State v. Cantu

• Decision Date: 01 February 1990
• Docket Number: No. C14-89-936-CR,C14-89-936-CR
• Citation: 785 S.W.2d 181
• Parties: The STATE of Texas, Appellant, v. Juan P. CANTU, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 181

785 S.W.2d 181

The STATE of Texas, Appellant, v. Juan P. CANTU, Appellee.

No. C14-89-936-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 1, 1990.

Candelario Elizondo, Houston, for appellant.

J. Harvey Hudson, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

CANNON, Justice.

This appeal by the State alleges that the district court erred in granting a motion to suppress evidence. The appellee was indicted for possession of more than 200 lbs. of marijuana. The drugs were seized pursuant to a search warrant issued by Judge Doug Shaver, 262nd District Court. The appellee's motion to suppress alleged that the search warrant's supporting affidavit lacked probable cause to justify a search, therefore the warrant was invalid. Judge Frank Price of the 208th District Court agreed, and granted the motion to suppress. We find that the totality of the circumstances indicate sufficient probable cause thus the evidence should not have been suppressed. We reverse the order and remand this case to the trial court.

The affidavit supplied the following information: that Officer Villasana received information on January 9, 1989 from a credible and reliable informant that a Latin male (with alias and description) had marijuana for sale and personal use at 2222 Collier; that the informant has supplied information before and the information has always been accurate; that the informant could identify marijuana by sight and smell and in his opinion the substance in the house was marijuana; that Officer Villasana was experienced in observing narcotic transactions; that on January 9, 1989 he observed the appellee engaged in a narcotic transaction at 2222 Collier with two other unidentified latin males; that after this activity was observed, the other two men were arrested a short distance from the house and were in possession of marijuana; that Officer Villasana also observed other unknown males being let into the house by the appellee; and that Officer Villasana observed the appellee open the door to the house with what appeared to be a door key.

The standard to be applied in assessing probable cause is the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d527 (1983); Bower v. State, 769 S.W.2d 887, 903 (Tex.Crim.App.1989). The probable cause standard is not technical, it is practical, and deals with probabilities, not hard certainties. Bower, 769 S.W.2d at 902. Because practical people formulate certain common sense conclusions about human behavior, the evidence "... must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

Furthermore, we must not lose sight of the purpose of probable cause standards, which are designed to protect citizens from unreasonable interference by police, yet at the same time afford police the ability to enforce the law in the protection of the community. Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Officers often face ambiguous situations, particularly in the narcotics field of law enforcement. Rigid legal rules in this area would not leave a reasonable margin of error for acting on facts that lead sensibly to conclusions of probability. Gates, 103 S.Ct. at 2329.

Additionally, we are instructed by the United States Supreme Court and the Texas Court of Criminal Appeals that the magistrate's determination of probable cause should be given great deference by the reviewing court. U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Bower, 769 S.W.2d at 902. Affidavits for search warrants must be interpreted in a commonsense and realistic manner. As the one in question appears to have been, this type of affidavit is usually drafted by non-lawyers hurriedly during a criminal investigation. Technical requirements and grudging attitudes by the reviewing courts would discourage officers from submitting evidence before acting. Ventresca, 85 S.Ct. at 746.

It is the duty of this court to determine from the four corners of an apparently valid affidavit whether under the totality of the circumstances the magistrate had a substantial basis for concluding there was probable cause. We must review the legal sufficiency of the affidavit independent of the district court's decision. State v. Escobar, 764 S.W.2d 570, 572 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd).

In view of the forgoing authority, we now turn to the affidavit itself for review. The appellee indicates in his brief the areas where he believed, and Judge Price agreed, the affidavit was deficient. He asserts that the affidavit does not indicate that the information from the informant was not stale. However, in view of the totality of the circumstances as reflected in the affidavit, we find indication that the information was current. The officer got the information on the ninth of January, and on that same day he observed the appellee engaged in behavior that, in his experience as a narcotics officer, indicated drug activities. This supported the information gained that day from the informant, regardless of when the informant himself may have acquired it. The affidavit thus indicates that circumstances constituting probable cause existed recently enough to render it likely that evidence would still be present. Hall v. State, 171 Tex.Crim. 227, 347 S.W.2d 262, 263-64 (App.1961).

Another area of deficiency according to the appellee involves whether the informant had ever been inside 2222 Collier. Although the affidavit does not expressly state that the informant in fact had been inside, it did state that he knew marijuana by sight and smell and that in his opinion the substance in the house was marijuana. It can be inferred that he had been in the house in order to have formed this opinion. Nor do we...