Flores v. The State Of Tex.

• Decision Date: 19 May 2010
• Docket Number: No. PD-1016-09.,PD-1016-09.
• Citation: 319 S.W.3d 697
• Parties: Felix FLORES, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

319 S.W.3d 697

Felix FLORES, Appellant,v.The STATE of Texas.

No. PD-1016-09.

Court of Criminal Appeals of Texas.

May 19, 2010.

Ken Mahaffey, Austin, for appellant.

David A. Mendoza, Asst. D.A., San Marcos, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In this case, we must determine whether the magistrate who issued the search warrant for Felix Flores's residence had a substantial basis for concluding that probable cause existed. We hold that the magistrate did have a substantial basis.

On March 6, 2007, Detective Attila Farkas and other members of the Hays County Narcotics Task Force obtained a magistrate's warrant to search the residence at 1920 Ramona Circle in San Marcos.¹ The warrant authorized a search for cocaine, marihuana, and other evidence of drug trafficking. The probable cause affidavit in support of the warrant read in relevant part as follows:

“Affiant, Attila Farkas, is a peace officer employed by the Hays County Sheriff's Office and is currently assigned to the Hays County Narcotics Task Force. Affiant has been employed as a peace officer for over 9 years. Affiant has been involved in numerous narcotic investigations during Affiant's career and has received numerous hours of training and experience in narcotic investigations.

“Affiant has observed cocaine, crack cocaine, methamphetamine, 3, 4-methylenedioxy methamphetamine or ecstasy, marijuana, lysergic acid diethylamide or LSD, heroin, psilocybin mushrooms and other illegal narcotics in these investigations and is aware of how they are manufactured, cultivated, packaged for sale, transported, and used.

* * *

“In February of 2007, Affiant received a phone call from a concerned citizen regarding narcotics activity at a house located on Ramona Circle in San Marcos, Texas. The caller wished to remain anonymous for reasons of his/her safety. The concerned citizen could not give an exact address but did describe the vehicles that are typically found at the residence. The vehicle descriptions were a black F-150 truck and a gold Firebird. The concerned citizen also stated that an individual by the name of Felix Flores resides at the residence with his girl friend. The female was only identified as a white female by the name of Tiffany. The concerned citizen also stated that he/she had observed a quantity of cocaine inside the residence in the past and that Child Protective Services had conducted an investigation [of] Flores regarding the use of marihuana in the presence of his children.

“Affiant with the aid of Detective Ronald Verette located the suspected residence. Detective Verette observed a residence on Ramona Circle with vehicles matching the descriptions given to Affiant. Detective Verette observed the residence was marked 1920 and provided the license plates of the vehicles to Affiant. Affiant checked both vehicle registrations through the DPS, MVD data base. The black truck, TX registration 4WKS82 returned to a Felix Flores with a Maxwell, Texas address. The registration of the gold Firebird returned to a Maria Wardell at 1920 Ramona Circle, San Marcos, TX.

Affiant conducted a utility subscriber check to establish who had utility information at 1920 Ramona Circle, San Marcos, TX. Tiffany Wardell was the name listed on the account. The account information provided the TX drivers license # 112437791. Affiant checked that number through the DPS data base and it returned to a Tiffany Wardell with the address of 1920 Ramona Circle, San Marcos, TX. Affiant checked the Hays County Sheriff's Office data base for any information on Felix Flores. The information obtained gave his address as being located in Maxwell, TX. Affiant checked the Hays County Narcotics Task Force data base for any information regarding Felix Flores. The only information provided stated that the Task Force had obtained information regarding Flores several years ago and the information was turned over to Caldwell County Narcotics since Flores did not live in this jurisdiction at that time.

“Affiant contacted Caldwell County Narcotics and spoke with Jesse Hernandez regarding Felix Flores. Hernandez advised Affiant that Flores had been under investigation but that no charges had been filed. Affiant contacted Child Protective Services and spoke with Cheryl Smith regarding Flores. Smith advised that there had been an investigation regarding the welfare of children at Flores' residence but that it had occurred at his residence in Maxwell.

“On 03-01-07, Affiant obtained the abandoned household garbage from the garbage can located in the street, directly in front of the residence located at 1920 Ramona Circle, San Marcos, Hays County, Texas.^[2] Affiant examined the garbage for any evidence of narcotics use. Affiant located two empty packages of cigarette rolling papers. Affiant from his experience and training knows that [this] type of rolling papers [is] commonly used to smoke marijuana cigarettes. Affiant also located a plastic bag believed to contain a small amount of marijuana residue. Affiant swabbed the inside of the bag using a q-tip. Affiant placed the q-tip inside a marijuana field test kit. The q-tip turned a purple color indicating the presence of marijuana.

“On 03-05-07, Affiant again obtained the abandoned household garbage from the garbage can located on the street, directly in front of the residence at 1920 Ramona Circle, San Marcos, Hays County, Texas. Affiant again examined the contents of the garbage for any evidence of narcotics use. Affiant located several marijuana stems, seeds and marijuana residue.”

On March 7, 2007, Farkas and other members of the Task Force executed the search warrant. In the course of their search, they discovered small quantities of marihuana and cocaine.

On September 13, 2007, a Hays County grand jury returned an indictment charging Flores with the felony offense of possession of more than four grams but less than 200 grams of cocaine with intent to deliver. See Tex. Health & Safety Code § 481.112(d).

On March 10, 2008, Flores filed a written motion to suppress all of the items found during the March 7, 2007, search of the Ramona Circle residence. In his motion, Flores, citing both the Fourth Amendment to the United States Constitution and Article I, § 9, of the Texas Constitution, argued that the search of the residence had been carried out without probable cause and, thus, without a valid warrant.³ More specifically, Flores argued:

“[T]he affidavit for the search warrant [did] not contain sufficient underlying facts adequately to inform the magistrate of how the alleged informant obtained his/her information and [did] not contain sufficient underlying facts to establish the credibility and reliability of the alleged informant. Additionally, the searches of the trash receptacles ^[4] outside of the residence [were] insufficient to establish probable cause to search the residence.”

On May 12, 2008, immediately before Flores's trial, the trial court held a brief, non-evidentiary hearing on Flores's motion to suppress, and then denied it. The jury later found Flores guilty as charged and assessed his punishment at imprisonment for twelve years.

On direct appeal, Flores, again citing both the Fourth Amendment and Article I, § 9, argued that the trial court had erred in denying his motion to suppress. Flores's argument proceeded as follows:

“The search warrant affidavit failed to provide a [substantial] basis for the magistrate to believe there was contraband in the house to be searched and at the time the warrant issued. An anonymous tip will rarely be sufficient to provide probable cause. Here, the tip did not even give a date. Although the affiant corroborated some information in the tip, these facts were essentially matters of public knowledge. The officers did find traces of marijuana in the two trash searches, but the affidavit did not establish an affirmative link to [Flores] or his house. Because garbage is readily available to the public, these two discoveries alone were insufficient to establish probable cause.”

The State argued in response:

“Contrary to [Flores's] belief, the magistrate had a substantial basis for concluding that illegal drugs would be found in the residence targeted for the search, because the confidential informant had first-hand, detailed knowledge of the presence of drugs in the home and knowledge of a CPS investigation involving drug use by [Flores]. Moreover, the information provided by the informant was corroborated with vehicle identification, a utility subscription, and a [background] search which revealed [possible] prior drug activity by [Flores], a confirmed CPS investigation [of Flores], and two trash runs which produced evidence of drugs.”

The court of appeals, after a lengthy analysis, held that “the anonymous informer's tip and related information did not give the magistrate a substantial basis for believing that cocaine, marihuana, or evidence of unlawful controlled substance dealing would be found in the house at 1920 Ramona Circle on March 6, 2007.” ⁵ Flores v. State, 287 S.W.3d 307, 313 (Tex.App.-Austin 2009). The court of appeals also held, however, that Farkas's two “trash runs,” as described in his affidavit, did provide the magistrate with a substantial basis for concluding that probable cause existed:

“[T]he fact that Farkas found marihuana residue in the trash container outside the residence at 1920 Ramona Circle on two different occasions suggests that the incriminating material had not been placed there by a neighbor or some passer-by, but that it actually came from inside the house. The situation is analogous to ‘the doctrine of chances,’ which states that unusual events are unlikely to repeat themselves inadvertently or by happenstance. This presents a very close case, but keeping in mind the deference that is due the magistrate's

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