Rodriguez, Gustavo

IN

THE COURT OF CRIMINAL APPEALS

OF

TEXAS

NO.

PD-1013-06

GUSTAVO RODRIGUEZ, Appellant

v.

THE

STATE OF TEXAS

ON STATE = S PETITION FOR DISCRETIONARY REVIEW

FROM

THE SECOND COURT OF APPEALS

TARRANT COUNTY

Cochran ,

J., delivered the opinion of the Court in which Keller, P.J., Price, Johnson, Keasler, Hervey , and Holcomb , JJ., joined. Meyers ,

J., filed a dissenting opinion in which Womack ,

J., joined.

O P I N I O N

Appellant was charged with Possession

of Cocaine with Intent to Deliver. He

filed a pre-trial motion to suppress claiming that the affidavit supporting the

search warrant did not contain sufficient facts to establish probable cause to

search his garage. The trial judge

denied the motion to suppress, but the court of appeals reversed appellant = s conviction and held that the trial

court abused its discretion in not granting appellant = s motion to suppress. [1] We hold that the affidavit did support the

magistrate = s finding of probable cause. [2]

I.

The evidence at trial showed that, in

November of 2003, an informant notified Fort Worth police officers that

appellant = s uncle, Eduardo Cantu, was selling

and transporting large quantities of cocaine in Fort Worth. Numerous narcotics officers began

surveillance of Cantu and followed his car to a house at 4316 Goddard Street in

Fort Worth. This house belonged to

appellant. The officers watched Cantu

drive into the driveway and pull around to the rear of the house next to a

detached garage. They saw Cantu get out

of his car and walk into the garage. A

short while later, Cantu came out of the garage. He was carrying a package in his right

hand. Looking around nervously, Cantu

threw that package into the backseat of his car and drove away.

One of the undercover surveillance

officers followed Cantu for a few blocks in an unmarked car. When he saw Cantu fail to use a turn signal,

he contacted a nearby uniformed patrol officer and asked that officer to stop

Cantu for the traffic violation. During

that traffic stop, Cantu gave his written consent to search his car. The patrol officer found a brown paper sack

containing three brick-like objects that looked like packaged cocaine on the

floor board of the left backseat. Cantu

then told both the patrol and undercover officers that the three kilos of

cocaine in his car came from the garage on Goddard Street and that there was

more cocaine at that garage. After

arresting Cantu, the undercover officer radioed the other surveillance

officers, who were still watching the Goddard Street house and garage, that

Cantu had told him that there were at least ten more kilos of cocaine at that

location. [3]

One surveillance officer then left to

obtain a search warrant. The remaining

officers could hear A tool noises, metal on metal banging @ coming from the garage. The officers therefore decided to secure the

scene to prevent any destruction of evidence.

They opened the garage door and saw appellant and two other males taking

apart a tool box on the bed of a pickup truck.

The officers had the three males sit in one area of the garage until

they received confirmation that the magistrate had issued a search

warrant. They then searched the garage,

found forty-three kilos of cocaine, and arrested appellant.

Appellant was indicted for possession

of more than 400 grams of cocaine with the intent to distribute it. After the trial court denied appellant = s motion to suppress, a jury

convicted him, and the trial judge sentenced appellant to forty-seven years = imprisonment. The Fort Worth Court of Appeals reversed the trial court = s ruling on the motion to suppress,

concluding that the affiant = s A mere belief that the residence on Goddard Street was being

used to store large amounts of cocaine is not enough to support the issuance of

the search warrant. @ [4]

It also concluded that the facts set out in the affidavit, [5]

while they A may lead to a suspicion that

contraband might be located at the residence, @ did not suffice to give the

magistrate A a substantial basis for concluding

that a search would uncover evidence of wrongdoing. @ [6]

II.

The Fourth Amendment commands that no

warrants, either for searches or for arrests, shall issue except upon probable

cause, [7] and

it reflects our constitutional preference for the warrant process in which

police officers present their facts to a neutral magistrate to decide if there

is probable cause to issue that warrant.

As Justice Jackson famously stated,

The point of the Fourth Amendment, which often is not

grasped by zealous officers, is not that it denies law enforcement the support

of the usual inferences which reasonable men draw from evidence. Its protection

consists in requiring that those inferences be drawn by a neutral and detached

magistrate instead of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime. [8]

In Aguilar

v. Texas , [9]

the Supreme Court stated that A [a]n evaluation of the constitutionality of a search warrant

should begin with the rule that > the informed and deliberate

determinations of magistrates empowered to issue warrants . . . are to be

preferred over the hurried action of officers . . . who may happen to make

arrests. = @ [10]

Indeed, in United States v. Ventresca , [11]

the Court declared that A in a doubtful or marginal case [of probable cause] a search

under warrant may be sustained where one without one would fail. @ [12]

The Supreme

Court has repeatedly reminded reviewing courts that they should A not invalidate the warrant by

interpreting the affidavit in a hypertechnical, rather than a commonsense,

manner. Although in a particular case it

may not be easy to determine when an affidavit demonstrates the existence of

probable cause, the resolution of doubtful or marginal cases in this area

should be largely determined by the preference to be accorded to warrants. @ [13]

Thus, even in close cases we give great

deference to a magistrate = s determination of probable cause to encourage police

officers to use the warrant process rather than making a warrantless search and

later attempting to justify their actions by invoking some exception to the

warrant requirement. [14]

The

cornerstone of the Fourth Amendment and its Texas equivalent is that a

magistrate shall not issue a search warrant without first finding A probable cause @ that a particular item will be found

in a particular location. [15] The definition of the term A probable cause @ is, unfortunately, frequently beauty

in the eye of the beholder. It is easier

to explain what A probable cause @ is not, rather than what it is. For

example, in Bower v. State , [16]

this Court stated that a A magistrate is not bound by such finely tuned standards as

proof beyond a reasonable doubt or by a preponderance of the evidence; rather

his sole concern should be probability. @ [17]

The test is whether a reasonable reading by the magistrate would lead to

the conclusion that the affidavit provided a A substantial basis for the issuance of

the warrant[,] @ [18] thus, A [t]he magistrate = s sole concern should be probability. @ [19]

Probable cause exists when, under the totality of the circumstances,

there is a A fair probability @ that contraband or evidence of a

crime will be found at the specified location. [20] It is a A flexible and nondemanding @ standard. [21]

Neither

federal nor Texas law defines precisely what degree of probability suffices to

establish probable cause, but that probability cannot be based on mere

conclusory statements of an affiant = s belief. [22] An affiant must present an affidavit that

allows the magistrate to independently determine probable cause and the

magistrate = s A > action[s] cannot be a mere

ratification of the bare conclusions of others. = @ [23]

On the other

hand, when reviewing a magistrate = s decision to issue a warrant, trial

and appellate courts apply a highly deferential standard in keeping with the

constitutional preference for a warrant. [24] Thus, when an appellate court reviews an

issuing magistrate = s determination, that court should interpret the affidavit in

a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences. [25] When in doubt, we defer to all reasonable

inferences that the magistrate could have made.

Just last

term, in Davis v. State, [26]

this Court addressed the level of specificity required in an affidavit for

a magistrate to find probable cause to issue a search warrant. In Davis , the defendant was arrested

for the manufacture of methamphetamine seized under a search warrant. [27] The magistrate had issued the warrant based

on the affiant = s statement that a patrol officer

drove past the defendant = s residence and A could smell a strong chemical odor he

has associated with the manufacture of methamphetamine emitting from the

residence. @ [28] The court of appeals held that the

magistrate did not have a sufficient basis for issuing a search warrant because

the affiant did not specifically describe the officer = s A expertise or experience in

recognizing the odor associated with the manufacture of methamphetamine. @ [29]

This Court rejected that logic.

We stated that it was a reasonable inference that a police officer who

smells something that he A > associat[es] = with the manufacture of

methamphetamine @ has had prior experience with methamphetamine. [30] Otherwise he would not recognize the smell of

methamphetamine. We concluded that when

this statement and its supporting inferences were combined with the other facts

in the affidavit (including an informant = s tip), the totality of the

information provided enough support for the magistrate = s decision to issue a warrant. [31] The inquiry for reviewing courts, including

the trial court, is whether there are sufficient facts, coupled with inferences

from those facts, to establish a A fair probability @

that evidence of a particular crime will likely be found at a given

location. The issue is not whether

there are other facts that could have, or even should have, been included in

the affidavit; we focus on the combined logical force of facts that are

in the affidavit, not those that are omitted from the affidavit.

III.

With those

general principles in mind, we turn now to the affidavit in this case. This affidavit stated that an experienced

narcotics officer received information that Cantu was selling and transporting

large amounts of cocaine in Fort Worth.

Based on this information, a team of officers began surveillance of

Cantu and followed him to 4316 Goddard Street.

They

saw him A arrive at this

location and pull into the driveway and park close to a metal shed @ or garage. He went into the garage. Shortly thereafter, they saw him come out of

the garage with a package in his right hand.

As he looked around nervously, Cantu threw that package into the back

seat. It is a fair inference from

these facts that Cantu obtained that package from the garage.

The affidavit also states that after Cantu was stopped for a traffic

violation and consented to a search of his car, the patrol officer found a

brown paper sack, containing three brick-like objects both he and the

undercover officer believed to be cocaine on the backseat floor board of the

vehicle B just exactly where

the surveillance officers had seen Cantu toss the A object @ that he had taken

out of the garage.

It is also a fair inference from these facts that the object Cantu took

from the garage and tossed into the back seat area was the very same object

that the officers found in the back seat area.

One object tossed into the car, one object taken out of the car. That

object looked like bricks of cocaine.

In this case,

the court of appeals focused on various facts that the affidavit did not

contain, rather than the facts that it did contain. It also failed to defer to the reasonable

inferences that the magistrate could draw from those facts. Most notably, the court of appeals stated

that

the affiant has not provided facts that would lead a

detached and neutral magistrate to determine that the brown paper sack

containing the cocaine was the same A object @ that Cantu obtained from the detached garage and

placed in the backseat of his car. [32]

The issue in

this case is whether the magistrate could infer that the package of cocaine

found in the backseat of Cantu = s car was the very same package that Cantu carried out of the

garage and put into the backseat. This

is a reasonable inference, especially since there was no suggestion, either in

the affidavit itself or at the motion to suppress hearing or at trial, that

there were any other packages in the backseat of Cantu = s car. It is also an entirely reasonable inference

that the package did, in fact, contain A bricks @ of cocaine, that it came from the

Goddard Street garage, and that there was a fair probability that more cocaine

might still be in that same garage.

Although it is possible that Cantu had taken all of the cocaine with him

when he left, it is at least equally reasonable to conclude that where there

was smoke (the original three- kilo package of cocaine) there was fire (a

larger cache of cocaine). And where

there was loud banging within the garage from which the original package of

cocaine was taken, there might well be activities in progress to prepare those

additional amounts of cocaine for transport.

Neither the officers nor the magistrate could be positive of the

existence of additional contraband in the garage, but it is certainly A a fair probability @ that there was more cocaine stored

where the first package came from.

We agree with

what the court of appeals is implying: the more information in an affidavit the

better. In this case, the addition of a

single sentence, A Cantu told the arresting officers that there was at least ten

kilos more of cocaine in the Goddard Street garage, @ [33] would have made the reviewing courts = task much easier. But that fact was not crucial to establish

probable cause. In this case, the

affiant was sent from the Goddard Street location to draft an affidavit, find a

magistrate, present the affidavit and warrant to that magistrate, and wait for

the magistrate = s review and issuance of the warrant,

all while the other officers were at the Goddard Street garage detaining three

men and awaiting further instructions.

It is not surprising that, in his haste, the affiant did not compose a

polished document that A dotted every i and crossed every t. @ [34]

The proper

analysis of the sufficiency of a search-warrant affidavit is not whether as

much information that could have been put into an affidavit was actually in the

affidavit. As reviewing courts, we are

obliged to defer to the magistrate and uphold his determination based upon all

reasonable and commonsense inferences and conclusions that the affidavit facts

support.

This

case turns on two simple and reasonable

inferences: First, the magistrate could infer that the package

of cocaine found in the back seat of Cantu = s car was the exact same package that

the police saw Cantu take from the garage and throw into the back seat. Second,

A [i]t does not distort common sense or

read additional facts into the affidavit to infer from this information @ [35] that there were more drugs located

at the Goddard Street garage. Although

it is possible that there were really two different packages B one containing cocaine that had been

in Cantu = s car all along and another,

innocuous package that Cantu carried with him out of appellant = s garage B that scenario is based entirely upon

speculation as no second package was mentioned in the affidavit. [36] And, although it is entirely possible that

Cantu took all of the cocaine stored at the Goddard Street garage with him when

he left, it is at least as likely that the three kilo package was just a small

part of the whole cache.

We hold that

these facts and inferences suffice to establish probable cause. Probable cause is A a fluid concept B turning on the assessment of

probabilities in particular factual contexts B not readily, or even usefully,

reduced to a set of neat legal rules. @ [37]

We must defer to the magistrate = s finding of probable cause if the

affidavit demonstrates a substantial basis for his conclusion. It is not necessary to delve into all of the

facts that were omitted by the affiant, facts that could have been included in

the affidavit, or contrary inferences that could have been made by the

magistrate. The only issue is whether

the facts that actually were in the affidavit, combined with all reasonable

inferences that might flow from those facts, are sufficient to establish a A fair probability @ that more cocaine would be found at

the Goddard Street garage. We hold that

the facts in this case are sufficient.

Therefore, we

reverse the judgment of the court of appeals and remand this case to that court

to address appellant = s remaining claims.

Delivered: May 9, 2007

Publish

[1]

Rodriguez v. State , No. 02-05-21-CR, 2006 Tex. App. LEXIS 3373 , *1 (Tex.

App. B Fort

Worth April 27, 2006) (not designated for publication).

[2]

The State = s two

grounds for review read as follows:

1. The panel below erred by interpreting

the warrant affidavit in a hyper-technical manner which failed to accord proper

deference to the magistrate = s

right to make reasonable inferences from the facts contained therein and did so

despite the State = s express

arguments that such affidavits were to be construed in a common-sense manner

with cognizance of the magistrate = s

right to make reasonable inferences from the facts contained therein as to

whether contraband or other evidence of a crime would probably be recovered as

the result of a search of the specified premises.

2. The panel below erred by mistakenly applying the legal

principles for assessing probable cause in such a manner as to convert the

focus of the assessment of probable cause to a determination as to whether the

warrant affidavit provided an actual showing that contraband would be found as

a result of a search of the specified premises, instead of an assessment of

whether the magistrate had been provided a substantial basis for concluding

that contraband or other evidence of a crime would probably be recovered as the

result of a search of the specified premises.

[3]

As discussed below, this information was left out of the affidavit.

[4]

Rodriguez v. State , No. 02-05-21-CR, 2006 Tex. App. LEXIS 3373 at *14.

[5]

The affidavit read as follows:

1. Your affiant is employed as a Fort

Worth Police Officer assigned to the Special Operations Division, MNICU Section

and has been employed as a police officer for over five years. Your affiant has received numerous hours of

training in the field of narcotic and dangerous drug enforcement.

2. That in November of 2003, your affiant

received information that a Hispanic male by the name of Eduardo Cantu was

selling and transporting large amount[s] of cocaine in the City of Fort Worth.

3. That your affiant identified the

suspect as Eduardo Cantu, a Hispanic male, date of birth 05/02/69 through

Tarrant County Arrest Records and Photograph (CID# 0286563).

4. That on this date, November 24, 2003,

your affiant and assisting Fort Worth Police Narcotic Officers began

surveillance of the suspect. Officers

followed the suspect to a residence at 4316 Goddard Street in Fort Worth,

Tarrant County, Texas. This residence

has two mail boxes in front of the residence.

One mail box displaying the numbers A 4315 @ and the other displaying A 4318. @

That through Tarrant County Tax records, this shows to be one residence.

5. That on this date, officers observed

the suspect driving a 2000 Ford Taurus bearing Texas LP# G89CWH arrive at this

location and pull into the driveway and continue into the backyard of this

residence. Officers then observed the

suspect enter a small shed in the backyard of this residence.

6. After approximately 5 minutes, your

affiant was advised by surveillance officers that the suspect exited the metal

shed with an object in his right hand and immediately threw it into the

backseat, as he looked around very nervous.

7. Surveillance officers then followed the

suspect away from the residence. Upon

the suspect approaching the intersection at Goddard and N. Beach, the suspect

failed to utilize his right turn signal.

Fort Worth Patrol Officer R. Dellossantos then initiated a traffic stop

due to this traffic offense at 2000 N. Beach Street in Fort Worth, Tarrant County,

Texas.

8. Officer Dellossantos then made contact

with the suspect and positively identified the suspect as Eduardo Cantu. Officer Dellossantos then received written

consent from the suspect to search his vehicle.

Upon searching the back left portion of the backseat, Officer

Dellossantos located a[n] Exhibit # 1 (brown paper sack, containing three brick

like objects, believed to contain cocaine) on the floor board of the vehicle.

9. The suspect was then placed under

arrest for Possession of C/S With Intent to Deliver over 400 grams.

10. Surveillance officers then returned to

the residence of 4316 Goddard and approached the residence and secured it to

prevent any destruction of evidence after officers heard loud banging in the

detached garage. Officers then opened

the bay door and observed suspects Gustavo Rodriguez, a Hispanic male date of

birth 11/25/65, Elpidio Becerril, a Hispanic male date of birth 11/25/65 and

Jose M. Coronado, a Hispanic Male date of birth 02/16/79 all dis[as]sembling a

tool box on the 2000 White Ford Pickup bearing Texas LP# 7VSH10.

11. Your affiant has reason to believe and does believe that the

residence at 4316 Goddard and the vehicles at this location are being used to

store large amounts of cocaine.

[6]

Rodriguez , 2006 Tex. App. LEXIS 3373 at *14-15.

[7]

Henry v. United States , 361 U.S. 98, 100 (1959).

[8] Johnson v. United States , 333 U.S. 10,

13 (1948).

[9] 378 U.S. 108 (1964).

[10] Id . at 110-11 (quoting United

States v. Lefkowitz , 285 U.S. 452, 464 (1932)).

[11]

380 U.S. 102 (1965).

[12]

Id. at 106 ; see generally 2 Wayne

R. LaFave, Search & Seizure '

4.1(a) at 441-46 (4 th ed. 2004) (discussing the jurisprudential

benefits of the warrant process).

[13]

Id. at 109 ; see also United States v. Leon , 468 U.S. 897,

914 (1984) ( A Reasonable

minds frequently may differ on the question whether a particular affidavit

establishes probable cause, and we have thus concluded that the preference for

warrants is most appropriately effectuated by according > great

deference = to a

magistrate = s

determination. @ ); United

States v. Jones , 994 F.2d 1051, 1055 (3d Cir. 1993) ( A When faced with a challenge to a

magistrate = s

probable cause determination, a reviewing court must remember that its role is

limited. @ Although reviewing court is not a rubber

stamp, A > the resolution of doubtful or

marginal cases in this area should be largely determined by the preference to

be accorded to warrants. = @ ) (citation omitted).

[14]

See Illinois v. Gates , 462 U.S. 213, 236 (1983) ( A If

the affidavits submitted by police officers are subjected to the type of

scrutiny some courts have deemed appropriate, police might well resort to

warrantless searches, with the hope of relying on consent or some other

exception to the Warrant Clause that might develop at the time of the search. @ ); see also Ornelas v. United States , 517 U.S. 690, 699 (1996) ( A The Fourth Amendment demonstrates a > strong preference for searches

conducted pursuant to a warrant, =

and the police are more likely to use the warrant process if the scrutiny

applied to a magistrate = s

probable-cause determination to issue a warrant is less than that for

warrantless searches. Were we to eliminate this distinction, we would eliminate

the incentive. @ )

(citation omitted).

[15] U.S. Const .

amend. IV ( A The right

of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized. @ );

Tex. Const . art. I, ' 9 ( A The

people shall be secure in their persons, houses, papers and possessions, from

all unreasonable seizures or searches, and no warrant to search any place, or

to seize any person or thing, shall issue without describing them as near as

may be, nor without probable cause, supported by oath or affirmation. @ ).

[16] 769 S.W.2d 887 (Tex. Crim. App. 1989).

[17] Bower , 769 S.W.2d at 902 (citing Illinois

v. Gates , 462 U.S. 213 (1983)). We

have defined substantial basis as not a A standard[]

such as proof beyond a reasonable doubt or by a preponderance of the evidence. @

Johnson v. State , 803 S.W.2d 272, 288 (Tex. Crim. App. 1990).

[18] Massachusetts v. Upton , 466 U.S. 727, 733

(1984); see also Ramos v. State , 934 S.W.2d 358, 363 (Tex. Crim. App.

1996) (stating that A allegations

are sufficient if they would > justify

a conclusion that the object of the search is probably on the premises = @ ).

[19] Johnson , 803 S.W.2d at 288 . Probable cause A exists

where the facts submitted to the magistrate are sufficient to justify a

conclusion that the object of the search is probably on the premises to be

searched at the time the warrant is issued. @ Cassias v. State , 719 S.W.2d 585,

587-88 (Tex. Crim. App. 1986); Ventresca , 380 U.S. at 107 ( A While

a warrant may issue only upon a finding of > probable

cause, = this

Court has long held that the term > probable

cause = . . .

means less than evidence which would justify condemnation @ ) (some internal quotations omitted).

[20]

Illinois v. Gates , 462 U.S. 213, 238 (1983).

[21]

40 George W. Dix & Robert O. Dawson,

Texas Practice: Criminal Practice and Procedure '

5.03 at 292 (2d ed. 2001) ( A Almost

certainly, for example, fair probability does not require information that

would persuade a reasonable person that the matter is more likely than not. @ ).

For example, if two people are seen holding smoking guns and there is a

dead body between them with a single bullet through the heart, Officer Obie A could have probable cause to believe

that both of the two suspects are guilty and hence subject to arrest. @

Id. See generally

Maryland v. Pringle , 540 U.S. 366 (2003) (finding probable cause to arrest

all three men in a car in which baggies of cocaine were found beneath the

backseat armrest because the baggies were accessible to all three men and could

have been possessed by one or two or three acting as parties); see generally

2 Wayne R. LaFave , Search & Seizure ' 3.2(e) at 66-91 (4 th ed.

2004) (discussing the degree of probability necessary to establish probable

cause under various hypotheticals and arguing that, in some situations, it

should be more-likely-then-not while in others a less then 50% probability may

suffice).

[22] Johnson v. State , 803 S.W.2d at 288 .

[23] Id. (quoting Gates , 462 U.S. at

238-39 ).

[24]

Gates , 462 U.S. at 236 (noting A that

after-the-fact scrutiny by courts of the sufficiency of an affidavit should not

take the form of a de novo review.

A magistrate = s > determination of probable cause

should be paid great deference by reviewing courts. = @ ); Swearingen v. State , 143

S.W.3d 808, 810-11 (Tex. Crim. App. 2004).

[25]

See Gates , 462 U.S. at 240 ; see also Ventresca , 380 U.S.

at 108 ( A If the

teachings of the Court = s

cases are to be followed and the constitutional policy served, affidavits for

search warrants, such as the one involved here, must be tested and interpreted

by magistrates and courts in a commonsense and realistic fashion. They are

normally drafted by nonlawyers in the midst and haste of a criminal

investigation. Technical requirements of elaborate specificity once exacted

under common law pleadings have no proper place in this area. A grudging or

negative attitude by reviewing courts toward warrants will tend to discourage

police officers from submitting their evidence to a judicial officer before

acting. @ ); see

also Cassias v. State , 719 S.W.2d at 588 ( A A

search warrant affidavit must be read in a commonsense and realistic manner,

and reasonable inferences may be drawn from the facts and circumstances

contained within its four corners. @ ).

[26] 202 S.W.3d 149 (Tex. Crim. App. 2006).

[27]

Id. at 150-52.

[28] Id.

[29] Id . at 153.

[30]

Id. at 157. We wrote, A It

is not unreasonable to infer that when a person identifies a smell by

association, he has encountered that odor-causing agent before. This is especially so when that person may

reasonably be expected to have had some experience with that kind of odor. @

Id.

[31]

Id.

[32]

Rodriguez , 2006 Tex. App. LEXIS 3373 at *14. The court of appeals also noted that the

affidavit did not contain facts describing (1) how or from whom the affiant

received information that Cantu was a drug trafficker; (2) the neighborhood or

area where Cantu was selling cocaine; (3) suspicious activity around the house;

(4) whether the garage was in a high-crime area or whether there was frequent

drug activity there; or (5) whether the officers securing the garage saw

anything inside that would give rise to an inference that large amounts of

cocaine were being stored within it. Id.

at *14-15.

[33]

Although it appears from the trial testimony that the affiant had been told,

before he left to obtain the warrant, that Cantu said that there were ten more

kilos of cocaine in the garage, the affiant, in his haste to obtain the

warrant, may have simply forgotten to include this information in his

affidavit. See Ventresca , 380

U.S. at 108 (noting that affidavits A are

normally drafted by nonlawyers in the midst and haste of a criminal

investigation. Technical requirements of elaborate specificity once exacted

under common law pleadings have no proper place in this area. @ ).

Nonetheless, this fact was omitted and thus cannot be considered in

deciding whether the magistrate properly concluded that there was a A fair probability @

that additional cocaine would be found in the garage.

[34]

See Gates , 462 U.S. 235 -36 (quoting Ventresca and relying, in

part, upon A the

informal, often hurried context @

in which police officers must draft their affidavits, to reject the legalistic A two-pronged @

Spinelli test for search warrant affidavits based upon a confidential

informant = s tip).

[35] Davis , 202 S.W.3d at 156 .

[36]

And no such package was mentioned by any witness at the motion to suppress

hearing or at trial.

[37] Gates , 462 U.S. at 232 .