NO. 07-11-00064-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A SEPTEMBER 15, 2011

RODRICK L. BI BBS, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2010-429,100; HONORABLE BR ADLEY S. UNDERWOOD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Rodrick Bibbs, appeals his conviction 1 for the offense of possession with intent to deliver more than 200 gram s but less than 400 gr ams of a controlled substance, cocaine, and sent ence of incarceration for life. 2 We affirm.

1 Appellant entered an open plea of guilty to the indicted off ense. However, he appeals the trial court’s pre-tr ial ruling denying his motion to suppress the cocaine that was discovered in the search of 4637 Fordham.

2 See T EX

. H EALTH & S AFETY C ODE A NN . § 481.112(e) (West 2010).2 Background On January 15, 2010, Lubbock Police Officer Daniel Boggs submitted an affidavit in support of a request for a search warrant for the prem ises located at 4637 Fordham in Lubbock. In this affidavit, Boggs st ated that he had obtain ed information from confidential sources and other la w enforcement officers that appellant is pu rported to be a distributor of cocaine in the Lubbock area. Boggs also stated that the confidential source, from which much of the information contained in the affidavit was obtained, has provided true information in the past. Boggs’s affidavit provided the followin g as evidencing probable cause to issue a search warrant of 4637 Fordham: Within the past seventy-two hours said CS [confidential source] was able to make a controlled purchase of cr ack cocaine from said residence. During this operation Investigators met with the confidential informant face to face. Said CS was searched prio r to and after the controlled purchase. No illegal narcotics have been found on the CS any of the times he/she was searched. Constant surveillanc e was maintained on the CS during the transaction. The CS made cont act with an unknowing participant. The unknowing participant told the CS that he/she needed to go get the crack from a house and t he unknowing participant aske d the CS if the CS would take him/her to his/her connecti on to get the crack cocaine. The surveillance team observed the unknowin g participant get into the CS’s vehicle. The surveillance team followed the CS and the unknowing participant directly to 4637 Fordham. Surveillance units observed the unknowing participant exit the CS’s vehicle and go inside of 4637 Fordham. A few minutes later the unknowing participant exited the residence and got back in the vehicl e with the CS. The unknowing participant gave the CS a quantity of crack cocaine. The unknowing participant did not stop at any other lo cation or make contact with anyone prior to going to the residence. W hen the unknowing participant exited the residence he/she went directly back to the vehicle with the CS. Surveillance units then followed the CS and the unknowing participant back to the location where the source was picked up. After the completion of the transaction I took custody of t he crack cocaine from the CS. . . .3 The suspected cocaine that has been bought during the above controlled purchase tested positive for cocaine using a field test kit. Based on the information contained with in Boggs’s affidavit, the Honorable William H. Sowder, as magistrate, issued a warrant to search 4637 Fordham. When this warrant was executed, 21 2.5 grams of cocaine, a se t of scales, a plate that appeared to have cocaine residue on it, and a magazine for a firearm were found. Appellant was indicted for the offense of possession wit h intent to deliver more than 200 grams but less than 400 grams of a controlled subs tance. The indictment further alleged that the offense was committ ed in a drug-free zone, and that appellant had twice been previously convicted of felony o ffenses. Prior to trial, appellant filed a motion to suppress all evidence obtained as a result of the execut ion of the search warrant. After the trial cour t held a hearing where it heard the argum ents of counsel, it denied appellant’s motion to suppress. The State waived its allegation that the offense was committed in a drug-free z one, and appellant entered an open plea of guilty to the offense and the habitual offender enhancements. The trial court f ound appellant guilty and sentenced him to incarcerati on for life. Appellant appeals the denial of his pre-trial motion to suppress evidence. Appellant’s sole issue on appeal is that, under the totality of the circumstances, there was no probable cause to support i ssuance of the search warrant for 4637 Fordham.4 Standard of Review

The constitutions of the United St ates and the State of Texas guarantee individuals the right to be free from unreasonable sear ches and seizures. U.S. C ONST

. amend. IV; T EX

. C ONST . art. I, § 9. However, a magistra te may issue a search warrant if a warrant request is supported by an affida vit that states probable cause. See Zarychta v. State , 44 S.W.3d 155, 165 (Tex.App.—Houston [14 th Dist.] 2001, pet. ref’d). Whether the facts alleged in an affidavit sufficiently support the issuance of a search warrant depends on whether, considering the totality of the circumstances, those facts would justify a conclusion that the object of the search is probabl y on the premises. Ramos v. State , 934 S.W.2d 358, 362-63 (T ex.Crim.App. 1996). Review of a magistrate's determi nation of probable c ause to support the issuance of a search warrant does not include cr edibility determinations because the review is constrained to the four corner s of the affidavit. Hankins v. State , 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). However, review of a magist rate's decision to issue a warrant is afforded great deference becaus e of our constitutional preference for searches to be conducted pursuant to a warrant as opposed to warrantless searches. Rodriguez v. State , 232 S.W.3d 55, 61 (Tex.Crim.App. 2007) (citing Illinois v. Gates , 462 U.S. 213, 236, 103 S.Ct. 231 7, 76 L.Ed.2d 527 (1983)). So long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause dete rmination. Hughes v. State , 334 S.W.3d 379, 385 (Tex.App.—Amarillo 2011, no pet.) (citing Gates , 462 U.S. at 236). In other words, we will uphold the magistrate’s issuance of a search warrant so long as the affidavit5 provided sufficient information to allow the magistrate to make a practical, common sense decision that, given the totality of the ci rcumstances set forth in the affidavit, there was a fair probability that c ontraband or evidence of a cr ime would be found in a particular place. Carrillo v. State , 98 S.W.3d 789, 791 (Tex.App.—Amarillo 2003, pet. ref’d). Analysis Appellant contends that t he affidavit supporting the search warrant failed to establish probable cause to believe that contraband would be found at 4637 Fordham because the nature of the transaction reli ed upon was an uncontrolled buy. Appellant contends that the presence of the unknowin g participant described in the affidavit interposed a layer between the confidential source and the transaction that renders reliance on the transaction as estab lishing probable cause misplaced. This Court has previous ly addressed the argument raised by appellant, and has concluded that this type of “uncontrolled buy” may establis h probable cause sufficient to support the issuance of a search warrant. See id . at 793. In Carrillo , an undercover officer met with a “subject” for the purpose of purchasing cocaine. Id . at 792. However, this subject informed the officer that she had to travel to another lo cation to obtain the cocaine. Id . As the subject left the officer, she was observed driving directly to a residence, which she entered for a brief period of time. Id . Upon her exit from the residence, the subject drove to a pay phone where she placed a call. Id . The subject directly returned to the residence and went inside. Id . When the subject went to the6 residence the second time, a van had arrived at the residence. 3 Id . After leaving the residence, the subject drove directly back to the officer to whom she delivered a quantity of cocaine. Id . The appellant in Carrillo argued that the subject may have gone to the residence to mislead the undercover office r as to the source of the cocaine, even if she did not know that he was an undercover officer. Id . at 793. This Court held that, “[a]bsent any indication that the subject knew [the undercover officer] was a police officer, the magistrate could have reasonably concluded the likelihood that the subject’s actions were the result of subterfuge were su fficiently low to support the conclusion that there was a ‘fair probability’ cocai ne was located in the house.” Id . Further, we emphasized that the key questi on in reviewing the magistra te’s decision was whether there was a fair probability t hat cocaine could be found in th e residence rather than that any particular person had given the cocaine to the subject. Id

. In the present case, appellant makes t he same argument that the appellant in Carrillo presented. Appellant contends that Carrillo was wrongly decided because, within the drug trade, such elaborate subterfuge and mi sdirection may be reasonably expected due to paranoia regarding possible police investigations or f ear of other rival drug dealers being able to locate where the dealer stores his or her drugs. While we agree with appellant that it is possible that a drug deale r might employ such elaborate

3 We identify the fact that a van arri ved at the residence because the van’s presence in Carrillo provides a plausible source of t he cocaine other than the residence for which the search warrant issued. It does not appear that the appellant in Carrillo argued that the presence of the van affected the determination of whether the affidavit established probable cause to support the i ssuance of the search warrant for the residence. Regardless of wh ether such a fact would a ffect the propriety of the magistrate’s probable cause det ermination, no such potentia l intervening source of the cocaine exists in the present case.7 precautions, it is more logical to infer that the unknowing participant in this case went to 4637 Fordham to pick up the cocaine from that location. Thus, we conclude that the magistrate made a practical, common sense decision that, given the totality of the circumstances set forth in the affidavit, t here was a fair probabilit y that contraband or evidence of a crime would be found at 4637 Fordham. See id . at 791; see also State v. Walker , 140 S.W.3d 761, 767-68 (Tex.App.—Houston [14 th Dist.] 2004, no pet.) (relying on Carrillo to reverse the suppression of evidenc e obtained via a search warrant issued based on an uncontrolled buy). Appellant also contends t hat the affidavit supporting the search warrant issued in this case contains factual holes and c onclusory statements that undermine the magistrate’s determination of probable caus e. However, the statements about which appellant complains relate to indications th at appellant was known to be a drug dealer. Such statements have no bearing on the det ermination of whether probable cause existed in this case since the magistrate was called upon to determine whether there was probable cause to belie ve that contraband was loca ted at 4637 Fordham rather than whether there was probable cause to believe that appellant was the source of the cocaine. See Walker , 140 S.W.3d at 767; Carrillo , 98 S.W.3d at 793. For the foregoing reasons, we overrule appellant’s sole issue.8 Conclusion Having overruled appellant’s sole issue, we affirm the judgment of the trial court.

Mackey K. Hancock Justice

Do not publish.