Opinion issued October 4, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00908-CR
———————————
MARCOS GARCIA FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 64780
MEMORANDUM OPINION
Appellant, Marcos Garcia Flores, was charged by indictment with two
counts of possession with intent to deliver cocaine weighing between 4 and 200
grams, enhanced as a habitual offender.1 Following an unsuccessful motion to
suppress, appellant pleaded guilty to the offense and the enhancement allegations
without an agreed recommendation for punishment. The trial court assessed
punishment at 36 years’ confinement on each count, to run concurrently. In his
sole issue on appeal, appellant argues that the trial court erred by denying his
motion to suppress.
We affirm.
Background
On February 16, 2011, Officer M. Christopoulos, with the Freeport Police
Department, sought a search warrant to search appellant’s apartment from a
Brazoria County magistrate judge. Officer Christopoulos submitted an affidavit in
support of the search warrant. Based on the affidavit, the magistrate judge issued
the search warrant. In the resulting search of appellant’s apartment, police
obtained about 14 grams of cocaine.
At the motion to suppress hearing, appellant argued that the evidence
obtained from the search should be suppressed because of the sufficiency of
Officer Christopoulos’s affidavit. The affidavit was based on the personal
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) (providing that cocaine
is penalty group one substance), 481.112(a), (d) (providing that manufacturing,
delivery, or possession with intent to deliver penalty group one substance between
four and 200 grams is first degree felony) (Vernon 2010); TEX. PENAL CODE ANN.
§ 12.42(c)(1) (Vernon Supp. 2012).
2
information of Officer Christopoulos as well as information he received from
multiple confidential informants.
Officer Christopoulos set up a “controlled buy” with the first informant. He
asserted that
within 48 hours of today’s date, February 16, 2011[, I] met with a
confidential informant in a secure location. The confidential
informant was searched for illegal contraband at which point no
illegal contraband was discovered. [I] provided the confidential
informant with recorded U.S. currency along with an audio recording
device for the investigation. The confidential informant provided
information in reference to a subject identified as Adolfo Ramirez, Jr.
. . . who is involved in the sales of narcotics including cocaine. [I
have] received information in reference to Mr. Ramirez being
involved in the sales and usage of narcotics in the past. The
confidential informant met with Mr. Ramirez in a public place and
provided Mr. Ramirez with recorded U.S. currency. Mr. Ramirez
placed a telephone call to an unknown individual named “Oso” in
reference to purchasing crack cocaine. [I] conducted surveillance on
Mr. Ramirez as Mr. Ramirez traveled to a residence located at 1622
West 7th Street, Freeport, Brazoria County Texas. [I] observed Mr.
Ramirez travel to said residence and enter the residence for a short
period of time. A few moments later [I] observed Mr. Ramirez exit
the residence and approach the vehicle he was operating. Mr.
Ramirez traveled away from the residence and soon thereafter met
with the confidential informant. [I] observed the confidential
informant meet with Mr. Ramirez and Mr. Ramirez provided the
confidential informant with a hard white colored rock like substance
believed to be crack cocaine. The confidential informant met with
[me] in a secure location and provided [me] with the hard white
colored white like [sic] substance. [I] later field tested the substance
with a nartec test kit. The substance revealed a positive analysis for
cocaine.
Officer Christopoulos received information regarding appellant from other
confidential informants. Specifically, he asserted that he had “received
3
information from several different sources including reliable and credible
confidential informants who state that [appellant] is involved in the sales of
narcotics including cocaine.”
Finally, Officer Christopoulos received from another confidential informant
specific information about appellant actually possessing cocaine. Specifically, he
asserted that
on or about the 15th day of February, 2011 [I] met with a confidential
informant. The confidential informant has proven to be reliable and
credible by providing information found to be true and correct. The
confidential informant has provided [me] with information along with
numerous controlled purchases of narcotics including crack cocaine in
the past. The controlled purchases have led to numerous search
warrants where narcotics have been seized. The confidential
informant provided [me] with information stating that subject
identified as Marcos Garcia Flores . . . was in possession of a
controlled substance, namely crack cocaine on or about the 15th day
of February, 2011 while in front of his residence located at 16722
West 7th Street, Freeport, Brazoria County Texas. The confidential
informant further provided [me] with information stating that
[appellant] was in possession of crack cocaine on several different
occasions during the past week.
In addition to the information from the confidential informants, Officer
Christopoulos identified information about appellant that was within his own
knowledge. Specifically, he asserted that he had conducted surveillance on
appellant’s residence.
On [February 14, 2011, I] began conducting surveillance on
[appellant’s] residence. While conducting surveillance [I] observed
several individuals at said residence including [appellant]. [I]
observed [appellant] at said residence on more than one occasion.
4
Based on past experience and personal knowledge [I] know[]
[appellant’s] nickname to be “Oso.” . . . [I] reviewed [appellant’s] past
criminal history and [it] states that [appellant] has been arrested on
numerous occasions in the past for Possession of a Controlled
Substance.
Based on Officer Christopoulos’s affidavit, the magistrate judge issued the
warrant and the trial court denied appellant’s motion to suppress.
Standard of Review & Applicable Law
A magistrate judge cannot “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
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.” State v.
McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011) The test for finding
probable cause is “whether a reasonable reading by the magistrate would lead to
the conclusion that the affidavit provided a substantial basis for the issuance of the
warrant, thus, the magistrate’s sole concern should be probability.” Rodriguez, 232
at 60. This is a “flexible and nondemanding standard.” Id. “The process does not
deal with hard certainties, but with probabilities.” United States v. Cortez, 449
U.S. 411, 418, 101 S. Ct. 690, 695 (1981). The magistrate judge performs a
totality-of-the-circumstances analysis in determining if probable cause exists.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).
5
We follow a specific standard of review for determining whether there is
probable cause to support the issuance of a search warrant in a motion to suppress.
McLain, 337 S.W.3d at 271. In determining whether there is probable cause to
support the issuance of a search warrant, “the trial court is constrained to the four
corners of the affidavit.” Id. There are no credibility determinations affecting our
review. Id. “[B]ecause of the constitutional preference for searches to be
conducted pursuant to a warrant as opposed to a warrantless search,” however, “we
apply a highly deferential standard” of review. Id.
Under this highly deferential standard of review, we review “the affidavit in
a commonsensical and realistic manner, recognizing that the magistrate may draw
reasonable inferences.” Rodriguez, 232 S.W.3d at 61. We do not focus on
information that is not in the affidavit but, instead, on “the combined logical force
of facts that are in the affidavit.” Id. at 62. “When in doubt, we defer to all
reasonable inferences that the magistrate could have made.” Id. at 61; see also
McLain, 337 S.W.3d at 272 (critiquing an intermediate appellate court for
“focusing on what the officer ‘implied’ rather than on what the magistrate could
have reasonably inferred”). We may not review the affidavit in a hyper-technical
manner. McLain, 337 S.W.3d at 271.
6
Probable Cause for Search Warrant
In his sole issue, appellant argues that the trial court erred by denying his
motion to suppress. Most of appellant’s brief is dedicated to looking at certain
portions of the affidavit in isolation and arguing that each portion, by itself, could
not support the issuance of the search warrant. For example, the affidavit asserts
that a confidential informant disclosed to Officer Christopoulos that appellant was
observed in possession of crack cocaine in front of his residence the day before the
date of the affidavit. Appellant argues that this fact alone is not sufficient to
support the issuance of the search warrant. This argument is unavailing. The
magistrate judge performs a totality-of-the-circumstances analysis in determining
if probable cause exists, and we perform a highly deferential review of this
determination. See Gates, 462 U.S. at 238, 103 S. Ct. at 2332 (holding magistrate
judge performs totality-of-the-circumstances analysis); Rodriguez, 232 S.W.3d at
61 (holding appellate courts perform highly deferential review of magistrate
judge’s ruling).
Appellant also makes multiple arguments about information that he believes
is missing from the affidavit. For example, Officer Christopoulos recites
information he received from a confidential informant, who saw appellant in
possession of cocaine outside his residence the day before the date of the affidavit.
Appellant argues this is insufficient to establish probable cause.
7
More information is required to make such a determination. Was
Appellant selling the crack cocaine he was witnessed with? Did
Appellant retrieve the crack cocaine from his home? Did Appellant
advise the confidential informant he had crack cocaine in his
residence? Without answers to these additional questions, Appellant
may have just taken delivery himself with the intent to use the cocaine
immediately, Appellant may have retrieved [it] from his vehicle, or
Appellant may have been briefly holding the crack cocaine for . . .
someone including the confidential informant.
This argument is also unavailing. “The issue is not whether there are other facts
that could have, or even should have, been included in the affidavit; we focus on
the combined logical force of facts that are in the affidavit, not those that are
omitted from the affidavit.” Rodriguez, 232 at 62 (emphasis in original).
Considering the information in the affidavit as a whole, the facts supporting
probable cause to issue the warrant are (1) a confidential informant obtained
cocaine through a controlled buy with an intermediary that was observed traveling
to, going into, and returning from appellant’s residence two days before the
issuance of the warrant; (2) multiple confidential informants stated that appellant
sold cocaine; and (3) another confidential informant had seen appellant in
possession of cocaine at his residence the day before the date of the affidavit and
on several different occasions within the week prior to the issuance of the search
warrant.
Appellant argues there is a conflict in the affidavit that undermines the
identity of appellant as the person possessing and selling drugs. In one part of the
8
affidavit, Officer Christopoulos asserts that, based on past experience and personal
knowledge, he knows appellant’s nickname is “Oso.” In another part of the
affidavit, Officer Christopoulos explains that the intermediary in the controlled buy
“placed a telephone call to an unknown individual named ‘Oso’ in reference to
purchasing crack cocaine.” Appellant argues that this alleged conflict creates a
credibility issue for the affidavit. We disagree.
The first statement explains that Officer Christopoulos knows appellant’s
nickname is Oso. The second statement explains that the intermediary contacted
someone named Oso about buying cocaine. From these two statements, the
magistrate judge could reasonably infer that appellant was the “Oso” involved in
the purchase of cocaine. There is no conflict in these statements.
Appellant also challenges the reliability of the controlled-buy informant and
the informant that saw appellant in possession of cocaine outside of appellant’s
residence the day before the date of the affidavit. We begin by noting that, while
the veracity, reliability, and basis of knowledge of a confidential informant are
highly relevant in determining the value of an affidavit, they do not constitute
separate inquiries. Gates, 462 U.S. at 230, 103 S. Ct. at 2328. Instead, they are
“closely intertwined issues that may usefully illuminate the commonsense,
practical question whether there is ‘probable cause’ to believe that contraband or
evidence is located in a particular place.” Id.
9
Officer Christopoulos asserted that the informant who saw appellant in
possession of cocaine had “proven to be reliable and credible by providing
information found to be true and correct” and had been involved in a number of
controlled purchases that “led to numerous search warrants where narcotics have
been seized.” An assertion in an affidavit that the officer knows a confidential
informant and that the confidential informant had provided reliable information in
the past is sufficient to establish the reliability of the confidential informant.
Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982); Blake v. State,
125 S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
For the controlled-buy informant, “[t]he circumstances of a ‘controlled buy,’
standing alone, may be sufficient to reasonably confirm an informant’s information
and give probable cause to issue a search warrant.” Sadler v. State, 905 S.W.2d
21, 22 (Tex. App.—Houston [1st Dist.] 1995, no pet.). Officer Christopoulos
asserted that he met with a confidential informant to perform a controlled buy,
searched the informant without finding any illegal contraband, and provided the
informant with recorded U.S. currency and a recording device. Officer
Christopoulos then observed the confidential informant meet with Ramirez in a
public place. The informant gave Ramirez the recorded currency. Ramirez called
appellant on his cell phone, and left. Officer Christopoulos followed Ramirez and
saw him drive to appellant’s house, enter the house, leave a short time later, and
10
return to the confidential informant in a public place. Ramirez provided the
informant with a substance that was later identified as cocaine.
Appellant argues that the controlled buy was flawed because Officer
Christopoulos did not monitor the confidential informant at all times, leaving the
confidential informant with an opportunity to obtain the cocaine from a source
other than Ramirez.
Although it may have been preferable for the officer to maintain
constant surveillance in some way, it is not necessary that an officer
maintain constant surveillance on an informant during a controlled
buy to present a magistrate with sufficient facts to reasonably
conclude that the object of the search would probably be on the
premises at the time the warrant is executed.
State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d). The fact that the confidential informant met with Ramirez in a public place,
along with the fact that Ramirez called appellant about purchasing cocaine before
going to his residence militate against the possibility that the confidential
informant could have obtained the cocaine from another source. Even assuming
the facts of the controlled buy were insufficient to establish probable cause for a
search warrant, we do not review the reliability of a confidential informant in
isolation. See Gates, 462 U.S. at 230, 103 S. Ct. at 2328 (holding complaints about
veracity, reliability, and basis of knowledge of a confidential informant are one
part of the determination of whether there is ‘probable cause’ to believe that
contraband or evidence is located in a particular place); Rodriguez, 232 S.W.3d at
11
61 (holding focus of review of affidavit is on “the combined logical force of facts
that are in the affidavit”).
We hold that the cumulative weight of the information in the affidavit
supports the trial court’s and magistrate judge’s determinations that there was
probable cause to believe controlled substances would be found within appellant’s
residence. The trial court did not err by denying the motion to suppress.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
12