NO.

THE STATE OF TEXAS			§            IN THE _________COURT
												§

V.						§	OF
						§

JOHN DOE					§	_____________COUNTY, TEXAS

BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT: 

	Defendant, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on February 11, 2005.
Procedural History
	Defendant allegedly committed the offense which is subject of Cause Number ______ on June 10, 2004.  Defendant was indicted on Cause Number ___________ on September 28, 2004, for the offense of possession of a controlled substance, with an intent to deliver, listed in penalty group one, namely methamphetamine, less than 200 grams, but at least four grams, within a drug free zone.  A hearing on evidentiary pretrial matters was held February 11, 2005.
Statement of Facts
	On June 6, 2004 Officer Jose Gonzalez, of the Lubbock Police Department, responded to a domestic dispute call at the home of the Defendant.  The Defendant and her boyfriend, ________ were arguing in the Defendant’s apartment.  When Officer Gonzalez arrived at the Defendant’s home, he checked on her welfare and asked to enter the home.  The Defendant refused and Officer Gonzalez asked to speak with __________.  Officer Gonzalez had run a warrant check and determined that _______ had two outstanding warrants.
	_________ stepped outside, Officer Gonzalez arrested him, and a search incident to_________ arrest yielded 2.5 grams of methamphetamine.
	On June 7, 2004, Officer Russ Umstot executed an affidavit for a search and arrest warrant.  The search and arrest warrant and affidavit, which are attached as “Exhibit A,” recited the above-mentioned arrest of ________.  In addition, the affidavit stated: “Sgt. Johnson of the Lubbock Police Department, (sic) advised he has received information within the past few months from two independent sources regarding ______.  Both informants advised ______ was trafficking in large amounts of methamphetamine.  One of the informants advised _____ was also trafficking in heroin.”
	There was no mention of the reliability or veracity of the informants in the affidavit, nor did it appear from the face of the affidavit that any corroborating surveillance or investigation had taken place.
	Based on Officer Umstot’s affidavit, a search and arrest warrant was signed by Judge Robert A. Doty on June 7, 2004 and executed on June 10, 2004.  The search yielded the evidence which the Defendant seeks to have suppressed as the fruit of an illegal search.
Arguments
I.	Officer Umstot’s affidavit did not provide sufficient probable cause for the issue of a search warrant because mere drug possession by a third party does not rise to the level of probable cause to search a person’s home.
	The Fourth Amendment to the United States constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend. IV.
	Similarly, the Texas Constitution states: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”  Tex. Const. art. I, § 9.
	The search of the Defendant’s home, pursuant to a search warrant not supported by probable cause, violated the Defendant’s rights under the U.S. Constitution and the Texas Constitution.  
	A search warrant may not be issued unless sufficient facts are presented to the magistrate which permit him to conclude that probable cause exists supporting the warrant’s issuance.  Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2004).  Whether the facts mentioned in an affidavit are adequate to establish probable cause depends on the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213 (1983); Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App. 1996).  
	 The facts found in the search warrant affidavit must show that “there is a fair probability that contraband or evidence of a crime will be found in that particular place.”  Illinois v. Gates, 462 U.S. 213 (1983).  Wholly conclusory  statements do not provide the magistrate with a substantial basis for determining the existence of probable cause.  Id.  
	The probable cause to support the issuance of a search warrant is determined from the “four corners” of the affidavit alone.  Burke v. State, 27 S.W.3d 651 (Tex. App.-Waco 2000, pet. ref’d).
	The probable cause determination to issue a warrant to search the Defendant’s apartment was based on the facts that ______ was arrested there while possessing illegal drugs, and that two informants had told LPD that ________ was trafficking in methamphetamine and heroin.  
	Mere possession of drugs is not enough to warrant the search of a person’s residence.  Ozuna v. State, 88 S.W.3d 307 (Tex. App.-San Antonio 2002, pet. ref’d) (citing) Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986)).  
	In Cassias, the affidavit relied in part on the fact that two people who were spotted at a residence had previously been arrested for possessing drugs.  Id.  The court concluded that there was not enough probable cause for a valid search warrant.  Id.
	The affidavit contained information that ______ possessed methamphetamine on his person, but nothing to suggest that there would be contraband in Defendant’s apartment.  
	There is no probable cause to search the apartment if there is not a connection between the illegal drugs and the apartment in the affidavit.  Ozuna v. State, 88 S.W.3d 307 (Tex. App.-San Antonio 2002, pet. ref’d).  
	In Ozuna, the defendant was suspected of exchanging drugs for stolen property.  The affidavit contained evidence that the defendant carried drugs on his person, but no evidence that the defendant kept drugs at his residence.  Id.  The court found that there must be a link between the illegal drugs and the residence for there to be a valid search warrant supported by probable cause.  Id.
	In the instant case, the affiant knew that ________ carried methamphetamine on his person, but had no evidence to show that there would be methamphetamine at the home of the Defendant.  The affiant did not enter the home, nor did the affiant see any contraband in the home while standing at the door.  The facts enumerated in the search warrant and affidavit only show that _______ possessed methamphetamine, not that there would be any methamphetamine in the Defendant’s home.
	Robuck v. State also deals with an affidavit for a search warrant that failed to connect the defendant’s home with contraband.  40 S.W.3d 650 (Tex. App.-San Antonio 2001, pet. ref’d).  In Robuck, the defendant had been mailed a package which contained money that smelled strongly of marijuana.  Id.  The package was intercepted by law enforcement officers and an affidavit was prepared and a warrant to search the defendant’s home was procured.  Id.  
	The affidavit stated that the defendant was a “known drug trafficker” and that as a drug trafficker, he would have quantities of currency and other evidence at his residence.  Id.  The court held that the affidavit was too general to support the issuance of a search warrant for the defendant’s home, and furthermore, that there were no facts in the affidavit that would support a conclusion that contraband or evidence of a crime would be found at the defendant’s home.  Id.
	The affidavit in the instant case is not as illustrative as the affidavit which the court deemed to be unsatisfactory in Robuck.  There is a lengthy description of ________ arrest for warrant and the subsequent discovery of methamphetamine, but there are no facts in the affidavit that connect the contraband to the Defendant’s home.  The contraband was not found on the Defendant’s person, but on the person of Mr. _______.  
	The home that was searched was the Defendant’s home.  The apartment was leased in the Defendant’s name and the lease lists the Defendant as the only occupant of the home.  A copy of the Defendant’s Lease Agreement and a business records affidavit are attached as “Exhibit B.”  The search warrant states that the apartment was in the control of _________ and the Defendant.  This statement is wholly conclusory and not supported by any facts found in the search warrant and affidavit.  Wholly conclusory  statements do not provide the magistrate with a substantial basis for determining the existence of probable cause.  Illinois v. Gates, 462 U.S. 213 (1983).

II.	Officer Umstot’s affidavit did not provide sufficient probable cause for the issue of a search warrant for the search of the Defendant’s home because there was no corroborative investigation of the wholly conclusosy anonymous tips within the four corners of the affidavit.
	In Illinois v. Gates, the Supreme Court set forth the totality of the circumstances test to be applied when issues concerning anonymous tips and probable cause to issue search warrant intersect. 462 U.S. 213 (1983).  Gates involved an elaborate scheme for the trafficking of narcotics where the wife would drive a car from Illinois to Florida, purchase drugs, load the car, and fly back to Illinois.  Id.  The husband would then fly from Illinois to Florida and drive the narcotics-laden car back to Illinois.  Id.
	An anonymous letter, which described the smuggling trafficking operation in detail was mailed to the local police department in Illinois by a concerned citizen.  Id.  Upon receipt of the tip, law enforcement went to work investigating the validity of the letter’s assertions.  Id.  Officers observed that the wife had booked a flight from Florida and that the husband had booked a flight to Florida shortly after the wife’s return.  Id.  Based on the tip and the corroborating investigation by law enforcement, a search warrant was issued for the search of the defendants’ home and car.  Id.  The Supreme Court upheld the validity of the warrant, stating that the tip, combined with the corroborating investigation provided sufficient probable cause for a search warrant.  Id.
	The instant case is distinguishable from Gates.  First, the tip in the instant case was nothing more than a bare, conclusory assertion.  There were no facts in the affidavit concerning who gave the tips, what the tipsters’ basis of knowledge for the tips was, where Mr. _______ resided, where Mr. _______ based his narcotics operations from, or how Mr. _______ carried out his narcotics operations.  As the Court in Gates noted, a magistrate’s action in issuing a search warrant based on an affidavit “cannot be a mere ratification of the bare conclusions of others.”  Gates, 462 U.S. at 239.
	The Court in Gates writes about “bare-bones affidavits” where nothing more than a conclusory statement is presented to the magistrate.  Gates, 462 U.S. at 239.  The instant case presents a bare-bones affidavit that has no supporting facts and no evidence of any corroborative investigation on the part of law enforcement.
	Furthermore, the Court writes that “the totality of the circumstances analysis . . . have consistently recognized the value of corroboration of details of an informer’s tip by independent police work.”  Gates, 462 U.S. at 241.  In the instant case, not only was there no corroboration of the details in the tips, there were no details in the tips.  Under the totality of the circumstances, the affidavit in the instant case indicates only that a third person had possessed methamphetamine on his person while at the Defendant’s home.  Since there was no evidence of any corroborative investigation within the four corners of the search warrant and the tips are anonymous and have no indicia of reliability, there can be no finding of probable cause.
	To see how Texas courts have interpreted Gates, see Meeks v. State, 851 S.W2d 373 (Tex. App. Houston [1st Dist.] 1993) (holding that ptobable cause for the search warrant was lacking because nothing in the affidavit corroborated the informant’s allegation).

III.	Officer Umstot’s affidavit did not provide sufficient probable cause for the issuance of a search warrant for the search of the Defendant’s home because the anonymous sources mentioned in the affidavit were not reliable or credible, the affidavit did not contain any facts to show the basis of the tipsters’ knowledge, and the anonymous tips were triple hearsay which were not credited at each level.
	
	In Lowery v. State, law enforcement officers recieved a tip concerning a drug lab at the defendant’s home.  843 S.W.2d 136 (Tex. App.-Dallas 1992, pet. ref’d.).  The defendant’s motion to suppress was denied.  Id.  On appeal, the defendant  attacked the search warrant affidavit claiming that the affidavit contained tips from sources that were not reliable or credible.  Id.  The “critical tip” came from an untested informant and there was nothing within the four corners of the search warrant affidavit to show that the informant was reliable or credible.  Id.  The Court held that there was insufficient probable cause for the issue of a search warrant, stating: “Probable cause does not arise by virtue of the fact that several people, whose identity, reliability, credibility, or basis of knowledge is unestablished, gave officers information concerning criminal activity.”  Lowery, 843 S.W.2d at 141.
	In Lowery, there were several other people who had called law enforcement concerning the chemical smell emanating from the defendant’s home (including a police officer who lived in the area), and the affiant did perform an investigation to corroborate the tip.  Id.  Still, the Court found that the affidavit, based in large part on the anonymous tip, did not provide sufficient probable cause for the issue of a search warrant.  Id.
	The instant case is on point with Lowery, but for the fact that Lowery involved an anonymous tip with insufficient corroborative investigation, while the instant case involves an anonymous tip coupled with absolutely no corroborative investigation.
	In the instant case, the anonymous tips are not shown to be reliable or credible within the four corners of the affidavit.  All that lies within the four corners of the affidavit is that:
 “Sgt. Johnson of the Lubbock Police Department, (sic) advised he has received information within the past few months from two independent sources regarding _______.  Both informants advised _______ was trafficking in large amounts of methamphetamine.  One of the informants advised _______ was also trafficking in heroin.”

	First, there is nothing to show who the tipsters are.  Second, there is nothing to show that the tipsters are reliable and have given correct information in the past.  Third, there is nothing to show that the tipsters have any reason to be truthful or credible, (e.g. a statement against interest).  There is no reason within the four corners of the affidavit to show that the magistrate should believe what the tipsters have said.
	Cardona v. State, involved a tipster giving law enforcement officers information about a drug lab.  134 S.W.3d 854 (Tex. App.-Amarillo 2003, pet. ref’d.).  The tipster described various chemicals and apparatuses used in the manufacture of methamphetamine to the officers and stated that he had seen the items in the defendant’s machine shop.  Id.  The search warrant affidavit did not state how the tipster came to have this knowledge, the extent of his knowledge, or his prior interactions with drugs.  Id.
	The instant case involves an affidavit that mentions two tipsters, yet does not reveal the bases of either tipsters’ knowledge.  The affidavit does not state whether the tipsters are related to Mr. _______, whether they are customers of Mr. _______, or whether they know any customers of Mr. _______.  There is no mention in the affidavit as to whether tipsters even personally know Mr. _______, let alone whether Mr. _______’ narcotics operation has any connection to the Defendant’s home.
	Since the affidavit did not set forth the bases of the two tipsters’ knowledge, there can be no finding of probable cause without a sufficient corroborative investigation.
	Hennessy v. State involved a search warrant affidavit that relied on hearsay-upon-hearsay for probable cause to search the defendant’s home.660 S.W.2d 87 (Tex. Crim. App. 1983).  The hearsay in the affidavit was shown to be reliable and the Court held that the search warrant was supported by probable cause.  Id.  The Court stated: “Hearsay-upon-hearsay may be utilized to show probable cause as long as the underlying circumstances indicate that there is a substantial basis for crediting the hearsay at each level.”  Hennessy, 660 S.W.2d at 91.
	In the instant case, the search warrant affidavit involved triple hearsay.  There is no indication within the four corners of the search warrant affidavit that the hearsay is credited at each level.  Officer Umstot got the information from Sgt. Johnson and Sgt. Johnson got the information from two unknown sources.  There is no indication as to whether or not the unknown sources obtained the information themselves or from yet another party or parties.
	Without any indication that the hearsay is credited, but also whether it even can be credited, there can be no probable cause based on the hearsay.  Since there was no investigation to corroborate the hearsay, there is not enough information within the four corners of the affidavit to provide probable cause to issue a search warrant. 	
	See also: Dees v. State, 722 S.W.2d 209, 214-15 (Tex.App.-Corpus Christi 1986, pet. ref'd) (affidavit insufficient because it contained no information regarding the reliability of the informant and indicated no personal observations of the affiant regarding the transaction between the defendant and the affiant's agent) and Adkins v. State, 675 S.W.2d 604, 607 (Tex.App.-El Paso 1984) (affidavit insufficient because it did not indicate whether the source of the tip was direct observation or reliable hearsay, it did not indicate a basis for the informant's reliability such as past performance, and it did not explain the nexus between the original tip and the officer's corroborative details), rev'd on other grounds, 717 S.W.2d 363 (Tex..Crim..App.1986).	  
Conclusion
	Since the search warrant affidavit did not contain any facts which connected the contraband on Mr. _______’ person to the Defendant’s home and the anonymous informants were not shown to be reliable and credible, it was not possible for a magistrate to find probable cause within the four corners of the search warrant affidavit.  Furthermore, the affidavit relied upon uncredited triple hearsay and failed to provide the bases of the informants’ knowledge.  The defects with the search warrant affidavit were fatal and any evidence obtained pursuant to the search warrant should be suppressed. 

Respectfully submitted,
								By:___________________________________

CERTIFICATE OF SERVICE

	This is to certify that a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress Evidence was delivered to the Criminal District Attorney of_______ County, Texas on the _____ day of ______, 200_ .

___________________________________________

Exhibit A 

Exhibit B