1

Opinion issued June 20, 2013.

In The

Court of Appeals 

For The

First District of Texas 

NO. 01-12-00974-CR

THE STATE OF TEXAS, Appellant

V.

BRUCE Y. MONTGOMERY, Appellee

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. 12095

MEMORANDUM OPINION

Appellee Bruce Y. Montgomery was indicted by a grand jury for the felony 

offense of possession of a controlled substance, namely cocaine. Montgomery 
2

moved to suppress the evidence seized from his residence during the execution of a 

search warrant on the grounds that the officer’s affidavit in support of the 

application for the search warrant did not establish probable cause. The trial court 

granted the motion. The State appeals, contending that the trial court erred by 

failing to allow for the magistrate’s reasonable determination that probable cause 

existed based on the totality of the facts contained in the affidavit. We reverse and 

remand.

BACKGROUND

On April 11, 2012, a magistrate found that probable cause existed to support 

the issuance of a search warrant for a residence located at 803 East C Street in 

Eagle Lake. The magistrate’s determination of probable cause was based on the 

affidavit of Colorado County Sheriff’s Deputy Shawn Zak. In relevant part, the 

affidavit recited the following:

4. It is the belief of affiant that said suspected party has possession 

of and is concealing drugs and controlled substances, namely Crack 

Cocaine, at said suspected place in violation of the law of the State of 

Texas . . . . 

5. Affiant has probable cause for said belief of the following facts 

and circumstances.

All of the following events occurred on April 10, 2012 in Colorado 

County. Affiant met with a Confidential Informant in reference to 

purchasing Crack Cocaine from the Suspected Party. Affiant has also 

received information regarding narcotic activity at the suspected place 
3

in the recent past. Affiant also received information this confidential 

informant has given true and correct information to law enforcement.

Your Affiant thoroughly searched the Confidential Informant and the 

vehicle he was operating and did not find any narcotics or controlled 

substances. Affiant gave the Confidential Informant an audio 

recording device and a fifty dollar bill. The Confidential Informant 

advised he was going to purchase fifty dollars’ worth of Crack 

Cocaine from the Suspected Party at the Suspected Place.

Affiant followed the Confidential Informant to the Suspected Place 

and watched him make contact with the [S]uspected [Party]. The 

Confidential Informant stayed a very short time and then got back into 

his vehicle. Affiant followed the Confidential Informant to a 

designated place and received six Crack rocks, which appeared to be 

Crack Cocaine. The Confidential Informant advised Affiant he 

bought the Crack Cocaine from the Suspected [Party], who he knew 

personally. The Confidential Informant reported the Suspected 

[Party] delivered the substance through the back door and retrieved 

the substance from inside the Suspected Place. Affiants conducted a 

second search of Confidential Informant and found no additional 

narcotics or buy money. 

Affiant listened to the audio recording and noted from when the 

device was activated and until receiving the device back it was 

recorded. Affiant could hear the Confidential Informant and the 

Suspected [Party] who was identified as Bruce. From the time the 

Confidential Informant left Affiant’s presence to go purchase Crack 

Cocaine from the Suspected [Party] and after the Confidential 

Informant left the Suspected [Party’s] presence the Confidential 

Informant was not in the company of anyone else and could have only 

received the Crack Cocaine from the Suspected Place.

Affiant field tested the substance purchased and the white rocks tested 

positive for Cocaine. Affiant weighed the substance on a digital scale 

and the substance weighed .48 grams.
4

In the affidavit, the “suspected party” was identified as Bruce Yarnell 

Montgomery, and was described as a black male with black hair, approximately 

6’0 tall and weighing 280 pounds, whose date of birth is May 23, 1964. The 

affidavit was sworn to on April 11, 2012, and the search warrant based on the 

affidavit issued that same day. Also that same day, Montgomery was arrested for 

possession of a controlled substance as a result of cocaine being recovered from 

the residence during the search. 

Montgomery moved to suppress the evidence, arguing that the affidavit 

failed to establish probable cause for the issuance of a search warrant. After three 

hearings on the motion to suppress, the trial court granted Montgomery’s motion,

ruling as follows:

I’m going to grant it, and I’ll tell you why. The one sentence in the 

affidavit—Affiant has also received information regarding narcotic 

activity at the suspected place in the recent past—there’s no statement 

of where that information came from, that it came from a reliable 

source. So, that’s what my decision is based on and that’s what you 

can appeal on.

The State appealed. 

Probable Cause for Search Warrant

A. Standard of Review

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

normally use a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 
5

(Tex. Crim. App. 1997). We defer to the trial court’s determination of historical 

fact, but we review de novo the application of the law to the facts. Id. However, 

when a trial court is determining whether there is probable cause to support the 

issuance of a search warrant, the court does not make any credibility 

determinations. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). 

Instead, “the trial court is constrained to the four corners of the affidavit.” Id. We 

apply a highly deferential standard when reviewing a magistrate’s decision to issue 

a warrant because of the constitutional preference for searches to be conducted 

pursuant to a warrant as opposed to a warrantless search. Id. The magistrate’s 

probable cause determination will be upheld as long as the magistrate had a 

substantial basis for concluding that probable cause existed. Id.; State v. Griggs, 

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

We do not analyze the affidavit in a hyper-technical manner; rather, we must 

interpret the affidavit in a “commonsensical and realistic manner, recognizing that 

the magistrate may draw reasonable inferences.” Griggs, 352 S.W.3d at 301 

(quoting McLain, 337 S.W.3d at 271). “Both appellate courts and trial court alike 

must give great deference to a magistrate’s implicit finding of probable cause.” 

McLain, 337 S.W.3d at 271–72. We do not focus on the information that is not 

contained in the affidavit but, instead, on “the combined logical force of facts that 
6

are in the affidavit.” Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 

2007). “When in doubt, we defer to all reasonable inferences that the magistrate 

could have made.” Id. at 61.

“Whether the facts alleged in a probable-cause affidavit sufficiently support 

a search warrant is determined by examining the totality of the circumstances.” 

Griggs, 352 S.W.3d at 301 (citing Illinois v. Gates, 462 U.S. 213, 230–31, 103 S. 

Ct. 2317, 2328 (1983)). “A search warrant is supported by probable cause when 

the facts set out within the ‘four corners’ of the 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.’” Id. (quoting Davis v. State, 202 S.W.3d 149, 

154 (Tex. Crim. App. 2006)). 

B. Applicable Law

A magistrate cannot “issue a search warrant without first finding ‘probable 

cause’ that a particular item will be found in a particular location.” Rodriguez, 232 

S.W.3d at 60. “Probable cause exists when, under the totality of the 

circumstances, there is a fair probability that contraband or evidence of a crime 

will be found at the specified location.” McLain, 337 S.W.3d at 272. The test for 

finding probable cause is “whether a reasonable reading by the magistrate would 

lead to the conclusion that the affidavit provided a substantial basis for the issuance 
7

of the warrant, thus, the magistrate’s sole concern should be probability.” 

Rodriguez, 232 S.W.3d at 60. Probable cause is a “flexible and non-demanding 

standard.” McLain, 337 S.W.3d at 272. 

Generally, an anonymous tip, standing alone, will not establish probable 

cause. Elardo v. State, 163 S.W.3d 760, 767 (Tex. App.—Texarkana 2005, pet. 

ref’d) (citing State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002)). 

However, police officers may provide other indicia of reliability through 

independent corroboration of the informant’s information. Id. (citing Gates, 462 

U.S. at 233, 103 S. Ct. at 2329). For example, courts of appeals have held that a 

controlled buy, alone, may be enough to corroborate an informant’s tip and provide 

probable cause for a search warrant. See Griggs, 352 S.W.3d at 305; Ford v. State, 

179 S.W.3d 203, 212 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Sadler v. 

State, 905 S.W.2d 21, 22 (Tex. App.—Houston [1st Dist.] 1995, no pet.). 

C. Analysis

In its sole issue on appeal, the State contends that the trial court failed to 

accord proper deference to the reasonable inferences the magistrate could have 

drawn from the facts contained in the affidavit and to the magistrate’s 

determination that probable cause supported the issuance of the search warrant. 

Montgomery responds that the trial court correctly determined that the search 
8

warrant was invalid because the affidavit did not establish the reliability of the 

source who told Deputy Zak that narcotic activity had taken place at the suspected 

location in the recent past. We conclude that the affidavit contained sufficient 

information to support the magistrate’s probable-cause finding. 

The affidavit reflects the following: Deputy Zak received information 

“regarding narcotic activity at the suspected place [803 East C Street] in the recent 

past” and identified the party suspected of controlling the residence as a black male 

named Bruce Yarnell Montgomery. Although the affidavit does not reveal the 

source of that information, Deputy Zak corroborated this information by 

conducting a controlled buy with an informant, whom Deputy Zak described as 

having previously provided true and correct information to law enforcement.

1

 

Deputy Zak searched the informant before staging the controlled buy and found he 

had no narcotics or other contraband. Deputy Zak gave him a recording device and 

a fifty dollar bill and followed him to 803 East C Street, where he observed the 

informant make contact with Montgomery. After the informant left the residence, 

Deputy Zak followed him to a previously designated location where the informant 

turned over six crack rocks. The informant told Deputy Zak that he had purchased 

 1 We note that the affidavit, therefore, does address the credibility and reliability of 

the informant who participated in the controlled buy, and Montgomery does not 

challenge this informant’s credibility and reliability on appeal. 
9

the crack from Montgomery, whom he knew personally, and that Montgomery 

retrieved the crack from inside the residence and delivered it to the informant 

through the back door. Deputy Zak searched the informant again and found no

narcotics or contraband. Finally, Deputy Zak listened to the audio recording of the 

controlled buy and stated that the informant was not in the company of any other 

person, except for Montgomery, during and after the transaction and, therefore, the 

informant could have only received the crack from the suspected residence. 

Considering the totality of the circumstances, we hold that the affidavit 

sufficiently established probable cause justifying the issuance of the search 

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

of search warrant and rejecting appellee’s argument that original tip—that cocaine 

was being “stored and sold” at the residence in question—was not credible despite 

being unable to determine identity or credibility of informant because 

circumstances of a 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); Ford, 179 

S.W.3d at 212 (holding 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 
10

probable cause); Sadler, 905 S.W.2d at 22 (holding that affidavit detailing 

circumstances of controlled buy, including that police officer searched informant 

before sending him into suspected premises and kept informant in view to insure 

source of contraband, was sufficient to reasonably confirm informant’s information 

and give probable cause to issue search warrant).

We sustain the State’s issue.

CONCLUSION

We reverse the judgment of the trial court and remand for further 

proceedings.

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

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