COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00062-CR
NO. 02-12-00063-CR
GERARDO TOMAS RIVAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1215971D, 1215973D
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OPINION ON REMAND
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I. Introduction
On October 30, 2009, the trial court placed Appellant Gerardo Tomas
Rivas on deferred adjudication community supervision after Rivas entered open
pleas of guilty to possession with intent to deliver a controlled substance
(cocaine) of one gram or more but less than four grams; possession of a
controlled substance (psilocin) of 400 grams or more; and possession with intent
to deliver a controlled substance (hydrocodone) of twenty-eight grams or more
but less than 200 grams. Rivas v. State (Rivas I), Nos. 02-11-00203-CR, 02-11-
00204-CR, 02-11-00205-CR, 2012 WL 5512450, at *1 (Tex. App.—Fort Worth
Nov. 15, 2012, no pet.) (mem. op., not designated for publication).
Less than a year later, on September 27, 2010, Rivas was detained for
new drug offenses—possession with intent to deliver a controlled substance
(psilocin) of 400 grams or more and possession with intent to deliver a controlled
substance (tetrahydrocannobinol) of four grams or more but less than 400
grams—after police obtained a search warrant for his apartment based on a tip
from Andrew Munchrath, who they had arrested during an undercover drug buy.
See id. at *1–2. The State petitioned to proceed to adjudication based on the
new offenses and, after denying Rivas’s motion to suppress,1 the trial court found
that Rivas had committed these new offenses by a preponderance of the
evidence, revoked his deferred adjudication community supervision, and
adjudicated him guilty of the three drug offenses. See id. at *2–3. We affirmed
after determining that the magistrate had a substantial basis for concluding that
the search warrant was supported by probable cause based on a drug-sniffing
police dog’s alert to Rivas’s front door on the same day that the warrant was
obtained and executed. Id. at *1, 5.
1
In Rivas I, Rivas argued in the trial court that Munchrath had no credibility,
that his tip was uncorroborated, and that the search warrant affidavit’s
information was stale. 2012 WL 5512450, at *4.
2
The trial court revisited Rivas’s suppression arguments in the subsequent
trial on the new drug offenses. Rivas v. State (Rivas II), Nos. 02-12-00062-CR,
02-12-00063-CR, 2013 WL 978911, at *1 (Tex. App.—Fort Worth Mar. 14, 2013,
pet. granted) (mem. op., not designated for publication), vacated, 411 S.W.3d
920 (Tex. Crim. App. 2013).2 After it again denied Rivas’s motion to suppress,
Rivas pleaded guilty to the new offenses in exchange for seventeen years’
confinement on each count, to be served concurrently. Id.
Twelve days after we affirmed the trial court’s judgments, the United States
Supreme Court issued Florida v. Jardines, in which it concluded that using a
drug-sniffing dog on a homeowner’s porch to investigate the home’s contents
was a “search” under the Fourth Amendment. 133 S. Ct. 1409, 1413, 1415 &
n.2, 1417–18 (2013) (holding suppression appropriate when Jardines had not
given the police leave, even implicitly, to explore his home’s curtilage with a
trained drug dog).3 The court of criminal appeals vacated our judgment and
2
In Rivas II, Rivas re-urged his Rivas I arguments and argued that the
drug-detection dog’s open-air sniff of his apartment door was illegal and was
insufficient to support probable cause because the dog’s credentials were not
adequately established. 2013 WL 978911, at *1.
3
In Jardines, police received an unverified tip about marijuana being grown
in Jardines’s home and a month later brought a drug-sniffing dog to Jardines’s
front porch. 133 S. Ct. at 1413. The dog made a positive alert for narcotics, and
the police used that information to obtain a search warrant. Id. The Supreme
Court held that whether the officer’s conduct was objectively reasonable
depended upon whether he had an implied license to enter the porch, which in
turn depended upon the purpose for which he entered it. Id. at 1417. When
police behavior objectively revealed a purpose to conduct a search, there was no
implied license. Id.
3
remanded Rivas II for us to reconsider in light of Jardines. 411 S.W.3d at 921.
Concluding that Jardines does not affect the outcome, we affirm.
II. Discussion
In his original appellate brief in this case, Rivas argued that the trial court
erred by denying his motion to suppress because the affidavit supporting the
search warrant did not state probable cause, in that it did not allege that
Munchrath was credible, the police did not corroborate Munchrath’s information,
the affidavit’s facts were stale, and the dog sniff was illegal. Rivas II, 2013 WL
978911, at *1. We must determine whether, excluding the dog-sniff, the affidavit
was sufficient to support the magistrate’s probable cause determination. See
Martin v. State, 67 S.W.3d 340, 343 (Tex. App.—Texarkana 2001, pet. ref’d)
(stating that if the illegally obtained information is clearly unnecessary to
establish probable cause for the search warrant, the defendant could not have
been harmed by its inclusion).
When the trial court determines probable cause to support the issuance of
a search warrant, there are no credibility determinations; instead, the trial court is
constrained to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268,
271 (Tex. Crim. App. 2011). Accordingly, when reviewing a magistrate’s
probable cause determination, we apply the deferential standard of review
articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213,
103 S. Ct. 2317 (1983). Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim.
App. 2004). Under that standard, we uphold the probable cause determination
4
“so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a
search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.
Ct. at 2331; see also McLain, 337 S.W.3d at 271; Flores v. State, 319 S.W.3d
697, 702 (Tex. Crim. App. 2010). 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. “The
focus is not on what other facts could or should have been included in the
affidavit; the focus is on the combined logical force of facts that are in the
affidavit.” State v. Duarte, 389 S.W.3d 349, 354–55 (Tex. Crim. App. 2012).
With regard to an informant’s tips, we take into account the informant’s
veracity, reliability, and basis of knowledge to determine the value of his
assertions, as well as whether his information is stale. 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 (stating that a deficiency in one of the
considerations may be compensated for by a strong showing of another or some
other indicia of reliability in determining the tip’s overall reliability); McKissick v.
State, 209 S.W.3d 205, 214 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(discussing staleness). With regard to staleness, time is a less important
consideration when an affidavit recites observations that are consistent with
5
ongoing drug activity at a defendant’s residence. Jones v. State, 364 S.W.3d
854, 860–61 (Tex. Crim. App.), cert. denied, 133 S. Ct. 370 (2012).
A tip by a confidential informant of unknown reliability, standing virtually
alone, is not a sufficient basis for a magistrate’s probable cause determination. 4
Duarte, 389 S.W.3d at 353, 360–61 (“We decline to equate the reliability of a
first-time, unnamed informant with that of a named-citizen informant.”). In
contrast, an affidavit that identifies a named informant as supplying the
information upon which probable cause is based is sufficient if it is sufficiently
detailed to suggest direct knowledge on the informant’s part. Matamoros v.
State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995). The facts contained in the
affidavit need only provide a “fair probability” that the informant obtained his
knowledge through first-hand accounts. Gates, 462 U.S. at 246, 103 S. Ct. at
2336.
As we previously set out in Rivas I,
In his affidavit supporting the application for a search warrant
to search Rivas’s apartment for marijuana and mushrooms, Officer
Williams stated that on or around September 27, 2010—the same
4
If a confidential informant’s tip is corroborated, constitutes a statement
against penal interest, is consistent with other informants’ information, is a
detailed first-hand observation, or is coupled with an accurate prediction of a
subject’s future behavior, probable cause for issuance of a search warrant exists
notwithstanding any actual or potential quid pro quo received by an informant
with pending criminal charges in exchange for his information. Duarte, 389
S.W.3d at 356–57. In Duarte, the magistrate was presented only with
information obtained from a first-time confidential informant with pending criminal
charges and no other verifying information besides the defendant’s address on a
2008 traffic ticket. Id. at 351–53.
6
day that the warrant was issued and executed—a white male known
as “Jerry”—“about 6’0”, 300 lbs, approximately 45–50 years old, and
known as ‘Gerardo Rivas’’’—was unlawfully possessing mushrooms
and marijuana at 14605 Chimney Meadow Street, in the City of Fort
Worth, Tarrant County, State of Texas, at the Centre Oaks
Apartments, in apartment # 226. In his affidavit, Officer Williams
described the target building and further stated, in pertinent part, the
following facts and circumstances supporting his application as:
2. That on or about the 27th day of September, 2010,
your affiant, along with other Officers of the Fort Worth
Narcotic Unit continued an investigation of illegal mushrooms
containing psilocybin sales from a subject identified as Andrew
Munchrath W/M 2/15/92.
3. That on the 27th day of September, 2010, your affiant
and Officer Vanwey # 3557 were acting in undercover
capacity, driving an unmarked car. Officer Vanwey and your
affiant had previously negotiated to buy 2½ lbs of mushrooms
from Munchrath in exchange for $5,000.00 of U.S. Currency
during a previous encounter. At approximately 1400 hours,
Munchrath called your affiant and Officer Vanwey and told us
that he had the 2½ lbs of mushrooms and to meet him at 3861
S Cooper St at the AMC Theatre parking lot to buy them. We
pulled up to this location and met with Munchrath. As Officer
Vanwey met with Munchrath, he pulled out two plastic baggies
containing mushrooms, which by smell and look are believed
to contain psilocybin, in order to sell them to Officer Vanwey.
As he did, Officer Vanwey gave the pre-determined arrest
signal. We observed the arrest procedure and positively
identified Narcotics Officers arresting Munchrath, and that he
was the same person that sold us the mushrooms that are
believed to contain psilocybin. Munchrath was arrested for
Del C/S PG1 >400 GM.
4. That after Munchrath was arrested, Officer White
read Munchrath his Miranda Rights and began to interview
him. During the interview, Munchrath told Officer White that
he picked up the 2 ½ lbs of mushrooms from a W/M named
Jerry while Munchrath was at work. This information was also
confirmed by your affiant during the previously mentioned
undercover operation. Munchrath told Officer White that Jerry
lived at the Centre Oaks Apartments. Munchrath said that
7
approximately 3–4 weeks ago, Munchrath observed a large
amount of mushrooms and marijuana, and cocaine in Jerry’s
apartment. Munchrath said that when picking up the
mushrooms from Jerry for this deal, Jerry told him that he had
8 lbs of mushrooms and 1 lb of marijuana at his apartment
right now, but that he was selling the rest to another buyer.
5. That once this interview was concluded, Officer
Christensen # 3523 drove Munchrath by this apartment
complex. While at this apartment complex, Munchrath pointed
out and showed Officers the exact apartment complex and
apartment residence that Jerry lives in, which was apartment #
226 at 14605 Chimney Meadow St. at the Centre Oaks
Apartment.
2012 WL 5512450, at *1–2.
Although the affidavit did not include an allegation that Munchrath was
credible and—other than the dog-sniff—there was no express corroboration of
Munchrath’s information by the police, Munchrath was a named informant, and
the magistrate could have found his information recent and detailed enough to
suggest that he had direct knowledge sufficient for a probable cause
determination. See Matamoros, 901 S.W.2d at 478; see also Dixon v. State, 206
S.W.3d 613, 617 (Tex. Crim. App. 2006) (“An informant’s first-hand observation
of criminal activity provides a strong basis for the informant’s knowledge of the
facts he relays.”); State v. Stone, 137 S.W.3d 167, 178 (Tex. App.—Houston [1st
Dist.] 2004, pet ref’d) (stating that credibility need not be independently
established when no confidential informant is used). Specifically, Munchrath told
police about the existence of previous drug transactions and the exact amount of
mushrooms and marijuana that could be found in the apartment “right now,” and
8
he identified Rivas’s specific apartment complex and unit. See Flores, 319
S.W.3d at 703 (indicating that when informant has familiarity with subject and his
affairs, magistrate could reasonably conclude that informant’s tip regarding illegal
activities was relevant consideration in probable cause analysis). Munchrath’s
statement regarding the amount of drugs he had seen in Rivas’s apartment three
or four weeks earlier also tends to indicate that this was an ongoing operation.
See Jones, 364 S.W.3d at 860–61; McKissick, 209 S.W.3d at 214. Therefore,
we conclude that, even excluding the dog sniff, the magistrate could have
reasonably found that the search warrant affidavit established probable cause.5
III. Conclusion
Having reconsidered our prior opinion in light of Jardines as directed by the
court of criminal appeals, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 25, 2014
5
Based on this conclusion, we do not reach whether Jardines should apply
retroactively. See Tex. R. App. P. 47.1.
9