### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00372-CR

Anthony Wayne Chambers, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-02-0826-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING

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

After his motions to suppress were overruled, appellant Anthony Wayne Chambers

pleaded gu ilty without a sentencing recommendation to two counts of possession of a controlled

substance with intent to deliver. S ee Tex. Health & Safety Code Ann. § 481.112 (West 2003). He

complains on appeal that the trial court should have suppressed (i) the evidence seized during a

search conducted pursuant to a warrant and (ii) his statements to the police. We reverse the trial

court’s judgment of conviction and remand the cause to the trial court.

The search warrant wa s based on an affidavit sworn out on July 31, 2002, by

Detective Br ian Robinson of the San Angelo Police Department. Robinson averred that a

confidential informant, who had given Robinson accurate information in the past, told him “that the2

Suspected Party

[appellant] is selling Cocaine from the Suspected Place [appellant’s house].” In July

the informant went to appellant ’s house several times with a third party “working for” appellant.

The informant told Robinson that the third party brought the informant to the house, left the

informant in the car, went into the house, and returned with c ocaine he said he had bought from

“Wayne.” Although there is no basis stated in the affidavit for believing that appellant possessed

cocaine or that cocaine could be found on the premises, Robinson averred gen erally that the

informant had “seen cocaine in the past” and was able to recognize it. The police observed four such

transactions in July. Robinson averred that, in his experience and training, he knew drug dealers

often use third parties to insulate themselves from detection by the police. Robinson also averred

that another officer had searched the trash from the house and found mail addressed to appellant and

that Robinson had checked vehicle registration records and determined that the truck frequently seen

at the house belonged to appellant. Based on Robinson’s affidavit, a magistrate issued a warrant

authorizing a search of appellant’s house and truck. When the police executed the search warrant,

they seized a number of items, including a scale, about $650, and several kinds of drugs. Detective

Robinson testified at the suppression hearing that the third party was never interviewed or searched

before he went into appellant’s house and th at there was no way to be sure that the third party

actually obtained the drugs from inside the house. Robinson said it was possible that the third party

might have gone into the house, gotten the drugs “from his own person,” and gone back out to the

car where the informant was waiting. Robinson could not vouch for the third party’s credibility.

Appellant’s first contention on appeal is that the search warrant was based on the

unnamed third party’s statements, did not demonstrate a fair probability that a crime had been3

committed, and therefore did not support the issuance of a search warrant. Second, appellant argues

that his statements to the police resulted from an unlawful arrest and should have been suppressed.

In a suppression hearing, it is for the trial court alone to evaluate witness credibility

and the weight to be given testimony; we evaluate the trial court’s deter mination of factual issues

in the light most favorable to the court’s ruling and will not disturb supported findings of fact absent

an abuse of discretion. S tate v. Ballard

, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Generally,

we review a trial court’s decision on a motion to suppress under a two-pronged analysis, giving great

deference to the court’s determination of historical facts and reviewing the court’s application of the

law to the facts de novo

. C armouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

However, in reviewing search warrants, we use a slightly different standard. See Serrano v. State

,

123 S.W.3d 53, 58-59 (Tex. App.—Austin 2003, pet. filed). In such cases, there are no credibility

choices or factual determinations to be made, id. at 58 (citing Robuck v. State

, 40 S.W.3d 650, 654

(Tex. App.—San Antonio 2001, pet. ref’d)), and we review probable cause based only on the four

corners of the affidavit used to obtain the warrant. J ones v. State

, 833 S.W.2d 118, 123 (Tex. Crim.

App. 1992); Serrano

, 123 S.W.3d at 58. We do not apply a traditional, after the fact, d e novo

review; we instead give the magistrate’s determination great deference. I llinois v. Gates

, 462 U.S.

213, 236 (1983); S errano

, 123 S.W.3d at 58; State v. Bradley

, 966 S.W.2d 871, 873 (Tex.

App.—Austin 1998, no pet.).

A magistrate has probable cause to issue a search warrant if the submitted facts “are

sufficient to justify a conclusion that the object of the search is probably on the premises at the time

the warrant is issued.” B radley

, 966 S.W.2d at 873. We do not require proof beyond a reasonable4

doubt or by a preponderance of the evidence. D avis v. State

, 27 S.W.3d 664, 667 (Tex. App.—Waco

2000, pet. ref’d). Instead, we will sustain a search warrant if “the magistrate had a substantial basis

for concluding that a search would uncover evidence of wrongdoing,” based on the totality of the

circumstances. B radley

, 966 S.W.2d at 873. We interpret an affidavit in a common-sense manner

and may draw reasonable inferences from the recited facts. I d

. Hearsay-on-hearsay may be relied

upon if the “underlying circumstances indicate that there is a substantial b asis for crediting the

hearsay at each level.” H

ennessy v. State

, 660 S.W.2d 87, 91 (Tex. Crim. App. 1983); see Serrano

,

123 S.W.3d at 60.

The affidavit states:

[T]he third party has taken the Confidential Informant to the Susp e cted Place on

more than one occasion; The Confidential Informant remains in the vehicle, and the

third party enters the Suspected Place; The third party then returns to the vehicle in

possession of a substance that the Confidential Informant recognizes as cocaine; The

third party advises the Confidential Informant that the third party purchased the

substance from the Suspected Party.

The affidavit describes several police-witnessed transactions such as:

[T]he third party told the Confidential Informant that he was going to purchase

cocaine from a subject named Wayne.

. . . Det. Thomas observed the third party

drive to the Suspected Place and enter Suspected Place; Det. Thomas then observed

the third party return and meet with the Confidential Informan t. The Confidential

Informant told Affiant that the third party returned with a su bstance that the

Confidential Informant recognized as cocaine on this occasion.

We assume that the informant was credible and believed what he told Robinson to

be the truth. However, the affidavit provides no basis for concluding that the unnamed third party1 Appellant’s middle name is Wayne.

5

was credible or reliable. Robinson testified that he could not vouch for the third party’s truthfulness

and reliability. The affidavit does not state whether police ever patted down the third party before

he went into appellant’s house to be sure the third party was not already carrying drugs, contacted

the third party, or otherwise established the third party’s credibility. The affidavit does not explain

the alleged relationship between appellant and the third party or allege one existed between appellant

and the informant, but merely states “the Confidential Informant has met with a third party working

for the Suspected Party.” The affidavit does not provide any facts about the third party or appellant.

The only independent corroboration of the third party’s allegations were the easily obtained facts that

appellant lived in the house and was named “Wayne.” 1 S ee Davis v. State

, 989 S.W.2d 859, 864

(Tex. App.—Austin 1999, pet. ref’d) (“The mere corroboration of facts that are easily obtainable at

the time the information is provided, however, will not furnish reasonable suspicion as a basis for

a stop. Anyone with enough knowledge about a given person to make him the target of a prank, or

to harbor a grudge against him, will certainly be able to formulate an anonymous tip hoping to

initiate an investigation and perhaps a forcible stop or detention.” ). The affidavit states that the

officers observed more than one vehicle parked at the house and that appellant was “the registered

owner of one of these vehicles,” but does not state that appellant was the only person who lived in

the house. The affidavit does not recite that the officers conducting the surveillance saw appellant6

or his truck at the house at the times the informant and the third party were there. The confidential

informant never saw appellant give the third party cocaine or went into the house to observe cocaine

on the premises. Indeed, based on the face of the warrant, there is no basis for believing that the

informant had spoken to appellant at all.

All of the information about alleged drug dealing by appellant springs from the

unknown third party, and there was no independent verificat ion of the third party’s assertions.

Without so mething more, this affidavit amounts to little more than an anonymous tip, albeit one

passed along by a reliable informant. As such, the affidavit does not give rise to probable cause and

does not provide a basis for believing tha t drugs may be found on the suspected premises. S ee

Serrano

, 123 S.W.3d at 60 (“The informant here was asserte d to have a good track record in

furnishing narcotic information, but what was the basis of his knowledge concerning the conclusory

tip? The affidavit was silent as to any first-hand information by the informant. It did not include

any assertions of personal knowledge or personal observations.

. . . There is no reasonable inference

that the informant had personal knowledge of the assertion made.”).

Because the circumstances as set out in the affidavit do not indicate “a substantial

basis for crediting the hearsay at each level,” we hold that the affidavit in this case was insufficient

to give rise to probable cause. S ee Hennessy , 660 S.W.2d at 91; Serrano , 123 S.W.3d at 60. The

trial court erred in overruling appellant’s motions to suppress because the magistrate did not have

a substantial basis for finding probable cause within the four corners of the affidavit. We sustain

appellant’s first issue on appeal and, having re ached that conclusion, need not address his second7

issue. We reverse the judgment of conviction and remand the cause to the trial court for further

proceedings.

__________________________________________

Jan P. Patterson, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Reversed and Remanded

Filed: June 10, 2004

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