Donald Eugene Skaggs v. State of Texas ( 2012 )

Opinion filed October 11, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-000273-CR
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DONALD EUGENE SKAGGS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR20390
MEMORANDUM OPINION
The jury convicted Donald Eugene Skaggs of the offense of possession of a controlled
substance with intent to deliver and assessed punishment at confinement for life. We affirm.
Although there is no challenge to the sufficiency of the evidence, we will briefly recite
some of the evidence in the trial court. As sheriff’s deputies executed a search warrant seeking
methamphetamine located at Melinda Kay Ford Crosby’s residence, Crosby informed the
officers that the drugs were in a travel trailer behind her residence. Skaggs and a woman were
asleep in the travel trailer, and the officers removed and detained them while they sought a
warrant to search the trailer. Meanwhile, a canine conducted an “open-air sniff” of the outside of
the travel trailer and alerted at the door to the travel trailer. Deputy Billy Brown sought the
search warrant for the trailer, and in his affidavit he included his past experience with Skaggs,
information from Crosby that the methamphetamine was in the trailer, and the positive canine
alert. The magistrate issued the warrant, and the deputies who executed the search warrant found
the methamphetamine in the travel trailer.
Skaggs’s sole issue on appeal is whether the trial court erred when it denied his motion to
suppress. His claim is that the affidavit in support of the search warrant was insufficient to
establish probable cause. Specifically, he argues both that Crosby, as a criminal informant,
lacked credibility and that the magistrate could not rely on a canine sniff to find probable cause.
His argument is that probable cause was lacking because the affiant did not state that the dog was
a “trained narcotics detection dog or otherwise set out his qualifications.” But, this is a different
ground for suppression from the one that he asserted in the trial court.
A defendant waives the right to complain on appeal unless the record shows a timely and
specific objection. TEX. R. APP. P. 33.1. A specific objection informs the trial judge of the basis
for the objection “at a time when the trial court is in a proper position to do something about it.”
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). A complaint raised for the first
time on appeal is not preserved for our review. Bell v. State, 938 S.W.2d 35, 47–48 (Tex. Crim.
App. 1996).
In his motion to suppress, Skaggs challenged the credibility of the criminal informant
whose statements officers relied upon in their affidavit, and he challenged whether the affidavit
showed probable cause. At a hearing on the motion, Skaggs specifically argued that “the canine
sniff on the house was an unconstitutional intrusion into the privacy of the home.” In response,
the State argued that case law clearly holds that an open-air sniff by a canine is not a search and
that “[t]hey had a valid reason to be on the property, and certainly having a dog walk any space
of the property conducting a free-air search is not a constitutional violation.” But on appeal,
Skaggs concedes that an alert by a trained narcotics dog provides probable cause and, instead,
argues that the magistrate could not rely on the alert to provide probable cause because the
affiant failed to state that the canine was trained to detect illegal narcotics. Because Skaggs
raised this complaint for the first time on appeal, it was not preserved for our review.
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However, even if appellant had preserved the complaint, we would conclude that the trial
court did not abuse its discretion when it denied Skaggs’s motion to suppress.
Probable cause to support a search warrant exists when the facts submitted to the
magistrate are sufficient to justify a conclusion that 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). We must read an affidavit in support of a search warrant in a common sense and
realistic manner, and the magistrate may make reasonable inferences from the facts and
circumstances found in the affidavit. Id. at 587–88; Jones v. State, 833 S.W.2d 118, 124 (Tex.
Crim. App. 1992). We determine the sufficiency of the affidavit under the “totality of the
circumstances.” Illinois v. Gates, 462 U.S. 213, 234 (1983); Hennessy v. State, 660 S.W.2d 87,
90 (Tex. Crim. App. 1983).
“If an affiant seeking a search warrant attests to the presence of an odor and a magistrate
finds the affiant qualified to recognize the odor, this information is considered persuasive in
obtaining a warrant.” Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App. 2006) (citing
Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978)). When the affidavit contains no
information regarding the affiant’s training or experience, there must be specific information in
the affidavit, either express or implied, that would permit a magistrate to reasonably infer the
necessary experience to justify the affiant’s allegations. See Davis, 202 S.W.3d at 156. In
Davis, the affiant included facts that another officer on patrol smelled a strong chemical odor
emanating from a residence that he associated with the manufacture of methamphetamine. Id. at
152. The Court of Criminal Appeals explained, “On these facts alone, without any other
information, the magistrate was authorized to issue the warrant as long as the officer was
‘qualified to recognize the odor.’ That is the only relevant inquiry.” Id. at 156.
In its determination, the court made two inferences that it deemed reasonable. First,
because the affidavit recited that the officer was “on patrol,” it did not distort common sense to
infer that the officer was a “trained, commissioned police officer,” which gave credibility to the
officer’s identification of the odor. Id. Second, the officer “associated” this smell with the
manufacture of methamphetamine, which permits an inference that the officer had experience
with the odor-causing agent. Id. at 157. The court reasoned that such an inference is not
unreasonable “when that person may reasonably be expected to have had some experience with
that kind of odor,” such as police officers and methamphetamine labs. Id.
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It is important to note that Davis turned on the standard of review. The issue was
whether the court of appeals erred “by not paying sufficient deference to the magistrate’s
probable cause determination, applying a hypertechnical rather than a practical, common sense
analysis, and failing to allow the magistrate to draw reasonable inferences from the facts stated in
the affidavit.” Id. at 154. Indeed, the court noted that it “would just as readily conclude that it
was within the magistrate’s discretion to deny this search warrant, had he originally done so.”
Id. at 157.
Although we have no established guidelines for the reliability of a “sniff” search, a
positive alert provides probable cause to search. State v. Weaver, 349 S.W.3d 521, 527–28 (Tex.
Crim. App. 2011); Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.—Houston [1st Dist.] 1987,
pet. ref’d) (citing Florida v. Royer, 460 U.S. 491, 506 (1983), and United States v. Place, 462
U.S. 696, 707 (1983)). Similarly, a police officer’s identification of an odor associated with
manufacturing methamphetamine provides probable cause if the officer was “qualified to
recognize the odor.” Davis, 202 S.W.3d at 156. Thus, whether the magistrate had a reasonable
basis for concluding that illegal drugs could be found in appellant’s trailer depends on whether
the canine was qualified to recognize the odor.
The officer who signed the affidavit stated in it, in relevant part: “Brown County
Sheriff’s Deputy James Stroope with his K-9 Izzy conducted an open air sniff of the outside of
the travel trailer. K-9 Izzy made positive alerts at the southeast entrance door to the travel
trailer.”
To accord the magistrate appropriate deference and to allow for any reasonably available
inferences, we conclude that the magistrate had a substantial basis for concluding that the search
would uncover contraband. It was not unreasonable for the magistrate to conclude that a “K-9”
who conducted an “open-air sniff” was trained to detect the smell of narcotics and that, from the
K-9’s “positive alerts,” the magistrate could reasonably infer experience with the odor-causing
agent. See Davis, 202 S.W.3d at 156; Miles v. State, No. 01-08-00860-CR, 2009 WL 4358959,
at *3 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, pet. ref’d) (mem. op., not designated for
publication) (inferring canine’s training and experience). However, we note that the best
practice is for an officer to expressly include the officer’s experience, training, and background
information so that little is left for the magistrate to infer. Davis, 202 S.W.3d at 157. Although
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too many inferences create a “tenuous rather than substantial basis,” the magistrate here drew
reasonably available inferences to find probable cause. Id.
We hold that the trial court did not err when it denied appellant’s motion to suppress.
Because we conclude that the positive alert alone was sufficient to establish probable cause, we
need not address appellant’s other argument. Appellant’s sole issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
October 11, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill. 2
1
Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
2
John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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