Opinion
Nos. 14-06-01127-CR, 14-06-01128-CR
Opinion filed July 1, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause Nos. 1049343 1049344.
Panel consists of Justices YATES, GUZMAN, and BROWN.
MEMORANDUM OPINION
Appellant, Ruben Gonzalez, Jr., pleaded guilty to possession with intent to deliver cocaine and methamphetamine. Pursuant to a plea agreement with State, he was sentenced to eight years in the Texas Department of Criminal Justice, Institutional Division. Prior to entering his pleas, appellant filed a motion to suppress evidence, which the trial court denied. In two issues, appellant argues the trial court erred in denying his motion to suppress. We affirm. On December 5, 2005, Officer C.E. Smith, a narcotics officer with the Houston Police Department, began conducting surveillance on appellant and his residence. The surveillance was conducted after Officer Smith received information from a confidential informant that appellant was in possession of large amounts of both cocaine and marijuana and routinely trafficked in narcotics. This informant had provided reliable information in the past regarding narcotics investigations. On the second day of surveillance, officers observed appellant exit the residence from the attached garage, place a black plastic trash bin at the curb, and leave his residence in a truck. Officer Smith retrieved a trash bag from the bin that appellant had placed at the curb. He detected an odor of marijuana coming from the trash bag and, from the opening of the bag, saw marijuana residue. Officer Smith had smelled and observed marijuana on numerous occasions during previous narcotics investigations. He searched the bag and found three large plastic wrappers with marijuana residue, one clear plastic bag with marijuana residue, and two articles of mail in appellant's name. Constant surveillance was maintained on appellant's vehicle after he left the residence. Officer Smith requested that the Department of Public Safety initiate a stop after appellant was observed speeding. After initiating the stop, the State troopers detected a strong odor of marijuana emanating from inside the truck. Appellant admitted to smoking marijuana prior to being stopped and further admitted he had a small amount of marijuana on his person, which the troopers recovered. On December 6, 2005, based on the above information, a search warrant was issued by a magistrate, and a search of appellant's home was conducted. The following items were seized from appellant's residence: 280 grams of powder cocaine, 186 grams of marijuana, 30 grams of ecstasy, $7400, two articles of mail, one photograph, one electronic currency counter, two semi-automatic pistols with twenty-three live rounds, and one bullet-resistant vest. Before trial, appellant filed a motion to suppress all evidence obtained as a result of the search. The trial court denied the motion to suppress, and this appeal followed. In two issues, appellant claims the trial court erred in denying his motion to suppress because the affidavit in support of the warrant did not establish probable cause and, as a result, his rights under the Fourth and Fourteenth Amendments to the United States Constitution and article 1, section 9 of the Texas Constitution were violated. Specifically, appellant maintains that probable cause was lacking because the evidence supporting the search warrant was limited to an anonymous, conclusory tip, corroborated by a single search of trash left at the curb. For a search warrant to issue, the supporting affidavit must set forth "sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense . . . , and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched." TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon Supp. 2007). The test 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.'" Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007) (quoting Massachusetts v. Upton, 466 U.S. 727, 733 (1984)). 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." Id. In reviewing a magistrate's decision to issue a warrant, both the trial court and appellate courts apply a "highly deferential standard in keeping with the constitutional preference for a warrant." Id. at 61 (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)). The appellate court should interpret the affidavit in realistic manner with common sense and should defer to all reasonable inferences the magistrate could have made. Id. In this case, the affidavit stated that information that appellant was in possession of both cocaine and marijuana was received from a credible and reliable informant. Further, based on this information, surveillance was conducted on appellant and his residence for two days. On the last day of surveillance, appellant was seen placing at the curb a trash bin containing several items with marijuana residue. The warrant was issued and executed that same day. Later that same day, appellant was pulled over for speeding. During the stop, officers smelled marijuana coming from inside appellant's truck, and appellant admitted to having smoked marijuana earlier and to having a small amount of marijuana on his person, which was recovered at the scene. Therefore, under the totality of the circumstances, the magistrate could have believed there was a fair probability that contraband would be found at appellant's residence. See Rodriguez, 232 S.W.3d at 60. Appellant argues that the information officers received from the informant in this case, coupled with a one-time search of appellant's garbage, is insufficient to establish probable cause. In so arguing, appellant relies on three cases from the Austin Court of Appeals: Serrano v. State, 123 S.W.3d 53 (Tex.App.-Austin 2003, pet. ref'd), Delagarza v. State, 158 S.W.3d 25 (Tex.App.-Austin 2005, no pet.), and Davila v. State, 169 S.W.3d 735 (Tex.App.-Austin 2005, no pet.). In Serrano, the appellate court found probable cause to be lacking based on an affidavit containing conclusory statements by a confidential informant, police records and observations that connected the defendant to the residence in question, and a single trash search revealing contents testing positive for marijuana. Serrano, 123 S.W.3d at 62-63. Similarly, in Davila, the court relied upon its previous holding in Serrano in finding insufficient probable cause based on a single search of a trash bag that was readily accessible to the public. Davila, 169 S.W.3d at 739-40. In Delagarza, the police received two anonymous tips asserting that the defendant was dealing drugs. Delagarza, 158 S.W.3d at 27. During their investigation, the police searched the residence's trash on four separate occasions. Id. at 27-28. The appellate court distinguished its previous holding in Serrano, noting that the four separate searches of the trash, where considerable evidence of drug dealing and use was discovered, was sufficient to corroborate the information police had received. Id. at 29. Like the Delagarza court, we find Serrano to be distinguishable. Here, although the case involves the search of trash left at a curb, the officers actually saw appellant place the trash at the curb the same day the trash was searched and while the residence was under constant surveillance. Thus, the concern noted by the court in Serrano regarding "garbage cans left at the curb for collection [being] frequently accessible to the members of the public" is not present in this case Serrano, 123 S.W.3d at 62; see also Davila, 169 S.W.3d at 739-40. Accordingly, the magistrate could have reasonably inferred from the affidavit that no one else had access to appellant's trash between the time he was seen pulling it from his garage and the point at which Officer Smith discovered the marijuana residue inside the trash bag. In addition to the incriminating evidence found in appellant's trash, appellant was found to be in possession of marijuana after he was stopped for speeding. This incident occurred the same day he was seen placing the trash bin containing marijuana residue at the curb of his residence. Appellant argues that this additional fact does not make it more probable that drugs would be found in his residence. We disagree. The magistrate could have considered this additional evidence and determined that possessing marijuana on his person the same day appellant was observed taking out his trash containing marijuana residue increased the probability that marijuana would be located at his residence. The magistrate, in reviewing the affidavit, had a substantial basis for finding that probable cause existed to support the issuance of the search warrant. Therefore, the trial court did not err in overruling appellant's motion to suppress. Accordingly, we overrule appellant's two issues and affirm the trial court's judgment.
Appellant was also charged with possession of marijuana. This charge was dismissed pursuant to his plea agreement with the State.