1 John T. B oyd, C hief J ustic e (R et.), Se ven th C ourt o f Ap pea ls, sitting b y ass ignm ent. T EX
. G O V ’ T

C ODE A NN
. § 75.002(a)(1) (Verno n Supp . 2003). NO. 07-02-0280-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

21, 2003

______________________________

DEANA LO W ERY, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 217 TH DISTRIC T COURT O F ANGELI NA COUNTY; NO. 22,918; HON. DAVID V. W ILSON, PRESIDING

_______________________________ Before JOHNSON, C.J., QUINN, J., and BOYD, S.J. 1 Throu gh one issue, appel lant Deana Lowery contends that th e trial cou rt erred in overruli ng her

motion to suppress evidence obtained pursuant to th e execution of a search warrant. She was allegedly entitled to have the evidence suppressed beca use the affidavit tend ered to c onvince the neutral magistrate to issue the warrant failed to establish probable cause to conclude that t he contraband soug ht was pr obably at the location to be searched. We agree and reverse the judg ment.2 Standard o f Review Whether the trial j udge erred i n denying a moti on to sup press depends upon whether he abused his discr

etion. Guzm an v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); Taylor v. State , 54 S.W .3d 21, 24 (Tex. App.—Ama rillo 2001, no pet.). Whether he abused his discretion depends upon whethe r the decision fell outside the zone of reasonable dis agreement. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Cr im. App. 1991); Taylor v. State , 54 S .W .3d a t 24. In ma king t he la tter dete rmin atio n, we defer to the trial court’s r

esolution of historical fact. Guzm an v. State , 955 S.W.2d at 89; Taylor v. State , 54 S.W.3d at 24. Yet, the same i s not true about the trial court’s interpretation of law or applicati on of law

to fact; regar

ding those i ssues, no deference is requi red for rev iew is de novo

. Id. Next, it is bey

ond dispute that

a search warrant may not be issued unless sufficient facts are presented to a magistra te whi ch permit him to conclude that prob able cause existssupporting the warr ant’s issuance. T EX
. C ODE C RIM
. P ROC
. A NN . art. 18.01(b) (Vernon Supp. 2000); Taylor v. State , 54 S.W.3d at 24. Furthermore , these facts must be contained in a “sw

orn affidavit”accompanying the applicati on for the war rant, id. , and illustrate 1) that a spec ific offens e was comm itted, 2) that the specificall y descri bed property or items tobe sought and seized constitute evidence of that off ense or evidence thata particular

person committed the offense, and 3) that theproperty or items in q uestion
are located at or on the particul ar person, place or thi ng to be sear ched. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 18.01(c) ; Taylor v. State , 54 S.W.3d at 24. Whether the facts mentioned in an affidavit areadequate to establish probabl e cause depe nds on the totali ty of the circumstances. Ramos v. State , 934 S.W.2d 358, 362-63 (Tex. C rim. App. 1996) , cert

.3

denied , 520 U.S. 1198, 117 S.Ct. 1556, 137 L.E d.2d 704 (1997); Taylor v. State , 54 S.W.3d at 24. The facts do s o wh en they permi t one to reasonabl y conclude that the object of the search is probably o n the premises. Id. In other words, the magistrate must have before him sufficient facts upon which to reas onably co nclude that “there is a fair probability

that co ntraband or ev idence of a crime will b e found in a partic ular place.” Illinoisv. Gates , 462 U.S. 213, 238 , 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 ( 1983); Taylor
v. State , 54 S.W.3d at 24. And, it is our duty to ins ure that the mag istrate had a “‘substantial basis’” for so concludi ng. Illinois v . Gates , 462 U.S. at

238-39, 103 S.Ct . at 2332, 76 L.Ed.2d 527; Taylor v. State , 54 S.W.3d at 24. Finally, in reaching his decisi on, the magistrate may draw reasonable infer

ences from facts and cir cumstances alleged in the affidavit before hi m. Ramos v. State , 934 S.W.2d at 363; Taylor v. State , 54 S.W.3d at 24. Applicatio n of the Standard Because the dispute concer ns th e exi stence of probable cause to support t he magistrate’s decision to issue the s earch war rant, we restrict our rev iew of the re cord to the four corners of the affidav it accompanyi ng the request for t he warrant

. Oubre v. State , 542 S.W.2d 875, 877 (Te x. C rim. App. 1976). According to the conten ts of the aff idavit at bar, permission was sought to sea rch a home located at 104 Misty wood Street (the residence
or sus pected pl ace) . Theaffia nt be lie ved that appe lla nt ha d “p osse ssi on of, and i s concealing at said suspec ted place . . . [methamphetamine] ke pt, prepared or manufactured in viol ation of the laws of this state [and] other paraphernalia, implem ents, instruments, and packaging used in the commi ssion of the offens e of M anufacture, Possession and Deliver y of” that cont rolled substance. The affiant further s aid that:4

On April 18, 2002, affiant receiv ed information from a [reliabl e] confidential informant

. . . referred to as CI#1

. . . that within the past twenty four hours

. . . CI#1 had personally been to the residen ce . . . at 104 M istyw ood Street

. . . and had spoken with a w hite male p erso nall y known by the CI#1 to be Bryan Golden. Affian t personally knows that . . . Gold en was pres en t at a location in Angelina County when amethamphetamine laboratory was seized a long with a q uantity of methamphetami ne. CI#1 adv ised affiant that . .

. Golden appeared to be under the influence of methamphetami ne and that

. . . Golden stated . . . th at “we justcooked dope last night and I a m ‘tweaking’ out” [sic]

. From training and experience, I know that “tweaking” is slang

. . . wh ich indicate s they have ingested methamphe tamine. Affiant further believ es CI#1 to be credible and reliable in that [appell ant] and . . . Golde n have been associated with the manuf acture and/or use o f methamphetamine in the pas t as detailed i n the affidavit. So too did the affiant 1) g enerally describe various methods by which thecont rolle d substance could be manufactured, 2) opined that o ne method (the Nazi method) was an easyone to utilize and required “onlyordin ary beverage containers such as drip style coffee pots, buckets, mason jars, funnel s and common kitch en glassware and utensil ,” and 3) appellant allegedly was arr ested once before for pos sessing a controlled substance over a yea r ea rli er. Not ably abse nt fr

om th e affi dav it, howeve r, i s any ment ion of 1) w here Golden allegedly

“cooked dope” the night before, 2) what met hod was allege dly used to “cook” it, 3) w hether he used a metho d that enabled him to “cook” dope at the residence, 4) the presence of chemicals or equipment in t he residence th at could be used to “cook” methamphetamine, 5) the presence of methamphetam i ne or matter that looked like it in the residence ( aside from that all egedly coursing thr ough Golden’sbody), 6) whether methamphetamine was prev iously made atthe residence, 7) whether metha mphetamine is normally made in a residence, 8) the time at w hich Golden al legedly “tweak[e d] out” on methamphetamine, 9) the time period over whic h such a drug and its affects dis sipate from the body, 10) w hether the un i que odor acco mpanying th e manufacture of2 Courts hav e recogni zed fo r some time now that a uni que odor emanates f rom the manufacture of metham phetamine. Se e H ass v. Sta te , 790 S. W .2d 609, 612 (Te x. C rim . App . 199 0) (s o rec ogn izing); Wynn v. State , 996 S. W .2d 324, 327 (Tex. App. --Fort W orth 1999, no pet. ) (not ing t hat methamphetamine had a distinc t swe et sm ell).

3 Though the op inio n w en t un pu blis he d a nd co ns titut es no bin din g p re ce de nt, it s r ea so nin g is nonethel ess persuasi ve. Moreover, the f act t hat an op ini on is unpubli shed does notmean that a court is f ree to disr egard t he law and arrive a t any co nclu sion it ma y care to wh en a ddre ssin g the dispu te ther e inv olv ed. Qu ite the cont rary , t he law must be f oll owed when adjudi cati ng each appeal ir res p ecti ve of whet her t he ensuing op inio n is pu blis he d o r no t, an d w e h av e n o d ou bt th at it w as follo we d in DeLeon . Sim ply put, there is li tt le r eason to i gnore t he thought contai ned, legal cit ati on mentioned, and concl usions a rri ved at i n DeLeon , thou gh th e op inion itse lf m ay not b e bind ing pr ece den t. 5 methamphetamine was pres ent in the residence, 2 11) whether Golden or

appellant was at the residence on t he night the drug was “ cooked,” 12) t he location in Angelina County whereat the police pr

eviously seized the c onte nts o f a m etha mph etam ine la bora tory, 13) the loca tion wh ereat appellant was previo usly arr ested for possess ing a contr olled
s ubsta nce, or 14) the natu re of the substance that she alleg edly posses sed when previousl y arrested. In short, the per

tinent and substantive allegations purportedly justifying the search of the residence consisted of nothi ng more than the statement that methamphetami ne was cooked within the previous 24 hours at some unmen tioned place by Golden and someone else, Golden waslater found intox icated, G olden w as previo usly at s ome unmentioned location where dr ug paraphernal ia was s eized at sometime or another , and appellant w as previously arrested for po ssessing a controlled substance. The se circumstances diff er little from those before us in State v. DeLeon , No. 07-95-0339-CR ( Tex. App.—Amar illo 1996,
n o pet.)

. 3 There, the magi strate wa s told that dr ugs had been pur chased from DeLeon within t he last 24 hours but not the locat ion of the sale. N or was i t told that the affiant or informant

saw any drugs at t he location to b e searched. Given those circumstances, we concluded that the alleg ations wer e not enoug h to es tablish probabl e cause justi fying6

issuance of a search warrant to sear ch the suspected location. We f ind reason and foundation in that holding and in its appl ication to the circumstances before us. So, i n view of the complete absence of any facts reg arding the p r esence of 1) methamphetamine (save for that sugg esting that Golden suppos edly ing ested the drug atsome unmentioned time and at some unmentioned place), or 2) methamphetamin e making eq uipment or chemicals at the residen ce to be search ed, one cannot reasonably say there exists a fair probability

that such a drug and the p araphernalia u sed to make it were at the res idence. Too many gapsare to be filled w ith guess, hope, and surmise when attempting to infer from the f act t hat d rugs we re ma de so mewh ere b y a person who was high that drugs were made at the place to be searched. See Hass v. St ate , 790 S.W.2d 609, 612 (Te x. C rim. App. 1990) (concl uding that one cannotreasonably infer that drug mak ing equi pment can be found in a warehouse simply from the fact th at the individual possessed drugs in his car while outside the w

arehouse). And, whatever discretion to which the trial court is enti tled cannot be used to fil l them. Thus, the t ria l co urt

err ed i n fa iling to gra nt appellant’smotion and suppres s the evidence of

the contraband found asa result of the search. Furthermo re, since that search provided the e viden ce of appe llan t’s gu ilt, we conc lude that the e rror wa s harmful pe r Texas Rule of Appe llate Procedur e 44.2(a). Acco rdin gly, the judgment is revers ed a nd the cause is remanded for further proceedings.

Brian Quinn Justice Publish.