State v. Sparks

Full title: THE STATE OF TEXAS, Appellant, v. CHRISTIAN KENDALL SPARKS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Jul 28, 2005

No. 01-04-01183-CR (Tex. App. Jul. 28, 2005)

Opinion

No. 01-04-01183-CR

Opinion issued July 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 986977.

Panel consists of Justices TAFT, ALCALA, and HIGLEY.

MEMORANDUM OPINION

LAURA CARTER HIGLEY, Justice.

Appellee, Christian Kendall Sparks, was charged by indictment with possession of a controlled substance, namely heroin, weighing less than one gram. See TEX. HEALTH SAFETY CODE ANN. 481.115 (Vernon 2003). Appellee moved to suppress the heroin and, after a pretrial hearing, the trial court granted the motion. The State appeals the trial court's order.¹ In its sole issue, the State contends that the trial court erred in granting appellee's motion to suppress the evidence because, the State argues, the search warrant affidavit sufficiently set forth facts to establish probable cause for the issuing magistrate to have concluded that heroin was located at the apartment identified in the warrant. Conversely, appellee argues that the affidavit failed to provide an adequate nexus between the heroin alluded to in the affidavit and any heroin likely to be found inside the premises named in the warrant.² We reverse and remand for further proceedings.

1 See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp. 2004-2005) (allowing State to appeal order granting motion to suppress evidence).

2 While appellee contested the credibility of the affiant at trial and also argued that the affidavit was stale, he concedes these issues on appeal.

BACKGROUND

On May 5, 2004, Houston Police Officer Frank Scoggins received information from a confidential informant concerning heroin located in an apartment and conducted surveillance. The next morning, Scoggins submitted an affidavit to a magistrate requesting a search and arrest warrant. The affidavit read, in part, as follows:

There is in the incorporated City limit of Houston, Harris County, Texas, a suspected place and premise described and located as follows: a private residence apartment where the address is 3030 Elmside Rd. #201. The location can be found [described]. . . .

There is at said suspected place and premise property concealed and kept in violation of the laws of the State of Texas and described as follows: A controlled substance, namely HEROIN.

Said suspected place and premise are in charge of and controlled by each of the following person or persons: a white male known as Matt, being in his early 20's, being 6'2" to 6'3" tall, weighing 160 to 170 pounds with close cut brown hair, brown eyes and tattoos on both arms; and a white female known as Penny Charline Scott, having a birth date of 6-6-81 and being 5'05" tall weighing 140 pounds with blonde hair and blue eyes.

It is the belief of the affiant, and the affiant hereby charges and accuses that the black [sic] male known as Matt and the white female known as Penny Charline Scott, . . . are in possession of the above listed controlled substance (HEROIN), having the intent to deliver said controlled substance to person or persons unknown.

My belief of the aforesaid statement is based on the following facts:

Your affiant is a Houston Police Department Narcotics Officer. Affiant receives the assistance Of [sic] confidential informants while conducting criminal investigations regarding persons who sell narcotics in the Houston, Harris County, area.

A Confidential Informant contacted Affiant on May 5, 2004. The Informant told affiant that Informant knows a place where quantities of HEROIN are being concealed. The Informant advised affiant that the location is apartment # 201 in the Stone Crossing apartments at 3030 Elmside Dr. #210 [sic]. . . .

The Informant advised Affiant that Informant had been outside the apartment within the previous twenty-four hour period. Informant stated to Affiant that he met with a white male known to the Informant as Matt. The Informant described the white male to the affiant as being in his early 20's, 6'2" to 6'3" TALL [sic], 160 to 170 pounds, with close cut brown hair, brown eyes and tattoos on both arms. The informant further described Matt as being of slim build. The Informant told Affiant that Matt lives in the apartment with a girl friend who's [sic] name is unknown to Informant. . . .

Informant stated to Affiant that Matt sells heroin and other illegal narcotics to persons unknown. Informant stated to Affiant that Matt meets persons outside his apartment when called on cell phone number. . . .

The Informant advised Affiant that Informant observed Matt come from apartment #201. Informant stated to Affiant that Informant met with Matt outside the described apartment, Informant stated to Affiant that Informant observed Matt in possession of several pieces of a black tar like substance wrapped in plastic. The Informant inspected the pieces of black tar like substance wrapped in plastic and recognized the black tar like substance to be HEROIN. The Informant stated to Affiant that Matt made it known to Informant that the HEROIN was present for the purpose of sale. Informant stated that Matt then entered apartment #201 with the heroin and remained there after Informant left.

Informant stated to affiant that Matt made it known to Informant that if he did not return to the apartment in a short period of time his girl friend would flush the remainder of the narcotics in the apartment down the toilet.

The Informant has provided Affiant with information regarding illegal narcotics activity on a number of occasions in the past. The informant has proved to be accurate in each instance. Your Affiant knows the Informant to be credible and reliable.

The Informant has told Affiant the Informant is familiar with HEROIN and can readily identify the substance by sight and odor. The Informant advised the Affiant that the black tar like substance observed in the possession of Matt and placed in the apartment located at 3030 Elmside Dr. #201, is indeed HEROIN.

. . . .

Affiant checked Penny Scott on the Houston Police Department Computer and learned the following. Penny Scott, . . . has a previous criminal history for possession of a controlled substance under 28 grams.

Affiant and Officer Fred Wood conducted surveillance on the location for short periods of time. Affiant has observed the white male described by informant exiting and entering the apartment with frequency. During the surveillance affiant has seen the described white female known as Penny Scott exiting and entering the apartment with frequency.

Affiant reviewed the leasing documents of apartment #201 at 3030 Elmside #210 [sic] and learned that Penny Scott 6-6-81 is listed as a resident in the apartment.

Based on the information received from the reliable informant and follow up investigation, and on observations while on surveillance, Affiant has reason to believe, and does believe that the white male known as Matt and the white female known as Penny Charline Scott possesses [sic] a quantity of HEROIN.

Affiant further believes that the white male known as Matt and the white female named Penny Charline Scott are concealing the HEROIN inside the described apartment, therefore committing a felony violation of the Texas Controlled Substances Act.

Later the same day, the magistrate signed a warrant authorizing a search of the apartment for heroin and the arrest of Penny Scott and the person described as Matt. The warrant was executed the same day. The return states that officers seized 7.80 grams of tar heroin, in addition to "Xstacy," methamphetamine, Xanax, cocaine, marihuana, and Hydrocodone. Seven people were arrested, including appellee. At the time in question, appellee was staying as an overnight guest in the apartment. When officers entered the apartment to execute the warrant, they saw appellee holding a tinfoil of heroin up to his mouth. Scoggins stated that, in his training and experience, he believed appellee was smoking heroin. The tinfoil later tested positive for heroin and appellee was charged with possession of less than one gram. Appellee filed a pretrial motion seeking to suppress the tinfoil of heroin seized pursuant to the search warrant. Specifically, in his motion, appellee contended that the search warrant was issued in violation of his constitutional and statutory rights³ because the supporting affidavit failed to establish the credibility of the informant and failed to set forth sufficient facts to establish probable cause that heroin was located in the apartment. In addition, appellee contended that the information in the affidavit was stale. The trial court granted appellee's motion.

STANDARD OF REVIEW

The Court of Criminal Appeals has held that the standard to be applied to the review of a magistrate's determination of probable cause in issuing a search warrant is the deferential standard of review articulated in Gates and Johnson. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); see Illinois v. Gates, 462 U.S. 213, 236, 102 S. Ct. 2317, 2331 (1983) and Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App. 1991)); see also State v. Stone, 137 S.W.3d 167, 174 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (applying Gates standard). Under Gates, we do not conduct a de novo determination of probable cause; rather, we afford great deference to the magistrate's determination of whether the affidavit reflects a "substantial basis" for concluding that a search would uncover evidence of a crime. Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Stone, 137 S.W.3d at 174. We examine only those facts found within the four corners of the affidavit to determine whether probable cause exists. Stone, 137 S.W.3d at 175 (citing Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996)). Whether the facts stated in the affidavit are adequate to establish probable cause depends on the "totality of the circumstances." Gates, 462 U.S. at 238, 103 S. Ct. at 2332; Johnson, 803 S.W.2d at 289; Stone, 137 S.W.3d at 175. In essence, we determine whether there is a fair probability, not an actual showing, that contraband will be found in a particular place in light of the totality of the circumstances, as set forth within the affidavit. Gates, 462 U.S. at 238, 103 S. Ct. 2332. The Gates court explained:

The task of the issuing magistrate is simply to make a practical, commonsense 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.

Id. When, as here, the trial court did not make findings of fact and conclusions of law in granting appellee's motion to suppress, the State must address and prevail on every theory that could have supported the trial court's granting of the motion in order to prevail on appeal. See Stone, 137 S.W.3d at 174.

ANALYSIS

Probable cause to search the apartment In his motion to suppress the heroin evidence, appellee contended that there was no probable cause for the issuance of the warrant to search the apartment because there was no nexus shown between the heroin on Matt's person and any heroin inside the apartment. Information regarding the possession of drugs is insufficient on its own to warrant the search of a home. See Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App. 1986). Rather, there must be probable cause to believe that the object of the search is probably on the premises. See id. at 587. Here, the affidavit reflects that a person described as "a white male . . . in his early 20's, 6'2" to 6'3" TALL [sic], 160 to 170 pounds, with close cut brown hair, brown eyes and tattoos on both arms," known as Matt, meets people outside his apartment when summoned by a certain cell phone number, and sells heroin and other illegal narcotics. On May 4, 2004, the informant observed Matt come from apartment #201 to meet with the informant. The informant observed Matt in possession of several pieces of a black tar-like substance wrapped in plastic, which the informant inspected and recognized as heroin. Matt told the informant that the heroin was for sale. The informant stated that "Matt made it known . . . that if he did not return to the apartment in a short period of time his girl friend would flush the remainder of the narcotics in the apartment down the toilet." The informant then watched Matt return to and re-enter apartment #201 with the heroin on his person. Appellee argues that there is no evidence from which the magistrate could have concluded that a nexus existed between the heroin on Matt's person and any heroin likely to be found in the apartment. As examples, he points out, inter alia, that the informant did not state that he had ever been in the apartment nor indicated where the drugs might be stored in the apartment. However, the observation of controlled substances in the possession of an individual coming or going directly to or from a residence, in conjunction with an informant's tip, has been held sufficient to support a warrant to search the residence. See Gates, 462 U.S. at 225-27, 235, 103 S. Ct. at 2325-26, 2330 (holding affidavit sufficient to show probable cause to search residence, although individuals transporting drugs had not entered the residence, on the basis that proof beyond reasonable doubt is not required; rather, probability is sole concern). In Ramos v. State, this Court examined an affidavit by a Houston police officer stating that he had received information that a residence was being used to store "a great amount" of marihuana and cocaine for sale. 31 S.W.3d 762, 764 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Police conducted surveillance at the house for several hours, with some gaps in the surveillance, and established that the two individuals described by the informant were at the residence, with the described pickup truck parked in the driveway. Id. at 763. The next morning, officers saw one of the individuals come out of the house and leave in the pickup truck, carrying a trash bag in the bed. Id. at 764. Officers stopped the truck on unrelated warrants and discovered 20 pounds of marihuana in the trash bag. Id. Officers did not know when the bag of marihuana was put into the truck, but surmised that it must have happened at the house that morning. Id. In addition, the informant had reported that "there were numerous pounds of marihuana at the house." Id. at 765. The police officer affiant stated that, based on the information he received about the house and what was found in the truck, he believed that there was a greater amount of marihuana being stored at the residence. Id. This Court upheld the warrant to search the house on the ground that the allegations in the affidavit justified a reasonable conclusion that there was marihuana at the residence. Id. at 764 (holding affidavit sufficient to show probable cause to search residence based on informant's tip concerning marihuana being stored at residence coupled with marihuana discovered in truck leaving directly from residence); see also Rodriguez v. State, 781 S.W.2d 946, 948-49 (Tex.App.-Dallas 1990, pet. ref'd) (holding affidavit sufficient to show probable cause to issue warrant to search apartment based on reasonable conclusion that cocaine known to be in car had been taken into an apartment, even though no direct observation of such had taken place). In addition, as discussed above, Scoggins personally verified the descriptions of Matt and Penny by going to the apartment and observing them. Scoggins observed Matt and Penny frequently coming and going from the apartment. Also, Scoggins reviewed the apartment leasing documents and verified that Penny was in control of the apartment. Further, Scoggins determined that, according to the Houston Police Department computer, Penny had previous criminal history for possession of a controlled substance. Matt's statement concerning the presence of narcotics in the apartment while he was showing heroin to the informant was reasonably corroborated by Scoggins's verification of all of the other facts given by the informant and Scoggins's determination that Penny has possessed controlled substances in the past. Use of the term "narcotics" Appellee also asserts that the affidavit is critically flawed because, while Scoggins repeatedly used the word "heroin" in his affidavit, he quotes Matt as having commented that his girlfriend would flush the remainder of the "narcotics" down the toilet. Hence, argues appellee, the magistrate could not have reasonably concluded that heroin would be found in the apartment. Courts have recognized that affidavits "are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common-law pleading have no proper place in this area." Gates, 462 U.S. at 235, 103 S. Ct. at 2330-31 (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745 (1965)). As admitted by appellee, the affidavit repeatedly refers to heroin. Moreover, the informant, an individual familiar with the characteristics of heroin, reported that Matt presented him with several pieces of heroin, indicated that the drug was for sale, and then re-entered the apartment. Finally, it is within the realm of common knowledge that heroin is a narcotic. See RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 896 (2d ed. 2001) (defining heroin as "a white, crystalline, narcotic powder"). In reviewing the affidavit in its totality and applying a practical, non-technical approach, as we are required to do, we refuse to conclude that the single use of the word "narcotics" renders the magistrate's issuance of the warrant to search the apartment for heroin unreasonable. In sum, we conclude that, as in Ramos, based on the facts in the affidavit, it was not unreasonable for the magistrate to determine that heroin could be found in the apartment listed in the affidavit. The standard requires that the reviewing magistrate make a common sense decision after taking into consideration all of the circumstances set forth in the affidavit, including the basis of knowledge of persons supplying hearsay information and any corroborative police work, to conclude that there is a fair probability that evidence is located in a particular place. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. In turn, the standard requires that the reviewing court give great deference to the magistrate's decision. Id. at 236, 103 S. Ct. 2331; Douglas v. State, 794 S.W.2d 98, 101 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). By considering the totality of the circumstances, looking only to the four corners of the affidavit, and by deferring to the magistrate's reasonable inferences from the facts and a common sense interpretation of the affidavit, we conclude that the magistrate had probable cause to believe that the heroin to be seized would be located at the apartment listed in the affidavit. We sustain appellant's sole issue.

Conclusion

We reverse the trial court's order granting the motion to suppress and remand for further proceedings.