State v. Christian Sparks

Opinion issued July 28, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01183-CR

THE STATE OF TEXAS, Appellant

V.

CHRISTIAN KENDALL SPARKS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 986977

MEMORANDUM OPINION

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.

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.

We reverse and remand for further proceedings.

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 rights

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.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2 (b).