NO. 07-09-00234-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A APRIL 6, 2010

THE STATE OF TEXAS, APPELLANT

v. CHRIS ALLEN MCLAIN, APPELLEE

FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B18002-0904; HONORABLE EDWARD LEE SELF, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

The State of Texas appeals the granting of a motion to suppress by the trial court. 1 Appellee, Chris Allen McLain, was arrested and indicted for possession with intent to deliver a controlled substance, me thamphetamine, in an amount of four grams or more but less than 200 grams. 2 We affirm.

1 See T EX

. C ODE C RIM

. P ROC

. A NN . art. 44.01(a)(5) (Vernon 2007).

2 See T EX

. H EALTH & S AFETY C ODE A NN . § 481.112(a), (d) (Vernon Supp. 2009)2 Factual and Procedural Background On February 27, 2009, a Plainview po lice officer presented an affidavit requesting a search warrant to sear ch a business and residence at 3607 North Columbia in Plainview, Texas. The affidavi t further alleged that the location to be searched was controlled by appellee. A search was conducted and officers found several items of contraband, among which wa s over 100 grams of methamphetamine. A Hale County Grand Jury subsequent ly indicted appellee on a charge of possession with intent to deliver methamphetamine, in an amount of four grams or more but less than 200 grams. A ppellee’s trial counsel filed a motion to suppress the contraband seized as a result of the search authorized by the warrant. The trial court held a hearing on appellee’s motion to suppress on June 29, 2009. At the conclusion of the hearing, the trial court requested briefs from both parties setting forth their arguments. After receiving t he briefs, the trial court grant ed the motion to suppress on July 14, 2009. At the request of the State, the tr ial court filed findings of fact and conclusions of law on July 15, 2009. The State has brought forth two issues on appeal. First, the State contends that the trial court abused its discretion by grant ing the motion to suppress. Second, the State alleges that the good fa ith exception contai ned in article 38.23 of the Texas Code of Criminal Procedure 3 applies. Disagreeing with the St ate, we will affirm the judgment of the trial court.

3 Further reference to the Texas Code of Criminal Procedure will be by reference to “article __” or “art. __.”3 Standard of Review

The State contends that the trial court abused its disc retion when it granted the appellee’s motion to suppress the evidenc e seized when the s earch warrant was served. We normally review a trial court’ s ruling on a motion to suppress by using a bifurcated standard of review, w herein we give almost total deference to the historical facts found by the trial court and review de novo the trial court’s app lication of the law. Amador v. State , 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). However, when the trial court is determining probable cause to suppor t the issuance of a search warrant there are no credibility determinations, rather the trial court is cons trained to the four corners of the affidavit. Hankins v. State , 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). Accordingly, when we review the magistrate ’s decision to issue a warrant, we apply a highly deferential standard. Swearingen v. State , 143 S.W.3d 808, 810-11 (Tex.Crim.App. 2004). We apply this deferential standard because we have a constitutional preference for searches to be conducted pursuant to a warrant as opposed to warrantless searches. Id . at 810. (citing Illinois v. Gates , 462 U.S. 213, 234- 37, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983)). As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate’s probable caus e determination. Gates , 462 U.S. at 236. For purposes of our review, we will find pr obable cause to exist when the affidavit shows facts and circumstances within the affi ant’s knowledge to warrant a person of caution to believe that 1) a specific offens e has been committed, 2) the property to be searched or items to be seized constitute ev idence of the offense or evidence that a4 particular person committed the offense, and 3) the property or items are located at or on the person, place, or thing to be sear ched. Art. 18.01( c); Hughes v. State , 843 S.W.2d 591, 593 (Tex.Crim.App. 1992). Finally , we are instructed not to analyze the affidavit in a hyper-technical manner. Gates , 462 U.S. at 236. Ra ther, when we review the magistrate’s determination, we should interpret the a ffidavit in a commonsensical and realistic manner, recognizing that the magistrate may dr aw reasonable inferences. Rodriguez v. State , 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). Analysis According to the findings of fact issued by the trial court, the court found that the affidavit lacked any specificit y regarding when the matters re ferenced within its four corners occurred. The only mention of time wit hin the four corners of the affidavit is the following statement: “In the pa st 72 hours, a conf idential informant advised the Affiant that Chris was seen in possession of a large amount of me thamphetamine at his residence and business.” The Stat e urges that we view this statement as implying that the observation of the methamphetamine occurred within the 72 hours before the execution of the affidavit. However, such an implication is not supported by the plain text of the affidavit. We agree with the trial court that, given a common sense reading, the affidavit’s reference to the “past 72 hour s” speaks to when the affiant spoke to the confidential informant, not when the confidential informant acquired the information.

All we can determine from the four corners of the affi davit is when the affiant spoke to the confidential informant. As the onl y time reference given in the affidavit is the one described above, the affidavit fails to provide probable cause for it fails to meet5 the requirements of ar ticle 18.01(c). See art. 18.01(c). The affidavit fails to give the magistrate any idea of when any of the acti vity which allegedly supports the issuance of a warrant occurred. See Davis v. State , 202 S.W.3d 149, 155 (Tex .Crim.App. 2006). The failure to describe when the events referred to took place is fatal to the efficacy of the affidavit. Schmidt v. State , 659 S.W.2d 420, 421 (Tex.Crim.App. 1983). Because the affidavit fails to meet the requirements of article 18.01(c), th ere can be no probable cause for the issuance of a search warrant. Id . Accordingly, the trial court did not abuse its discretion in granting appellee’s motion to suppress. We, therefore, overrule the State’s first issue. Article 38.23(b)

We will next address the State’s second cont ention. The State alleges, because appellee’s motion to suppress was based on clai ms that the search in question violated the Fourth Amendment to the Un ited States Constitution and Article I, section 9 of the Texas Constitution and did not specifically request exclusion of the evidence pursuant to article 38.23(a), that the good faith exception of article 38.23(b) applies to allow the State to use the evidence. First, the position of the St ate ignores the plain lan guage of article 38.23(b), which states: It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforce ment officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. art. 38.23(b).6 When we construe a statute, we look at the plain meaning of the words used in the statute unless the language is ambiguous or its plai n meaning leads to absurd results. Swearingen v. State , No. AP-76,073, 2010 Tex.Crim.App. LEXIS 9, at *8 (Tex.Crim.App. February 10, 2010). Looking at the plain meaning of the statute, it is clear, that in order for the ex ception that the State urges to apply, there must first be probable cause. See Carroll v. State , 911 S.W.2d 210, 223 (Tex.App.—Austin 1995, no pet.) (citing Curry v. State , 808 S.W.2d 481, 482 (Tex.Crim.App 1991)). Inasmuch as we have determined that the trial court did not abuse its discretion in finding that the affidavit in support of the s earch warrant did not provide probable cause, the exception of article 38.23(b) does not appl y. Therefore, we overrule the State’s second issue.

Conclusion Having overruled the State’s issues, we affirm the tria l court’s judgment.

Mackey K. Hancock Justice

Publish. Pirtle, J., concurring.