IN THE
TENTH COURT OF APPEALS
No. 10-05-00391-CR
William Loyd MacEachran,
Appellant
v.
The State of Texas,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F39146
MEMORANDUM Opinion
MacEachran[1] appeals his convictions for possession of less than one gram of methamphetamine; and, with the intent to manufacture methamphetamine, possession of immediate precursors thereto. See Tex. Health & Safety Code Ann. § 481.115(a)-(b) (Vernon 2003), § 481.124(a), (d) (Vernon Supp. 2006); see also id. § 481.002(22) (Vernon Supp. 2006) (“immediate precursor” defined)); 29 Tex. Reg. 6723 (2004) (Tex. Dep’t Pub. Safety, Immediate Precursor List) (amended 2005) (current version at 37 Tex. Admin. Code § 13.116 (West, Westlaw through Sept. 30, 2006)). We affirm.
In MacEachran’s one issue, he contends that the trial court erred in overruling MacEachran’s motion to suppress evidence found in a search of MacEachran’s trailer home, referred to in the search-warrant affidavit as the “suspected place.” (E.g., 1 C.R. 68.) MacEachran argues that the affidavit did not show probable cause for the magistrate to issue the warrant.
“We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion.” Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); accord Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). “When we review a trial court’s ruling on a motion to suppress, we give great deference to the trial court’s determination of historical facts while reviewing the court’s application of the law de novo.” Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); accord Swain at 365; Balentine at 768.
The appellate court must view the evidence in a light most favorable to the trial court’s ruling when the trial court does not file any findings of fact. When . . . no such findings of fact were made, the appellate court will assume that the trial court made implicit findings of fact that support its ruling, as long as the findings are supported by the record.
Torres at 902; accord Swain at 365; Balentine at 768.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV; see Tex. Const. art. I, § 9.[2] “[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). For a search warrant, “[p]robable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” United States v. Grubbs, 126 S. Ct. 1494, 1499 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); accord Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990).
“An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and [a] wholly conclusory statement . . . fail[s] to meet this requirement.” Gates, 462 U.S. at 239; accord Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (quoting Gates at 239). Such a “mere conclusory statement . . . gives the magistrate virtually no basis at all for making a judgment regarding probable cause.” Gates at 239; Johnson, 803 S.W.2d at 288 (quoting Gates at 239). “Sufficient information must be presented to the magistrate to allow that individual to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Gates at 239; accord Johnson at 288.
“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236; accord Johnson, 803 S.W.2d at 289. “A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Gates at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)); see Swearingen, 143 S.W.3d at 810. Courts “‘should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.’” Gates at 236 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965) (alterations in Gates)); see Long v. State, 132 S.W.3d 443, 446 (Tex. Crim. App. 2004) (quoting Long v. State, 108 S.W.3d 424, 426 (Tex. App.—Tyler 2003), rev’d on other grounds, Long, 123 S.W.3d 443). “[T]he traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a ‘substantial basis for . . . [concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Gates at 236 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)) (alterations in Gates); Swearingen at 810 (quoting Gates at 236).
If the admissibility of evidence obtained as a result of a search conducted under a warrant is challenged in later litigation, the trial judge who resolves that challenge may be called upon to review the magistrate’s determination—implicit in the issuance of the warrant—that the facts in the affidavit constituted probable cause. If the trial judge’s ruling is considered on appeal, the appellate tribunal is, in essence, called upon to review the trial court’s review of the magistrate’s decision.
40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 6.58, at 378 (2d ed. 2001).
“Probable cause exists where ‘the facts and circumstances within . . . [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Pringle, 540 U.S. at 372 (quoting Brinegar, 338 U.S. at 175-76) (bracketed alterations in Pringle); accord Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App. 1986).
“In assessing the sufficiency of an affidavit for . . . a search warrant, the reviewing court is limited to the four corners of the affidavit.” Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004); accord Hall v. State, 394 S.W.2d 659 (Tex. Crim. App. 1965); McLennan v. State, 109 Tex. Crim. 83, 3 S.W.2d 447 (1928). “The reviewing court should interpret the affidavit in a common sense and realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences.” Hankins at 388; accord Gates, 462 U.S. at 240; Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976). “The magistrate may rely on the affidavit of a police officer based on his knowledge or the knowledge of other officers.” Johnson, 803 S.W.2d at 289.
“[O]dor evidence alone is sufficient to establish probable cause.” Wynn v. State, 996 S.W.2d 324, 327 (Tex. App.—Fort Worth 1999, no pet.); see Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. [Panel Op.] 1980) (ether); Long v. State, 137 S.W.3d 726, 731 (Tex. App.—Waco 2004, pet. ref’d) (ether); Buchanan v. State, 129 S.W.3d 767, 774 (Tex. App.—Amarillo 2004, pet. ref’d) (ether). “[T]he smell of ether can provide an element of probable cause for a search” “where persons who [a]re shown to be familiar with odors related to drug manufacturing smell[] such odors emanating from a particular location.” Lowery v. State, 843 S.W.2d 136, 142 (Tex. App.—Dallas 1992, pet. ref’d).
First, MacEachran complains concerning matters that took place before officers went to his trailer. The affidavit of Burleson police officer Larry Sparks states:
1. On 12-15-2004 Investigator Sparks of the STOP Narcotics Task Force had received a call from C[onfidential] I[nformant] [“CI”] #A1-04-0521 in reference to a subject that was observed purchasing numerous cans of starting fluid from the Wal-Mart located in Burleson, Texas.
2. The CI later observed the subject re-enter the Wal-Mart located in Burleson and attempt to conceal several cans of starter fluid and exit the store without paying.
3. The CI detained the individual for the Burleson Police Department for Theft under $50.00.
4. The subject was identified as William Loyd Maceachran by the Burleson Police Department. Officers issued Maceachran a citation for Theft under $50.00 and released him at the scene.
5. The CI notified Investigator Sparks of Maceachran’s activity based on previous familiarization with the components and chemicals used to manufacture methamphetamine.
. . . .
16. Investigator Sparks had conducted surveillance on [the suspected place] in 2003 in reference to possible methamphetamine manufacturing.
17. During surveillance conducted in 2003, Investigator Sparks arrested a D[.] M[.] leaving the suspected place, for Possession of a controlled substance.
[sic] (1 C.R. 69-70 (bracketed alterations and ellipsis added)); see Tex. Penal Code Ann. § 31.03(a), (e)(1)(A) (Vernon Supp. 2006) (theft).
MacEachran argues that “the criminal activity described by the confidential informant does not take place at or near [MacEachran]’s residence,” and “[n]either does the confidential informant state that he has received any information that criminal activity had occurred at [MacEachran]’s residence.” (Br. at 6.) MacEachran also argues that the affidavit “provides no facts supporting the credibility of the confidential informant or the informant’s information.”[3] (Id. at 7.) MacEachran also argues that “no facts are set forth in the affidavit explaining how Investigator Sparks determined that” the address of the suspected place “was the residence of Appellant.” (Id. at 9.) MacEachran also argues that the warrant was “stale.” (Id. at 11 (citing Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).)
MacEachran concedes that “where conclusory statements are used in support of probable cause, the affidavit should be reviewed absent the conclusory statements in assessing whether probable cause for a search exists.” (Br. at 11 (citing Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1984)).) Even disregarding the information supplied by the informant and prior surveillance, for the reasons stated below, the affidavit states probable cause.
Next, MacEachran complains concerning the officers’ approach to MacEachran’s trailer. The affidavit continues:
6. Investigator Sparks and Investigator Adams went to the All American Texas RV Park at approximately 10:30 P.M. to conduct surveillance of Maceachran’s residence located at the suspected place.
. . . .
9. . . . Investigators made contact with the occupant[] of the residence and identified [hi]m as William Loyd Maceachran W/M 09-05-1958 . . . .
[sic] (1 C.R. 70 (bracketed alterations and ellipses added).) MacEachran argues that the affidavit “provides no facts asserting that the individual he contacts at” MacEachran’s trailer “is one and the same individual that was arrested and cited at Wal-mart for shoplifting.” (Br. at 6-7.) The affidavit states that the trailer was “in charge of and controlled by” a “William Loyd Maceachran (W/M DOB: 09-05-1958) as verified by an investigation conducted by Burleson Police Department reference Theft under $50 from the Wal-mart on 12-15-2004.” [sic] (1 C.R. 68.) The affidavit thus relies on information from other officers in identifying MacEachran by name, race, gender, and date of birth. It is a reasonable inference that the William Loyd Maceachran identified as the thief is one and the same as appellant William Loyd Maceachran identified as being in control of the trailer.
The affidavit continues:
7. Upon first arrival Investigators smelled a very strong odor of ether common with the manufacturing of methamphetamine.
8. Investigators were able to determine the origin of the odor to be coming from the suspected place.
9. For the health and safety of the community Investigators made contact with the occupant[] of the residence and identified [hi]m as William Loyd Maceachran W/M 09-05-1958 . . . .
10. Investigator Sparks observed a hand pumped sprayer located by the side of the trailer that had been altered to create an HCL generator, commonly used in the manufacture of methamphetamine.
11. Investigator Sparks also observed a refrigerator next to the HCL generator that was emitting a strong odor of ether.
12. Investigator Sparks asked Maceachran what the spray pump was used for? Maceachran stated he had just found it.
13. Maceachran stated on his own free will that there was possibly a jar of ether located within the refrigerator. Maceachran could offer no reason why he was storing ether in this manner.
14. Maceachran’s criminal history showed two entries for Possession of Controlled Substance.
[sic] (1 C.R. 70 (bracketed alterations and ellipsis added).)
MacEachran concedes that the magistrate could properly have considered that the detective smelled the strong odor of ether from MacEachran’s trailer and MacEachran’s criminal record.[4] See Massey, 933 S.W.2d at 148. MacEachran complains, however, of the affidavit’s statement that the detective “observed a hand pumped sprayer located by the side of the trailer that had been altered to create an HCL generator, commonly used in the manufacture of methamphetamine.” (Br. at 10 (quoting I C.R. 90).) MacEachran argues, “The magistrate cannot determine how the ‘hand pumped sprayer’ has been altered or what changes have been made that would cause” the detective “to assert that this perfectly legal and quite common tool had become criminal in nature.” (Br. at 11.)
The affidavit states the detective’s experience in investigating the manufacture of methamphetamine as follows:
Your Affiant is a Peace Officer under the laws of the state of Texas as defined by the Texas Code of Criminal Procedure Article 2.12 (3). In May of 1992 your Affiant received an Associated Degree in Criminal Justice/Protective Services. Your Affiant graduated from Western Carolina University, with a Bachelor of Science Degree in Criminal Justice in May of 1994. In November of 1999 your affiant successfully completed the 146th Basic Police Academy at C.O.G. (North Texas Council of Government). Your Affiant received a Basic Peace officers Certificate from the Texas Commission on Law Enforcement Officer Standards and Education. Your Affiant has been in the field of law enforcement for over 4 years. In July 1999 the City of Burleson employed your Affiant as a patrol officer. On 10/01/2002 your Affiant was assigned to the STOP THE OFFENDER PROGRAM (S.T.O.P.) Narcotics Task Force as an investigator. The S.T.O.P. Narcotics Task Force is responsible for the enforcement of all narcotics violations within the Johnson, Hood, Somervell and Erath counties. Your Affiant has received formal training in the field of narcotics, which includes but is not limited to Basic Narcotics, Clan Lab School, Drug Identification, Raid Planning, Undercover Operations, Surveillance Techniques, Tactical Operations, Hostage Rescue, and Close Quarters Combat. Affiant has personally conducted or assisted other peace officers in numerous drug-related arrests and investigations.
[sic] (1 C.R. 69); see Tex. Code Crim. Proc. Ann. art. 2.12(3) (Vernon Supp. 2006). In light of the detective’s training in the manufacture of methamphetamine and of the odor of ether, a chemical precursor to the manufacture of methamphetamine, from MacEachran’s trailer, the trial court did not err in finding that the affidavit stated a substantial basis for determining the existence of probable cause to search the trailer. Therefore, the court did not abuse its discretion in overruling the motion to suppress the evidence of the search. We overrule MacEachran’s issue.
Having overruled MacEachran’s sole issue, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment.)
Affirmed
Opinion delivered and filed October 11, 2006
Do not publish
[CR25]
[1] MacEachran’s name is spelled variously throughout the record. We take the spelling “MacEachran” from his docketing statement.
[2] “. . . Article I § 9 of the Texas Constitution and the Fourth Amendment of the Federal Constitution are ‘in all material aspects the same.’” Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990) (quoting Eisenhauer v. State, 754 S.W.2d 159[, 162] (Tex. Crim. App. 1989) [(plurality op.)]). “[A]rticle I, section 9 of the Texas Constitution ‘does not offer greater protection to the individual than the Fourth Amendment.’” Westfall v. State, 10 S.W.3d 85, 88 (Tex. App.—Waco 1999, no pet.) (quoting Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998)); see generally 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 6.11 (2d ed. 2001).
[3] MacEachran concedes that the affidavit states that the informant’s information was “based on previous familiarization with the components and chemicals used to manufacture methamphetamine.” (Br. at 8-9 (quoting I C.R. 90).) MacEachran argues, “It is not clear whether such ‘familiarization’ is based upon education, classroom experience, law enforcement training, law enforcement experience, or simply experience with criminal activity.” (Br. at 9.) An affidavit need not recite the specific method of an informant’s acquaintance with methamphetamine. Long, 137 S.W.3d at 731.
[4] MacEachran contends that the ether that the officers smelled is the starter fluid that he stole.