No. 05-02-01283-CR
Opinion Filed November 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-23189-T. AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
Opinion By Justice WRIGHT.
Melissa Klepper appeals her conviction for possession of methamphetamine. After appellant pleaded guilty without an agreement as to punishment, the trial court sentenced her to fifteen years' confinement. In four issues, appellant contends the trial court erred by denying her motion to suppress evidence and that the evidence is legally insufficient to support a deadly weapon finding. We overrule appellant's issues and affirm the trial court's judgment.
Background
On January 12, 2000, Garland Police Investigator Cliff Wise executed a search warrant at appellant's house in Dallas County. SWAT team and narcotics officers entered the house after "slamming" open the door and using a diversionary device. According to Wise, the officers did not knock prior to entering the house. The officers yelled "police" after breaking open the door and setting off the diversionary device. Appellant was present in the house. During the search of the house, the police found over 400 grams of methamphetamine and several weapons, including handguns and rifles. After the trial court denied appellant's motion to suppress, she pleaded guilty without an agreement as to punishment. The trial court then sentenced her to ten years' confinement. This appeal followed. Motion to Suppress
In her first three issues, appellant contends the trial court erred by denying her motion to suppress evidence. In particular, appellant maintains (1) the police violated the "knock and announce" rule of 18 U.S.C.A. 3109; (2) the affidavit supporting the search warrant fails to demonstrate the informant's veracity or reliability; and (3) the City of Garland Municipal Judge was not authorized to issue a search warrant for a location outside of the Garland city limits. Appellant first argues the trial court should have suppressed the evidence seized during the search of her house because the police violated the "knock and announce" rule of 18 U.S.C.A. 3109. The federal knock and announce statute regulates only the conduct of federal officers. Price v. State, 93 S.W.3d 358, 365 n. 1 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (op. on reh'g) (citing United States v. Gatewood, 60 F.3d 248, 249 (6th Cir. 1995), and United States v. Heacock, 31 F.3d 249, 258 (5th Cir. 1994)). Here, the search was conducted by Garland police officers, not federal officers, and thus the federal knock and announce statute does not apply. See Price, 93 S.W.3d at 365 n. 1. Nevertheless, within the protection provided by the Fourth Amendment is the common-law principle that police officers must knock and announce their presence before attempting a forcible entry into a home. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). The Fourth Amendment does not, however, require the police to knock and announce in all cases. Richards v. Wisconsin, 520 U.S. 385, 395 (1997 ). Specifically, police may make an unannounced entry if they have reasonable suspicion that the particular circumstances present a threat of physical violence or a likelihood that evidence will be destroyed. Id. This showing is not high, but the police are required to make it whenever the reasonableness of a no-knock entry is challenged. Id. In this case, Wise testified that the officers determined a forced entry was necessary for the officers safety because the confidential informant told Wise appellant had weapons in the house. Further, the officers had seen surveillance equipment at the house which allowed the outside of the house to be monitored for the presence of police. Under these circumstances, the police could have reasonably suspected that there was a threat to the officers safety. See Stokes v. State, 978 S.W.2d 674, 677 (Tex.App.-Eastland 1998, pet. ref'd). We overrule appellant's first issue. In her second issue, appellant contends the trial court erred by denying her motion to suppress because the affidavit in support of the search warrant failed to demonstrate the informant's veracity or reliability. We disagree. This Court reviews de novo the trial court's determination that the magistrate had probable cause to issue the search warrant. State v. Wester, 109 S.W.3d 824, 826 (Tex.App.-Dallas 2003, no pet.); Lane v. State, 971 S.W.2d 748, 752 (Tex.App.-Dallas 1998, pet. ref'd). Giving great deference to the magistrate's decision to issue the warrant, we determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed. Wester, 109 S.W.2d at 826; Lane, 971 S.W.2d at 752; see also Illinois v. Gates, 462 U.S. 213, 238 (1983). The allegations in the affidavit are sufficient if they would "justify a conclusion that the object of the search is probably on the premises." Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App. 1996); Wester, 109 S.W.2d at 826. An informant's veracity and reliability are no longer separate and independent requirements in the affidavit; however, they are "highly relevant" considerations in the totality of the circumstances review. See Gates, 462 S.W.2d at 231; Lowery, 843 S.W.2d at 140. The affidavit must still contain some indicia of the reliability of the tip. Lowery, 843 S.W.2d at 140. With these standards in mind, we turn to the facts of this case. After reviewing the affidavit, we conclude it contains sufficient information from which the magistrate could conclude that the informant's tip was reliable. The informant had personal knowledge of the methamphetamine and saw appellant in possession of the methamphetamine less than twenty-fours hours before the warrant was issued. See Barton v. State, 962 S.W.2d 132, 138 (Tex.App.-Beaumont 1997, pet. ref'd) (personal knowledge of contraband from past 24 hours indication of reliability). Further, the affiant stated he believed the informant to be credible and reliable because he had provided information about methamphetamine in the past that had been found to be true. Such statements may establish the veracity of the informant. See Palmer v. State, 614 S.W.2d 831, 832-33 (Tex.Crim.App. 1981); Hammond v. State, 898 S.W.2d 6, 8 (Tex.App.-Dallas 1995, no pet.); Daniels v. State, 999 S.W.2d 52, 56 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Viewing the totality of the circumstances reflected in the affidavit in support of the search warrant, we conclude the probable cause affidavit contained sufficient facts and circumstances to provide the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing. See Gates, 462 U.S. at 236. We overrule appellant's second issue. In her third issue, appellant maintains the trial court erred by denying her motion to suppress because the City of Garland Municipal Judge was not authorized to issue a search warrant for a location outside of the Garland city limits. Again, we disagree. Judges of city courts of incorporated cities or towns are magistrates. Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon Supp. 2003); Gilbert, 493 S.W.2d at 784. The City of Garland is an incorporated city located in Dallas County. The jurisdiction of a magistrate is coextensive with the limits of the county in which the city sits. See Gilbert v. State, 493 S.W.2d 783, 784 (Tex.Crim.App. 1973). Thus, the City of Garland Municipal Judge, acting as a Dallas County magistrate, was authorized to issue the search warrant for appellant's residence in Dallas County. See Gilbert, 493 S.W.2d at 784. We overrule appellant's third issue. Deadly Weapon Finding
In her fourth issue, appellant contends the evidence is legally insufficient to support the deadly weapon finding. Specifically, appellant argues there is no evidence that appellant used or exhibited a deadly weapon during the commission of the offense. In considering whether the evidence is sufficient to support the deadly weapon finding, we must determine whether appellant "used" a deadly weapon to facilitate her possession of the methamphetamine. See Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim App. 1999); Patterson v. State, 769 S.W.2d 938, 941-42 (Tex.Crim.App. 1989). Here, Detective David Garcia testified that he was part of the team that executed the search warrant at appellant's residence. According to Garcia, he was the first officer to enter the residence. As he did so, he saw appellant getting up from a desk chair in the office where she was seated. Later, when the room was searched, the police found a loaded semi-automatic pistol in the chair. The police also found methamphetamine and cash on the desk; a total of about 400 grams of methamphetamine and about $10,000 were seized during the search. Several other weapons were found in an adjacent bedroom. This evidence is legally sufficient to support the deadly weapon finding. See Gale, 998 S.W.2d at 225-26 (unloaded firearms found in same closet with large amount of marijuana); Patterson, 769 S.W.2d at 939-42 (gun located between appellant's left leg and end of sofa). We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.