State v. Duarte

• Decision Date: 12 September 2012
• Docket Number: No. PD–1511–11.,PD–1511–11.
• Parties: The STATE of Texas v. Gilbert DUARTE, Appellee.
• Court: Texas Court of Criminal Appeals

389 S.W.3d 349

The STATE of Texas

v.Gilbert DUARTE, Appellee.

No. PD–1511–11.

Court of Criminal Appeals of Texas.

Sept. 12, 2012.

Suzanne M. Kramer, San Antonio, for Appellant.

Mary Beth Welsh, San Antonio, Lisa McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.

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 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 informant ² 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 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 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.

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 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 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...