1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

 

UNITED STATES OF AMERICA §

§

§

v. § No. 7:05-CR-005-R (1)

§

§

DONALD STEVEN LOONEY §

MEMORANDUM OPINION AND ORDER

Before the Court is defendant, Donald Steven Looney’s motion to suppress, filed June 3,

2005, and the government’s opposition to the motion, filed June 14, 2005. The Court held a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), on September 28, 2005. After reviewing the

briefs submitted by counsel, examining the applicable law, observing the demeanor of the warrant

affiant at the hearing, and judging his credibility in light of the evidence presented, the Court

DENIES defendant’s motion to suppress.

I. BACKGROUND

In January 2004, authorities from the Bureau of Indian Affairs (“BIA”) and state police

began investigating drug trafficking at the Comanche Nation’s Red River Casino in Oklahoma. As

part of that investigation, Agent Gary Cunningham, an undercover agent of the BIA, purchased a

small amount of methamphetamine (0.1 grams) from a woman named La Donna Harris on January

29 at the casino. Agent Cunningham then returned to the casino days later and purchased more

methamphetamine (1.5 grams) from Harris. Defendant’s wife, Mary Beth Looney, accompanied

Harris during this transaction. Months later, on June 13, Agent Cunningham returned to the casino

and purchased 5.7 grams of methamphetamine from Harris. At this time, Harris told Agent

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION

FILED

October 18, 2005

CLERK, U.S. DISTRICT COURT

 

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The parking lot is less than two miles from the Looney residence.

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At one point, Harris proposes that Agent Cunningham park near the Looney residence so that they can

arrange the following transaction: Cunningham would give Harris half of the purchase price for the drugs, which she

would then take to Mary Beth Looney inside her home in exchange for the drugs. Harris would then walk back to

Agent Cunningham’s car and give him the drugs once he paid the remaining amount owed.

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Cunningham that Mary Beth Looney was her supplier. 

On August 16, 2004, Agent Cunningham began negotiating with Harris to buy a full ounce

of methamphetamine, a far larger amount than he had previously purchased. The next day, Harris

informed Agent Cunningham that she was concerned about security at the casino and wanted the

transaction to occur in Wichita Falls, Texas. The two agreed to meet in Wichita Falls on August 24

for the sale. Agent Cunningham then contacted Officer Bobby Dilbeck of the Wichita Falls Police

Department to inform him of the investigation and to request his assistance in conducting a “buy

bust.” 

On the afternoon of August 24, Agent Cunningham met with Harris and her ex-husband

Ernest Green at a Carl’s Jr. parking lot in Wichita Falls.1 See Gov.’t Ex. 4 (map of area). Officer

Dilbeck and other WFPD officers observed the meeting from unmarked vehicles parked nearby.

Unbeknownst to Harris and Green, Agent Cunningham hid a microphone and a wire tap device

inside his vehicle, which permitted Officer Dilbeck to hear and record the entire encounter. Portions

of the recorded conversations were played in chambers during Defendant's September 28 hearing.

Those recordings and Officer Dilbeck’s testimony serve as the basis for the remainder of this factual

account. See Gov.’t Ex. 1, 2 (audio recording and accompanying transcript). 

Harris told Agent Cunningham that she did not have the drugs as promised since Mary Beth

Looney did not want to relinquish the drugs until she was assured of payment. Harris then proposed

that they all go to the Looney residence to arrange the sale.2

 Agent Cunningham told Harris that he

 

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Officer Dilbeck testified about the shortest route between the parking lot and the Looney residence and

also estimated the travel time between those two locations. 

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Officer Dilbeck later testified on cross examination at the Sept. 28 hearing that Green was not under

constant surveillance during his trip.

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did not want to go to the Looney residence and insisted on staying at the parking lot. She then used

Agent Cunningham’s cellular telephone to call 940-[xxx-xxxx] – the published telephone number

for the Looney residence – to tell Ms. Looney about the problem. She spoke with Defendant about

the problem and was told to wait for Mary Beth Looney to bring the drugs. As they waited for Ms.

Looney to arrive, Harris expressed concern that the transaction was not occurring as planned and

blamed Mary Beth Looney for the situation. 

Mrs. Looney never came. As a result, Harris became frustrated by the unanticipated delay

(as evidenced by her four- and five-letter words describing the situation and the long-overdue Ms.

Looney). She then directed Ernest Green to drive to the Looney residence, located at 4319

Greenridge Ave., to locate Ms. Looney. Green then left Harris alone with Agent Cunningham and

departed in the direction of the Looney residence.3

 The two WFPD officers dispatched to monitor

the Looney residence saw Ernest Green arrive, enter the residence, and depart shortly thereafter in

the direction of the parking lot.4

While waiting for Green to return, Harris told Agent Cunningham that the Looneys were her

supplier and that their residence was the source of the methamphetamine. She also told him about

her extensive experience in drug sales, her preferred strategy in arranging drug transactions so as

to minimize detection by the police, and her reasons for disapproving of Ms. Looney’s complicated

directives for the sale. After a few minutes had lapsed, she once again phoned the residence. This

time, she spoke with Mary Beth Looney who told her that Green would be returning with the

 

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The AUSA present at the Sept. 28 hearing presented, without interruption, the entire audio recording from

the time of Green’s departure to the time of his return. The time between these two events was estimated to be

approximately ten to fifteen minutes, which Officer Dilbeck testified would have been consistent a trip to the Green

residence from the parking lot.

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merchandise. When Green returned,5 he entered Agent Cunningham’s vehicle and showed him the

drugs. Officers then descended on Green and Harris and arrested them for delivering a controlled

substance. 

Shortly thereafter, Officer Dilbeck prepared an affidavit for a search warrant for drugs,

paraphernalia, and weapons at the Looney residence. In that affidavit, he recited Harris’s admissions

implicating the Looneys as the source of the drugs; the three undercover drug purchases at the casino

(one of which was in the presence of Mary Beth Looney); the arranged meeting on August 24,

including Harris’s statement to Agent Cunningham that Mary Beth Looney feared sending the drugs

without being paid first; and the telephone call from Harris to Mary Beth Looney who informed

Harris that she was sending the drugs with Green. In addition, the warrant affidavit also stated that

“WFPD officers saw Ernest Green enter the Looney residence and drive directly to the... parking

lot.” Gov.’t Ex. 3 (warrant affidavit). Accordingly, Officer Dilbeck concluded from these facts and

the “recored [sic] conversation” that methamphetamine delivered by Green “came from” the Looney

residence and that more methamphetamine could be found there. Id.

A state magistrate reviewed the affidavit and authorized the search. The officers executing

the warrant discovered more than 200 grams of methamphetamine, assorted paraphernalia, and four

weapons, including an assault rifle. The Bureau of Alcohol, Tobacco, and Firearms accepted the

case for federal prosecution, and Defendant was indicted by a federal grand jury for possessing with

intent to distribute more than 50 grams of methamphetamine (21 U.S.C. §841(a)(1)) and for

possessing firearms in furtherance of a drug trafficking crime (21 U.S.C. §924(c)).

 

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To obtain a “Franks hearing,” the defendant must make a “substantial preliminary showing” that a

particular portion of the warrant affidavit is false. See Franks, 438 at 171. This is usually accomplished by an “offer

of proof” through affidavits or otherwise. Id. When the defendant is unable to produce such evidence, he or she

should explain the absence of such evidence to the satisfaction of the court. 

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II. ANALYSIS

Defendant has moved to suppress the evidence found at his home, claiming that the search

warrant was based, “in whole or in part,” on false or misleading evidence, without which there

would not have been sufficient probable cause for the warrant to issue. Def.’s Mot. at 2.

Specifically, Defendant challenges the sentence in the warrant affidavit which states, “WFPD

officers saw Ernest Green enter the Looney residence and drive directly to the... parking lot.” See

Gov.’t Ex. 3 (warrant affidavit). In support of his motion, Defendant successfully requested an

evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), which was held on Wednesday,

September 28, 2005.6

A. Defendant’s Burden of Proof under Franks v. Delaware

In Franks v. Delaware, the Supreme Court stated that a defendant who makes a “substantial

preliminary showing” that a false statement was included in an application for a warrant may

introduce or develop additional evidence at an evidentiary hearing to prove that some of the

allegations on which the search warrant rests were false and were deliberately or recklessly included

in the warrant affidavit. See Franks, 438 U.S. at 171. To prevail at a Franks hearing, a defendant

must prove by a preponderance of the evidence that (1) the challenged statements were false and (2)

their inclusion in the affidavit amounted to, at the very least, reckless disregard for the truth on the

part of the affiant or other officers. See id. If the defendant meets his or her burden of proof, then

the tainted language will be excised from the affidavit and the court will then determine whether the

 

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remaining portion of the affidavit would have established probable cause for the warrant to issue.

Id. 

The Court in Franks emphasized that any deliberate falsity or reckless disregard for the truth

must occur on the part “of the affiant [and] not any governmental informant.” See Franks, 438 U.S.

at 171. This distinction is best understood from the perspective of the exclusionary rule. Since the

exclusionary rule is designed to deter police misconduct, only the veracity of the police themselves

is at issue in a Franks hearing. Therefore, if a private informant provides an officer with

deliberately false information and the officer uses that information to procure a search warrant, the

only relevant issue at a Franks hearing would be whether the officer reasonably believed that the

information obtained from the informant was reliable. This is because the Fourth Amendment only

requires the government to show good reason for believing the existence of facts necessary for

probable cause; it does not require that officers have absolute certainty of every fact they recite. As

the Supreme Court stated in Franks, “[W]hen the Fourth Amendment demands a factual showing

sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful

showing.” Id., at 164-65 (emphasis in original)(citation omitted). “This does not mean ‘truthful’

in the sense that every fact recited in the warrant affidavit is necessarily correct... But surely it is to

be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by the

affiant as true.” Id., at 165. 

Yet, a special situation arises in cases like this one, where the information recited by the

officer-affiant is obtained from other police officers. The Court in Franks contemplated this

situation and warned that “police [cannot] insulate one officer's deliberate misstatement merely by

relaying it through an officer-affiant personally ignorant of its falsity.” Id., at 163 n.6. For that

 

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 The good-faith exception to the exclusionary rule provides that where probable cause for a search warrant

is based on incorrect information, but the officer's reliance upon the truth of that information was objectively

reasonable, then the evidence obtained from the search will not be excluded. See United States v. Leon, 468 U.S.

897, 919-20 (1984).

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reason, various courts of appeal, including the Fifth Circuit, have held that defendants may be

entitled to suppression based on the misstatements or omissions of an officer-informant who is not

the actual affiant, if the officer acted deliberately or with reckless disregard for the truth. See Hart

v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997) (citing United States v. Wapnick, 60 F.3d 948, 956

(2d Cir. 1995); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992)).

If the Defendant fails to meet his burden of proof under Franks, the court may apply the

“good-faith” exception to the exclusionary rule7

 and consider whether the entire warrant affidavit

establishes probable cause to search. See United States v. Cavazos, 288 F.3d 706, 710 (5th Cir.

2002) (“After several hearings... the district court found no evidence to suggest that the officers had

deliberately or recklessly provided the false information. Having made these findings, the

good-faith exception would have allowed the court to consider the entire affidavit, and the analysis

should have ended there.”). By contrast, if the defendant meets his burden of proof under Franks,

then the court must then excise the tainted language from the affidavit and determine whether the

remaining portion would have established the necessary probable cause for the warrant to issue.

Cavazos, 288 F.3d at 710 (citing Franks, 438 U.S. at 156-57 and United States v. Alvarez, 127 F.3d

372, 374 (5th Cir. 1997)); see also, United States v. Dickey, 102 F.3d 157, 161 (5th Cir. 1996). This

is because the good-faith exception to the exclusionary rule cannot apply when an officer does not

act in “good faith.” Cavazos, 288 F.3d at 709-10 (citing Franks, 438 U.S. at 155-56). 

B. Defendant Fails to Meet his Burden of Proof

Defendant argues that the search warrant at issue in this case “was obtained... in whole or

 

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in part with false or misleading information.” Def.’s Mot. at 2. Specifically, Defendant challenges

Officer Dilbeck’s claim that WFPD officers saw Ernest Green enter Defendant’s residence and

“drive directly” to the parking lot where Harris and Agent Cunningham were waiting. See Govt.’s

Ex. 3 at 3. Defendant argues that without these statements there would not have been probable cause

to search and, therefore, the warrant would not have issued. See Def.’s Mot. at 2. 

The Government responds to these allegations by arguing that the affidavit did not contain

any misstatement or, alternatively, that “any misstatement” about Green’s travels between the Carl’s

Jr. parking lot and the Looney residence was not deliberate since those statements were a

“reasonable inference” from the circumstances of the investigation. See Govt’s Resp. at 7 n.4 (citing

United States v. Collins, 972 F.2d 1385, 1411 (5th Cir. 1992)). Lastly, the government argues that

even if the Defendant could prove that Officer Dilbeck or another officer deliberately or recklessly

made a false statement, “any error or omission concerning the movements of Green during his

travels to and from the [Defendant’s] residence does not undercut a finding of probable cause” since

the other recitals in the affidavit would be sufficient for probable cause to search the Defendant’s

residence. See Govt’s Resp. at 7.

As shown below, the Court finds that Defendant fails to meet his burden of proof. Although

the Defendant shows by a preponderance of the evidence that the statement was “false or

misleading,” Defendant fails to prove that Officer Dilbeck acted deliberately or with reckless

disregard for the truth when he included that statement in the affidavit. 

1. False Statement

Defendant alleges that the following statement is false or misleading: “WFPD officers saw

Ernest Green enter the Looney residence and drive directly to the... parking lot.” Gov.’t Ex. 3

 

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Merriam-Webster Online Dictionary, http://www.m-w.com/ (last visited Oct. 15, 2005) (defining

“directly”). 

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(warrant affidavit). This phrase contains two factual allegations: the first is that WFPD officers saw

Green “enter” the Looney residence and the second is that they saw him “drive directly” to the

parking lot. With respect to the first factual allegation, the Court heard testimony from Officer

Dilbeck that there were two undercover officers positioned outside the Looney residence who saw

Ernest Green enter the residence. Although Defendant attempted to disprove this allegation on cross

examination, the Court finds defendant has failed to show by a preponderance of the evidence that

officers did not see Green enter the Looney residence.

More problematic, though, is the allegation that officers saw Green “drive directly” to the

parking lot. The adverb “directly” means “in a direct manner” or “without delay.”8

 Therefore, use

of the phrase “drive directly” in the affidavit implies to the judge evaluating the affidavit that

officers observed Ernest Green drive to the parking lot from the Looney residence along a “direct”

route between the two points and without stopping elsewhere. In order for officers to have known

whether Green “drove directly” to the parking lot, Green must have been under constant surveillance

the entire time. Yet, Defendant was able to prove at the Franks hearing that Green was not under

constant surveillance as he drove from the Looney residence to the parking lot since Officer Dilbeck

admitted on cross-examination that he and the other officers had decided not to follow Green in

order to avoid compromising their investigation. 

Although it is true that the courts should avoid second-guessing investigatory tactics or

meddling with police work, there are instances when the courts must determine a simple matter of

fact which, unfortunately, might be characterized as second-guessing. Here, the Court must

determine under Franks whether the Defendant proved by a preponderance of the evidence that

 

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Officer Dilbeck’s statement that officers saw Green “drive directly to the... parking lot” is false or

misleading. Gov.’t Ex. 3. Based on Officer Dilbeck’s own testimony at the September 28 hearing,

the Court finds that Defendant has proved by a preponderance of the evidence that the allegation is

false and misleading. Although Officer Dilbeck testified that officers saw Green drive away from

the Looney residence in the direction of the parking lot, he also admitted that Green was not under

constant surveillance as the phrase implies. No officer saw Green “drive directly” to the parking

lot. Moreover, even if the Court were to read the phrase “drive directly” as suggesting that WFPD

officers saw Ernest Green drive “directly” away from the house in the direction of the parking lot,

the phrase still is misleading since it suggests that Green was under constant surveillance. 

2. Officer Dilbeck’s State of Mind

Having established that Officer Dilbeck’s statement that officers saw Ernest Green “drive

directly” to the parking lot was false or misleading, Defendant must now prove by a preponderance

of the evidence whether Officer Dilbeck included this allegation in his affidavit either deliberately

or with reckless disregard for the truth. As shown below, Defendant fails to make this showing.

At the September 28 hearing, Officer Dilbeck testified that he drafted the affidavit for the

search warrant based the information that he received from Agent Cunningham, his eavesdropping

on Agent Cunningham’s meeting with La Donna Harris and Ernest Green, his visual observations

of the encounter, and the reports of other officers who saw Ernest Green presumably retrieve drugs

at the Looney residence and drive away in the direction of the parking lot. To corroborate Officer

Dilbeck’s affidavit, the government played the audio recording of Agent Cunningham’s August 24

meeting with Harris and Green in open court. The contents of the audio recording were lengthy, full

of colorful conversation, and supported Agent Cunningham’s version of events. The recorded

 

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dialogues of Harris, Agent Cunningham, and Ernest Green support the inference that Ernest Green

retrieved drugs from the Looney residence and returned “directly” to the parking lot. The

government even played the audiotape without interruption from the time that Ernest Green left the

parking lot and the moment that he returned with the drugs-- a ten to twenty minute period. Officer

Dilbeck testified that this period of time is consistent with the normal travel time between the

parking lot and the Looney residence. Moreover, Officer Dilbeck testified that officers saw Ernest

Green drive away from the parking lot in the direction of the Looney residence and depart the

Looney residence in the direction of the parking lot. From these observations, Officer Dilbeck

testified that he inferred that the source of the methamphetamine was the Looney residence. 

Defendant argued at the September 28 hearing that, at the very least, Officer Dilbeck

“recklessly” included the misleading phrase “drive directly” in the affidavit. However, based on

Officer Dilbeck’s testimony and his forthright and honest demeanor on cross examination, the Court

finds that Officer Dilbeck’s testimony regarding his intentions is credible and that any error in

stating that officers saw Ernest Green “drive directly” to the parking lot was inadvertent and not

deliberate or reckless. The Court finds that Officer Dilbeck’s statement that officers saw Green

“drive directly” to the parking lot was only a loose inference from what he observed. Officer

Dilbeck received reports that Green was seen visiting the Looney residence and leaving a short time

later. Officer Dilbeck inferred from this and the short duration of Green’s trip, which he testified

was consistent with a trip to 4319 Greenridge, that Green had driven “directly” to the parking lot

from the Looney residence. If anything, the Court believes that Officer Dilbeck’s statement that

officers saw Green “drive directly” to the parking lot was a loose misstatement and not a deliberate

attempt to deceive a magistrate into issuing a search warrant on less than probable cause.

 

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Accordingly, the Court finds that the Defendant fails to show by a preponderance of the evidence

that Officer Dilbeck deliberately or recklessly included the statement in the affidavit.

C. The Affidavit Established Probable Cause to Search

Since Defendant fails to prove by a preponderance of the evidence that Officer Dilbeck acted

deliberately or with reckless disregard for the truth when he included the misleading allegation into

the affidavit, the good faith exception to the exclusionary rule applies and the Court must now

determine whether the entire affidavit (including the challenged statement) established probable

cause to search Defendant’s residence. See United States v. Cavazos, 288 F.3d at 710. 

Under Texas law, a magistrate evaluating an application for a search warrant must decide

whether based on the totality of the circumstances set forth in the affidavit there is a fair probability

that contraband or evidence of a crime will be found in a particular place. Ramos v. State, 934

S.W.2d 358, 362-63 (Tex.Crim.App. 1996); Illinois v. Gates, 462 U.S. 213, 238 (1983). In this

regard, probable cause is to be determined from the four corners of the affidavit and any reasonable

inferences that may be drawn from it. Cassias v. State, 719 S.W.2d 585, 587-88 (Tex.Crim.App.

1986). The allegations recited in the affidavit will be sufficient for a search warrant to issue if they

justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d

at 363. 

 The Texas Court of Criminal Appeals has held that a court reviewing the sufficiency of an

affidavit for a search warrant should interpret the affidavit in a common sense and realistic manner,

recognizing that the magistrate was permitted to draw reasonable inferences from the information

contained in the affidavit. Hankins v. State, 132 S.W.3d 380 (Tex.Crim.App. 2004). Because

probable cause is determined from the ‘four corners’ of the affidavit alone, a court reviewing the

 

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sufficiency of an affidavit for a challenged warrant does not judge credibility when determining

whether the affidavit was sufficient for probable cause. Burke v. State, 27 S.W.3d 651, 654

(Tex.App.--Waco 2000, pet. ref’d) (citing Wynn v. State, 996 S.W.2d 324, 326-27 (Tex.App.-- Fort

Worth 1999, no pet.)). 

In Carrillo v. State, , 98 S.W.3d 789 (Tex.App.–Amarillo 2003, pet ref’d), the Amarillo court

of appeals upheld a search warrant that was issued based on an affidavit which stated that an

undercover officer had purchased drugs from an individual who was seen moving between the

location of a drug transaction and the defendant’s residence, presumably to obtain the contraband

for the prospective purchaser. In relevant part, the affidavit at issue in Carrillo stated the following:

The subject advised Affiant he/she had to travel to another location to receive the

cocaine. This subject left Affiant and drove directly to this residence. Upon

arriving, this subject went inside the residence, and exited a short time later. The

amount of time the subject spent inside the residence was consistent with a narcotics

transaction. The subject then left and drove a short distance to a pay phone, where

a call was placed. After the call, this subject drove directly back to this residence

and went inside again. When he/she arrived the second time, a 1991 Plymouth Van

had arrived bearing Texas Registration DB28CX. After a short time, this subject left

this residence and drove directly back to Affiant, where a quantity of cocaine was

delivered to Affiant. This subject was kept under surveillance during this entire time

and met with no other subjects. 

 

Id., at 792. The magistrate approved the warrant, and drugs were discovered during a search of the

defendant's home. Id.

On appeal from his conviction, the defendant argued that the statements in the affidavit

pertaining to the individual's movements were based on hearsay – e.g. the individual's comment to

the undercover affiant that he had to go elsewhere to obtain the drugs – since the affiant had

remained at the original location while the individual deliberately left to obtain the drugs. The court

of appeals rejected this argument for lack of evidence suggesting that the affiant could not have been

 

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aware of the suspect’s movement. Id., at 793. More importantly, the court found that “[e]ven

ignoring the subject's hearsay statement, there are only two rational inferences that can be drawn

from the subject's actions, namely 1) she went to the house to pick up the cocaine, or 2) she went

to the house to make [the affiant] believe that was where she obtained the cocaine.” Id.

Accordingly, the court found that the affidavit was sufficient to establish probable cause to search.

The facts recited in the affidavit at issue in this are similar to those found in Carrillo and

provide more evidence to find probable cause to search the Looney residence. Here, the affidavit

states the following: Agent Cunningham had purchased drugs from Harris on three occasions. On

one of those occasions, Defendant’s wife accompanied Harris. Harris later identified Defendant’s

wife as the source of the drugs. On the day of the bust, Harris and Green met with Agent

Cunningham and told him that they did not have the drugs since Mary Beth Looney was afraid to

sen them. After a lengthy conversation, Ernest Green left the parking lot and drove to the Looney

residence. While Harris was inside the residence, La Donna Harris phoned Looney. She then told

Agent Cunningham that Mary Beth Looney was sending the drugs with Green. Officers observed

Ernest Green arrive at the home, enter, and depart directly to parking lot shortly thereafter. Green

then delivered the drugs when he returned to the parking lot. 

Based on these recitals in the affidavit, a magistrate could reasonably infer that Defendant's

residence contained methamphetamine. Agent Cunningham, a prospective buyer, was given the

impression that Green was going somewhere to obtain the drugs for sale, while other police officers

observed Green enter and leave the residence while seeking to procure the contraband. Like in

Carrillo, the magistrate in this case had sufficient evidence from which he could reasonably infer

that under the totality of the circumstances Defendant's residence was the likely source of

 

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methamphetamine. Cf. Carrillo, 98 S.W.3d at 793. 

Even more incriminating was that Harris indicated that Defendant’s residence was the source

of the methamphetamine and that Green returned from his trip to the residence with

methamphetamine. In Brown v. State, 115 S.W.3d 633 (Tex.App.–Waco 2003, no pet), the Waco

court of appeals ruled that an affidavit for a search warrant contained sufficient information to

establish probable cause that the defendant was manufacturing methamphetamine at his home. The

affidavit indicated that the defendant had purchased chemicals used in the manufacturing process,

that an individual at the defendant's former residence indicated that she believed that the defendant

had been producing methamphetamine, and that methamphetamine had just been seized from a

vehicle seen departing from defendant’s residence. The court concluded that these facts, “[t]aken

together,” provided a “substantial basis” for the magistrate to find probable cause to search the

residence for methamphetamine. See id., at 637. 

This Court finds that the facts recited in Officer Dilbeck’s affidavit provided a substantial

basis for the magistrate to conclude that probable cause to search the Looney residence existed since

those recitals, taken together, established probable cause to search Defendant’s residence.

 CONCLUSION

The Court finds that Officer Dilbeck and his fellow officers did not deliberately or recklessly

include a false or misleading statement in the affidavit and that the affidavit established probable

cause to search Defendant’s residence. 

 

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Accordingly, Defendant’s motion to suppress is DENIED.

 

It is so ORDERED.

ENTERED: October 18, 2005.

___________________________________

JUDGE JERRY BUCHMEYER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

 

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