Affirmed and Memorandum Opinion filed November 5, 2013.

In the

Fourteenth Court of Appeals

NO. 14-12-00785-CR

NO. 14-12-00786-CR

MARCUS LEANDREW SMALLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 1341051 & 1341052

M E M O R A N D U M O P I N I O N

Appellant Marcus Leandrew Smalley was convicted by a jury of possession 

with intent to deliver cocaine weighing more than 200 but less than 400 grams, and 

of unlawful possession of a firearm by a felon. Appellant challenges both 

convictions on appeal, arguing that the trial court abused its discretion by denying 

his motion to suppress. Appellant contends that: (1) the affidavit supporting the 
2

search warrant was not sufficient to show probable cause, thus violating his rights 

under the Fourth Amendment, article I, section 9, of the Texas Constitution, and 

articles 1.06 and 38.23 of the Texas Code of Criminal Procedure; and (2) the 

affidavit also did not support reasonable suspicion to authorize a “no knock” entry 

for police to execute the warrant. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for felony possession with intent to distribute a 

controlled substance, namely, cocaine, weighing at least 200 and less than 400 

grams, including any adulterants and dilutants, alleged to have been committed on 

or about October 27, 2011. Appellant was also indicted for the felony offense of 

being a felon in possession of a firearm, alleged to have been committed on or 

about the same date.

On October 27, 2011, a Harris County magistrate found that probable cause 

existed to support issuing a search warrant for an apartment located on Greens 

Parkway. The warrant further authorized police to dispense with the usual 

requirement to “knock and announce” their purpose before entering the apartment.

The magistrate based his finding on an affidavit provided by Officer Zamora of the 

Houston Police Department.

In his affidavit, Zamora stated that there was a suspected place and 

premises—the Greens Parkway apartment—and described the apartment complex, 

and the position and number of the “target apartment.” Zamora provided a 

physical description of the “suspected party” in control of the apartment, also 

known as “Ca-Leon.” Zamora averred to his belief that the suspected party was in 

possession of and concealing illegal narcotics, including powder cocaine. Zamora 

then provided the “probable cause” basis for such belief:
3

Within the past 72 hours Officer Lara and I met with a confidential 

informant. I have used this informant in at least three prior narcotics 

investigations, and in each and every one of those narcotics 

investigations I have recovered narcotics. This informant can 

accurately identify crack cocaine by sight and smell. This informant 

has proven to me to be credible and reliable.

The informant will remain anonymous to ensure his/her personal 

safety.

Officer Lara and I met the informant at a secluded location away from 

vehicular and pedestrian traffic. I searched the informant. I did not 

find any money or contraband on the informant’s person. I then gave 

the informant a quantity of city owned money.

Officer Lara and I and the informant then went to [street number] 

Greens Parkway [apartment complex name], in Houston, Harris 

County, Texas.

I observed the informant go directly to apartment #[] and meet with 

the suspected party. I then observed the confidential informant leave 

apartment #[] and return[] directly to me.

The informant gave a quantity of a powder like substance to me. I 

chemically field tested the substance given to me by the informant and 

noted a positive result for cocaine content.

The informant relayed the following information to me.

The informant told me that he/she went to the target location and met 

with the suspected party inside of the target location. The informant 

told me that he/she told the suspected party that he/she wanted a 

quantity of powder cocaine. The informant told me that he/she then 

exchanged the city buy money with the suspected party for a quantity 

of powder cocaine. The confidential informant told me that the 

suspected party produced the powder cocaine from the top of a table 

in the living room. The confidential informant told me that he/she 

observed at least 10–12 small baggies of powder cocaine left on the 

table. The confidential informant told me that the suspected party told 

him/her to only buy dope from him and not any other mother f[**]ker 

out there.

In the affidavit, Zamora also requested authorization to enter the target apartment 

“without first knocking and announcing the presence and purpose of officers 
4

executing the warrant.” Zamora then provided the following reasons why 

“knocking and announcing would be dangerous, futile, or would inhibit the 

effective investigation of the offense”: the informant told Zamora that the 

suspected party is known to carry a pistol; Zamora found a police report regarding 

a suspect “Kallon,” whose physical description matches that of the suspected party, 

who allegedly “pulled a pistol out on a female complainant and threatened her with 

it”; and Zamora knew from a credible and reliable source that the suspected party 

recently moved from the address listed in the police report to the target apartment, 

“which happens to be just down the street.” Zamora indicated his belief that 

“Kallon” is the suspected party “Ca-Leon.”

Police searched the target apartment pursuant to the premises warrant and 

recovered approximately “216.2 grams of cocaine, 370 grams of marijuana, 129 

grams of schedule II pharmaceutical tabs, 6 grams of ecstasy, 1 pistol, 1 shotgun, 

and one assault rifle.” When the police executed the warrant, appellant was inside 

the apartment and had a pistol in his hand. Based upon the evidence seized from 

the apartment, appellant was arrested and charged with unlawful possession of a 

firearm by a felon, and with possession with intent to deliver cocaine.

Before trial, in both of his cases, appellant filed a motion to suppress all the 

evidence seized from the apartment, alleging that “[t]he evidence seized was 

obtained as a result of a search of the apartment without a valid search warrant and 

without probable cause in violation of” the Fourth Amendment, article I, section 9, 

of the Texas Constitution, and articles 1.06 and 38.23 of the Texas Code of 

Criminal Procedure. The trial court carried the motion with appellant’s trial. At 

trial, appellant renewed his objection “that the affidavit is insufficient to set out

probable cause to support the warrant.” The trial court denied appellant’s motion 

based on its review of the warrant.
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The jury found appellant guilty as charged in both indictments. Appellant 

pleaded true to the two prior felony enhancement paragraphs alleged in both 

indictments, and the jury assessed appellant’s punishment at 30 years’ confinement 

for each offense. The trial court imposed the assessed sentences to run 

concurrently. Appellant timely appealed.

II. ANALYSIS

A. Whether there was sufficient probable cause to support the search warrant

Appellant contends that the trial court abused its discretion by denying his 

motion to suppress the evidence seized from the apartment because Zamora’s 

affidavit does not sufficiently set out probable cause.

1. Standard of review and probable cause

When reviewing a trial court’s decision on a motion to suppress, we 

normally use a bifurcated standard of review, giving almost total deference to the 

trial court’s express or implied determinations of historical facts and credibility but 

reviewing de novo the court’s application of the law to the facts. State v. McLain, 

337 S.W.3d 268, 271 (Tex. Crim. App. 2011). However, when the trial court is 

determining probable cause to support the issuance of a search warrant, there are 

no credibility determinations; rather, the trial court is constrained to the four 

corners of the affidavit. Id. Accordingly, when reviewing the magistrates’s 

decision to issue a warrant, we apply a highly deferential standard because of the 

constitutional preference for searches to be conducted pursuant to a warrant. Id.

A search warrant may not legally issue unless it is based on probable cause. 

U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 

1.06 (West 2005 & Supp. 2012), art. 18.01(b) (West 2005). “A search warrant is 

supported by probable cause when the facts set out within the ‘four corners’ of the 
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affidavit are ‘sufficient to justify a conclusion that the object of the search is 

probably on the premises to be searched at the time the warrant is issued.’” State 

v. Griggs, 352 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(quoting Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006)). Probable 

cause is a “flexible and non-demanding standard.” McLain, 337 S.W.3d at 272

(citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)).

We determine whether the facts alleged in a probable cause affidavit 

sufficiently support a search warrant based on the totality of the circumstances. 

Griggs, 352 S.W.3d at 301 (citing Illinois v. Gates, 462 U.S. 213, 230–31 (1983)). 

As long as the magistrate had a substantial basis for concluding probable cause 

existed, i.e., that a search would uncover evidence of wrongdoing, we will uphold 

that probable cause determination. McLain, 337 S.W.3d at 271; see Gates, 462 

U.S. at 236; Griggs, 352 S.W.3d at 302 (noting that “doubtful or marginal” cases 

should be resolved in favor of “the preference to be afforded warrants”). We may 

not analyze the affidavit in a hyper-technical manner and instead should interpret 

the affidavit in a commonsensical and realistic manner, deferring to all reasonable 

inferences that the magistrate could have made. McLain, 337 S.W.3d at 271.

2. Zamora’s affidavit established that cocaine probably would be 

located at the apartment when the warrant was issued.

In his first issue, appellant argues that the search warrant affidavit in this 

case was insufficient to establish probable cause under the “totality of the 

circumstances” approach.1 We disagree.

 

1 Although appellant also cites article I, section 9, of the Texas Constitution and articles 

1.06 and 38.23 of the Code of Criminal Procedure, he does not separately argue his state law 

claims or present any argument asserting that these provisions afford him greater protections 

than the Fourth Amendment as construed in Illinois v. Gates. Accordingly, these state law 

contentions present nothing for review. See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex.

Crim. App. 2003).
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Here, the affidavit supporting the search warrant detailed a controlled buy of 

powder cocaine from the place to be searched, the specified Greens Parkway 

apartment, within the past 72 hours. The affiant, Zamora, was an officer with the 

Houston Police Department with experience in narcotics investigations and 

recovery. The affidavit stated that Zamora searched the confidential informant for 

contraband and money and then gave him/her money to purchase narcotics. 

Zamora swore that he knew the informant to be a credible and reliable source, 

whose efforts in “at least three prior narcotics investigations” had assisted Zamora 

in the recovery of narcotics. Zamora observed the informant enter the target 

apartment, exit, and return to him with a powdery substance that tested positive as 

cocaine. The informant reported to Zamora that he/she exchanged the money for 

the cocaine, there were 10–12 other baggies of cocaine on the table, and the 

suspected party instructed him/her only to purchase “dope” from him and “not any 

other mother f[**]ker out there.” These facts supported the inference that cocaine 

was and would continue to be present and available for sale within the place named 

in the warrant. Thus, there were facts within the four corners of the affidavit from 

which the issuing magistrate could reasonably infer that the informant had 

purchased cocaine inside the target apartment named in the search warrant. See

Ford v. State, 179 S.W.3d 203, 212–13 (Tex. App.—Houston [14th Dist.] 2005, 

pet. ref’d). Based on the totality of these facts and the inferences drawn from 

them, and interpreting the affidavit in a commonsensical and realistic manner, we 

conclude that the affidavit supported the magistrate’s probable cause finding. See 

Griggs, 352 S.W.3d at 303.

Nevertheless, appellant attacks various portions of Zamora’s affidavit as 

deficient and thus unable to support probable cause. Appellant contends that the 

affidavit lacks information about the “suspected party,” does not indicate what led 
8

to the controlled buy, omits details about the controlled buy itself, and otherwise 

includes information from insufficiently reliable sources. However, as this court 

previously has stated, “[t]he issue is not whether there are other facts that could 

have, or even should have, been included in the affidavit.” Id. at 302 (citing 

Rodriguez, 232 S.W.3d at 62). “[W]e focus instead on the combined logical force 

of facts that are in the affidavit.” Id. In any event, none of appellant’s arguments 

works to diminish such “logical force” here.

First, appellant contends that the affidavit insufficiently and unreliably 

described the suspected party as “Ca-Leon” with a generic description applicable 

to many black males in Houston. But when an affidavit is offered in support of a 

search warrant for a particular location, not a particular person, we examine

whether the four corners of that affidavit provide “a substantial basis to find, either 

directly or through reasonable inference, probable cause that contraband or 

evidence of a crime will be found at the described location.” Bonds v. State, 403 

S.W.3d 867, 874 (Tex. Crim. App. 2013); see Garcia v. State, 340 S.W.2d 803, 

804 (Tex. Crim. App. 1960) (search warrant affidavit sufficiently describing house 

to be searched was valid where house described as used and occupied by unknown 

Mexican male and female, and other unknown persons). Here, where Zamora’s 

affidavit described with sufficient particularity the target apartment and provided 

the circumstances of a recent controlled buy of cocaine at that exact apartment, the 

affidavit “satisfactorily established a nexus between criminal activity, the things to 

be seized, and the place to be searched.” See Bonds, 403 S.W.3d at 874.

Next, appellant faults the affidavit for failing to provide information as to 

what led Zamora and Lara to meet with the confidential informant and dispatch 

him/her to the target apartment to purchase drugs. However, this court has upheld 

a magistrate’s probable cause determination based on details of a controlled drug 
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buy involving a credible and reliable informant—without requiring details of what 

precisely led to the buy. See Ford, 179 S.W.3d at 211–212 (affidavit detailing 

controlled buy of cigarettes dipped in PCP from the place to be searched and 

addressing the credibility and reliability of informant who participated in 

controlled buy was sufficient to support finding of probable cause); see also 

Griggs, 352 S.W.3d at 304–05 (finding probable cause for issuance of search 

warrant and rejecting argument that original tip—that cocaine was being “stored 

and sold” at the residence in question—by unknown informant was not credible 

because circumstances of controlled buy, standing alone, may establish probable 

cause and affidavit addressed credibility of informant who participated in 

controlled buy and appellee did not challenge credibility of that informant on 

appeal). Here, the affidavit indicates that police oversaw a controlled buy of 

cocaine at the target location involving an informant proven to be credible and 

reliable. And appellant does not challenge on appeal the credibility and reliability 

of this informant with regard to the controlled buy.

However, appellant argues that the controlled buy was flawed because 

Zamora never states that he “set eyes on any ‘suspected party’”; does not describe 

the person with whom he allegedly saw the informant meet or state that the 

informant offered any details about the person who allegedly sold him/her the 

cocaine; does not mention the informant’s familiarity, if any, with powder cocaine;

and does not indicate he searched the informant upon his return. Again, this search 

warrant was for a particular location, not a particular person. And nothing in 

Zamora’s affidavit indicates that, aside from when the informant was actually 

inside the target apartment, police ever lost sight of him/her. See Griggs, 352 

S.W.3d at 305 (to meet probable cause, “it is not necessary that an officer maintain 

constant surveillance on an informant during a controlled buy”). Although the 
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affidavit only describes the informant’s familiarity with crack cocaine, this does 

not impugn that the powdery substance the informant provided to Zamora as the 

product of the buy immediately after exiting the target apartment field-tested 

positive as cocaine. Also, the informant told Zamora he/she exchanged the 

provided city buy money for that cocaine. Thus, none of these alleged “flaws” 

renders the circumstances of the controlled buy insufficient to support a finding of 

probable cause. See Griggs, 352 S.W.3d at 305–06.

Finally, appellant challenges the credibility and reliability of the informant’s 

statement that the suspected party was known to carry a pistol, and the 

circumstances of how Zamora came to “know, from a credible and reliable 

source,” about the suspected party Ca-Leon’s recent alleged move to the target 

apartment from the address listed in a police report involving a suspect Kallon who 

allegedly threatened a women with a pistol. Although appellant acknowledges this 

information pertained to the request for “no knock” authorization, he argues that it 

also pertained to Zamora’s attempt to identify the “suspected place” and the 

“suspected party” and thus needed to be sufficiently reliable to support probable 

cause. We already have concluded that the totality of the circumstances of the 

controlled buy set out in the affidavit provided a sufficient connection between the 

sale of cocaine and the particular apartment set out in the search warrant to support 

probable cause. Moreover, we may not analyze the affidavit in a hyper-technical 

manner. McLain, 337 S.W.3d at 271 (citing Gates, 462 U.S. at 236); Griggs, 352 

S.W.3d at 302 (rejecting invitation “to scrutinize discrete parts of the affidavit and 

find each deficient so that the affidavit as a whole cannot support the magistrate’s 

probable-cause finding”). Thus, we find nothing in this “no knock” section of the 

affidavit that otherwise diminishes the magistrate’s substantial basis for concluding 

probable cause existed. See McLain, 337 S.W.3d at 271.
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Accordingly, we overrule appellant’s first issue.

B. Appellant failed to preserve whether the “no knock” authorization was 

supported by reasonable suspicion.

In his second issue, appellant argues the trial court abused its discretion in 

denying his motion to suppress because the particular circumstances cited in 

Zamora’s affidavit were not sufficient to support reasonable suspicion that 

knocking, announcing, and waiting would be dangerous, futile, or would inhibit 

effective investigation of the evidence. The State argues that appellant failed to 

preserve error on this issue, and we agree.

“A motion to suppress is nothing more than a specialized objection to the 

admission of evidence” and thus must state the grounds therefor with sufficient 

specificity to make the trial court aware of the complaint. Porath v. State, 148 

S.W.3d 402, 409–10 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“If the 

objection made in the trial court differs from the complaint made on appeal, the 

defendant has failed to preserve error for review.”). While the “knock and 

announce” requirement is considered part of the Fourth Amendment, the 

justification for a “no knock” entry is subject to its own reasonable suspicion 

standard. See Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (“In order to 

justify a ‘no-knock’ entry, the police must have a reasonable suspicion that 

knocking and announcing their presence, under the particular circumstances, would 

be dangerous or futile, or that it would inhibit the effective investigation of the 

crime by, for example, allowing the destruction of evidence”).

In his motion to suppress, appellant simply asserted that the evidence seized 

was obtained “without a valid search warrant and without probable cause in 

violation of” the Fourth Amendment, article I, section 9, of the Texas Constitution, 

and articles 1.06 and 38.23 of the Code of Criminal Procedure. Appellant did not 
12

specify, however, the knock-and-announce complaint that he now asserts on 

appeal. Nor did he present this issue when he renewed his objection to the search 

warrant at trial, arguing only “that the affidavit is insufficient to set out probable 

cause to support the warrant.”2 The trial court could not have been aware of the 

knock-and-announce complaint because of appellant’s focus on probable cause.

As such, appellant has failed to preserve his argument regarding lack of reasonable 

suspicion to support the “no knock” entry. See TEX. R. APP. P. 33.1(a); Martinez v. 

State, 17 S.W.3d 677, 682–83 (Tex. Crim. App. 2000) (en banc).

Even if appellant had not waived his complaint, and we were to reach 

whether the affidavit sufficiently set out Zamora’s reasonable suspicion that the 

police needed to effect a “no knock” entry in the target apartment for their safety, a 

violation of the Fourth Amendment’s knock-and-announce rule does not warrant

suppression of the evidence under the federal exclusionary rule unless that 

violation is “the unattenuated but-for cause of obtaining the evidence.” State v. 

Callaghan, 222 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2007, pet. 

ref’d); see Hudson v. Michigan, 547 U.S. 586, 592–94, 599 (2006); Wright v. State, 

253 S.W.3d 287, 288 (Tex. Crim. App. 2008).

Appellant acknowledges Callaghan, but contends that it was wrongly 

decided because his challenge is based not only on the Fourth Amendment, but 

also on the Texas Constitution3and article 38.23(a). However, in Callaghan, we 

expressly addressed the defendant’s argument that the Texas exclusionary rule in 

article 38.23(a) allowed for the trial court’s proper suppression of the evidence. 

 

2

The trial court specifically asked appellant’s trial counsel, “[I]s there anything else 

specific about the warrant . . . you believe is not sufficient[?]” and counsel answered, “No.”

3 Again, appellant does not separately argue his state constitutional claim or present any 

argument asserting that article I, section 9, otherwise affords him greater protection. See n.1.

Accordingly, this contention presents nothing for review. See Manns, 122 S.W.3d at 192 n.97.
13

The Callaghan court rejected such argument and specifically found that the federal 

causation analysis from Hudson was consistent with the required causation 

analysis for the Texas exclusionary rule. 222 S.W.3d at 615–16. Thus, where the 

defendant has not proven a “causal connection between the manner of police entry 

and collection of the evidence, [a]rticle 38.23(a) does not require exclusion.” Id. at 

616. Appellant has not even argued, much less met his burden to show, see id., 

that there was a causal connection between any police “no knock” violation and 

collection of the evidence here. Thus, we see no reason to stray from our binding 

precedent.4

Therefore, we overrule appellant’s second issue.

III. CONCLUSION

Accordingly, we affirm the trial court’s judgments.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Busby, and Donovan.

Do Not Publish — TEX. R. APP. P. 47.2(b).

 

4 Appellant also faults the Callaghan court for its alleged failure to consider State v. 

Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996), and Price v. State, 93 S.W.3d 358 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d). But Callaghan addressed the effect, if any, of both 

these cases. 222 S.W.3d at 612 n.2, 614–15 & n.5.