State of Texas v. Duarte, Gilbert

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1511-11

THE STATE OF TEXAS

v.

GILBERT DUARTE, Appellee

ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

C OCHRAN, J., delivered the opinion of the Court in which M EYERS, P RICE,

W OMACK, J OHNSON, K EASLER, H ERVEY, and A LCALA, JJ., joined. K ELLER, P.J.,

concurred.

OPINION

Appellee, Gilbert Duarte, was charged with possession of cocaine found during a

search of his house that was made pursuant to a warrant. The affiant police officer relied

upon information provided by a first-time informant who was providing information with the

expectation of leniency on his pending criminal charges. We agree with the trial judge, who

found that the affidavit in this case failed to provide the magistrate with a substantial basis

Duarte Page 2

for concluding that probable cause existed to search Mr. Duarte’s home. We therefore

reverse the court of appeals, which had itself reversed the trial judge’s order granting

appellee’s motion to suppress.1

I.

Gilbert Duarte was charged in a two-count indictment with possession of more than

four grams, but less than two hundred grams, of cocaine. He filed a motion to suppress,

alleging that the search-warrant affidavit authorizing the search of his home was not

supported by probable cause. At the hearing on the motion, Mr. Duarte argued that the

affidavit did not meet Fourth Amendment requirements because it was based solely upon a

tip from a first-time informant2 looking for “a deal” on his own pending criminal charges.

The warrant in this case was supported by Detective Phillips’s two-page affidavit:

Before me, the undersigned authority, a Magistrate, Bexar County, Texas, on

this day personally [a]ppeared Detective Roan Phillips #2421, who being by

me duly sworn upon oath, deposes and says: That he has a good reason to

believe and does believe that a certain place in Bexar County, Texas described

as a two story wood frame house, located at and known as and numbered as

10910 Indigo Creek, and any and all garages, outhouses, edifices, structures,

openings, and enclosures thereto attached;

In the City of San Antonio, Bexar County, Texas and being the premises under

the control and in charge of Gilbert Duarte 08–17–87 is a place where a

controlled substance, to wit: Cocaine is unlawfully possessed in violation of

1

State v. Duarte, No. 04–11–00040–CR, 2011 WL 3849461, *3 (Tex. App.—San

Antonio Aug. 31, 2011) (not designated for publication).

2

We use this term because the court of appeals used it and because it is a good shorthand

for referring to an informant of unknown and untested reliability.

Duarte Page 3

the Texas Health and Safety Code, and that such belief of the affiant is

founded upon the following information: Affiant has been a San Antonio

police officer for over fourteen years. During my tenure I have conducted

narcotic investigations for 4 years and 9 months. Affiant did on the 28th day

of September, 2008, receive information from a credible individual who is

currently facing pending criminal charges and provided the information with

the expectation that his/her cooperation with law enforcement would, if proven

valid, be called to the attention of authorities, for the possible dismissal of

charges, or a favorable plea bargain sentence.

Law enforcement officers other than what has been stated have not promised

the cooperating individual anything in exchange for his/her information. I

believe that in this instance it adds to the credibility of the individual, because

he/she will not benefit if his/her information does not prove valid.

I explained to the cooperating individual that it jeopardizes his/her

opportunity for leniency if law enforcement believes or discovers that he/she

has provided incorrect information in a bad faith attempt to obtain leniency.

The credible individual’s statement to me that the information is true enhances

the probability that the information is correct.

I also explained to the credible individual Texas Penal Code Statue 37.08,

False reports to peace officer. Describing the possible criminal penalties for

giving false information to law enforcement. The credible individual said

he/she understood, and continued to maintain that the information is correct.

I know that this credible individual is familiar with various controlled

substances, to include cocaine, and he/she knows how cocaine looks and

smells, and how it is packaged, sold and used. The credible individual has

demonstrated his/her knowledge to me in conversation and this knowledge is

consistent with my own experience and knowledge regarding this type of

controlled substance.3

The credible individual stated that he/she had observed Gilbert Duarte

08–17–87 in possession of cocaine within the past twenty-four hours at 10919

Indigo Creek. I conducted computer research on the premises where I was able

to confirm that Gilbert Duarte 08–17–87 does indeed reside at 10919 Indigo

Creek. Gilbert Duarte 08–17–87 has given that address as his residence on a

3

The emphasized language is the exact same language, word-for-word, as that used by a

different officer-affiant in Pardo v. State, Nos. 04–08–00628–CR, 04–08–00629–CR, 2009 WL

1706760 (Tex. App.—San Antonio June 17, 2009, pet. ref'd) (not designated for publication), to

describe the first-time informant in that case.

Duarte Page 4

traffic ticket that he received on 05–03–08.

Based on the information, affiant asks that a warrant be issued to search the

above-described premises for to wit: cocaine, which is unlawfully possessed

by the aforesaid Gilbert Duarte 08–17–87 at the above-described premises.

And to arrest the above described person and any other parties found on said

premises or making their escape therefrom, where said parties are found to be

in possession of the above described controlled substance or any other

controlled substance in violation of the Texas Health and Safety Code.

At the motion-to-suppress hearing, appellee contrasted the affidavit in this case to that

held sufficient in Pardo v. State. Pardo also involved a first-time informant and set out

precisely the same boilerplate language concerning the informant as in this case. But, as

appellee pointed out, the affidavit in Pardo had the following additional information:

The credible individual also positively identified the listed location. The

credible individual positively identified the named individual from a mug shot

from the SAPD database. The credible individual also describe[d] the vehicle

the named individual uses to sell his narcotics, (brown Ford Expedition).

Pardo, Victor has the listed address in the SAPD master name file. Pardo,

Victor is currently on probation for possession c/s w/int deliver 4-200 g.

Surveillance was conducted at the listed location and numerous vehicles were

seen arriving at the location and then leaving a short time later, this being

consistent with drug transactions.4

In her factual findings, the trial judge referred to Pardo and the boilerplate language

concerning the first-time informant in both affidavits, but noted,

The defendant points out, and the court finds, that in this case, unlike in Pardo,

there is no added paragraph in the affidavit setting out surveillance of the

defendant’s house, separate identification of the defendant, separate

identification of the car used by the defendant, or information regarding the

defendant currently being on probation for a drug offense.

4

Id. at *2.

Duarte Page 5

The trial judge granted Mr. Duarte’s motion to suppress. She concluded that the affidavit in

this case did not contain sufficient information to support a finding of probable cause: “The

magistrate in this case was only presented with information the detective obtained from the

informer, and was not presented with other verifying information other than determining that

the defendant gave the address as his residence on a traffic ticket he received in 2008.”

The State appealed, and the court of appeals reversed. Characterizing this as a “close

issue,” the court held that, under the “great deference” standard, the magistrate had a

substantial basis for concluding that probable cause existed.5 The court stated that it was

reasonable for the magistrate to conclude that the informant’s credibility was demonstrated

by the statements in the affidavit that the informant would benefit only if the information was

correct, and that false information would jeopardize the informant’s ability to have a

favorable plea bargain or the pending charges dismissed.6 Likewise, the court concluded that

the magistrate could reasonably have found the information reliable based on the affiant’s

statement that the informant (1) demonstrated his knowledge about drugs to the officer-

affiant, and (2) personally saw the cocaine at the premises within the past twenty-four hours.7

5

Duarte, 2011 WL 3849461, at *3.

6

Id. Of course, that would be true of any first-time informer who provides information

with the expectation of leniency in his pending criminal charges. The court noted that precisely

the same verbiage was used in the Pardo affidavit, but did not otherwise comment on the use of

these boilerplate paragraphs applicable to all first-time informants who have pending charges

against them.

7

Id.

Duarte Page 6

We granted review to examine whether a tip by a confidential informant of unknown

reliability, standing virtually alone, provides a sufficient basis for a magistrate’s probable

cause determination.8

II.

The core of the Fourth Amendment’s warrant clause and its Texas equivalent is that

a magistrate may not issue a search warrant without first finding “probable cause” that a

particular item will be found in a particular location.9 The test is whether a reasonable

reading by the magistrate would lead to the conclusion that the four corners of the affidavit

provide a “substantial basis” for issuing the warrant.10 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.11 This is a flexible, nondemanding standard.12

8

We granted review of appellee’s sole ground for review:

The analysis performed by the Fourth Court was erroneous in its application of the

law to the facts to such a degree that the Fourth Court essentially provided no

appellate review. The opinion glossed over the problems with the magistrate’s

finding of probable cause, notwithstanding that the supporting affidavit was

minimal at best, failing to put in the most basic information, without which a

magistrate cannot possibly make a valid and credible determination of probable

cause for a search warrant.

9

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); U.S. CONST . amend IV;

Tex. Const. art. I, § 9.

10

Massachusetts v. Upton, 466 U.S. 727, 733 (1984); Rodriguez, 232 S.W.3d at 60.

11

Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. McLain, 337 S.W.3d 268, 272

(Tex. Crim. App. 2011).

12

McLain, 337 S.W.3d at 272.

Duarte Page 7

Neither federal nor Texas law defines precisely what degree of probability suffices to

establish probable cause, but a magistrate’s action cannot be a mere ratification of the bare

conclusions of others.13 A magistrate should not be a rubber stamp. “In order to ensure that

such an abdication of the magistrate’s duty does not occur, courts must continue to

conscientiously review the sufficiency of affidavits on which warrants are issued.” 14

In Aguilar v. Texas,15 the Supreme Court stated that a review “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.’” 16 Therefore, 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 make warrantless searches

and later attempt to justify their actions by invoking consent or some other exception to the

warrant requirement.17

After reviewing the supporting affidavit realistically, and with common sense, a

reviewing court must uphold the magistrate’s decision so long as the magistrate had a

13

Gates, 462 U.S. at 239; Rodriguez, 232 S.W.3d at 61.

14

Gates, 462 U.S. at 239.

15

378 U.S. 108 (1964).

16

Aguilar, 378 U.S. at 110–11 (quoting United States v. Lefkowitz, 285 U.S. 452, 464

(1932)).

17

Ornelas v. United States, 517 U.S. 690, 699 (1996); Gates, 462 U.S. at 236.

Duarte Page 8

substantial basis for concluding that probable cause existed.18 The focus is not on what other

facts could or should have been included in the affidavit; the focus is on the combined logical

force of facts that are in the affidavit.19

III.

The present affidavit is based almost entirely on hearsay information supplied by a

first-time confidential informant. When the Supreme Court abandoned the two-pronged test

established by Aguilar and Spinelli and reaffirmed the totality-of-the-circumstances analysis

that traditionally informed probable-cause determinations, the Court emphasized that

corroboration still matters:

Our decisions applying the totality-of-the-circumstances analysis . . . have

consistently recognized the value of corroboration of details of an informant’s

tip by independent police work. In Jones v. United States, we held that an

affidavit relying on hearsay “is not to be deemed insufficient on that score, so

long as a substantial basis for crediting the hearsay is presented.” 20

The issue in this case is whether the magistrate had a substantial basis for crediting

the informant’s hearsay. The court of appeals relied on the affidavit’s boilerplate language

to conclude that the magistrate acted within his discretion in finding the informant credible:

he has pending charges; he is hoping for a dismissal or favorable plea bargain; he knows he

18

Gates, 462 U.S. at 236, 241; Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App.

2012).

19

Rodriguez, 232 S.W.3d at 62.

20

Gates, 462 U.S. at 241-42 (quoting Jones v. United States, 362 U.S. 257, 269 (1960)).

Duarte Page 9

will not benefit unless the information provided is valid; and he knows the criminal

consequences for giving false information.21 The court also relied on boilerplate language

to demonstrate the “‘reliability’ of the information (how did the informant know the

substance was cocaine)”: In his conversation, the informant demonstrated a knowledge about

drugs that was consistent with affiant’s knowledge about drugs.22 That is, the informant

knows cocaine when he sees it.

The State adds that the magistrate could have reasonably inferred that the affiant-

officer “interviewed the individual at length” to establish that the individual was truthful and

reliable.23 And the State points out that the officer verified the address given as appellee’s.24

Both the court of appeals and the State fault the trial judge for focusing on facts that the

affidavit did not contain, rather than the facts that it did contain.25

21

Duarte, 2011 WL 3849461, at *3.

22

Id.

23

State’s Response Brief at 8.

24

Id.

25

Duarte, 2011 WL 3849461, at *3 (“Duarte argues that such corroboration of the

informant’s information is lacking here, as the affiant merely confirmed that Duarte lived at the

address indicated by the informant. The trial court apparently agreed with Duarte, because it

found significant the affiant’s failure to corroborate the informant’s information in any other

manner. However, the proper standard of review is not to determine whether all the information

that could have been put into an affidavit was actually in the affidavit. Rather, the reviewing

court defers to the magistrate’s determination, allows all reasonable and commonsense

inferences, and decides whether the magistrate’s conclusion is supported by the assertions in the

affidavit.”); State’s Response Brief at 10 (“[T]he issue is not whether there are other factors that

could have, or even should have, been included in the affidavit or complaint, but rather, whether

the combined logical force of facts that are in that specific affidavit, not those that are omitted,

Duarte Page 10

We find that the weight given to the informant’s hope for lenient treatment on his own

pending charges in return for his “tip” is inappropriate as that is the very characteristic that

sets the citizen-informer apart from the informant “from the criminal milieu.” Professor

LaFave notes that

courts have quite properly drawn a distinction between such a person [from the

criminal milieu] and the average citizen who by happenstance finds himself in

the position of a victim of or a witness to criminal conduct and thereafter

relates to the police what he knows as a matter of civic duty. One who

qualifies as the latter type of individual, sometimes referred to as a “citizen-

informer,” is more deserving of a presumption of reliability than the informant

from the criminal milieu.26

The citizen-informer is presumed to speak with the voice of honesty and accuracy. The

criminal snitch who is making a quid pro quo trade does not enjoy any such presumption;

his motive is entirely self-serving. The Supreme Court stated in Illinois v. Gates,

if an unquestionably honest citizen comes forward with a report of criminal

activity–which if fabricated would subject him to criminal liability–we have

found rigorous scrutiny of the basis of his knowledge unnecessary.

Conversely, even if we entertain some doubt as to an informant’s motives, his

explicit and detailed description of alleged wrongdoing, along with a statement

that the event was observed first-hand, entitles his tip to greater weight than

might otherwise be the case.27

Federal courts find that probable cause for the issuance of a search warrant exists

are sufficient coupled with inferences from those facts, to establish a ‘fair probability’ that

evidence of a particular crime will likely be found”).

26

2 WAYNE R. LA FAVE , SEARCH AND SEIZURE : A TREATISE ON THE FOURTH

AMENDMENT § 3.3 at 98 (4th ed. 2004) (footnote omitted).

27

Gates, 462 U.S. at 233-34 (citations omitted).

Duarte Page 11

“notwithstanding” an actual or potential quid pro quo obtained by a first-time informant in

exchange for the information, not “because” of it.28 They do so if the tip is corroborated,29

is a statement against penal interest,30 is consistent with information provided by other

informants,31 is a detailed first-hand observation,32 or is coupled with an accurate prediction

of the subject’s future behavior.33 They do so when there is a substantial basis for crediting

28

See Brian Sheppard, Annotation, Sufficiency of Information Provided by Confidential

Informant, Whose Identity Is Known to Police, to Provide Probable Cause for Federal Search

Warrant Where There Was No Indication that Informant Provided Reliable Information to Police

in Past—Cases Decided After Illinois v. Gates, 9 A.L.R.Fed. 2d 1 § 20-21 (2006).

29

See United States v. Clyburn, 24 F.3d 613, 618 (4th Cir. 1994) (“Although the

informant’s reliability initially was questionable due to her incarceration, Sergeant Dennis

verified the informant’s allegations by setting up and monitoring controlled purchases of

cocaine.”).

30

See United States v. Buchanan, 574 F.3d 554, 562 (8th Cir. 2009) (CI provided

information contrary to her own penal interest–the “indicia of reliability”); United States v.

Buckley, 4 F.3d 552, 554, 556-57 (7th Cir. 1993) (informant–who wanted to curry favor with the

officer who pulled her over for a traffic violation and discovered cocaine–spoke against her penal

interest when admitting that she had purchased cocaine from the defendants at least 25 times in

the previous six months).

31

See United States v. Canfield, 212 F.3d 713, 720-21 (2d Cir. 2000) (“sufficient

corroboration existed. CI-1's statements regarding Canfield’s movements and drug activity were

corroborated by Detective Thorpe and CI-2.”).

32

See United States v. Stewart, 337 F.3d 103, 106 (1st Cir. 2003) (“[P]robable cause in

the first warrant application, even taking into consideration the omissions [about the informants’

criminal charges], could hardly have been stronger. Three days before the search warrant was

executed, during a controlled purchase by Creamer that was recorded by agents, appellant

asserted that he expected to have ‘plenty’ of additional cocaine the following Monday, the day of

the search. Certainly in the context of the ongoing investigation, which included three previous

controlled buys, that statement provided compelling evidence that appellant would be found in

possession of cocaine on June 18.”).

33

See United States v. Wilson, 964 F.2d 807, 810 (8th Cir. 1992) (probable cause to

search established when police surveillance corroborated almost all aspects of the informant’s

prediction; “The informant told agents where he and Wilson would be that evening, described the

Duarte Page 12

the hearsay.34 Texas courts apply the same principles. Citizen informants are considered

inherently reliable; confidential informants are not.35

container in which the drugs were stored, and described the car in which the drugs were

transported.”).

34

United States v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993) (CI’s tip that defendant had

purchased the property and built a structure in which he intended to cultivate marijuana could be

credited where CI further stated that he has purchased marijuana from defendant on several

occasions [and so made a statement against interest], and agent corroborated the purchase of the

property and the building of the hydroponic marijuana-growing facility).

35

Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990) (“In the instant case,

the affidavit in support of the search warrant was based on information supplied by police

officers and citizens. None of the information was obtained from confidential informants. Thus,

the magistrate was entitled to rely on the credibility of the affiant and his sources and the

reliability of the information supplied in the affidavit.”), overruled on other grounds by Heitman

v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); Marquez v. State, 725 S.W.2d 217, 232

(Tex. Crim. App. 1987) (“Appellee alleges that the affidavit must contain some facts to show that

the peace officers and other witnesses who provided affiant with the substantive information

contained in the affidavit are credible. This argument is entirely without merit. While it is true

that such facts must be included when the information contained in the affidavit is given by a

confidential informant, as a matter of constitutional law an ordinary citizen as a witness in a case

or a police officer is presumed to be reliable and no special showings are required.”), overruled

on other grounds by Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992); West v. State,

720 S.W.2d 511, 513 n.2 (Tex. Crim. App. 1986) (“We decline the invitation to view with the

same suspicion usually reserved for anonymous police informants with an unproven record of

reliability information given by citizens who report a crime then freely share what information

they have with police without withholding their own names.”); see also State v. Wester, 109

S.W.3d 824, 826–27 (Tex. App.—Dallas 2003, no pet.) (distinguishing a statement from a

named informant under arrest on suspicion of drug offense from an “inherently reliable”

statement of average citizen reporting a crime to police); Morris v. State, 62 S.W.3d 817, 824

(Tex. App.—Waco 2001, no pet.) (“A magistrate is entitled to rely on information supplied by a

private citizen, since, unlike many police informants, they are much less likely to produce false

or untrustworthy information.”); Winters v. State, 897 S.W.2d 938, 941-42 (Tex.

App.–Beaumont 1995, no pet.) (“In the instant case, the informant is not a ‘snitch.’ He is an

average citizen who reported a crime. In that particular situation, Texas courts have given a

certain deference to the named, private citizen informant. Where a named informant is a private

citizen, whose only contact with the police is a result of having witnessed a criminal act

committed by another, the credibility and reliability of the information are inherent.”).

Duarte Page 13

Confidential informants–even though culled from the “criminal milieu”–may be

considered reliable tipsters if they have a successful “track record.”36 As Professor LaFave

points out, “Lower courts have with virtual unanimity held that a declaration that the

informant’s past information has led to convictions is a sufficient showing of the informer’s

credibility.”37 But tips from anonymous or first-time confidential informants of unknown

reliability must be coupled with facts from which an inference may be drawn that the

informant is credible or that his information is reliable.38

36

Dixon v. State, 206 S.W.3d 613, 616-17 (Tex. Crim. App. 2006) (“[T]he evidence

established that the confidential informant was credible and reliable. Agent Gray had known the

informant for over a year. The information that he had provided in the past had always been

shown to be true and had led to the arrest of at least five drug offenders. Thus, by Agent Gray’s

testimony, the informant was batting one thousand, at least with respect to five prior occasions.

This is an important factor in establishing the credibility of the informant as it may be inferred

that the police would not repeatedly act on information from one who has not proven by

experience to be reliable.”) (footnotes omitted); Brown v. State, 243 S.W.3d 141, 146 (Tex.

App.—Eastland 2007, pet. ref’d) (evidence that the informant had previously provided reliable

information was sufficient to establish his veracity; “magistrate knew that the informant’s

veracity or reliability was based upon: having provided information that led to the arrest of at

least five drug offenders; being lawfully employed; providing the information voluntarily and

without any promise or deal; and having always provided true and correct information.”).

37

2 WAYNE R. LA FAVE , SEARCH AND SEIZURE : A TREATISE ON THE FOURTH

AMENDMENT § 3.3(b) at 115, 119 n.85 (4th ed. 2004 & 2010-2011 Supp.) (citing Dixon v. State,

206 S.W.3d 613 (Tex. Crim. App. 2006)).

38

See State v. Delagarza, 158 S.W.3d 25, 28 (Tex. App.—Austin 2005, no pet.) (officers

corroborated tip from anonymous informer of unknown reliability by collecting–from trash cans

outside the residence– “corner bags” that field tested positive for cocaine); Barton v. State, 962

S.W.2d 132, 137-38 (Tex. App.—Beaumont 1997, pet. ref’d) (“The informant’s ‘basis of

knowledge’ was more than sufficient to make up for any ‘veracity’ deficiency. The informant

stated that he/she lived on the premises where the contraband was located, lived with appellant,

and had personally been on the premises in question within the past 24 hours. Furthermore, the

‘reliability’ of the information provided was proven to a significant degree in that the affiant

himself tested the contents of the package provided to him by the informant, with the results

confirming the fact that the package indeed contained cocaine.”); Knight v. State, 814 S.W.2d

Duarte Page 14

We agree with appellee that there was no substantial basis for crediting the first-time

informant’s hearsay statement. Officers failed to corroborate the informant’s tip except to

confirm appellee’s address.39 The tip was not a statement against interest,40 nor repeated by

545, 548 (Tex. App.— Houston [1st Dist.] 1991, no pet.) (“[I]nformant’s basis of information

contained in his tip, combined with the independent corroboration, especially of appellant’s prior

criminal record and his prior methamphetamine sales from the same location, were enough to

overcome the fact that the anonymous informant’s veracity was unknown. This gave the

magistrate a substantial basis to believe that methamphetamine was then located at appellee’s

apartment.”).

39

Compare Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010) (magistrate

could reasonably conclude that the informer’s tip regarding illegal drugs at the Ramona Circle

residence, although perhaps insufficient in itself to establish probable cause to search, was

reliable where affiant twice found marijuana stems, seeds, and residue in a garbage can located

on the street in front of the Ramona Circle residence) and State v. Griggs 352 S.W.3d 297, 304

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“Alone, the tip that cocaine was being

‘stored and sold’ at the residence is no more than a bare assertion, but the tip combined with the

subsequent controlled buy provides facts from which a magistrate could reasonably infer that the

sale of cocaine was an ongoing enterprise rather than an isolated incident.”) with Parish v. State,

939 S.W.2d 201, 204 (Tex. App.—Austin 1997, no pet.) (“We do not think these scant facts

[corroborating that defendant’s motel room and car were properly identified by the informant]

supplied a basis for the tip’s reliability. They were ascertainable by anyone who Parish may have

been in contact with; for example, he may have related them to the motel clerk when he

registered for the room.”). The Supreme Court has noted that corroboration of “innocent

activity” may be sufficient to support a finding of probable cause, if the “seemingly innocent

activity became suspicious in the light of the initial tip.” See Gates, 462 U.S. at 244-45 & n.3,

quoting Jones v. United States, 362 U.S. 257, 269-70 (1960).

40

Cf. Mejia v. State, 761 S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.] 1988, pet.

ref’d) (named informant’s credibility was reinforced when he admitted to being a drug trafficker;

“An admission against penal interest, even by a first-time informant, is a factor indicating

reliability.”).

Duarte Page 15

other informants.41 There was no accurate prediction of future behavior.42 This tip was a

first-hand observation, but it contained no particular level of detail regarding appellee’s

premises or his criminal activity.43 The tip was: “The credible individual stated that he/she

had observed Gilbert Duarte 08–17–87 in possession of cocaine within the past twenty-four

41

Cf. Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012) (affidavit established

probable cause when officer stated that he had “recently” received information from first

confidential informant, and after receiving information, used second CI to make controlled buy).

42

Cf. Angulo v. State, 727 S.W.2d 276, 279-80 (Tex. Crim. App. 1987) (finding probable

cause for warrantless automobile search under Gates, where the defendant’s seemingly

innocuous behavior became “suspicious in light of the anonymous tip,” especially in light of the

prior surveillance of defendant’s apartment.).

43

Cf. Long v. State, 137 S.W.3d 726 (Tex. App.—Waco 2004, pet. ref’d). The affidavit

in that case stated, in part:

Affiant and Detective Tanner have received information on several occasions

within the past two months that Carl Long has manufactured as well as possessed

methamphetamine speed at his residence in the Brushie Prairie Community.

Detective Tanner has received information from a confidential informant

hereinafter referred to as (CI) that Carl Long keeps the equipment to manufacture

methamphetamine speed at his residence in a hole in the ground next to the house.

The CI said that when Long gets ready to manufacture, he removes the lab

equipment from the hole outside the house, takes it into the house and cooks the

speed. The CI advised that Carl Long is using the Nazi Lab method to

manufacture methamphetamine speed. . . . The CI advised Detective Tanner that

Long manufactures the speed in the southwest corner of the house which is a

bedroom. The CI advised Detective Tanner that Long always has all of the

necessary equipment and is able to obtain the necessary chemicals to manufacture

Nazi speed.

On April 8th, 1999, Detective Tanner received information from a confidential

informant hereinafter referred to as (CI) that he or she had been by the suspected

premises within the last 48 hrs and he or she had observed methamphetamine

(speed) being manufactured at the suspected premises by Carl Long and others.

Id. at 730-31. The tip was also corroborated by the detectives’ drive-by of the residence where

they “smelled a odor of ether around the southwest corner of the residence.” Id. at 731.

Duarte Page 16

hours at 10919 Indigo Creek.” That is it.44 How much cocaine did he possess? A couple of

lines worth, laid out at a party and fully consumed? A kilo? Where did Mr. Duarte have the

cocaine? In the pocket of his jeans? Hidden in the attic? Was it piled on the kitchen table

being weighed and packaged for sale? This is not a case where there is a tip about a

methamphetamine lab, or marijuana-growing operation, or crack-cocaine dealing. In those

cases, the tip supports an inference that the criminal activity is ongoing.45 Here, as the State

acknowledged at oral argument, there is nothing in the affidavit that suggests Mr. Duarte was

engaged in drug-dealing. Indeed, one could plausibly conclude from this affidavit that it was

the confidential informer who delivered the cocaine to Mr. Duarte’s house. All we know is

that the informant saw some amount of cocaine “in the possession” of Mr. Duarte.

On the one hand, the informant gave a timely, first-hand tip. On the other hand, the

44

That may be enough if the informant has a track record and is known to be reliable.

We have held as much. In Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1972), probable

cause was based solely on affiant’s receipt of information from a confidential informant that the

informant had personally observed methamphetamine “at the above described location within 48

hours of the date of the making of this Affidavit.” Id. at 784. We held that the tip supported the

magistrate’s finding of probable cause. But the tip was not from a first-time informant. Rather,

included in the four-corners of the affidavit was the averment: “Affiant has received information

from said reliable and credible informant on previous occasions and such information has proven

to be true and correct.” Id.

45

Jones v. State, 364 S.W.3d at 859-62 (confidential informant’s tip that crack cocaine

was being sold out of defendant’s residence–corroborated by a controlled buy and previous

information from at least two informants that drugs were being sold from the address–“was

sufficient to establish probable cause that a continuing drug business was being operated from

the residence, a secure operational base”); Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App.

2006) (informant’s tip–considered with crimestopper’s tip and affiant officer’s statement that on

the day the affidavit was prepared, an officer drove past the residence and smelled a strong

chemical odor that he has associated with the manufacture of methamphetamine–supported

magistrate’s decision to issue warrant).

Duarte Page 17

police failed to corroborate the tip except to confirm Mr. Duarte’s address. But the fact that

Mr. Duarte lives where the informant says he lives does not make his assertion that Mr.

Duarte possessed cocaine more reliable. Further, the tip was vague, not an “explicit and

detailed description of alleged wrongdoing” that the Gates court referenced. There were no

facts from which to draw an inference that the referenced “credible individual” actually was

a “credible individual.” The affiant’s ipse dixit does not make it so.46 Under the

totality-of-the-circumstances analysis–balancing the relative weights of all the various indicia

of reliability (and unreliability) attending the informant’s tip–the magistrate here did not have

a substantial basis upon which to find probable cause.

We agree with the State that “an affiant’s basis for finding the informant reliable need

not be of any certain nature.”47 But, whatever its nature, it must be demonstrated within the

four corners of the affidavit. Here, the affiant-officer believed that the confidential informant

was credible largely because he was a “confidential informant”–a “snitch” with pending

criminal charges who wanted to trade a tip for leniency. We decline to equate the reliability

46

Elardo v. State, 163 S.W.3d 760, 766 (Tex.App.—Texarkana 2005, pet. ref’d) (“The

warrant in this case provides no facts on which the magistrate could conclude that the ‘reliable

source’ is reliable, nor does the warrant contain any corroboration of the informant’s information

or other indicia of reliability. The warrant only contains the conclusory and bare-bones assertion

that the source is reliable.”). We agree with appellee that affiant’s vouching statement–“The

credible individual’s statement to me that the information is true enhances the probability that the

information is correct”–does nothing to establish the reliability of the informant. Appellee’s

Petition at 11. Merely because the Cretan Liar says, “My information is true,” does not increase

the probability that his information is correct.

47

State’s Response Brief at 9.

Duarte Page 18

of a first-time, unnamed informant with that of a named citizen-informant.

The trial judge correctly identified the problem with this boilerplate affidavit: it

contained insufficient particularized facts about appellee’s alleged possession to allow the

magistrate to determine probable cause to issue a search warrant. The trial judge did not err

in granting Mr. Duarte’s motion to suppress. The judgment of the court of appeals is

reversed, and the case is remanded to the trial court for proceedings consistent with this

opinion.

Delivered: September 12, 2012

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