Davis v. State (2006)
In Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006), the affiant included facts that another officer on patrol smelled a strong chemical odor emanating from a residence that he associated with the manufacture of methamphetamine. Id. at 152.
The Court of Criminal Appeals explained, "On these facts alone, without any other information, the magistrate was authorized to issue the warrant as long as the officer was 'qualified to recognize the odor.' That is the only relevant inquiry." Id. at 156.
In its determination, the court made two inferences that it deemed reasonable.
First, because the affidavit recited that the officer was "on patrol," it did not distort common sense to infer that the officer was a "trained, commissioned police officer," which gave credibility to the officer's identification of the odor. Id.
Second, the officer "associated" this smell with the manufacture of methamphetamine, which permits an inference that the officer had experience with the odor-causing agent. Id. at 157.
The court reasoned that such an inference is not unreasonable "when that person may reasonably be expected to have had some experience with that kind of odor," such as police officers and methamphetamine labs. Id.
It is important to note that Davis turned on the standard of review. The issue was whether the court of appeals erred "by not paying sufficient deference to the magistrate's probable cause determination, applying a hypertechnical rather than a practical, common sense analysis, and failing to allow the magistrate to draw reasonable inferences from the facts stated in the affidavit." Id. at 154.
Indeed, the court noted that it "would just as readily conclude that it was within the magistrate's discretion to deny this search warrant, had he originally done so." Id. at 157.