Andron Deshawn Petteway v. State of Texas ( 2013 )

Opinion filed May 30, 2013
In The
Eleventh Court of Appeals
__________
No. 11-11-00148-CR
_________
ANDRON DESHAWN PETTEWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 9746-D
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, Andron Deshawn Petteway pleaded
guilty to the offense of possession of cocaine in a drug-free zone. The trial court
assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of seven years. In a single issue,
Appellant challenges the trial court’s denial of his pretrial motion to suppress
evidence. We affirm.
Background Facts
Appellant executed a stipulation of evidence admitting to possession of
between four and two hundred grams of cocaine within one thousand feet of a
school on or about October 5, 2010. Officer Ismael Jaimes of the Abilene Police
Department executed a search warrant on Appellant’s residence on that date.
Officer Jaimes relied on information provided by a confidential informant in order
to obtain the warrant. His probable cause affidavit provided in relevant part as
follows:
[P]rior to making this application for this search warrant your affiant
has received information from a confidential informant whose identity
must remain a secret for security reasons. Your affiant knows this
same confidential informant to be credible, reliable, and trustworthy
and this belief is based on the following set out facts:
That this same confidential informant has provided
information to your affiant in the past in reference to
criminal activities in the Abilene area that has always
proven to be true and correct.
That this same confidential informant has never
been convicted of a Felony offense in the State of Texas
or any other state to the best of your affiant’s knowledge.
That this same confidential informant has
voluntarily admitted the informant’s own prior abuse of
drugs to your affiant, however this informant no longer
condones the abuse of drugs.
That within the past 48 hours this same
confidential informant has been inside the above
described suspected place and observed the suspected
party, Andron Deshawn Petteway black male date of
birth 2-27-82 in possession of a quantity of an off-white
powder substance which the Suspected party purported to
be Cocaine.
2
That this same confidential informant believes the
same off-white powder substance to be Cocaine.
Analysis
The Fourth Amendment to the United States Constitution mandates that “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.” U.S. CONST. amend. IV. A magistrate judge cannot 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).
An application for a search warrant must be supported by an affidavit setting forth
facts establishing probable cause. TEX. CODE CRIM. PROC. ANN. art. 1.06 (West
2005), art. 18.01(b) (West Supp. 2012). 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. State v. McLain, 337 S.W.3d
268, 272 (Tex. Crim. App. 2011). The test for finding probable cause is “whether
a reasonable reading by the magistrate would lead to the conclusion that the
affidavit provided a ‘substantial basis for the issuance of the warrant[,]’ thus, ‘[t]he
magistrate’s sole concern should be probability.’” Rodriguez, 232 S.W.3d at 60
(alterations in original, footnote omitted). This is a “‘flexible and nondemanding’
standard.” Id.
We review a trial court’s ruling on a motion to suppress by using a
bifurcated standard of review, giving almost total deference to the historical facts
found by the trial court and reviewing de novo the trial court’s application of the
law. McLain, 337 S.W.3d at 271; Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007). However, when the trial court determines whether there is
probable cause to support the issuance of a search warrant, there are no credibility
determinations; rather, the trial court is constrained to the four corners of the
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probable cause affidavit. McLain, 337 S.W.3d at 271; Hankins v. State, 132
S.W.3d 380, 388 (Tex. Crim. App. 2004). Accordingly, when we review the
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. McLain, 337 S.W.3d at 271;
Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004) (citing
Illinois v. Gates, 462 U.S. 213, 238 (1983)). As long as the magistrate had a
substantial basis for concluding that probable cause existed, we will uphold the
magistrate’s probable cause determination. Gates, 462 U.S. at 236; McLain, 337
S.W.3d at 271. We are instructed not to analyze the affidavit in a hyper-technical
manner. Gates, 462 U.S. at 236; McLain, 337 S.W.3d at 271. “[W]hen an
appellate court reviews an issuing magistrate’s determination, that court should
interpret the affidavit in a commonsensical and realistic manner, recognizing that
the magistrate may draw reasonable inferences. When in doubt, we defer to all
reasonable inferences that the magistrate could have made.” McLain, 337 S.W.3d
at 271; Rodriguez, 232 S.W.3d at 61.
We note at the outset Appellant’s contention that the informant was a “first
time informant.” 1 Appellant supports this contention with testimony offered by
Officer Jaimes at the hearing on the motion to suppress. 2 Appellant’s reliance on
this testimony is misplaced, however, because our review of the sufficiency of the
probable cause affidavit is limited to the four corners of the affidavit. See McLain,
337 S.W.3d at 271. The probable cause affidavit does not support Appellant’s
1
The distinction between a first-time informant versus a repeat informant is significant in light of
the corroboration requirements for a first-time informant recognized in State v. Duarte, 389 S.W.3d 349
(Tex. Crim. App. 2012).
2
Specifically, Officer Jaimes testified that the informant had given him information on three or
four previous occasions that he had been able to verify but that he had not relied on information provided
to him by the informant to obtain an arrest or search warrant prior to this case.
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contention that the informant was a first-time informant because it expressly
provides that the informant “has provided information to your affiant in the past in
reference to criminal activities in the Abilene area that has always proven to be
true and correct.” Accordingly, the affidavit establishes that the informant was not
“an informant of unknown and untested reliability.” Duarte, 389 S.W.3d at 351
n.2.
Appellant contends that the probable cause affidavit at issue in this appeal
was insufficient because it was conclusory with regard to its reference to
information that the informant had provided in the past and the informant’s ability
to identify cocaine. We disagree. When an unnamed informant is relied upon in
an affidavit for a search warrant, his credibility may be established by allegations
that the informant has proven reliable on previous occasions. Avery v. State, 545
S.W.2d 803, 804 (Tex. Crim. App. 1977). This reliability may be established by
the general assertions of the affiant, as stated in the affidavit, concerning the
informant’s prior reliability. Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim.
App. 1982); Blake v. State, 125 S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.]
2003, no pet.). In such circumstance, no corroborating information is necessary.
Capistran, 759 S.W.2d at 128. An affidavit in support of a warrant to search for
narcotics 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 that had proved to be correct. Torres v. State, 552 S.W.2d
821, 824 (Tex. Crim. App. 1977); see also Hammond v. State, 898 S.W.2d 6, 7–8
(Tex. App.—Dallas 1995, no pet.). Further, because such a statement, when
interpreted in a realistic and common-sense manner, indicates the informant’s
familiarity with controlled substances, no further details are required to spell out
the informant’s qualifications in recognizing drugs. Torres, 552 S.W.2d at 824.
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Based solely on the probable cause affidavit’s four corners, we find that the
magistrate had a substantial basis for concluding probable cause existed to search
the location identified in the affidavit and warrant. The affidavit established a
sufficient nexus between criminal activity, the things to be seized, and the place to
be searched. The affidavit was sufficient to provide the magistrate with facts on
which to base a determination of the informant’s credibility and reliability because
it provided that the informant had supplied information in the past relating to
criminal activities and that such information had proved to be true and correct.
The affidavit also established that the informant was familiar with controlled
substances based upon his or her prior use. The affidavit additionally provided that
Appellant identified the targeted substance as cocaine to the informant.
Furthermore, the affidavit established that the informant had observed Appellant’s
possession of the targeted substance at the targeted location within forty-eight
hours prior to the warrant’s issuance. Appellant’s sole issue is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
May 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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