COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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THE STATE OF TEXAS, No. 08-11-00116-CR
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Appellant, Appeal from
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v. 30th District Court
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RUBEN GONZALEZ CANTU, of Wichita County, Texas
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Appellee. ' (TC # 49,768-A)
OPINION
In this interlocutory appeal, the State challenges a suppression order. It contends that the
trial court erred by ignoring the reasonable inferences the magistrate could have drawn from the
facts in the search warrant affidavit, and by improperly conducting a de novo review rather than
giving great deference to the magistrate’s determination of probable cause. We reverse and
remand.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2009, a magistrate in Wichita County issued a search warrant for Ruben
Gonzalez Cantu’s residence. The magistrate found probable cause to issue the search warrant
based on the facts contained in the supporting affidavit:
1. There is in Wichita County, Texas a suspected place and premises described
and located as follows: 1803 7th rear (lower) apartment, white siding, front
door faces north with a white awning overhang, a window airconditioning
unit is to the left of the door.
2. Said suspected place and premises are in charge of and controlled by each of
the following persons: Ruben Cantu 08-07-79, Juanita Cantu 02-08-41
3. It is the belief of the Affiant that a specific criminal offense has been
committed, and he hereby charges and accuses that: Ruben Cantu is
manufacturing counterfeit checks and identification to commit Fraudulent
Use or Possession of Identifying Information and Forgery.
The affidavit also stated that property and items constituting both evidence of the said offense
and evidence that Cantu committed the offense were at the suspected place and premises and
were concealed and kept in violation of the laws of Texas. Specifically, the affidavit described
the following “property and items concealed and kept”:
Computers, check stock, ink, banking numbers, notes, electronic recording
devices, identification cards, and any other items that constitute evidence in
identity theft and forgery.
The affidavit then set forth the following facts as probable cause:
On October 27, 2009, a male suspect entered a business in Wichita Falls, TX on
three different occasions. Each time, the suspect would pass a check on the
account of Ruben G. Cantu. A total of three check[s] were passed at the business.
The checks were found to be counterfeit checks not authorized to be produced or
passed by the suspect. The account and bank routing numbers printed on the
checks are not issued to Ruben Cantu. Your affiant confirmed with the bank
listed on the checks that the checks were counterfeit. Your affiant confirmed with
the account holder that the checks were not authorized to be drawn from his
account. During all three transactions Ruben Cantu used his Texas Identification
Card to complete the transactions. On the third transaction, the check was
questioned by the victim business. Ruben Cantu fled the business and left the
counterfeit check and his Texas Identification Card. Ruben Cantu was identified
on the business security video as the person passing the counterfeit check. Your
affiant believes that Ruben Cantu is using stolen identifying information and
electronic equipment at his residence to produce counterfeit documents to defraud
local businesses and citizens. Your affiant confirmed with the United States
Postal Inspection Service that Ruben Cantu is receiving mail at 1803 7th (rear
apartment). Your affiant is requesting that this warrant be served as a ‘no knock’
warrant based on the history of Ruben Cantu and the ability of Ruben Cantu to
quickly destroy electronic evidence.
That same day, the search warrant was executed and the items seized included
checkbooks for Vaudene Barrington and Brian Williams; a social security card belonging to
Dalton Wayne Williams; a birth certificate for Steven Allen Rodriguez; miscellaneous checks;
professional check writing software; multiple computers; and a printer.
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Cantu was charged by indictment with fraudulent use or possession of identifying
information, a second-degree felony. The indictment charged that Cantu, with the intent to harm
or defraud another, and without the consent of twenty-one named individuals, “possess[ed] more
than ten (10) but less than fifty (50) pieces of identifying information for the aforesaid named
individuals.” The indictment also contained an enhancement paragraph based on a prior felony
conviction for robbery.
Subsequently, Cantu filed a motion to suppress alleging the authorities had no legal basis
for the search because the four corners of the supporting affidavit failed to state sufficient facts.
He claimed that the State violated his rights under the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 9, 10, and 19 of the Texas
Constitution. The motion also alleged that the police department’s actions violated Article 38.23
of the Texas Code of Criminal Procedure.
PROBABLE CAUSE AND SEARCH WARRANT AFFIDAVITS
Under the Fourth Amendment to the United States Constitution, Article I, section 9 of the
Texas Constitution, and the Texas Code of Criminal Procedure, a search warrant may only issue
upon facts sufficient to satisfy the magistrate that probable cause exists to believe the seizable
items will be found if the search is conducted. See U.S.CONST. amend. IV; TEX.CONST. art.
1, § 9; TEX.CODE CRIM.PROC.ANN. art. 18.01(b)(West 2005); see generally Swearingen v.
State, 143 S.W.3d 808, 810-11 (Tex.Crim.App. 2004). Specifically, the Fourth Amendment,
made applicable to the States by the Due Process Clause of the Fourteenth Amendment,
provides:
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, supported by Oath or affirmation, and
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particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV; see Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App. 2010). The
Texas Constitution contains its own, similarly worded provision:
The people shall be secure in their persons, houses, papers and possessions, from
all unreasonable seizures or searches, and no warrant to search any place, or to
seize any person or thing, shall issue without describing them as near as may be,
nor without probable cause, supported by oath or affirmation.
TEX.CONST. art. 1, § 9. In addition, Article 18.01(b) of the Texas Code of Criminal Procedure
provides that a search warrant may be obtained from a magistrate only after the submission of an
affidavit setting forth, “substantial facts establishing probable cause.” TEX.CODE
CRIM.PROC. ANN. art. 18.01(b).
“The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate
shall not issue a search warrant without first finding ‘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).
Probable cause to support the issuance of a search warrant exists where, in viewing the totality of
the circumstances presented in the affidavit, the facts submitted to the magistrate are sufficient to
establish that there is at least a “fair probability” or “substantial chance” that contraband or
evidence of a crime will be found at the specified location. Flores, 319 S.W.3d at 702, quoting
Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 2342 n.13, 76 L.Ed.2d 527
(1983)[internal quotations omitted]; Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App.
1996), cert. denied, 520 U.S. 1198, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997). In making its
determination, a magistrate is permitted to interpret the affidavit in a non-technical,
commonsense and realistic manner and to draw reasonable inferences from the facts and
circumstances contained within its four corners. Flores, 319 S.W.3d at 702; Gates, 462 U.S. at
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235-238, 103 S.Ct. at 2333; Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). The
magistrate’s action “cannot be a mere ratification of the bare conclusions of others.” Gates, 462
U.S. at 239, 103 S.Ct. at 2333; Farhat v. State, 337 S.W.3d 302, 306 (Tex.App.--Fort Worth
2011, pet. ref’d). The affidavit must contain “sufficient information” from which the issuing
magistrate can determine probable cause. Gates, 462 U.S. at 239, 103 S.Ct. at 2333; Farhat, 337
S.W.3d at 306.
STANDARD OF REVIEW
“The duty of a reviewing court, including a reviewing trial court, is simply to ensure that
the magistrate had a substantial basis for concluding that probable cause existed.” Flores, 319
S.W.3d at 702, citing Gates, 462 U.S. at 238-39, 103 S.Ct. at 2317 [internal quotations omitted].
In determining whether a probable cause affidavit sufficiently supports a search warrant, the trial
court examines the totality of the circumstances and gives great deference to the magistrate’s
decision to issue the warrant. Rodriguez, 232 S.W.3d at 59-60; Ramos, 934 S.W.2d at 362-63;
see also Emenhiser v. State, 196 S.W.3d 915, 924-25 (Tex.App.--Fort Worth 2006, pet.
ref’d)(noting that when reviewing a magistrate’s decision to issue a warrant, we apply a
deferential standard in keeping with the constitutional preference for a warrant). When a court
reviews an issuing magistrate’s determination, the court should interpret the affidavit in a
commonsense and realistic manner, recognizing that the magistrate may draw reasonable
inferences. See Rodriguez, 232 S.W.3d at 61 (“When in doubt, we defer to all reasonable
inferences that the magistrate could have made.”); see also Davis v. State, 202 S.W.3d 149, 154
(Tex.Crim.App. 2006). The rationale behind the rule requiring a trial court to give great
deference to a magistrate’s determination that a warrant should issue was explained by the
Supreme Court in Illinois v. Gates:
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[The process of determining probable cause] does not deal with hard certainties,
but with probabilities. Long before the law of probabilities was articulated as
such, practical people formulated certain common-sense conclusions about human
behavior; jurors as factfinders are permitted to do the same--and so are law
enforcement officers. Finally, the evidence thus collected must be seen and
weighed not in terms of library analysis by scholars, but as understood by those
versed in the field of law enforcement.
Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29. Additionally, the deference given to the
magistrate’s determination of probable cause “encourage[s] police officers to use the warrant
process rather than making a warrantless search and later attempting to justify their actions by
invoking some exception to the warrant requirement.” Flores, 319 S.W.3d at 702 n.10, quoting
Rodriguez, 232 S.W.3d at 59-60.
Under this deferential standard, “the magistrate’s decision should carry the day in
doubtful or marginal cases, even if the reviewing court might reach a different result upon de
novo review.” Flores, 319 S.W.3d at 702. However, as the court noted in Flores, “[t]his
‘substantial basis’ standard of review ‘does not mean the reviewing court should be a rubber
stamp’ . . . .” Id. In other words, “[a] magistrate should not have to resort so much to inferences
and ‘common sense’ conclusions that skirt the boundaries of what constitutes a substantial basis;
when too many inferences must be drawn, the result is a tenuous rather than a substantial basis
for the issuance of a warrant. Farhat, 337 S.W.3d at 306, citing Davis, 202 S.W.3d at 157.
Accordingly, we review the trial court’s decision de novo, applying the same standard as
the trial court. State v. Duncan, 72 S.W.3d 803, 806 (Tex.App.--Fort Worth, 2002, pet. ref’d).
In doing so, we are required, as was the trial court, to afford great deference to the magistrate’s
decision to issue the warrant. See id. (“[W]e are to apply de novo the same standard of review
required of the trial court. That standard is consideration of the totality of the circumstances
giving great deference to the magistrate’s decision to determine whether the magistrate had a
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substantial basis for concluding probable cause existed.”). [Emphasis in original]. Therefore,
although we review the trial court’s probable cause determination de novo, we are still required
to view the affidavit with deference towards the magistrate’s decision that there was probable
cause to issue the warrant. Id. at 807, citing Wynn v. State, 996 S.W.2d 324, 327 (Tex.App.--
Fort Worth 1999, no pet.). In conducting our de novo review, we must “defer to the reasonable
inferences made by the magistrate in issuing the warrant, and to defer to the magistrate’s
common sense and realistic interpretation the affidavit.” Duncan, 72 S.W.3d at 807, citing Lane
v. State, 971 S.W.2d 748, 752 n.3 (Tex.App.--Dallas 1998, pet. ref’d).
SUBSTANTIAL BASIS FOR CONCLUDING THAT PROBABLE CAUSE EXISTED
Looking to the four corners of the affidavit, giving the magistrate’s decision to issue the
warrant great deference by deferring to the reasonable inferences from the facts expressly
articulated in the affidavit as well as the common sense and practical interpretation of such facts,
we find that, considering the totality of the circumstances, a probability existed that the items
seized would be found at Cantu’s residence.
The affidavit requested a no-knock search warrant for Cantu’s residence based in part on
the affiant’s belief that:
Ruben Cantu is using stolen identifying information and electronic equipment at
his residence to produce counterfeit documents to defraud local businesses and
citizens.
The affidavit stated that “a specific criminal offense has been committed,” and charged and
accused that Cantu, “is manufacturing counterfeit checks and identification to commit Fraudulent
Use or Possession of Identifying Information and Forgery.” The affidavit listed specific items to
be seized. While the conclusions of the affiant are not, standing alone, sufficient to establish
probable cause, the affidavit also contained specific and detailed facts regarding the alleged
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offense.
The affidavit stated that on October 27, 2009, Cantu entered a business in Wichita Falls,
Texas on three separate occasions. On each of the three occasions, Cantu passed a counterfeit
check, “on the account of Ruben G. Cantu.” Each of the counterfeit checks were printed with
Cantu’s name, but with account and bank routing numbers belonging to an individual other than
Cantu. The affiant confirmed with the drawer bank listed on the checks that the checks were
counterfeit. He also confirmed with the account holder that Cantu did not have permission to
issue or pass checks on his account. The affidavit also stated that each time Cantu passed a
counterfeit check, he used his Texas Identification Card to complete the transaction. During the
third transaction, a business employee questioned Cantu about the account. In response, Cantu
fled the business and left behind the third counterfeit check and his Texas Identification Card.
Not only did Cantu leave behind a counterfeit check with his name and someone else’s account
information, as well as his Texas Identification card, Cantu “was identified on the business
security video as the person passing the counterfeit check.” Finally, the affiant stated that he
confirmed with the United States Postal Service that Cantu stated received mail at the address to
be searched.
These facts show that Cantu possessed “identifying information,” i.e. the bank account
numbers and routing numbers of another individual, and used this information to obtain funds
without the consent or permission of the account holder to possess the information or pass the
checks. Therefore, the magistrate could reasonably infer that Cantu stole someone else’s account
and bank routing information. Accordingly, we find that in their totality, the allegations in the
affidavit clearly set forth sufficient facts to establish there was at least a fair probability or
substantial chance that a specific criminal offense had been committed. See TEX.CODE
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CRIM.PROC.ANN. art. 18.01(c),(i).
Under these facts, the affiant also provided sufficient details evidencing that Cantu was
tied to the counterfeiting scheme, and that the items to be seized constitute evidence of the
offense. See TEX.CODE CRIM.PROC.ANN. art. 18.01(c)(2). From the fact that Cantu cashed
multiple counterfeit checks with his name printed on them but with stolen account information
from another individual. the magistrate could reasonably infer that Cantu was generating or
manufacturing such counterfeit checks. It is also reasonable to infer that in manufacturing these
counterfeit checks Cantu would need a “computer, check stock, ink, and banking numbers.”
Moreover, it is a reasonable inference that someone engaged in this type of criminal activity
would possess, “notes, electronic recording devices, identification cards, and any other items that
constitute evidence in identity theft and forgery.”
In addition, the affidavit stated that: (1) date of the alleged incident was October 27,
2009; (2) the supporting affidavit was filed three days later on October 30, 2009; (3) the search
warrant issued and executed the same day the affidavit was filed; and (4) the affiant stated that
he confirmed Cantu received mail at the address to be searched. Based on the time frame,
coupled with the fact that the affiant confirmed Cantu received mail at the address to be
searched, it is reasonable to infer that Cantu currently resided there at the address. See State v.
Cotter, 360 S.W.3d 647, 653 (Tex.App.--Amarillo 2012, no. pet.). Therefore, we conclude that
the magistrate could have reasonably inferred there was at least a “fair probability” or a
“substantial chance” that the items to be seized would be found at Cantu’s residence. See Gates,
462 U.S. at 239, 103 S.Ct. at 2333; Cotter, 360 S.W.3d at 653, citing State v. Moore, 2007 WL
4305374, at *5 (Tex.App.--Dallas Dec. 11, 2007, pet. ref’d)(not designated for publication).
Giving due deference to the magistrate’s decision to issue the search warrant, and
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applying the applicable law to the facts in this case, we conclude that the affidavit provided the
magistrate with probable cause necessary for the issuance of a search warrant of appellant’s
house. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Rodriguez, 232 S.W.3d at 59-60; see also
Duncan, 72 S.W.3d at 806. Accordingly, we sustain the State’s sole point. The order of the trial
court is reversed and remanded.
July 31, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
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