REVERSE and REMAND; and Opinion Filed August 6, 2015. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 14
- 00974
- CR THE STATE OF TEXAS , Appellant
V.
AMBER LASHBROOK , Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F12
- 23860 

### MEMORANDUM OPINION Before Justices Francis, Lang

- Miers, and Whitehill Opinion by Justice Lang

- Miers Appellee Amber Lashbrook is charged by indic tment with possession of methamphetamine in an amount of less than one gram. On appeal, the State of Texas challenges the trial court’s order granting appellee’s pretrial motion to suppress evidence. Because the issues are settled, we issue this memorand um opinion. T EX
. R. A PP
. P. 47.4. We reverse and remand.
B ACKGROUND Police executed a warrant to search an apartment occupied by appellee and John Flanagan . Appellee and Flanagan filed separate pretrial motions to suppress evidence seized at– 2

– the apartment. 1 The trial court held a consolidated hearing and granted both defendants’ motions. 2
The Warrant The warrant at issue in the hearing on the defendants’ motions to suppress authorized the search of an apartment located at 3208 W. Buckingham Rd. #D in the City of Garland, Dallas County, Texas for “[m]arihuana[,] EVIDENCE SUPPORTING THE SALE OF MARIHUAN A
AND PROCEEDS FROM NA RCOTICS SALES .”
The Probable
- Cause Affidavit In support of the warrant, M. Taylor, an investigator in the narcotics unit of t he Garland police department, stated that he had probable cause to believe that appellee and Flanagan “do at this time unlawfully possess an illegal controlled substance [,] ” marijuana , and evidence supporting the sale of marijuana and proceeds from narcoti cs sales. Taylor stated, On Monday 06/18/2012, Narcotics Investigator M. Taylor #6751, herein referred to as the Affiant, responded to 3208 W Buckingham Rd # D (The Richland Apartments located within the City of Garland, Dallas County, Texas) in referenc e to an assigned case [

. ] The aforementioned case was created in response to Child Protective Services (“CPS”) case # 42270812. CPS case # 42270812 alleged illegal drug use at 3208 W Buckingham Rd. # D. and listed the residents of this location as the sub jects listed in paragraph # 3 above, John Flanagan and Amber Lashbrook. Taylor stated that, once he arrived at the apartment, he observed t hat the front door had been damaged so that it could no longer be properly secured. Taylor knocked and Flanagan
op ened the door. Taylor stated that he “ recognized [Flanagan] through police files ” and that

1 The trial court conducted an initial hearing on appellee’s motion to suppress, at which Flanagan testified as a witness. During Flanagan ’s testimony , the trial court became aware that Flanagan “was possibly subject to an indictment for the same offense” and, as a result, stopped the initial hearing and appointed counsel for Flanagan. The court subsequently held a consolidated hearing on the motions to sup press filed by appellee and Flan agan and granted both motions. Appellee’s motion to suppress evidence alleged that evidence sho uld be suppressed because police conducted a nonconsensual, warrantless search , an issue appellee began to present at the discontinued initial hearing . But a ppelle e and Flanagan confined their argument at the consolidated hearing on the ir motion s to suppress to whether, based on the information within the four corners of the search warrant affidavit, there was probable cause to issue the warrant. And the trial court granted the ir motion s based on that issue. 2 The State appealed the trial court’s ruling in both cases and we decide this appeal at the same time we decide State v. Flanagan , case number 05

- 14

- 00975

- CR.– 3

– Flanagan “was listed as the resident in CPS case # 42270812[.]” Taylor asked Flanagan if Taylor and his partner, Investigator S. Ehrman, “could come inside and speak to Flanagan about a current investigation.” Flanagan said yes and Taylor and Ehrman entered the apartment . Once inside, Taylor confirmed that appellee and Flanagan lived the re and told Flanagan that Taylor “was at the location in reference to a CPS case.” Appellee, who Officer Taylor said was observed in a rear bedroom, asked the officers why they were at the apartment. Taylor told

a ppellee that he was at the apartment “in reference to the CPS case[.]” Appellee then volunteered that the apartment was “clean” and that the officers “could look through it.” Taylor did not search the apartment, but walked around to get an overall view of the living conditions. Taylor said th at, when he walked through the master bedroom, he “observed a green plan t stem” that he “recognized through his experience as a Narcotics investigator as a Marihuana stem.” Taylor seized the stem and asked appellee and Flanagan for consent to search the

a partment . Both denied consent. Taylor “immediately secured ” the a partment in order to
prepare the application for a warrant. Taylor said that he used a department issued field test kit, “Duquenois

- Levine Reagent #908[,]” to perform a field test on the “seized Marihuana stem.” The field test was positive , “confirming that the stem was Marihuana.” Taylor concluded that it was his “experience as a police officer and narcotics investigator that persons who use and sell Marihuana do possess quantities of packaged Marihuana secreted inside their residence and out buildings.” The Hearing on the Motions to Suppress During the consolidated hearing on the motions to suppress, appellee’s attorney “accede [ d ] to” counsel for Flanagan arguing the issue of the suff iciency of the affidavit to support the search warrant and “urge[d] this with him.” Flanagan’s counsel argued that “the only– 4

– probable cause given is they found a marijuana stem” and “that alone is not sufficient for a magistrate to issue a search warrant of a home.” Flanagan’s counsel argued that there was no evidence in the search warrant that appellee and Flanagan were involved in the sale of drugs, no evidence of equipment and money associated with the sale of drugs, and no evidence that the defendants were under the influence of marijuana or that there was any immediate prior activity of marijuana use at the location. He argued that “[a]ll we have here [was] a stem,” and, as a result, “within the four corners of the affidavit,” there was not enough ev idence to establish probable cause. In response, the State argued that the court should follow constitutional principles requiring it to defer to the magistrate’s determination of probable cause and that the stem was not the only basis for probable cause. The State argued that the affid avit stated that the detective went to the residence in response to a CPS case concerning suspected drug use by appellee and Flanagan. The State contended that, once the detective saw evidence of drug use in the house, ther e was probable cause for a warrant and, as a result, the warrant on its face was sufficient. The State also contended that the CPS report was “referenced in the affidavit” and it was “in the warrant, so [it wa s] evidence before the Court.” The defendants’ counsel argued that the CPS report was not the basis of the af fidavit nor was it in evidence. When asked by the trial court if the CPS report was presen ted to the magistrate, the prosecutor responded that he did not know

— to which the court replied , “D oes n’t
count.” The prosecutor argued that the report did not have to be presented to the magistrate. And h e argued that detectives and officers often use anonymous tips and information people tell them. He said this information was not anonymous

— but rather the CPS communicated the information and the officer listed the CPS case report number and location address, and “specifically allege[d] drug use was the basis of the CPS investigation.”– 5

– The court asked what “distinguishing characteristic” would enable a n experienced narcotics investigator to determine that a green plant stem was marijuana as opposed to another type of green plant stem. The State replied that the detective testified that he could tell that the stem was a marijuana stem based on his train ing and experience. The court granted the motion s to suppress and the State appealed. S TANDARD OF R EVIEW AND A PPLICABLE L AW The Fourth Amendment establishes a constitutional preference that a search be conducted pursuant to a warrant. Jones v. State , 364 S.W.3d 854, 856

– 57 (Tex. Crim. App. 2012) (citing Illinois v. Gates , 462 U.S. 213 , 236 (1983) ) ; see U.S. C ONST
. amend. IV. Under Texas law, no search warrant may issue without a sworn affidavit that sets forth facts sufficient to establish probable cause. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 1.06 (West 2005), art. 18.01(b), (c) (West Supp. 2014); see also T EX
. C ON ST
. art. 1, § 9. Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be f ound at the specified location

. State v. Duarte , 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). Probable cause is a “flexible and non

- demanding standard.” State v. McLain , 337 S.W.3d 268, 272 (Tex. Crim. App. 2011)

. We normally review a trial court’s ruling on a motion to suppress by using a bifurcated standard of review, where we give almost tot al deference to the historical facts found by the trial court and review de novo the trial court’s application of the law. Id. at 271. But when the trial court is determining probable cause to support the issuance of a search warrant, there are no credibi lity determinations. Id. Rather the trial court is constrained to the four corners of the affidavit. Id. B ecause of the constitutional preference for searches to be conducted pursuant to a warrant, we apply a highly deferential standard of review to a magistrate’s probable

- cause determination. Bonds v. State , 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); McLain , 337– 6

– S.W.3d at 271. Under this highly deferential standard, we interpret the supporting affidavit in a commonsensical and realistic manner, and we defer to all reasonable inferences that the magistrate could have made. McLain , 337 S.W.3d at 271; Rodriguez v. State , 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); see Bonds , 403 S.W.3d at 873. We consider the totality of the circumstances and determine whether there are sufficient facts stated within the four corners of the affidavit, coupled with inferences from those facts, to establish a fair probability that evidence of a particular crime would be found at a given location. See Rodriguez , 232 S.W.3d at 62; see also Flores v. State , 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate’s probable

- cause determination. Bonds , 403 S.W.3d at 873; McLain , 337 S.W.3d at 271 (“When in doubt, we defer to all reasonable inferences that the magistrate could have made.”); see also Gates , 462 U.S. at 238

– 39. Although the reviewing court is not a “rubber stamp,” “the magistrate’s decision should carr y the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” Jones , 364 S.W.3d at 857 (quoting Flores , 319 S.W.3d at 702).
A RGUMENTS The State argu es that the trial court erred by granting the motion to suppress because the search warrant affidavit contained sufficient facts to provide the issuing magistrate with a substantial basis for concluding that there was a fair probability that marijuana or evidence related to illegal drugs would be pre sent at the target address and that a search of that location would yield evidence related to illegal drugs. The State argues that the affiant’s discovery of a stem that he confirmed to be a marijuana stem in the target residence was “sufficient in and of itself” to establish probable cause. T he State also argues that (1) the trial court’s expressed doubts concerning how a trained narcotics officer could identify that a green stem was a– 7

– marijuana stem and (2) its comments indicating that the court did not consider “ the existence of the CPS report ” reflected that the trial court did not give proper deference to the magistrate’s determinations and di d not consider all facts in the affidavit. The State contends that the magistrat e was entitled to find affiant Taylor’s statements concerning his discovery and recognition of a marijuana stem and his confirmation that the stem was marijuana through a field
test to be credible . And the State contends that the magistrate was entitled to cred it the information that CPS provided affiant Taylor, and

— if the “basic factual assertions” communicated to Taylor about the CPS report were conclusory

— the magistrate was entitled to give conclusory statements some weight. Appellee argues that the trial court did not err when it granted the motion to suppress because Flanagan did not consent to Taylor entering the apartment or, if consent was given, it was coerced or Taylor “exceeded the consent given to enter the apartment[ .]” But appellee did not rely on those arguments at the consolidated hearing at which the trial court gr anted the motion based on the issue of the sufficiency of the affidavit to support probable cause and appellee does not support her arguments with cita tions to the record or authorities on appeal. See
T EX
. R. A PP
. P. 38.1(i). As a result, she presents nothing for our review on the issue of consent.
A ppellee also incorporates the brief filed by Flanagan “in its entirety” into her brief. As we have not ed, we decide Flanagan’s appeal simultaneously with our decision in this case. Lashbrook does not raise any different facts or arguments with respect to Flanagan’ s response to the State’s issue . As a result, for the reasons stated in State v. Flanagan , c ase number 05

- 14

- 00975

- CR, we do not need to separately address those arguments here and, as we did with Flanagan’ s case, we decide the issue in favor of the State.– 8

– C ONCLUSION We reverse the trial court’s order granting appellee’s motion to suppress and remand this case for further proceedings consistent with this opinion.

Do Not Publish Tex. R. App. P. 47.2(b) 140974F.U05 /Elizabeth Lang

- Miers/ ELIZABETH LANG

- MIERS JUSTICE– 9

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant
No. 05

- 14

- 00974

- CR V. AMBER LASHBROOK, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F12

- 23860. Opinion delivered by Justice Lang

- Miers, Justices Francis and Wh itehill participating.

Based on the Court’s opinion of this date, the order of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered this 6th day of August, 2015.