Clay Morgan v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00457-CR
CLAY MORGAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2015-405,893, Honorable Jim Bob Darnell, Presiding
June 29, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Clay Morgan, appeals his conviction for possession with intent to deliver
a controlled substance, methylenedioxy methamphetamine, in an amount of four grams
or more but less than 400 grams.1 The trial court sentenced appellant to ten years’
imprisonment, but suspended the sentence and placed him on community supervision for
ten years. In a single issue, appellant contends the trial court erred when it denied his
1 TEX. HEALTH & SAFETY CODE ANN. § 481.113(a), (d) (West 2017) (a first-degree felony).
motion to suppress evidence obtained pursuant to a search warrant. We will affirm the
judgment.
Background
On March 27, 2015, Officer Michael Welty III, a narcotics investigator for the
Lubbock Police Department, submitted an affidavit requesting a search warrant for the
premises located at 3104 22nd Street, Lubbock, Texas. According to the affidavit, Officer
Welty had personal information that the premises were controlled by appellant and being
used to possess and traffic marijuana.
The affidavit alleged the following: On March 5, 2015, a confidential informant
contacted Officer Welty and advised he or she could purchase marijuana from appellant.
Another officer met with the informant at a predetermined location. The officer searched
the informant and location for narcotics and provided the informant with a recording
device and “buy money.” The informant then contacted appellant and arranged a meeting
at the location. An officer observed appellant exit the residence at 3104 22nd Street,
enter a Ford Explorer, and drive to the location. Appellant and the informant were kept
under constant surveillance during this time. Officers observed appellant enter the
location and give the informant a plastic bag containing a green and leafy substance in
exchange for money. A field test revealed the substance to be marijuana.
The affidavit described a second controlled drug purchase occurring within
seventy-two hours prior to March 27, 2015. A confidential informant2 contacted Officer
2The affidavit does not specify whether the confidential informant assisting in the second controlled
drug purchase was the same informant used during the first controlled drug purchase.
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Welty about purchasing marijuana from appellant. Officer Welty met with the informant
at a predetermined location and searched the informant and location for narcotics. The
informant was provided with a recording device and “buy money.” After the informant
contacted appellant, an officer observed appellant leave the 3104 22nd Street residence
in a Dodge Nitro and arrive at the location. Appellant and the informant were kept under
constant surveillance. The officers observed appellant enter the location and give the
informant a plastic bag containing what appeared to be marijuana in exchange for money.
Officer Welty field-tested the substance and it tested positive for marijuana.
Based on Officer Welty’s affidavit, a magistrate signed a search warrant on March
27, 2015, authorizing the search of the residence at 3104 22nd Street, the Ford Explorer,
and the Dodge Nitro for marijuana, contraband, and any items consistent with drug
trafficking. As a result of the search, appellant was indicted for possession with intent to
deliver methylenedioxy methamphetamine, possession with intent to deliver
dihydrocodeinone, and possession of marijuana.
Before trial, appellant filed a motion to suppress evidence obtained in the search,
claiming that there was no probable cause to issue the search warrant for the residence.
The trial court denied the motion and issued findings of fact and conclusions of law.
Appellant subsequently pled guilty, pursuant to a plea bargain agreement, to possession
with intent to deliver a controlled substance in an amount of four grams or more but less
than 400 grams. He was sentenced to ten years’ confinement, suspended in favor of
community supervision for ten years. The State later dismissed the charges for
possession with intent to deliver dihydrocodeinone and possession of marijuana.
Appellant appeals the denial of his pre-trial motion to suppress.
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Standard of Review
A magistrate may only issue a search warrant if the warrant is supported by an
affidavit showing probable cause that a particular item will be found in a particular location.
See U.S. CONST. amend. IV (guaranteeing individuals the right to be free from
unreasonable searches and seizures); TEX. CONST. art. I, § 9 (same); State v. Duarte,
389 S.W.3d 349, 354 (Tex. Crim. App. 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. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.
Crim. App. 2007) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed.
2d 527 (1983)). Evidence obtained in violation of federal or state constitutional
protections is generally inadmissible. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct.
1684, 6 L. Ed. 2d 1081 (1961); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.
2001); see also TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018).
We apply a highly deferential standard of review to a magistrate’s probable-cause
determination. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Our inquiry
is whether the supporting affidavit presents sufficient facts, coupled with reasonable
inferences from those facts, to establish a “fair probability” that evidence of a particular
crime will likely be found at a given location. Rodriguez, 232 S.W.3d at 62. We are to
interpret the supporting affidavit in a commonsense and realistic manner and defer to all
reasonable inferences that the magistrate could have made. Bonds v. State, 403 S.W.3d
867, 873 (Tex. Crim. App. 2013). If the magistrate had a substantial basis for concluding
that probable cause existed based on the “four corners” of the affidavit and reasonable
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inferences therefrom, we must uphold the magistrate’s probable-cause determination.
McLain, 337 S.W.3d at 271-72.
Analysis
We must uphold the trial court’s denial of appellant’s motion to suppress evidence
if Officer Welty’s affidavit established probable cause to search the 3104 22nd Street
residence. Appellant claims the affidavit did not demonstrate probable cause because it
did not present facts showing that drugs were possessed at the residence, did not address
the confidential informants’ reliability, and was based on stale information.
Connection to the Residence
Appellant argues the affidavit did not demonstrate a connection between the
residence and the controlled drug purchases at the unidentified locations. According to
appellant, the affidavit did not present any evidence of drug possession or trafficking at
the residence or show that appellant controlled the residence.
Officer Welty’s affidavit described two controlled drug purchases where appellant
was observed leaving the residence and delivering marijuana to an informant. Courts
have found affidavits describing police surveillance of similar controlled drug purchases
sufficient to establish probable cause. For example, in Moreno v. State, 415 S.W.3d 284(Tex. Crim. App. 2013), the affidavit described a controlled purchase between a
confidential informant and an unknown third party at an unidentified location. After the
informant contacted the unknown person to purchase crack cocaine, officers observed
the unknown person travel to a residence, enter the residence, and return to deliver crack
cocaine to the informant. Id. at 286. The unknown person was kept under constant
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surveillance and did not stop at any other location traveling to and from the residence. Id.
Based on these facts, the Court of Criminal Appeals found it was reasonable for the
magistrate to infer that the unknown person had obtained the crack cocaine from the
residence. Id. at 288. Therefore, the magistrate had a substantial basis for determining
that crack cocaine would likely be found at the residence. Id. at 289.
Similarly, in Carrillo v. State, 98 S.W.3d 789 (Tex. App.—Amarillo 2003, pet. ref’d),
the supporting affidavit described a drug purchase between an undercover officer and an
unidentified person at an undisclosed location. After the officer paid the unidentified
person for cocaine, the person was observed traveling to a residence, returning from the
residence, and delivering cocaine to the officer. Id. at 792. This Court found that under
these circumstances, there was probable cause to search the residence. Id. at 794-95.
Here, officers observed appellant leave the residence immediately before
delivering marijuana to a confidential informant on two occasions. The affidavit provides
that appellant was kept under “constant surveillance” during each controlled drug
purchase and does not state that he traveled to any other locations after leaving the
residence. Based on the officers’ surveillance of the controlled drug purchases as
presented in the affidavit, the magistrate could have reasonably inferred that marijuana
was probably at the residence. See Moreno, 415 S.W.3d at 288 (“police observations of
the controlled purchase and the reasonable inferences therefrom were sufficient to
support a finding of probable cause”).
Despite appellant’s claims, it was unnecessary for the affidavit to show other
indications of drug possession or trafficking at the residence to establish probable cause,
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such as extensive foot traffic, the smell of marijuana, or evidence of contraband found in
trash cans outside of the residence. Rodriguez, 232 S.W.3d at 62 (requiring reviewing
courts to focus on whether the facts contained in the four corners of the affidavit
established probable cause, not “whether there are other facts that could have, or even
should have, been included in the affidavit”). Police surveillance of appellant leaving the
residence and delivering marijuana, as described in the affidavit, produced sufficient facts
connecting the contraband with the residence. See Bibbs v. State, No. 07-11-00064-CR,
2011 Tex. App. LEXIS 7552, at *7-9 (Tex. App.—Amarillo Sept. 15, 2011, no pet.) (mem.
op., not designated for publication). For this reason, it was also unnecessary for the
affidavit to show that appellant was in control of the residence to establish probable cause
to search the residence. See Serrano v. State, 123 S.W.3d 53, 61 (Tex. App.—Austin
2003, pet. ref’d) (the crucial element in the probable-cause determination is not whether
the target of the search is suspected of a crime, but whether it is reasonable to believe
that the items to be seized will be found in the place to be searched).
Finally, appellant cites eight cases in which reviewing courts found an affidavit
insufficient to show probable cause. None of these cases, however, involved controlled
drug purchases or any facts similar to those presented in Officer Welty’s affidavit.
Credibility of the Confidential Informants
Appellant also argues that Officer Welty’s affidavit failed to address the credibility
of the confidential informants as the affidavit did not state whether the informants were
facing prosecution, had criminal records, or had provided correct criminal information to
law enforcement in the past.
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Evidence of an informant’s credibility is not a separate requirement in every case,
but a factor to be considered in the “totality of circumstances” test. See Knight v. State,
814 S.W.2d 545, 547 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (citing Gates, 462
U.S. at 230-31). Thus, the circumstances of a controlled drug purchase, standing alone,
may be sufficient to provide probable cause even if the affidavit did not contain any
information about an informant’s credibility. See Salazar v. State, 806 S.W.2d 291, 293-
94 (Tex. App.—Amarillo 1991, no pet.); Smith v. State, No. 02-15-00053-CR, 2015 Tex.
App. LEXIS 12338, at *11-13 (Tex. App.—Fort Worth Dec. 3, 2015, pet. ref’d) (mem. op.,
not designated for publication).
The warrant in this case was not issued solely upon the information, provided by
the informants, that marijuana could be purchased from appellant. Rather, probable
cause to search the residence was based on the observations of law enforcement during
the controlled drug purchases and the reasonable inferences therefrom. See Moreno,
415 S.W.3d at 286-88; Herrod v. State, No. 03-09-00076-CR, 2010 Tex. App. LEXIS
7243, at *11-12 (Tex. App.—Austin Aug. 31, 2010, no pet.) (mem. op., not designated for
publication). The officers’ observations of the controlled drug purchases were, therefore,
sufficient to support a finding of probable cause without evidence of the informants’
credibility. See Moreno, 415 S.W.3d at 286-88; Herrod, 2010 Tex. App. LEXIS 7243, at
*11-12. These observations also corroborated the original information provided by the
informants. See Knight, 814 S.W.2d at 547 (relying on information received from an
informant is acceptable so long as the informant’s statement is reasonably corroborated
by other matters within the officer’s knowledge).
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Timeliness of the Information
Finally, appellant claims the affidavit contained stale information about the first
controlled drug purchase which should not have been considered in the magistrate’s
probable-cause determination.
Facts alleged in an affidavit must have occurred recently enough to justify a finding
of probable cause at the time the search warrant was issued. Guerra v. State, 860 S.W.2d
609, 611 (Tex. App.—Corpus Christi 1993, pet. ref’d). If so much time has passed that it
is unreasonable to presume that the items sought are still located at the suspected place,
the information in the affidavit is stale and does not demonstrate probable cause.
Kennedy v. State, 338 S.W.3d 84, 93 (Tex. App—Austin 2011, no pet.).
The proper method for determining whether 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 events set forth in the affidavit and the time the search warrant was
issued. McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d). The amount of time passed is less significant, however, when the affidavit
recites facts showing “activity of a protracted and continuous nature—i.e., a course of
conduct.” Id. Thus, the Court of Criminal Appeals has held that evidence of ongoing drug
activity at the suspected location may defeat a claim of staleness. See Jones v. State,
364 S.W.3d 854, 862 (Tex. Crim. App. 2012).
The affidavit in Jones alleged facts that had occurred sometime during the ten
months before the warrant was issued. Id. In the affidavit, the officer alleged that law
enforcement had “recently” received two tips from informants that drugs were being sold
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from a residence and, as a result, conducted a controlled drug purchase from the
residence. Id. at 855-56. The Court of Criminal Appeals found that the magistrate could
have inferred, based on other information in the affidavit, that these events occurred
within the prior ten months. Id. at 862. According to the Court, these facts were sufficient
to establish probable cause that a continuing drug business was being operated from the
residence, a “secure operational base.” Id. Therefore, the ten-month gap between the
events and the issuance of the warrant did not present a staleness problem in this case.
Id.Officer Welty requested the search warrant on March 27, 2015. The warrant was
issued that day. His affidavit described two controlled drug purchases, the first occurring
on March 5, 2015, and the second occurring within three days before March 27. In both
instances, appellant was observed by law enforcement selling marijuana to an informant
immediately after leaving the residence. Based on the police observations of the
controlled drug purchases, the magistrate could have reasonably inferred that a
continuous drug business was being operated from the residence. Id. The allegations
concerning the March 5 controlled drug purchase were, therefore, recent enough to
demonstrate probable cause that marijuana was located at the residence when the
warrant issued on March 27. Accordingly, the information contained in Officer Welty’s
affidavit was not stale.
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Conclusion
Based on the totality of the circumstances set forth in Officer Welty’s affidavit and
the reasonable inferences therefrom, we find the magistrate had a substantial basis for
concluding that marijuana would probably be found at the 3104 22nd Street residence.
Therefore, the trial court properly deferred to the magistrate’s probable-cause
determination and did not err when it denied appellant’s motion to suppress. We overrule
appellant’s sole issue and affirm the judgment of the trial court.
Judy C. Parker
Justice
Do not publish.
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