TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00328-CR
v.
The State of Texas, Appellee
NO. CR-10,452, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
The Controversy
On November 2, 1994, Kenneth D. Kaigler, a Caldwell County deputy sheriff and member of the Capitol Area Narcotics Task Force, prepared an affidavit for search and arrest along with a corresponding warrant. A Hays County judge issued the warrant that day. The warrant authorized the search of Natal's home. Upon executing the warrant, the police found him and another man sitting on the front porch and after searching the home found a total of 3.9 pounds of marihuana. Natal was arrested.
Motion to Suppress
In point of error one, Natal contends the trial court abused its discretion by failing to suppress all evidence recovered during the search. He complains that Kaigler's affidavit supporting the search and arrest warrant failed to establish probable cause to search the home and arrest Natal.
The pertinent parts of the affidavit provided:
1. There is in Hays County a suspected place and premises described as follows:
Single wide mobile home, one family residence described as dark red with beige siding, on the end opposite of South Old Bastrop Hwy, with a add-on composition roof. The mobile home has a add-on covered porch with sliding glass door. Including out building located between main house and dark red mobile home. The mobile home is located in a southerly direction from the main house. Located on mail box in at drive way that leads to the main house and dark red mobile home gives an address of 3411 South Old Bastrop Hwy. The driveway to 3411 South Old Bastrop Hwy is approximately 1 miles south from State Hwy 123. The location is located on the east side of South Old Bastrop Hwy.
3. Said suspected place and premises are in charge of and controlled by each of the following persons:
Hispanic male known as Wally Natal approximately 6'00" in height with a weight of approximately 220 pounds, long dark curly hair with beard and mustache. Wally Natal is described as wearing a wool knit cap.
5. Affiant has probable cause for said belief by reason of the following facts:
. . .
Affiant has received information from a cooperating individual that in the past 72 hours the cooperating individual has seen a usable quantity of marijuana located inside above described dark red mobile home located at 3411 South Old Bastrop Hwy also known as County Road 266. The cooperating individual in the past has seen Wally Natal remove marijuana from the out building located next to the main house between the main house and the dark red mobile home. The cooperating individual has provided information in the past that has proven to be credible and reliable that has resulted in the seizure of illegal narcotics. The cooperating individual wishes to remain confidential due to the fear of the cooperating individual's life and the safety of the cooperating individual's family. The cooperating individual's life had been threatened in the past by Wally Natal.
No search warrant may issue unless supported by an affidavit setting forth substantial facts establishing probable cause for its issuance. Tex. Code Crim. Proc. Ann. art. 18.01 (West Supp. 1998). Probable cause exists when the facts submitted to the magistrate are sufficient to justify a conclusion the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.--Austin 1996, pet. ref'd untimely filed). In reviewing the sufficiency of a search warrant affidavit, we consider the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 234 (1983); Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App. 1988). Only the facts within the four corners of the affidavit may be considered. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). The magistrate is permitted to draw reasonable inferences from the affidavit which should be interpreted in a common sense and realistic manner. Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Carroll v. State, 911 S.W.2d 210, 216 (Tex. App.--Austin 1995, no pet.). At a suppression hearing, the trial court is both the trier of fact and arbiter of the legal significance of the facts. Dubose v. State, 915 S.W.2d 493, 496-97 (Tex. Crim. App. 1996).
After-the-fact scrutiny of the sufficiency of a search warrant affidavit should not take the form of de novo judicial review. Instead, the issuing magistrate's determination of probable cause should be given great deference by reviewing courts, and should be sustained so long as the magistrate had a substantial basis for concluding a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236. As the Supreme Court explained, "search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of 'probable cause.'" Id. at 235. Judicial review of the decision to issue a search warrant must take into account that many warrants are issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than that used in formal legal proceedings. Id. at 235-36. In summary, the task of the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court is to ensure the magistrate had a substantial basis for concluding probable cause existed. Id. at 238-39.
The Court of Criminal Appeals recently revisited in another context the subject of appellate review of probable-cause determinations. See Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The Guzman court stated that a trial court's finding of probable cause is a mixed question of law and fact that reviewing courts should generally review de novo. Id. at 89. Guzman, however, involved a warrantless search and arrest and did not address the review of a magistrate's determination that probable cause was stated in a search-warrant affidavit. The Guzman opinion draws on the reasoning of the United States Supreme Court in Ornelas v. United States, ___ U.S. ___, 134 L. Ed. 2d 911 (1996). The Ornelas Court held that questions of reasonable suspicion and probable cause arising out of warrantless searches should be reviewed de novo on appeal. Id. at 920. The Court was careful to distinguish appellate review of a warrantless search from appellate review of a magistrate's decision to issue a search warrant. Citing Gates, the Court stated, "the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive" for police to obtain a warrant. Id. Given Guzman's reliance on Ornelas, we do not understand Guzman to alter previous holdings by the Court of Criminal Appeals that a magistrate's probable-cause determination is not subject to de novo review.
Natal raises several complaints about the affidavit supporting the search and arrest warrant. He contends (1) Kaigler relies solely on a confidential informer, and did not perform an independent police investigation or make any effort to corroborate the informer's information; (2) the affidavit shows no verifiable indicia of the informant's reliability; (3) the required probable-cause language is artfully rearranged to evade the necessity of making allegations regarding the credibility and reliability of the informer; (4) the affidavit is unclear how many times the informer had provided information; (5) no previous arrests are alleged; (6) there is no indication the informer was familiar with and could recognize marihuana; and (7) the informer did not see Natal possess marihuana within the alleged time frame.
Based on the totality of the circumstances, we find the magistrate had a substantial basis for concluding probable cause existed. Police officers are not required to perform independent investigations or make specific efforts to corroborate information when, based upon information supplied previously, the informer is shown to be credible and reliable. Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982). The statement, "the individual has provided information in the past that has proven to be credible and reliable [and] that has resulted in the seizure of illegal narcotics," is factual information from which the magistrate could reasonably infer the informer had been credible and reliable in the past and that the information given in this instance was also reliable. See Olivarri v. State, 838 S.W.2d 902, 904-05 (Tex. App.--Corpus Christi 1992, no pet.) (reliability of informer established when affidavit declared informer had information that proved true "about narcotics traffic in the area"). A common-sense reading of this statement also justifies a conclusion by the magistrate that previous arrests had been based on information given by this informer. Although the affidavit does not specifically mention the informer's ability to recognize marihuana, the magistrate reasonably could infer the informer would be familiar with marihuana because of the statement that his information had in the past led to seizure of illegal drugs. See Richardson v. State, 622 S.W.2d 852, 857 (Tex. Crim. App. 1981) (unnecessary for informer to establish explicitly ability to recognize marihuana). Natal contends that while the affidavit alleges the informer saw Natal in possession of marihuana, the affidavit fails to allege the informer saw Natal in possession within seventy-two hours of making the affidavit. Kaigler stated that, within seventy-two hours of making the affidavit, the informer observed marihuana inside appellant's mobile home. And in the past the informer saw Natal moving marihuana from the out building. We overrule Natal's first point of error.
Motion to Disclose Informer's Identity
In point of error two, Natal contends the trial court erred by failing to require disclosure of the informer's identity. See Bodin v. State, 807 S.W.2d 313 (Tex. Crim. App. 1991). In criminal cases the prosecution generally has the privilege not to disclose the identity of a confidential informer. See Tex. R. Evid. 508. There are exceptions to this general rule. If a defendant shows an informer may be able to give testimony necessary to a fair determination of guilt or innocence the court shall give the prosecution an opportunity to show in camera facts relevant to that testimony. Tex. R. Evid. 508(c)(2). The informer's expected testimony must significantly aid the defendant and mere conjecture or supposition about possible relevancy is insufficient. Bodin, 807 S.W.2d at 318. Because the defendant may not know the actual nature of the informer's testimony, the defendant should only be required to make a plausible showing of how the informer's information may be important. Id. Natal contends it is plausible the other man present at the house, when the warrant was executed, was the informer because he was not arrested.
At the hearing on the motion to disclose the informer's identity, Kaigler testified the informer made at the residence several "controlled buys" of drugs from Natal before the warrant was executed. None of the controlled buys were the bases of charges filed against Natal; they were used only to establish the informer's reliability. Kaigler explained the informer was used for the warrant only and was not present at the time the search warrant was executed. Further, the informer's testimony would have related to events that occurred before the day of the search and arrest and would constitute inadmissible evidence of extraneous offenses. See Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.--Dallas 1991, pet. ref'd). We overrule Natal's second point of error.
We affirm the trial court's order.
John Powers, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: July 16, 1998
Do Not Publish
1. In 1986, Natal pleaded guilty to possession of cocaine and was sentenced to ten years' confinement, probated for ten years and a $500 fine.
n v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982). The statement, "the individual has provided information in the past that has proven to be credible and reliable [and] that has resulted in the seizure of illegal narcotics," is factual information from which the magistrate could reasonably infer the informer had been credible and reliable in the past and that the information given in this instance was also reliable. See Olivarri v. State, 838 S.W.2d 902, 904-05 (Tex. App.--Corpus Christi 1992, no pet.) (reliability of informer established when affidavit declared informer had information that proved true "about narcotics traffic in the area"). A common-sense reading of this statement also justifies a conclusion by the magistrate that previous arrests had been based on information given by this informer. Although the affidavit does not specifically mention the informer's ability to recognize marihuana, the magistrate reasonably could infer the informer would be familiar with marihuana because of the statement that his information had in the past led to seizure of illegal drugs. See Richardson v. State, 622 S.W.2d 852, 857 (Tex. Crim. App. 1981) (unnecessary for informer to establish explicitly ability to recognize marihuana). Natal contends that while the affidavit alleges the informer saw Natal in possession of marihuana, the affidavit fails to allege the informer saw Natal in possession within seventy-two hours of making the affidavit. Kaigler stated that, within seventy-two hours of making the affidavit, the informer observed marihuana inside appellant's mobile home. And in the past the informer saw Natal moving marihuana from the out building. We overrule Natal's first point of error.
Motion to Disclose Informer's Identity
In point of error two, Natal contends the trial court erred by failing to require disclosure of the informer's identity. See Bodin v. State, 807 S.W.2d 313 (Tex. Crim. App. 1991). In criminal cases the prosecution generally has the privilege not to disclose the identity of a confidential informer. See Tex. R. Evid. 508. There are exceptions to this general rule. If