Lam Kim Nguyen v. The State of Texas

On July 16, 2015, Detective Ng of the Sugar Land Police Department signed

an affidavit for a search warrant pertaining to a home located at 1826 Arcadia

Drive. In his affidavit, Detective Ng alleged that it was suspected that the premises

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concealed “[m]arijuana, and [] evidence relative to the trafficking of narcotics,

which may consist of, but not limited to the following: . . . “[i]legal substances

namely Marijuana,” firearms, currency, and “[e]lectronic devices including but not

limited to home surveillance systems.”

Detective Ng’s affidavit testimony included the following information:

 Detective Ng has been employed by the Sugar Land Police Department for more than five years. He is currently assigned to the Fort Bend County Narcotics Task Force.



 In July 2014, Detective Ng had received an anonymous tip through the Fort Bend County Crime Stoppers that “an Asian male named ‘Lam’” was selling marijuana and “molly,” a form of MDMA, which is a controlled substance, from a restaurant where he worked.  In early June 2015, Detective Ng received another anonymous tip “from a concerned citizen,” indicating that “an Asian male was selling marijuana and other illegal narcotics from an address located at 1826 Arcadia Drive.” The tipster had “observed [the] Asian male making frequent trips to and from the residence at odd hours of the day,” driving a black Honda Accord. The tipster also provided the license plate number for the Accord, which was registered to Lam Nguyen at the same address that had been given for Nguyen in the July 2014 Crime Stoppers tip.



 On the morning of June 15, 2015, Detective Ng saw “a grey trash can placed in front of the residence at 1826 Arcadia Drive at the end of the driveway placed in the roadway.” In the trash can, Detective Ng found “several clear plastic vacuum sealed bags commonly used to package and transport marijuana. The size of the plastic bags recovered in the trash is commonly used to package at least one pound of hydroponic marijuana.” The bags contained marijuana residue. The bags were labeled with what Detective Ng knew from his “training and experience” were the names of medical marijuana strains commonly sold at marijuana dispensaries in California and in Oregon. Detective Ng also discovered “packaging for Walgreen pill pouches which is commonly used for the packaging and sale of illegal narcotics. There was also many cigarettes and marijuana cigars located in the trash.”



 In addition, Detective Ng found 4.5 grams of marijuana inside a candy bag and 19.5 grams of marijuana inside a snack food bag. Based on his “training and experience, the normal amount of marijuana found in discarded trash is about l gram. 24 grams of marijuana located in the trash is indicative of a residence that is trafficking a large amount of marijuana.” A field test confirmed that the substance recovered from the trash was marijuana.



 During the evening of June 15, 2015, Detective Ng “received an anonymous tip that there was currently a strong odor of unburnt marijuana coming from the residence at 1826 Arcadia Drive.” Detective Ng went to the address and, while on the sidewalk by the home, saw that the garage door was open. As he “got closer to 1826 Arcadia Drive, [Detective Ng] was able to identify from his training and experience the distinct odor of fresh, unburnt marijuana coming from 1826 Arcadia Drive.” The “strong odor of marijuana coming from the residence indicate[d] there could be a large amount of marijuana inside the residence.”



 Detective Ng saw that the home had six surveillance cameras attached to the residence. The cameras were pointed to areas surrounding the outside of the home. From Detective Ng’s experience, “homeowners typically point surveillance cameras towards their homes in hopes of capturing images of intruders breaking into their home. Narcotics traffickers typically use surveillance cameras as counter-surveillance in order to detect actions by law enforcement.”



Detective Ng stated that it was his “firm belief from his investigative

experience into Marijuana Trafficking in the past that the above mentioned address

contains Marijuana, and your affiant respectfully requests a warrant issued to

search this residence.” Based on Detective Ng’s affidavit, a magistrate signed a

search warrant on June 16, 2015. The warrant authorized the police to search 1826

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Arcadia Drive and to seize “any illicit contraband, namely Marijuana, and any

illicit contraband, as described in [Detective Ng’s affidavit].”

Pursuant to the warrant, the police searched the residence at 1826 Arcadia

Drive. The items seized during the search included marijuana, Xanax, an

“unknown amount of white powder substances,” codeine, an “[u]nknown amount

of US currency,” body armor, and 15 firearms.

Based on the evidence found during the search of his residence, Nguyen was

indicted for eleven felony offenses.1 The offenses included manufacture or

delivery of a controlled substance, possession of a controlled substance, money

laundering, unlawful possession of body armor by a felon, and three counts of

unlawful possession of a firearm by a felon.

Nguyen filed a pre-trial motion to suppress the evidence seized pursuant to

the search warrant. In the motion, Nguyen argued that the search warrant, which

he alleged was authorizing a search of his residence, was invalid because it was not

based on sufficient probable cause. The trial court conducted a pre-trial hearing on

the motion. No testimony was given at the hearing, but Detective Ng’s affidavit

and the search warrant were admitted into evidence. At the hearing, Nguyen

1 The record does not contain the indictments for all 11 offenses; it contains only the indictments for the six offenses to which Nguyen pleaded guilty. However, both parties indicate in their briefs that Nguyen was originally indicted for 11 offenses.

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asserted that Detective Ng’s affidavit did not supply the necessary probable cause

to support the search warrant.

After reviewing the evidence and hearing the arguments of counsel, the trial

court denied Nguyen’s motion to suppress. In denying the motion, the trial court

stated:

Based upon what has been submitted from both sides and the affidavit contents itself, it appears to me that the investigating authority [Detective Ng] placed in the affidavit all of the things that had occurred in the case in order to give some history of it. I do not think that founded upon the June, 2014 report from an anonymous tip that they unilaterally did anything other than initiate some kind of further vigilance and effort to observe what was going on if anything at the premises. The officer who—the affiant himself who was part of the drug task force or the investigating entity had been on the force for five years which I think gives some—certainly his training alone would have given him some insight as to the smell of fresh marijuana. That alone could have been a prompting reason to initiate and sign the search warrant.



We’re supposed to give deference to the Judge who signed or the magistrate who signs the warrant because they have in front of them the officer, they have the opportunity to query the officer, to look at the face of the instrument itself and to make a determination as to whether or not they feel like sufficient probable cause exist. And when you take the totality of these things, I think that there’s probable cause for them to believe that there’s something that’s being sold from that premises that is not legal, coupled with the fact that even ignoring the trash cans for the moment, if you believe that the officer smelled fresh marijuana which has its own peculiar odor, then that justifies them coming to a magistrate to attempt to get the very warrant that they got issued.



I’m going to sustain the search itself as having sufficient probable cause in the warrant, and therefore the—everything that was a sequela

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of that search is capable of being introduced into Court given the right offering.

After the motion was denied, Nguyen agreed to plead guilty to six of the

eleven charged offenses. Specifically, Nguyen pleaded guilty to three charges of

manufacture or delivery of a controlled substance in a drug-free zone; (2) money

laundering; (3) possession of body armor by a felon; and (4) unlawful possession

of a firearm by a felon. Nguyen received twenty-year sentences for each of the

three drug offenses and five-year sentences for each of the other three offenses.

The trial court ordered that Nguyen serve concurrently the three twenty-year

sentences and then serve concurrently the five-year sentences.

Nguyen now appeals. Raising the same two issue in each appeal, Nguyen

challenges the trial court’s denial of his motion to suppress.

Motion to Suppress

In his first issue, Nguyen contends that the trial court abused its discretion

when it denied his motion to suppress.

A. Standard of Review & Applicable Law

The Fourth Amendment establishes a constitutional preference that a search

be conducted pursuant to a warrant. Jones v. State, 364 S.W.3d 854, 856–57 (Tex.

Crim. App. 2012) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317,

2331 (1983)); see also U.S. CONST. amend. IV. Under Texas law, no search

warrant may issue without a sworn affidavit that sets forth facts sufficient to

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establish probable cause. See TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005),

art. 18.01(b),(c) (West Supp. 2016); see also TEX. CONST. art. 1, § 9. 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.

State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). Probable cause is a

“flexible and non-demanding standard.” State v. McLain, 337 S.W.3d 268, 272

(Tex. Crim. App. 2011).

Ordinarily, we review a trial court’s ruling on a motion to suppress under a

bifurcated standard of review, giving almost total deference to the facts found by

the court and reviewing de novo its application of the law. Id. at 271. However,

when the trial court is determining probable cause to support the issuance of a

search warrant, there are no credibility determinations. Id. Instead, the trial court

is constrained to the four corners of the affidavit. Id.

Because of the constitutional preference for searches to be conducted

pursuant to a warrant, we apply a highly deferential standard of review to a

magistrate’s probable-cause determination. Bonds v. State, 403 S.W.3d 867, 873

(Tex. Crim. App. 2013); McLain, 337 S.W.3d at 271. Pursuant to this highly

deferential standard, we interpret the supporting affidavit in a commonsensical and

realistic manner, and we defer to all reasonable inferences that the magistrate could

have made. See id. We consider the totality of the circumstances and determine

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whether sufficient facts are stated within the four corners of the affidavit, coupled

with inferences from those facts, to establish a fair probability that evidence of a

particular crime would be found at a given location. See Rodriguez v. State, 232

S.W.3d 55, 62 (Tex. Crim. App. 2007). If the magistrate had a substantial basis for

concluding that probable cause existed, we will uphold the magistrate’s probable

cause determination. See McLain, 337 S.W.3d at 271 (“When in doubt, we defer

to all reasonable inferences that the magistrate could have made.”); see also Gates,

462 U.S. at 238–39. “This substantial basis standard of review does not mean the

reviewing court should be a rubber stamp but does mean that the magistrate’s

decision should carry the day in doubtful or marginal cases, even if the reviewing

court might reach a different result upon de novo review.” Flores v. State, 319

S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quote omitted).

B. Analysis

Nguyen argues that the trial court abused its discretion because the search

warrant affidavit did not contain sufficient information to provide the issuing

magistrate with a substantial basis to determine that there was a fair probability

that marijuana and “evidence relative to the trafficking of narcotics” would be

present at the target address. In making his argument, Nguyen also claims that the

trial court did not consider certain portions of Detective Ng’s affidavit when

determining whether the affidavit contained sufficient facts to establish probable

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cause. Specifically, Nguyen asserts that the trial court did not consider information

in the affidavit regarding either the anonymous tips or regarding the items

recovered by Detective Ng from the trash. Nguyen contends that the trial court

denied his motion to suppress based solely on Detective Ng’s affidavit testimony

that the officer detected the odor of unburnt marijuana at the target residence.

We disagree with Nguyen that the trial court stated that it based its ruling

solely on Detective Ng’s affidavit testimony regarding the odor of marijuana and

did not consider other portions of the affidavit. To support his claim that the trial

court relied solely on the information regarding Detective Ng’s detection of the

odor of marijuana, Nguyen points to the trial court’s remark that “the smell of fresh

marijuana . . . alone could have been a prompting reason to initiate and sign the

search warrant” and to its remark that, “even ignoring the trash cans for the

moment, if you believe that the officer smelled fresh marijuana which has its own

peculiar odor, then that justifies them coming to a magistrate to attempt to get the

very warrant that they got issued.” However, the remarks relied on by Nguyen

must be considered in the context of the entire statement. The trial court

acknowledged that it had to give deference to the magistrate’s finding of probable

cause, recognizing that the magistrate had “in front of them the officer, they have

the opportunity to query the officer, to look at the face of the instrument itself and

to make a determination as to whether or not they feel like sufficient probable

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cause exist.” The trial court then concluded, “And when you take the totality of

these things, I think that there’s probable cause for [the magistrate] to believe that

there’s something that’s being sold from that premises that is not legal.” In other

words, the trial court stated that, based on the totality of what was presented in the

search-warrant affidavit, the magistrate had sufficient information to support his

probable-cause determination and to issue the search warrant. The trial court’s

remarks about the marijuana odor were stated in the context of highlighting the

overall strength of the totality of the information in the affidavit, which is the

proper analysis. See Manuel v. State, 481 S.W.3d 278, 283 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

2317, 2332 (1983) (“Courts employ a totality-of-the-circumstances analysis for

probable-cause determinations.”).

In any event, it was correct for the trial court to rely on the information in

the affidavit indicating that Detective Ng, an experienced narcotics officer,

detected the odor of fresh, unburnt marijuana at the target residence the day before

the search warrant was issued in reaching its conclusion that the affidavit supplied

sufficient probable cause to support the issuance of the search warrant. As the

United States Supreme Court observed in Johnson v. United States,

If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant.

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Indeed it might very well be found to be evidence of most persuasive character.

Johnson, 333 U.S. 10, 13, 68 S. Ct. 367, 369 (1948). More recently, the Texas

Court of Criminal Appeals has recognized, “While the odor of marijuana may not

be enough to justify a warrantless search based upon exigent circumstances, it can

still provide probable cause to support a search warrant.” State v. Le, 463 S.W.3d

872, 879–80 (Tex. Crim. App. 2015) (upholding search warrant based on odor of

marijuana that officer detected emanating from target residence and later from one

of its occupants coupled with tip obtained from “concerned citizen” about narcotics

activities at residence, even though some of the information by itself did not

establish probable cause due to its staleness).

In his brief, Nguyen asserts that the odor of marijuana emanating from the

target residence cannot alone establish probable cause. However, the State never

argued that it did. Instead, the evidence regarding the marijuana odor combined

with other information in the affidavit demonstrates probable cause. A case that is

instructive on this point is Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006).

In Davis, the Court of Criminal Appeals upheld a search warrant based in

part on an experienced officer’s affidavit testimony that he had recognized an odor

that he associated with the manufacture of methamphetamine. Id. at 157. The

affidavit also included “background information” comprised of a Crime Stopper’s

tip and observations from confidential informants. Id. The Davis court determined

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that the background information was insufficiently explicit and was too stale when

it was considered in isolation to support probable cause. Id. However, when the

court considered the background information along with the trained officer’s

perception—made the same day that the affidavit was drafted—of the distinctive

odor coming from the residence that he recognized from his experience to be from

the manufacture of methamphetamine, the Davis court held that the combined

information was sufficient to establish probable cause. Id. (“We also note that the

background information, which all agree was insufficiently specific when

considered in isolation, was nevertheless relevant to the probable cause

determination because it tends to corroborate [the officer’s] statement.”).

Here, Detective Ng’s affidavit contained a similar type of “background

information.” Specifically, the affidavit contained information that, in early June

2015, an anonymous concerned citizen reported narcotics trafficking from the

target residence that involved a car Detective Ng determined was registered to

Nguyen. Detective Ng also knew that, in 2014, a Crime Stopper’s tipster had

reported Nguyen was selling narcotics from his workplace. In addition, the

evening before the affidavit was signed, Detective Ng received a tip that a strong

odor of marijuana was emanating from the target residence.

As in Davis, this background information alone would not be sufficient to

support probable cause. See id. But Detective Ng’s affidavit contains much more

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information than just the background information. Detective Ng, an experienced

narcotics officer, testified that he detected the odor of fresh, unburnt marijuana

emanating from the target residence on the evening before the warrant was issued,

which in conjunction with the background information establishes a fair

probability that contraband would be found at the residence. See id.; see also Le,

463 S.W.3d at 881. And, here, we have even more information in the affidavit to

support probable cause.

The affidavit provides that, the morning before the warrant was issued,

Detective Ng conducted a trash search at the target residence. Detective Ng found

24 grams of marijuana and plastic bags of the type used in the distribution of

marijuana in the trash can placed at the end of the target residence’s driveway.

The plastic bags were labeled with the names of different types of marijuana and

contained marijuana residue. Marijuana cigarettes and marijuana cigars were also

found in the trash. While a single trash search alone may not be enough to support

probable cause, a trash search coupled with other incriminating information, such

as here, is sufficient to establish probable cause. See Coker v. State, 406 S.W.3d

392, 399 (Tex. App.—Dallas 2013, pet. ref’d).

When viewed as a whole, and in a common-sense manner, we conclude that

sufficient facts are stated within the four corners of Detective Ng’s affidavit,

coupled with inferences from those facts, to establish a fair probability that

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evidence of narcotics trafficking would be found at the target residence. See

Rodriguez, 232 S.W.3d at 62. That is, there was a substantial basis for the

magistrate’s probable cause finding. See McLain, 337 S.W.3d at 271. We hold

that the trial court properly deferred to the magistrate’s probable cause

determination and did not err when it denied Nguyen’s motion to suppress.

We overrule Nguyen’s first issue in each appeal.2