State v. Sheri Nelle McMillen ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-343-CR



THE STATE OF TEXAS,

APPELLANT

vs.





SHERI NELLE McMILLEN

APPELLEE

NO. 3-92-353-CR



THE STATE OF TEXAS,

APPELLANT

vs.





DARVIN DUANE HADLEY

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY

NOS. 32539-2 & 32593-2, HONORABLE ROBERT F. B. MORSE, JUDGE PRESIDING

The State appeals from trial court orders granting motions to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(5) (West Supp. 1994). Appellee Sheri Nelle McMillen and appellee Darvin Duane Hadley were charged by separate complaints and informations with the unlawful possession of marihuana in an amount less than two ounces. McMillen filed a motion to suppress the evidence seized by the execution of a search warrant on July 29, 1991. She contended that the affidavit supporting the search warrant did not reflect probable cause, rendering the search invalid. Complaint was made that no return was made on the search warrant and no copy of any inventory was delivered as required. See Tex. Code Crim. Proc. Ann. art. 18.101 (West Supp. 1994). Hadley also filed a motion to suppress evidence. His complaints were similar to those of McMillen. Hadley contended that the search warrant affidavit did not set out underlying circumstances showing that the informants were credible or reliable, or when the informants saw the evidence at the residence in question. He further alleged that the affidavit and search warrant did not sufficiently identify the premises to be searched, and that the warrant itself did not contain a return and did not reflect that it was executed within three days from its issuance as required by law.

On June 18, 1992, the trial court conducted a joint hearing on the suppression motions. On July 2, 1992, the trial court entered formal orders granting the motions to suppress. The State gave timely notices of appeal.

In a single point of error in each cause, the State contends that the trial court erred in suppressing the State's evidence because the affidavit underlying the warrant was sufficient on its face to support the warrant.

On appeal, both appellees concede that (1) the premises to be searched were adequately described in the warrant; ⁽¹⁾ (2) the failure of the officer to make a proper return on the warrant does not render the search invalid; ⁽²⁾ and (3) the warrant was executed within the statutory time period following its issuance. ⁽³⁾ The remaining question is whether the affidavit to obtain the search warrant established probable cause for the issuance of the warrant.

An affidavit in support of a search warrant must contain sufficient information to support the magistrate's finding of probable cause. Keen v. State, 626 S.W.2d 309, 312 (Tex. Crim. App. 1981); Mayfield v. State, 800 S.W.2d 932, 934 (Tex. App.--San Antonio 1990, no pet.). This is a requirement of the federal and state constitutions and state statutory law. See U.S. Const. Amend. IV, XIV; Tex. Const. Art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 1994). Thus, search warrants properly issue only when predicated on probable cause.

The duty of the magistrate is to determine whether the facts contained in the affidavit are sufficient to establish probable cause that the object of the search is on the premises at the time the warrant is issued. State v. Escobar, 764 S.W.2d 570, 572 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd).

In reviewing the sufficiency of the affidavit, we use the "totality of the circumstances" analysis. Illinois v. Gates, 462 U.S. 212 (1983); Bower v. State, 769 S.W.2d 887, 903 (Tex. Crim App.), cert. denied, 495 U.S. 927 (1989); Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App.), cert. denied, 488 U.S. 848 (1988), overruled in part, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Mayfield, 800 S.W.2d at 934. Moreover, in determining the sufficiency of an arrest or search warrant, a reviewing court is limited to the "four corners of an affidavit." Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992); Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987). The determination, however, is not meant "to place legalistic blinders on the process where a neutral and detached magistrate must decide whether there are sufficient facts stated to validate issuance of a proper warrant." Lagrone, 742 S.W.2d at 661. The magistrate is permitted to draw reasonable inferences from the affidavit, and the affidavit should be interpreted in a common sense and realistic manner. Id.

In Gates, the United States Supreme Court, in abandoning the strict two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964) ⁽⁴⁾ wrote:

The task of the issuing magistrate is simply to make a practical common sense decision whether given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.

Gates, 462 U.S. at 238-39.

The adoption of the "totality of the circumstances" test means that an informer's veracity and basis of knowledge are merely relevant considerations, not controlling factors. If other factors are present which compensate for weaknesses in these areas, there may be sufficient probable cause despite the weaknesses. Rojas v. State, 797 S.W.2d 41, 43 (Tex. Crim. App. 1990).

The instant search warrant affidavit reads in pertinent part:

3. The suspected place and premises are in charge of and controlled by:

Darvin Duane Hadley, w/m, dob 7-24-61.

4. In the name and by authority of the State of Texas:

I have reason to believe, and do believe, that before the filing of this affidavit, on or about July 29, 1991, in Williamson County, Texas, Darvin Dewayne [sic] Hadley intentionally or knowingly possessed a useable quantity of marihuana, against the peace and dignity of the State.

5. My belief is based on the following facts:

I am John Malmquist, a deputy of the Sheriff of Williamson County, Texas.

On July 29, 1991, I went to the suspected premises to assist a DHS worker. Brandy McMillan, age 16, and Misty McMillan, age 13, spoke to me privately, outside the presence of their mother. They told me that Darvin Dewayne [sic] Hadley lived there with them and their mother. They said that Hadley had a useable quantity of marihuana concealed in the bedroom he shared with their mother, and that they had seen it. The mother admitted having had a drug problem. Hadley's criminal history indicates convictions for possession of marihuana, theft, unauthorized use of vehicle, and driving under influence. There are also numerous other arrests for which it is not shown whether convictions resulted.

The State urges that the affidavit meets the strict two-prong test of Aguilar, and thus clearly satisfies the more lenient "totality of the circumstances" test of Gates. Appellees argue to the contrary.

A magistrate is entitled to rely on information supplied by an average citizen named in the affidavit since, unlike many police informants, they are much less likely to produce false or untrustworthy information. Jaben v. United States, 381 U.S. 214, 224 (1965); Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App.), cert. denied, 497 U.S. 1003 (1990); see also Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. 1982); Wood v. State, 573 S.W.2d 207 (Tex. Crim. App. 1978); Frazier v. State, 480 S.W.2d 375 (Tex. Crim. App. 1973). The naming of two citizens by affiant as the source of the information he obtained is relevant to the "veracity" factor in the "totality of circumstances" test.

As to the "basis of knowledge" factor, we observe that the affiant swore the informants told him that Hadley had a useable quantity of marihuana in the bedroom and that they "had seen it." No time was given, but these were personal observations being reported. Courts have consistently recognized that personal observations by an affiant's source are sufficient to satisfy the "basis of knowledge" factor. Winkles v. State, 634 S.W.2d 289, 297 (Tex. Crim. App. 1981); Carmichael v. State, 607 S.W.2d 536, 539 n.1 (Tex. Crim. App. 1981); Collins v. State, 502 S.W.2d 743, 745 (Tex. Crim. App. 1973). Appellees argue that there is no showing in the affidavit that the informants had the qualifications to identify the substance they claimed to have seen. A layman, however, is permitted to assert that a substance seen by him is marihuana without a showing in the affidavit of his qualifications to recognize it. See Capristran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982); Richardson v. State, 622 S.W.2d 852, 857 (Tex. Crim. App. 1981).

Be that as it may, appellees contend that the instant affidavit failed to state sufficient facts to show that the marihuana was probably at the residence in question at the time the warrant issued and thus probable cause was lacking. See Sgro v. United States, 287 U.S. 206, 210 (1932); Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983); Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. 1982); Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1982); Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971). The purpose of stating times when events occurred is to show the magistrate that the contraband or stolen items are probably at the suspected location at the time the warrant issues.

The affidavits in Heredia and Peltier used the past tense and were held deficient. Likewise, the instant affidavit used the past tense, "had" and "had seen it." No time frame was given. There was no use of "recently" and "now" as in Sutton v. State, 419 S.W.2d 857, 861 (Tex. Crim. App. 1967).

It is true that facts in the affidavit, other than times explicitly stated, may be reviewed. See Flores v. State, 827 S.W.2d 416, 419 (Tex. App.--Corpus Christi 1992, pet. ref); Ellis v. State, 722 S.W.2d 192, 196 (Tex. App.--Dallas 1986, no pet.). Where the specific or exact date of the offense is set out in the affidavit, particularly where it is the same date affiant spoke to the informants, it is not an unreasonable deduction for the magistrate to ascertain the closeness of time sufficient to conclude from the affidavit that probable cause did exist. See Powell v. State, 505 S.W.2d 585, 587 (Tex. Crim. App. 1974); State v. Escobar, 764 S.W.2d 570, 573 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd); Lewis v. State, 654 S.W.2d 483, 487 (Tex. App.--Tyler 1983, pet. ref'd). The instant affidavit alleged the offense occurred "on or about" July 29, 1991, indicating affiant's uncertainty about when the informants "had seen it," even though he had spoken to the informants on July 29, 1991.

The affiant did state that Hadley had a prior conviction for possession of marihuana, but the date of the conviction or the date of the offense upon which it was based was not given. It may well have been a remote conviction and could not serve as a basis for a claim of an on-going pattern of criminal activity so as to avoid a staleness of information objection. Cf. United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.), reh. denied, 739 F.2d 633, cert. denied, sub. nom. Hoskins v. United States, 469 U.S. 1073 (1984). It is also observed that the affidavit stated the "mother admitted having had a drug problem." (emphasis added). Here again, the past tense was used. The staleness of the information relied upon is to be determined on the facts of each case. Ellis, 722 S.W.2d at 196.

Determining probable cause does not require certainty, but only probability that contraband or evidence is located in a certain place, Gates, 462 U.S. at 230-31, but the "facts attested to must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time." Heredia, 468 S.W.2d at 835.

In the instant cause, the trial court granted the motion to suppress evidence. Such a ruling following a suppression hearing will not be disturbed absent an abuse of discretion. Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App.), cert. denied, 484 U.S. 975 (1987); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's ruling and whether the trial court improperly applied the law to the facts. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Segura v. State, 826 S.W.2d 178, 181 (Tex. App.--Dallas 1992, pet. ref'd). On appeal, the evidence adduced at the suppression hearing is viewed in the light most favorable to the trial court's ruling, keeping in mind that the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App.), cert. denied, 479 U.S. 885 (1980), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n.3 (Tex. Crim. App. 1988).

In the instant cause, it is apparent that the issuing magistrate could not have ascertained the closeness of time sufficient to issue the instant warrant based on an independent judgment of probable cause. Schmidt, 659 S.W.2d at 421; Peltier, 626 S.W.2d at 30. The trial court did not err in granting the motions to suppress evidence. The orders granting the suppression motions are affirmed.

John F. Onion, Jr., Justice

Before Justices Jones, B. A. Smith and Onion^*

Orders Affirmed

Filed: March 2, 1994

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   When the affidavit is incorporated in the search warrant by reference, it becomes part of and can be used to aid the description of the premises in the search warrant. Green v. State, 799 S.W.2d 756, 760 (Tex. Crim. App. 1990).

2.   Pecina v. State, 516 S.W.2d 401, 404 (Tex. Crim. App. 1974); Joshua v. State, 696 S.W.2d 451, 457 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd).

3.   Officer-affiant John Malmquist testified that the search warrant was executed on the day of issuance. This was sufficient in the absence of a return. Green, 799 S.W.2d at 759.

4.   In Aguilar, the Supreme Court had held that a search warrant affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant. However, if based on hearsay, the issuing magistrate must (1) be informed of the underlying circumstances from which it can be determined that the affiant received his information in a "reliable" way, and (2) the magistrate must also be informed of specific factual allegations from which the affiant concluded that the source was "credible" or his information "reliable." Id. at 114. The two prongs are often referred to as the "basis of knowledge" prong and the "veracity" prong.