TX: The affidavit for the SW was read hypertechnically and not with deference to the issuing magistrate

The trial and appellate court (State v. McLain, 310 S.W.3d 180 (Tex. App.—Amarillo 2010)) engaged in a hypertechnical reading of the affidavit for the search warrant to conclude there was no probable cause. Neither court gave the affidavit the deference it was entitled to. State v. McLain, 337 S.W.3d 268 (Tex. Crim. app. 2011)* (dissenting opinion here):

While the plain meaning of the aforementioned statement, read literally, fails to clearly indicate exactly when the informant observed Appellee in possession of the methamphetamine, we believe that the magistrate could have reasonably inferred that the informant observed Appellee with the methamphetamine within the past 72 hours. By looking at the affidavit in its entirety, and not just this one sentence in isolation, it certainly would have been reasonable for the magistrate, considering all the facts in the affidavit along with reasonable inferences from those facts, to conclude that there was a fair probability that there was methamphetamine at appellee’s home at the time of the issuance of the warrant. We also believe that a magistrate’s experience and expertise in these matters would indicate that the time at which the affiant received the information from the confidential informant that Appellee possessed methamphetamine was irrelevant, but that the time at which the confidential informant observed such possession was necessary to establish probable cause. And if there was any doubt, the trial and appellate courts both should have deferred to the magistrate’s determination. They failed to do so.

Dropping a duffle bag and walking away from it was an abandonment. The guns found in it were not suppressed. United States v. Thomas, 423 Fed. Appx. 199 (3d Cir. 2011) (unpublished).*