Moreno, Dimas ( 2013 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1731-12
DIMAS MORENO, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY
H ERVEY, J., delivered the opinion of the unanimous Court. C OCHRAN, J., filed
a concurring opinion.
OPINION
In this case, a magistrate issued a warrant to search Appellant’s house for crack
cocaine based on an affidavit detailing a controlled purchase in which police used a
reliable confidential informant to purchase narcotics through an unknown third party. The
third party was not aware of the police operation. However, because there was no
information on the credibility or reliability of the unknowing third party, Appellant argues
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that the magistrate could not have concluded that there was probable cause to believe that
the crack cocaine came from Appellant’s house. Because we conclude that the affidavit
provided a substantial basis for the magistrate to find probable cause, we affirm.
I.
Lubbock Police initially came to suspect that Appellant, Dimas Moreno, was
distributing narcotics from his home when they received a tip from the Clovis, New
Mexico Police Department.1 Acting on this tip, officers orchestrated a controlled purchase
of drugs from Appellant. Affiant–Officer Snodgrass averred the details of this operation
in a sworn affidavit:
Within the past 72 hours a confidential informant was able to make
controlled purchase of suspected crack cocaine from said residence. During
this operation I met with the confidential informant face to face. The
confidential informant was searched prior to and after the controlled
purchase. No narcotics or contraband was [sic] found on the confidential
informant during these searches. Constant surveillance was maintained on
the confidential informant during the transaction. The confidential
informant made contact with an unknowing participant to purchase the
crack cocaine the unknowing participant advised the confidential informant
that he/she would have to go to said residence to pick up the crack cocaine.
[sic] The surveillance team observed the unknowing participant leave the
designated meet location and travel to said residence. The unknowing
participant went into said residence and returned to his/her vehicle a few
minutes later. The unknowing participant returned to the designated
1
The relevant portion of the affidavit states:
Inv. Chavez of the City of Lubbock Police Department Narcotics Division advised
me that he had received information within the past 90 days from the Clovis, NM
Narcotics Division in reference to Moreno, Dimas Jr. distributing illicit narcotics
from Lubbock to Clovis, NM. The address that the Clovis, NM narcotics division
provided Inv. Chavez was 114 Ave V Lubbock, Lubbock County TX.
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location and met with the confidential informant again and provided the
confidential informant with the crack cocaine. The unknowing participant
did not stop at any other location travelling [sic] to and from said residence.
The unknowing participant was under constant visual surveillance. I took
custody of the narcotics after the completion of the operation. I am able to
recognize crack cocaine and other illicit and controlled substances. The
suspected crack cocaine that was purchased was field tested and tested
positive for cocaine. Said confidential informant is able to recognize crack
cocaine and other controlled substances. Said confidential informant has
given information in the past to the Lubbock Police Department Narcotics
Division on previous occasions. Said confidential informant has proven to
be credible and reliable.
On the basis of these facts, the magistrate issued a warrant to search Appellant’s
residence for crack cocaine and any other related contraband. Police executed the warrant,
found the drugs, and arrested Appellant. Appellant was subsequently charged with
possession with intent to deliver a controlled substance in an amount of four or more but
less than 200 grams.2 See T EX. H EALTH & S AFETY C ODE §§ 481.112(d) & 481.134(c).
Appellant filed a motion to suppress, challenging the sufficiency of the affidavit.
He claimed that there could be no probable cause when an affidavit describes a controlled
purchase in which an unidentified individual of unknown credibility and reliability
actually bought the drugs. The trial court held a hearing and denied the motion. Appellant
preserved his right to appeal, pled guilty, and was sentenced to fifteen years’
confinement.
On appeal, Appellant raised the same suppression claim. The court of appeals
2
In its opinion, the court of appeals erroneously stated that Appellant was charged with
possession of a controlled substance in an amount between “two hundred and four hundred
grams.”
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affirmed, concluding that the affidavit was sufficient because probable cause was based
upon police observations rather than upon any statements made by the unknowing
participant. Moreno v. State, No. 07–11–0248–CR, 2012 WL 5511955, at *3 (Tex.
App.—Amarillo Nov. 14, 2012) (per curiam) (mem. op.) (not designated for publication).
To support its holding, the court relied on Bibbs v. State, No. 07–11–00064–CR,
2011 WL 4104878 (Tex. App.—Amarillo Sept. 15, 2011, no pet.) (mem. op.) (not
designated for publication)3 because Bibbs presented “almost identical facts involving the
use of an unidentified participant . . . .” Moreno, 2012 WL 5511955, at *3. Bibbs, in turn,
relied on Carillo v. State, 98 S.W.3d 789 (Tex. App.—Amarillo Mar. 4, 2003, pet. ref’d),
a published opinion, for the proposition that a probable-cause affidavit was not factually
defective when police observations were sufficient to uphold the magistrate’s finding of
probable cause.
II.
To issue a search warrant, the magistrate must first find 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). This process requires that the magistrate to “make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
3
Rule 47.7(a) of the Texas Rules of Appellate Procedure provides, “Opinions and
memorandum opinions not designated for publication by the court of appeals under these or prior
rules have no precedential value but may be cited with the notation, ‘(not designated for
publication).’” TEX . R. APP . P. 47.7(a).
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hearsay information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
As a reviewing court, we apply a highly deferential standard to the magistrate’s
determination because of the constitutional preference that searches be conducted
pursuant to a warrant. Id. at 236; State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.
2011). Accordingly, our duty “is simply to ensure that the magistrate had a substantial
basis for concluding that probable cause existed” based on the four corners of the
affidavit and reasonable inferences therefrom. Gates, 462 U.S. at 238–39 (internal
quotation marks and citations omitted); Cassias v. State, 719 S.W.2d 585, 587–88 (Tex.
Crim. App. 1986).
III.
Despite Appellant’s arguments to the contrary, the court of appeals held that the
affidavit was sufficient because probable cause was based, not on the statements of the
unknowing participant, but on the observations of the police and the reasonable
inferences therefrom. Moreno, 2012 WL 5511955, at *3. That is, probable cause was
based on the constant surveillance by police of the unknowing participant and the
reasonable inference that the unknowing participant went to Appellant’s house to get the
drugs. See id. To support its holding, the court of appeals relied on Bibbs (which in turn
relied on Carillo).
In Carillo, an undercover officer met a “subject,” who then told the officer that she
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would go to the appellant’s apartment to buy the cocaine. Carillo, 98 S.W.3d at 792. The
officer followed the subject and waited outside while she purchased the cocaine inside the
apartment. Id. She then delivered the cocaine to the officer. On the basis of those facts, a
magistrate issued a warrant to search the appellant’s apartment. Id. The Carillo Court
concluded that the only reasonable inference that could be drawn from these facts is that
the subject obtained the cocaine from the appellant’s house. Id. at 793.
The issue in Carillo, as in this case, was whether a probable-cause affidavit
describing a “controlled purchase” performed by an individual whose credibility or
reliability were unknown was sufficient to sustain a probable-cause determination. In
analyzing this issue, the Carillo Court first noted that the initial question was whether the
affidavit was based on the informant’s statements or police observation independent of
those statements. Id. The basis for the court’s disposition of the case was unclear but our
reading of Carillo leads us to believe that the court held that the affidavit was sufficient
based on the observations of the officer and the reasonable inferences derived therefrom.
Under the facts of this case, we agree with the court of appeals that the police
observations of the controlled purchase and the reasonable inferences therefrom were
sufficient to support a finding of probable cause. The affidavit in this case states that
Lubbock police officers initially received information from Clovis law enforcement—a
reliable source4 —that Appellant was distributing narcotics from his residence. To
4
See United States v. Ventresca, 380 U.S. 102, 110–11 (1965) (explaining that in contrast
to tips from“unreliable anonymous informers,” the “observations of fellow officers of the
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corroborate this tip, officers enlisted the help of a confidential informant (“CI”), who was
familiar with cocaine deals and had proven to be reliable and credible, to conduct a
controlled purchase of crack cocaine from Appellant. The CI was first searched to ensure
that he did not have any contraband on his person prior to the transaction. Then, a police
surveillance team observed the CI make contact with the unknowing participant. This
individual told the CI that he would go to Appellant’s house to pick up the crack cocaine.
Police observed the individual go to Appellant’s house, enter, and exit a few minutes
later. The unknowing participant then drove straight to the predesignated location and
delivered the crack cocaine to the CI.
It was reasonable for the magistrate to infer that the unknowing participant
obtained the crack cocaine from Appellant’s residence. See Gates, 462 U.S. at 238.
Indeed, as the Supreme Court noted in Gates, probable cause “does not deal with hard
certainties, but with probabilities.” Id. at 231. It is based on “common-sense conclusions
about human behavior” formulated by “practical people.” Id. Although it is possible that
the third party obtained the cocaine from some other source as Appellant contends,
Appellant presents no persuasive argument as to why the magistrate’s inference that the
third party bought the crack cocaine from Appellant was unreasonable. Additionally,
unlike a confidential informant, the unknowing participant in this case appeared to be
Government engaged in a common investigation are plainly a reliable basis for a warrant . . . .”).
In this case, Clovis law enforcement and Lubbock police officers were working on a common
investigation regarding Appellant’s distribution of cocaine.
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unaware of his participation in the police-conducted controlled purchase and, therefore,
had no apparent motive to engage in subterfuge to mislead the police. Further, Appellant
presents us with no facts to indicate that the unknowing participant had such a motive.
Even if the credibility or reliability of the unknowing participant were essential to
the probable-cause determination in this case, the unknowing participant’s statements
may be deemed reliable because they were made by the participant as “one of the actors
in the crime in the nature of admission against interest.” Spinelli v. United States, 393
U.S. 410, 425 (1969) (White, J., concurring).
IV.
Accordingly, we agree that the magistrate had a substantial basis for determining
that there was a fair probability that crack cocaine would be found at Appellant’s
residence, and we affirm the judgment of the court of appeals.
Hervey, J.
Delivered: December 11, 2013
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