TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00214-CR
State of Texas, Appellant
v.
Eloy Davila, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 075347, HONORABLE LINDA ANN RODRIGUEZ, JUDGE PRESIDING
MEMORANDUM OPINION
After searching Eloy Davila’s home pursuant to a warrant, police arrested him and
charged him with the offense of possession of two ounces or less of marijuana. The district court
granted Davila’s motion to suppress evidence obtained in the search, and the State appealed.
Concluding that the affidavit supporting the application for the warrant provided the magistrate with
a substantial basis for concluding that probable cause existed for the search, we reverse the
suppression order and remand for further proceedings.
An affidavit for a search warrant is sufficient to support issuance of a warrant if, from
the totality of the circumstances reflected in the affidavit, it provides the magistrate with a substantial
basis for concluding that probable cause to conduct the search exists. Serrano v. State, 123 S.W.3d
53, 59 (Tex. App.—Austin 2003, pet. ref’d) (citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
The magistrate may issue a search warrant if the facts contained in the four corners of the affidavit
and the reasonable inferences drawn therefrom justify the conclusion that the object of the search
is probably on the premises at the time of the warrant’s issuance. State v. Delagarza, 158 S.W.3d
25, 26 (Tex. App.—Austin 2005, no pet.) (citing Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.
App. 1986)). In determining whether there is a substantial basis for probable cause, the affidavit
must be read in a common sense and realistic manner, and reasonable inferences may be drawn from
the facts and circumstances contained within the four corners of the affidavit. Davis v. State, 202
S.W.3d 149, 154 (Tex. Crim. App. 2006).
When reviewing a suppression order, we must determine whether the affidavit
provided the magistrate with a substantial basis for concluding that a search would uncover evidence
of wrongdoing. Gates, 462 U.S. at 236, cited by Delagarza, 158 S.W.3d at 26. We give great
deference to the magistrate’s determination of probable cause. Id.; Ramos v. State, 934 S.W.2d 358,
363 (Tex. Crim. App. 1996). When a reviewing court is faced with a doubtful or marginal case in
which it is difficult to determine if probable cause existed, the resolution should be largely
determined by the preference to be accorded warrants. Delagarza, 158 S.W.3d at 29.
The warrant in this case was issued on August 16, 2004. It authorized the search of
the residence located at 205 Buttercup Street in San Marcos and the arrest of Davila. We summarize
the relevant portions of the probable cause affidavit as follows:
• Between 1998 and 2002, the Hays County Narcotics Task Force received
information from confidential informants about illegal drug activity connected
to Davila. These confidential informants notified the Task Force that Davila was
distributing methamphetamine, marijuana, and cocaine.
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• In November 2000, a confidential informant told the Task Force that Davila was
a member of the Mexican Mafia, was extorting local businesses through the
collection of “protection money,” and received a kilogram of cocaine every
Thursday from an unknown source.
• A search of Davila’s previous residence, conducted by Task Force detectives on
October 10, 2002, yielded evidence of illegal drug activity.
• Since the 2002 search, detectives with the Hays County Narcotics Task Force
“have received continual intelligence information from various sources involving
Davila,” and believe that Davila moves frequently to avoid the police because he
knows he is under investigation.
• In June 2004, the affiant (a 19-year officer with the San Marcos Police
Department) received information from a Task Force confidential informant that
Davila was residing at a trailer park on Post Road in San Marcos, Hays County,
Texas. He went on to state that previous information provided by this particular
informant has led to the seizure of illegal narcotics, namely cocaine, and arrests.
• Upon investigation of this information, the affiant located Davila’s vehicle at 205
Buttercup in San Marcos, Hays County, Texas, and observed the vehicle at this
location on several occasions thereafter.
• The affiant also conducted a criminal history check on Davila that revealed a
prior drug conviction in 1992.
• On two separate occasions, the affiant retrieved and searched the discarded
household trash left for collection outside the residence at 205 Buttercup. The
first search, conducted on August 10, 2004, produced “numerous pieces (corners,
knotted ends, etc.) of sandwich baggies. The sandwich baggies were cut, tied and
manipulated in a manner that is consistent and common with the way narcotics
traffickers and users package cocaine.” The baggies were moist, as if they had
been washed to remove traces of illegal substances. After several tests on the
baggies, conducted by a chemist at the Texas Department of Public Safety Crime
Lab, it was established that the baggies contained cocaine.
• The affiant conducted his second search of the trash at 205 Buttercup on August
16, 2004. It produced straws that had been cut in a manner consistent with that
utilized by drug users who ingest cocaine using such shortened straws. Affiant
conducted a field test on the straws and the test results were positive for cocaine.
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We find that the affidavit, when read in a common sense and realistic manner, gave the issuing
magistrate a substantial basis for determining that cocaine could be found at 205 Buttercup
on August 16, 2004. The issuing magistrate, from the four corners of the affidavit, was aware
of three things: (1) Davila’s previous links to drug activity, shown by a prior drug conviction,
Task Force investigations, and information provided by prior confidential informants;
(2) information provided by a confidential informant, corroborated by the affiant’s observance
of Davila’s vehicle at 205 Buttercup, indicating that Davila lived there; and (3) two separate
searches of the trash at 205 Buttercup yielded drug-related paraphernalia testing positive
for cocaine. These factors, viewed together, give rise to a substantial basis for believing probable
cause existed for a search of the house.
At the pretrial hearing on the motion to suppress, Davila asserted that the affidavit
did not justify a finding of probable cause because it relied on stale information. An affidavit must
contain allegations of facts or acts that are closely related to the time of the issuance of the search
warrant. Serrano, 123 S.W.3d at 61 (citing Lopez v. State, 535 S.W.2d 643, 648 (Tex. Crim. App.
1976)). This affidavit contains assertions that twice in the previous week the affiant found cocaine-
tainted drug paraphernalia in the trash container outside the home—some of which appeared to have
been rinsed to remove traces of cocaine. In this context, the “stale” information of previous conduct
gives inferential support to the conclusion that a search of 205 Buttercup would reveal criminal
wrongdoing. See Delagarza, 158 S.W.3d at 28-29 (although drug paraphernalia obtained in trash
search at defendant’s previous residence three months earlier was stale, it offered inferential support
to magistrate’s finding of probable cause to search current residence because defendant had been
linked to both residences and other information indicated current drug-related activity).
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Davila also argued that the trash searches do not provide a reliable basis for probable
cause. Davila relies on a previous decision of this Court that acknowledged the danger of relying
on a one-time search of garbage containers left outside for collection because such containers are
readily accessible to the public, including neighbors or passers-by with overflow or undesirable trash
and other “unwelcome meddlers.” Serrano, 123 S.W.3d at 62 (quoting California v. Greenwood,
486 U.S. 35, 54 (1988)). In Serrano, we held that a substantial basis for probable cause did not arise
based on an affidavit containing conclusory statements by a confidential informant that Serrano was
dealing drugs, police records and observations that connected Serrano to the residence in question,
and a one-time trash search revealing contents testing positive for marijuana. Id. at 62-63. This
reasoning was echoed in a more recent case in which this Court again held that probable cause was
lacking based on an affidavit that contained conclusory statements by a confidential informant that
illegal drugs were possessed at the suspected residence, police observations of heavy traffic to the
residence, and a report of drug traces found in a one-time search of the residence’s garbage. State
v. Davila, 169 S.W.3d 735, 740 (Tex. App.—Austin 2005, no pet.).
However, when an affidavit demonstrates that more than one search of the suspected
residence’s trash yields contents consistent with drug use and possession, we have sustained the
magistrate’s finding of probable cause. Delagarza, 158 S.W.3d at 29. In Delagarza, the police had
received an anonymous “crime stoppers” tip asserting that the defendant was dealing drugs from a
specified location. Id. at 27. In their investigation of this location, the police searched the
residence’s trash on four separate occasions. Id. at 27-28. We held that the contents testing positive
for illegal drugs acquired by four separate searches of the suspected residence’s trash confirmed the
initial suspicions of the police and demonstrated probable cause. Id. at 29.
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The case before us presents facts similar to those in Delagarza and is distinguishable
from Serrano and Davila. As stated in the affidavit, on two separate occasions, searches of the trash
at 205 Buttercup revealed contents consistent with the affiant’s knowledge of prevalent techniques
utilized by individuals dealing and using drugs (i.e., corners of plastic baggies and cut straws). In
both instances, the recovered contents tested positive for cocaine. The timing of the searches is also
relevant to our analysis. The first was conducted a week before the issuance of the warrant, and the
second was conducted on the day the warrant was issued. The recovery of contents testing positive
for cocaine in the trash at 205 Buttercup on two consecutive occasions confirmed the affiant’s
suspicion that Davila likely possessed illegal drugs at the residence. Because previous informants,
police investigations, and one prior conviction link Davila to illegal drug use and activity, and the
affidavit relies on two separate searches of the appellant’s garbage, the dangers that we cautioned
against in Serrano and Davila are not present here.
The assertions made in the affidavit, when viewed in their totality, provide a
substantial basis for concluding that a search of 205 Buttercup would uncover evidence of
wrongdoing. We reverse the district court’s order granting the motion to suppress and remand the
cause to that court for further proceedings.
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded
Filed: February 23, 2007
Do Not Publish
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