III DWI v. 638 499 501 1982 18 01 18 01 638 501 319 94 (2011)

Court of Appeals of Texas, Waco.

III. Sufficiency of Affidavit In her only point, Stanley argues that Officer Cox's search warrant affidavit failed to establish probable cause that Stanley was driving while intoxicated. During a DWI investigation, law enforcement may obtain a defendant's blood through a search warrant. Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002); see Tex.Code Crim. Proc. Ann. art. 18.01(j) (West Supp.2010). Under the Fourth Amendment and the Texas constitution, a magistrate must find probable cause within the four corners of an affidavit in order to issue a search warrant. U.S. Const. amend. IV; Tex Const. art. I, § 9; Tex.Code.Crim. Proc Ann. art. 18.01(b); Nichols v. State, 877 S.W.2d 494, 497 (Tex.App.—Fort Worth 1994, pet. ref'd). When reviewing an affidavit's sufficiency and a magistrate's determination of probable cause, we limit our review to the totality of the circumstances within the four corners of the affidavit and defer to the magistrate's probable cause determination “so long as the magistrate had a ‘substantial basis for ․ conclud[ing]’ that a search would uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547 (1980)); Swearingen v. State, 143 S.W.3d 808, 810 (Tex.Crim.App.2004); Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921 (1993)); see also Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App.2010). Probable cause is established if a person of reasonable caution would be warranted in believing that the affidavit includes facts and circumstances which meet the criteria in article 18.01(c) of the code of criminal procedure. Hogan v. State, 329 S.W.3d 90, 94 (Tex.App.—Fort Worth 2010, no pet.) (citing Tolentino v. State, 638 S.W.2d 499, 501 (Tex.Crim.App. [Panel Op.] 1982)); see Tex.Code.Crim. Proc. Ann. art. 18.01(c). The affidavit must set forth facts establishing (1) that a specific offense has been committed, (2) that the item to be seized constitutes evidence of that offense or evidence that a particular person committed that offense, and (3) that the item is located at or on the particular person, place, or thing to be searched. See Tex.Code Crim. Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501; Hogan, 319 S.W.2d at 94.

NO. 02–10–00342–CR

Decided: July 29, 2011

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

II. Factual and Procedural Background

On the night of November 29, 2008, Stanley was involved in a collision with a car. Flower Mound Police Officer Thomas Cox responded to the accident, observed Stanley's appearance and behavior, performed three standardized field sobriety tests, and arrested Stanley for driving while intoxicated. Because Stanley refused to give a breath or blood specimen, the arresting officer completed an affidavit requesting a magistrate judge to issue a search warrant for Stanley's blood. In the early morning of November 30, 2008, the magistrate judge signed the search warrant, and Stanley's blood was drawn.

Stanley was subsequently charged by information with driving while intoxicated, and she moved to suppress the evidence obtained by the magistrate's search warrant, arguing that Officer Cox's affidavit lacked probable cause. At the hearing, the State entered the search warrant and affidavit into evidence, but neither party entered any other exhibit or testimony. The trial court denied Stanley's motion, and in August 2010, Stanley pleaded nolo contendere to driving while intoxicated. The trial court imposed a $600 fine and sentenced Stanley to 180 days in jail, probated for eighteen months. In accordance with her plea bargain, Stanley preserved her right to appeal the denial of her motion to suppress. This appeal followed.

Our highly “deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant,” which mitigates possible “intrusion[s] upon” an individual's Fourth Amendment-protected interests. Davis v. State, 202 S.W.3d 149, 157 (Tex.Crim.App.2006). Thus, “ ‘courts should not invalidate ․ warrant[s] by interpreting affidavit[s] in a hypertechnical ․ manner’ ” but should instead “interpret [affidavits] in a commonsense and realistic manner” and “must allow for any reasonably available inferences ” drawn by a magistrate. Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (emphasis added) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746 (1965)); Davis, 202 S.W.3d at 157–58; Hogan, 329 S.W.3d at 94. Although a magistrate's “action cannot be a mere ratification of ․ bare conclusions” found in the affidavit, “ ‘[t]he issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted

PANEL: WALKER, MCCOY, and MEIER, JJ.

Tex.R. App. P. 47.2(b)

DELIVERED: July 28, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4.. FN1. See Tex.R.App. P. 47.4.

FN2. Stanley argues that the following statement provides no explanation or affirmation that Officer Cox is trained to conduct HGN tests: “Based on all of the above and my experience and training, I determined that the suspect was intoxicated․”. FN2. Stanley argues that the following statement provides no explanation or affirmation that Officer Cox is trained to conduct HGN tests: “Based on all of the above and my experience and training, I determined that the suspect was intoxicated․”

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