NO. 07-03-0096-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MAY 10, 2004

______________________________ ALBERT CARDONA ,

Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-433,643; HON. JIM BOB DARNELL, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Appellant

Albert Cardona appeals his conv iction for manufacturing a controlled

su bstance. His three issues involve the trial court’s denial of his motion to supp res s evidence obtained upon the execution of a sear ch warran t. Purportedly, the warrant was notsupported by probable cause since 1) the i nformant was not shown to be reliable, 2) the police investig ation us ed to corr oborate the informant’s tip did not produce evidence of2

an illegal act, and 3) the information given by the informant did not l ink his observations to an ill egal act . We reve rse the ju dgment of the trial court. Background T he search warrant i n questi on was b ased on a n affidav it execu ted by De puty Antonio Menchaca. Through it, the police sought authority to se arch th e premises of Cardona M achine Co., 3610 Ave. A. Allegedl y, amphetamine, methamphetamine a n d parapher nalia to

manufactu re, distri bute and sell tho se drugs were located at th e site. Within the affid avit, it was alleg ed that Me nchaca a nd Bruce Lange (a drug enforcementagent) interviewed, on April 13, 2000, an un named source who provided the following inf

ormation: 1) he spoke with a hispanic male na med Albert Cardona and an anglo male named J.C. Arnold within the last 72 hours; 2) he had bee n in the building at 3610 Ave. A within the last 72 hours; 3)he had observed “a large container of anhydrous amonina [sic] placed on a two-wheel dolly hi dden behind a machine press towards the rear of the building”; 4) he sa w a lar ge and small Igloo type cooler “in the Office area of the business,” 5) one cooler “contained numerous baggies”; 6) he saw another cooler by the “Anhydrous amonina [ sic]”; 7) he observed “at least one cardboard box” apparently containing psue dophed; 8) he saw a “thermos, approximately two quarts in size, in the Off ice area” whi ch thermos “had wri ting on t he exter ior in pe rmanent ty pe ink w hich . . . appeared to be a formula of some type”; and 9) he saw awhite canister which he thought contained starter fluid. Two days later, according to the affiant Menchaca, the source contacted Lange and said that Cardon a and Arnold “[w]ere ready to cook,” were in the process of “obtaining ‘l ithium batteries’ and were then going to cook ‘today.’” He also3

described the clot hing of C ardona a nd Arnol d and thevehiclethat “ belonge d to . . . Cardona. ” In the affidavit, Menchaca also described how on April 15 th , he and Lange established surveillance at the 3610 Ave. A location. Furthermore, while theywere the re for several hours they 1) saw someone they recognized (from the informant’s description) to be Cardona, 2) saw a car matching the general description given by their tipster, 3) saw Cardona an d Arnold “frequently coming to the large overhead bay type door and the wooden front door, looking ar ound, looking up and down the street and re-entering the business” for approximately “one a nd a half hours,” 4) heard a “loud bang” and saw Car dona “come to the window and front door and look out,” 5) saw Arnold and Cardona leave the building carrying “similar looking bl ack nylon t ype long rectangul ar bags w ith sh oulder strap s,” 6) noted the bay door had been “secured” while the wooden door was being “secured” as the two suspects left, 7) saw the two suspects enter the car and drive away, 8) eventually approached the building (about an hour after Cardona and Arnold left) whereatLange “detected the strong chemical odor emanating from the large overhead bay door,” 9) noticed that t he bay door wa s not completely closed and had a garden hose “extending from unde r” it, 10) witnessed Arnold and Cardona return to the site “still carrying the black nylon bags,” enter the build i ng, and open the bay door, 11) saw Cardona “frequently [come] to the door and look [] out, at one point standing in the doorway, readi ng

a magazin e,” 12) saw Arnold step from the buil ding wea ring “whi te late x type gloves” carrying “a jar” appearing to “contain a milky white liqui d substance with a clear layer above itwith vis ible sep aration b etween th e two,” and 13) saw Arnold pour the contents of the jar onto the ground and watched the contentsevaporate “leavi ng . . . a white in color re sidue.”4

Whatthe white substance consisted of was not described . What caused the “bang” theyheard and whether it came from within or outside the building also went unmentio ned. Nor did they describe

1) what, if anything, they saw occurring within the building once the baydoors were opened, 2) the nature of the business co nducted bya machine shop, or 3) howthe actions of Arnold and Cardona di ffered, if an y, from thenormal o peration of a machine shop. Similarly u nmen tioned was whether they saw (while conducting their several hour surveillance) anhydrous ammonia, coolers, baggies, a thermos containing a formula, starter fluid, or a box containing psuedophed. A nd, how any of those items, or the “bang,” or the jar with milky white liquid, or the use byArnold of latex gloves, or Cardona’s reading a m agazine in the doorway, or the carrying of black nylon ba gs by Cardona and Arnold related to the pre sence or manufactu re of amph etami n e, methamphetamine, or some othe r contraba nd also went utte rly unmen tioned i n the affi davit. As for the chemical odor Lange smelled, no one described what it likened to, whether the manufacture of methamphetamine or amphetamine release d a pecul iar odor, whether the odor

encounte red was a kin to th at, if any , emanate d whilema nufacturing methamphetamine, or whether it differed from chemical odors normally encountered in the operation of a machine shop. In s hort, whether the smell was somehow related to the manufactu re of methamphetamine, or to solvents or items normally used in am achine shop, or to decaying food left in a trash can wa s unmentioned. Th e affiant also fai led to explain if any of th e activi ty witnes sed was u nordinar y for the o peration of a machine shop or how it related to the man ufacture of a contro lled sub stance. As for the state me nt by the tipster a bout the Cardona and Arno ld being “ready to cook” or t hat they “were then going to cook ‘today,’” it

was made some two days after he5

initially spoke with Lange and Menchaca. Moreover, nothing in the affidavit disclosed how the informantcame to know that the suspects allegedly were about to cook. Whether he had visited Cardona Mac hine Co. or spoken with Arnold or Cardona and ga rnered the information from them or through observing their activity is unknown. Indee d, the affidavit

even fails to state where the tipster told them the cooking wasto occur, assuming arguendo thatthe tipster even mentioned a place. Similarly unsaid by t he affiant is anything about the tipster confirming that the items seen two days earlier at Cardona Machine Co., 3610 Ave. A we re still there or a t least u nlikely to have b een moved

. Nonetheless, before closing, the affiant did say: [The tipster] knows what Amphetamine/Methamphetamine looks like and i s familiar with the appearance, packaging, handling, use, and method by which the named co ntrolled substance is intro duced in to the hu man body. In addition the [tipster] is familiar with paraphernalia utilize d in the manufactu re of Amphetamine/met hampheta mine. Affiantbelieves the [tipster] to be credible and reliable, based on the above indepen dently co rroborate d informa tion, pro vided by the [tips ter]. Yet , how the tipster came to have this knowledge, the extent of his knowledge, his p rio r interactions, if any, w ith amphe ta mine or methamphetamine or its manufacture, his prior relationship, if any, with Menchaca or Lange, or the reliabil ity of any prior information given the officers by him goes unmentioned. So too does the affiant fail to explain whether the tipster informed him that the itemsor activi ty he purp ortedly s aw in the machineshop we re related, in any way, to the manufacture or presence of a controlle d substance at the locale. Indeed, and as previously alluded to, the affiant hi mself also omits from the affidavit an y statement that explains how the acts o f Cardona or Arnold or the presence of any item6

alluded to in the affidavit indicated, in any way, that drugs were present or being made at the site. Applicable Law A search warrant may not issue unless sufficient facts are first presented upon which

a magistrate may conclude that prob able cau se exis ts suppor ting its issuance . T EX

. C ODE C RIM

. P ROC

. A NN

. art. 18.01(b) (Vernon Supp. 2004). T hese facts must be contained in a “sworn affidavit” accompanying the application for the warrant, id., and ill ustrate 1) that a specificoffense h as been commi tt ed, 2) tha t the spec ificall y describ ed prope rty or ite ms to be searched for or sei zed cons titute evidence of that offense or evidence that a particular person committed the offen se, and 3 ) that theproperty or items i n questi on are located at or on theparticul ar person , place o r thing to be searc hed. Id. art. 18.01 (c). Additionally, whether the facts in the affidavit are adequate to establish probabl e cause depends on the totality of the circu mstances. Ramos v . State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996), cert. deni

ed, 520 U.S. 1198, 11 7 S. Ct. 1 556, 137L.Ed.2d 704 (199 7). And, they establish such cause when the totality of those circumstances justifies a concl usion thatthe objectof the search is probably on the p remises. Id. at 363; Taylor v. State , 54 S.W.3d 21, 24 (Tex. App.–Ama rillo 20 01, no pe t). Yet, one cannot forget that the totality of the circumstances to which we allude must appear in the a ffidavit. This is so becau se th e four c orners of the affidavit comprise the field upon wh ich we work. See Cates v. State , 120 S.W. 3d 352, 3 55 n.3 (Tex. Crim. App. 2003) (stating that when a challenge ismade “as to whether a search warrant affidavit is legallysufficient to show probable cause, the trial court is limited to the ‘four corners’ of the affidavi t”); Jones v. State , 833 S.W.2d 11 8, 123 (T ex. Crim

. App. 199 2), cert. deni ed, 5077

U.S. 921, 113 S.Ct. 1285, 122 L.Ed .2d 678 ( 1 993) (stating “[i]t is well settled that, in determining the sufficiency of an affidavit for an arrest or search warrant, a review ing cour t is limited to the ‘four corners of an affidavit’”). Furthermore, while we must read the affidavit in a c ommon sen se, reali stic mann er and recognize t hat the ma gistrate to whom th e affidavitis tendered may draw reasonable inferences from its content, Jones v. State , 833 S.W.2d at 123- 2 4; Carrillo v. State, 98 S.W.3d 789, 791 (Tex. Ap p.--Amaril lo 2003, pet. ref’d), no one can read i nto the d ocume nt mater ial information “that does not otherwise appear on its fa ce.” Cassias v. State , 719 S.W.2d 585, 590 (Tex. Crim. App. 1986). And, though the magi strate’s d ecision is entit led to deference, Carrillo v. State, 98 S.W.3d at 791, we mus t nonetheless assure that the affidavit provided substantial b asis for the conclusion reached. See Cass ias v. St ate , 719 S .W.2 d at 590. In other words, it must provide a substantial basis to support the magistrate’s determination that there existed a “fair probabi lity that

contraba nd or evi dence of a crime [would] be found” at the locale to be searched

. Carrillo

v. State , 98 S.W.3 d at 791; Taylor v. State , 54 S.W.3 d at 24. With the foregoing said, we turn to the circumstances before us and address issue three first. Upon doing s o, w e also note the complete absence in the affidavi t of any statement tying the activity of Cardona or Arnold to illegal or suspicious activi ty. The affiant merelydescribes what he and Lange saw an d what the tipster told him. Yet , no one indicated that the acts were like those un dertak en by individuals engaged in a ny type of criminal activity. Nor was the magistrate even told that what the af fiant perceived was unordina ryor unusual conduct by those operating a machin e shop or business utilizing machiner

yor a “machine press.” And, like many other things omitted by the affiant, no one explained the rela tionship between the anhydrous ammo nia, psu edophed , baggie s,8

coolers, thermos, m ilky whi te substa nce poure d from a ja r, “bang,” latex gloves, and black nylon bags to the presence of methamphetamine, amphetamine , th eir manuf acture or to anyother type of potential criminal activity. These omission s a re pivotal for the affidavit must illustrate not only that a specific offense has bee n comm itted but also that the specificallydescribed property or items to be searched for or se ized constitute evidence of that offe nse or ev idence t hat a par ticular p erson com mitted the off ense. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 18.01 (b) (Vern on Supp. 2004). Here, this court, the trial court and the judge who issued the w a rrant were left to guess at the nexus, if any, between the matter described in the affidavit and criminal activity. Nor can one reasonably infer that because the tipst er purp ortedly knew wha t methamphetamine was and was familiar with the pa raphernali a used i n its man ufacture then the i tems of

and matter about which he informed Menchaca and La nge constituted such parap hernalia or criminal activity. A simple example proves the fallacy of such an inference. An info rmant coup ling a d escripti on of his experie nce with the manu facture of methamphetamine to a statement that he not only saw ten pounds of flour in a case hidden in a corner, three quarts of milk in a thermos cont ai ning some script, five pounds of chocolate chips, two pounds of butter in a cooler, and a case of pecans p laced behind a portable oven and but also heard certain individuals say there were abo ut to cook hardly makes the ingredients for grandma’s chocolate chip cookies the contents of methamphetamine. Without someone familiar with the process of manufacturing the drug stat ing that the items seen or conduct perceived were somehow rel ated to that process, anyattempt to conclude that the i tems and co nduct see n must rel ate to thedrug or i ts manufactu re is con

jecture.9

Nor do we accept the State’s postulation that the affidavit was sufficient because “it is com mon knowle dge what items are most often utilized in the manufacture of methamphet a mine.” Common knowledge consists of matter “so well know n to the community

as to be beyond d ispute.” Ritz Car Wash, Inc. v. Kastis , 976 S.W.2d 812, 814 (Tex. App.– Houston [1 stDist.] 1998, pet. denied). The formula for or ingredients of methamphetamine and amphetamine or the process by which either is madehardly falls within that category, and we rue the day it does. That same may also be fou nd on the internet, according to the State, does not somehow elevate i t to that status either. Indeed, having to investi gate the annals of electronic data to discover particular information itself suggeststhat the subjects b eing res earched a re far from common kn owledge . Moreove r, if the presence of information on the worldwide web were alone the test for labeling matter

common knowledge, then most everything would be such for most anything can be found there if the researcher is sufficiently patient and persistent. Indeed, one can also find on the internet information about the Superstring Theory and the manner in which itresolves the mathemati cal inco mpatibil ity of thefoundati onal pil lars of quantum mechanics and the General Theory

of Relativity. Yet, that

is no re ason to concludethat the Superstri ng Theor y is now part of the everyda y, i ncontesta ble know ledge of the commu nity. So , mere presence on the i nternet i s far from d eterminat ive of how well-k nown a p articula r subj ect is. Nor can the specialized knowledge of a particular magistrate or affiantbe imputed into the affid avit. Ag ain, the rule of l aw prohi bits us from perusing anything other than the four corners of the document. Any specialized information lying within the mind of a pol ice officer or juristand garn ered thro ugh the years falls outside that realm. As said in Cassias ,1 We assume arguendo tha t the am m on ia was hidden. In doi ng so, we al so note that Menchaca fai led to explai n how his t ipst er arrived at that c onc luso ry ob serv ation

. Also wo rthy of n ote is th e line o f auth ority holdi ng that co nclu sion s ap pea ring in a n affida vit carry little weig ht. Ca ssias v. Sta te , 719 S.W.2d 585, 588 (Tex . Crim . App . 198 6) (sta ting tha t con cluso ry uttera nce s “es tablish little if anythin g”). 10 “[i]t is one t hing todraw reasonable inferences from information clearly set forth within the four corners of an affidavit . . . [and] quite another . . . to read material information into an affidavitthat does not otherwise appear on its face. ” Cassias v. State , 719 S.W.2d at 590. So too do we reject the State’s suggest ion on appeal that it “is a reasonabl e inferenc e based upon the hidden location of the anhydrous ammonia within a machi n e shop that the . . . ammonia was illicitly acquired and was improperly stored in a receptacle not designed for the storage” of same. 1 Immediately noticeable is the absen ce of an y explanation regarding how one can logically jump from the propos ition th at something is hidden to the conclusion that it must be contraband. Parents hi de present s from t heir children; that does not mea n th e present s were ob tained u nlawful ly or tha t the pres ents consistof contraband. Hiding something may pe rmit one to infer that someone does not wantthe item to be easily found. Yet, it does not alone reaso nably permitone to infer that the object be ing hidd en is som ehow tie d to criminal activity. To surmise otherwise would be to aga in delveinto con jecture, a nd that we cannot do. Appellant’s thir d issue is meritorious. Thus, we conclude that the affidavit did not provide substantial basis for the conclusion that a speci fic offense h ad been committed, and hold that the trial cou rt erred i n failin g to grant the motion to suppress. So too do we find that the error was harmful since the evidence obtained upon execution of the defective warrantprovided the basis for appel lant’s convicti on. And, since ap pellant’ s other cr iticisms11

of the affidavit need not be addressed at this time, we reverse the judgment and remand the causeto the tri al court.

Brian Quinn Justice Publish.