the information and the reliability of the information) with Serrano v. State, 123 S.W.3d 53, 60B63 (Tex. App.CAustin 2003, pet. ref=d) (concluding that an anonymous tip from a confidential informant that the defendant is dealing cocaine in the city and county area, was merely conclusory, and, by itself, did not establish probable cause to issue search warrant, where it did not show basis for informant=s knowledge of crime, when or where crime was being committed, or when informant received information).

          In his brief, appellant relies on Cassias, 719 S.W.2d at 587, Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.CSan Antonio 2001, pet. ref=d), and Hass v. State, 790 S.W.609, 611 (Tex. Crim. App. 1990).  None of these cases control the disposition of this appeal. 

First, the facts in Robuck are distinguishable.  In examining the validity of separate search warrants, the Robuck court found only one of them sufficient.  Id. at 655.  The second warrant issued for a search of Robuck=s residence was not justified because it contained only a general statement that quantities of currency and other documents would be constantly maintained at his residence because of his long term involvement in the narcotics trade.  Id.  The  court correctly concluded that this isolated, general statement was not enough to support the issuance of a search warrant for the residence on the day in question.  Id.

Cassias and Hass are also distinguishable.  In Cassias, the Court of Criminal Appeals concluded that the affidavit was insufficient to support a finding that probable cause existed for a search of the defendant=s premises.  See Cassias, 719 S.W.2d at 587.  The only nexus in Cassias that connected the suspected contraband to the premises sought to be searched was a statement that the defendant had been seen carrying a Abrick type package@ believed to be marijuana.  Id. at 589B90.  The defendant in Cassias had been seen in the backyard of the premises with a plastic tub and tubing, but had not actually been seen in the yard or the house with Abrick packages.@  See id.  In contrast, Hornburg gave specific and detailed information immediately after the agents personally followed appellant from his residence and witnessed appellant engage in an apparent narcotics transaction with Hornburg. 

Finally, in Hass, the court concluded that the affidavit failed to set forth probable cause to justify a search warrant for a mini-warehouse. 790 S.W.2d at 612.  In the search warrant affidavit, Officer White, the affiant, stated that he observed the subjects enter the mini-warehouse, and place an unknown item inside their vehicle.  Id.  However, at the suppression hearing, Officer White testified that another officer actually made this observation.  Id.  Although statements at a suppression hearing are not normally considered in the analysis, this general rule does not apply when a police affiant makes statements in an affidavit that are intentionally false or made with reckless disregard for the truth.  Indeed, when a police affiant intentionally lies in a search warrant affidavit, the statements made are excised from the affidavit before determining whether the affidavit affords probable cause for the issuance of a warrant.  Id. (emphasis added).  The Court of Criminal Appeals ultimately held that, without the false statements, the affidavit was insufficient to justify probable cause.  Id.  In contrast, the affidavit before us identifies specific information detailing the observations made by various special agents before, during, and after Hornburg=s arrest.  Id.  In sum, we conclude that the cases appellant cites in his brief as controlling the disposition of this appeal are either distinguishable or inapplicable.^[3]

The Court of Criminal Appeals= recent opinion in Davis v. State, 202 S.W.3d 149, 156B58 (Tex. Crim. App. 2006), is instructive. In that case, the high court, following its opinion in Cassias, found that an affidavit with far more deficiencies than the one before us, stated sufficient facts to support the magistrate=s finding of probable cause, and reversed the court of appeals.  Id. at 158. 

Charged with the manufacture of methamphetamine, the defendant in Cassias filed a motion to suppress alleging that the there was nothing in the four corners of the affidavit that would allow a magistrate to determine that an offense had been committed and that contraband probably would be found at his residence.  Id.  According to the affidavit, the officer had been driving past the defendant=s residence and had smelled a strong chemical odor that he associated with the manufacture of methamphetamine.  Id.  The warrant, as the State conceded, was insufficient as to the officer=s background, experience, training, or previous encounters with this odor.  Id.   The court of appeals concluded that the affidavit was insufficient to support the issuance of a warrant.  Id.  at 154.   On petition for discretionary review, the Court of Criminal Appeals held that, it was reasonable for a magistrate to infer previous experience with the odor of methamphetamine when an officer states only Athat he could smell a strong chemical odor he has associated with the manufacture of methamphetamine,@ without delineating his previous experience or credentials.  Id.  at 156.  The high court ultimately concluded that although the affidavit was far from exemplary, it was sufficient to support the issuance of a warrant to search the defendant=s residence for narcotics.  Id.  The Davis court opined as follows:

Best practice is for the affiant expressly to include an officer=s experience, background information, and previous associations with the contraband so that little is left to inference, and the magistrate has specifically articulated facts to evaluate. . . But the law requires that we defer to a magistrate=s reasonable, common sense conclusions in assessing whether to issue a search warrant. Appellate courts must allow for any reasonably available inferences and provide magistrates appropriate deference.

Davis, 202 S.W.3d at 157B58 .  Applying the Davis principles to the present case, we cannot conclude that the affidavit was insufficient to support a finding of probable cause.  Though it perhaps would have been better practice to have included more detailed facts about the interior of appellant=s residence and where Hornburg saw the contraband, these facts were not necessary in this case. It was reasonable to infer from the agents= personal observations and Hornburg=s statements that a crime had been committed and that contraband probably would be found at appellant=s residence.  

III.  Conclusion

When evaluated in light of the totality of the circumstances, the affidavit contained sufficient facts to enable the magistrate to conclude that an offense had been committed, that items described in the search warrant affidavit constituted evidence of the offense, and that there was a fair probability that a search of appellant=s residence would reveal the presence of contraband.  See. Tex. Code Crim. Proc. Ann. art. 18.01(c); State v. Stone, 137 S.W.3d 167, 177B78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (concluding that affidavit in support of search warrant for defendant=s residence established probable cause); Brown v. State, 115 S.W.3d 633, 637 (Tex. App.CWaco 2003, no pet.) (concluding that search warrant affidavit contained sufficient information to establish probable cause that defendant was producing contraband at his residence where evidence indicated, among other things, that the defendant had purchased iodine crystals, and methamphetamine had been seized from a vehicle that had just been seen where defendant resided).  Therefore, we conclude that the warrant alleged sufficient probable cause.  The trial court did not err by overruling appellant=s motion to suppress.

Appellant=s two issues are overruled, and the trial court=s judgment is affirmed.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed January 30, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  At the suppression hearing, Hornburg recanted these statements and testified that he had never been to appellant=s home, and had no idea where appellant lived. Hornburg also denied that he had directed the agents to appellant=s residence. 

^[2]  The State contends that appellant failed to adequately brief his state constitutional claim and therefore waived it. Although appellant provides a separate point of error in his appellate brief challenging the court=s ruling on the motion to suppress under the Texas Constitution,  he does not provide any real explanation or analysis as to how or whether the state and federal constitutional provisions differ or if the state constitutional provision provides any greater protection than the federal. Under these circumstances, we conclude appellant has waived his state constitutional claim.  See Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App.) (noting that state and federal constitutional claims should include separate substantive analysis and argument).

^[3]  During oral argument, appellant also relied on the following cases: State v. Davila, 169 S.W.3d 735 (Tex. App.BAmarillo 2005, no pet.),  Serrano v. State, 123 S.W.3d 53 (Tex. App.BSan Antonio 2001, pet. ref=d), and State v. Wester, 109 S.W.3d 824 (Tex. App.BDallas 2003, no pet.), all of which are factually distinguishable.          

In Davila, the court found that the supporting affidavit was not sufficient to show probable cause because it did not show that the informant was credible or the tip was reliable.  Davila, 169 S.W.3d at 739.  The affidavit stated that the informant previously gave the officer narcotics trafficking information but it did not give any other information to indicate that he had been proven accurate, and did not contain any facts describing the basis of the informant=s knowledge.  Unlike the affidavit in Davila, the affidavit at issue in this case clearly contained facts indicating that the information was reliable.  The agents had appellant under surveillance and personally observed him engage in a hand-to-hand transaction with Hornburg.  Further, even though Hornburg did not give details of appellant=s house, he stated that he had purchased cocaine from appellant on several occasions and had seen crack cocaine in appellant=s possession Ain the past seventy‑two hours,@ which informed the magistrate of the basis of Hornburg=s knowledge.

In Serrano, the affiant-officer relied heavily upon a tip from an unidentified confidential informant who provided reliable information in the past in narcotic cases.  The tip, however, was simply that, Aa Daniel Serrano, a 25-year-old Hispanic male, is dealing cocaine in the Austin, Travis County area and that he had a 30-year-old brother, Earnest.@ 123 S.W.3d at 60.  The court concluded that this affidavit was insufficient because it did not show the factual basis for this information, when or where the alleged crime was being committed other than Austin, Travis County area, or even when the informant received this information.  Id.  After receiving this tip, the  affiantBofficer found this individual=s residence and inspected his trash can.  Id.  Upon testing, the officer found cocaine residue in the trash.  Id.  The Serrano court found that, standing alone, the one-time intrusion into a garbage can revealing cocaine residue would not justify a finding of probable cause to search someone=s residence.  Id. at 62.  In contrast, Hornburg had first-hand information and the police saw him in a hand-to-hand transaction with appellant, corroborating  Hornburg=s statements that he frequently purchased cocaine from appellant and very recently had seen cocaine at appellant=s residence.

Finally, in Wester, though the facts are a bit closer to the present case than the other cases on which appellant relies, there still was no independent observation personally made by the police.  109 S.W.3d at 825B26.  In Wester, the police stopped Elliot for a traffic violation and found marijuana in his vehicle.  Id. While undergoing questioning at the police station, Elliot told the police that he purchased the marijuana from Wester at Wester=s residence.  Id.  The police then sought a warrant for Wester=s residence.  Id.  The police, unlike the agents in this case, had no other reason to suspect that Wester had contraband at his residence.  Id.  While it is true that Hornburg gave up appellant=s name only after he was arrested for possession of cocaine, the agents personally observed appellant engage in the exchange with Hornburg and thereafter return to his residence.  In light of the totality of the circumstances, the magistrate had a substantial basis for the issuance of a warrant for a search of appellant=s residence.