Magistrate Could Find Probable Cause for Search Warrant, Texas Court Rules, Despite Presence of Unknowing Third Party During Controlled Drug Purchase

A defendant facing felony drug charges moved to suppress all evidence obtained under a search warrant issued for his home, claiming that the magistrate could not have found that probable cause existed at the time. The search warrant affidavit stated that police witnessed a confidential informant (CI) purchase drugs through an unknowing third party, who obtained the drugs from the defendant’s home. The defendant argued that the lack of information on the third party’s credibility made probable cause impossible. The Court of Criminal Appeals affirmed lower court rulings rejecting the defendant’s argument. Moreno v. Texas, No. PD-1731-12, opinion (Tex. Crim. App., Dec. 11, 2013). It found that police testimony regarding what they observed was sufficient to establish probable cause.

The Lubbock Police Department began investigating the defendant, according to the court’s opinion, when they received a tip from police in Clovis, New Mexico that he might be distributing narcotics. They set up a controlled drug purchase with a CI, who made contact with another individual. This individual reportedly knew nothing of the police operation. While under police surveillance, the CI gave money to the individual. The individual took the money to the defendant’s residence, returned with crack cocaine, and gave the crack cocaine to the CI. These factual allegations formed the basis of the search warrant affidavit. At no time during the operation did police see the defendant. A magistrate issued a search warrant, and police found crack cocaine in the house.

The state charged the defendant with possession with intent to deliver at least four but less than two hundred grams of a controlled substance, a first-degree felony, with a penalty enhancement for proximity to a school. Tex. Health & Safety Code ยงยง 481.112(d), 481.134(c). The defendant moved to suppress the evidence against him, but the trial court denied the motion. He pled guilty after preserving his right to appeal. The court sentenced him to fifteen years in prison.

The Court of Appeals affirmed the trial court’s ruling on suppression. It found that the magistrate based the finding of probable cause on the statements by the police officers who observed the controlled purchase, not the third-party who participated. The magistrate made a “logical inference” that the individual went to the defendant’s house to get drugs. Moreno v. State, No. 07-11-0248-CR, mem. op. (Tex. App.–Amarillo, Nov. 14, 2012). The court cited a previous case with “almost identical facts” in which the court upheld a probable cause affidavit, Bibbs v. State, No. 07-11-00064-CR, mem. op. (Tex. App.–Amarillo, Sep. 15, 2011). The Court of Criminal Appeals affirmed the appellate court’s ruling, and further cited a reported case that it said matches the facts of this case and Bibbs, Carrillo v. State, 98 S.W.3d 789 (Tex. App.–Amarillo 2003).

A person facing charges for an alleged criminal offense should consult an experienced criminal defense attorney, who can help them understand their rights, guide them through the process, and work to ensure that police, prosecutors, and courts respect their Constitutional and procedural rights. Criminal defense attorney Michael J. Brown has represented defendants in west Texas defendants for over twenty years. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.

More Blog Posts:

“Independent Source” Doctrine Allows State to Use Evidence Originally Discovered through an Unlawful Search, Texas Criminal Lawyer Blog, February 20, 2014
Police Test New Methods of GPS Tracking, Leaving Questions of How Much Surveillance the Fourth Amendment Allows, Texas Criminal Lawyer Blog, November 6, 2013
Marijuana Smell Not Enough to Justify Warrantless Entry into Home, According to Texas Court of Criminal Appeals, Texas Criminal Lawyer Blog, July 17, 2013

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