Gonzales v. Beto

• Citation: 425 F.2d 963
• Decision Date: 29 June 1970
• Docket Number: No. 27882,28259.,27882
• Parties: Adiel F. GONZALES, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. Joe Givas ACOSTA, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, and the State of Texas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 963 (1970)

Adiel F. GONZALES, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

Joe Givas ACOSTA, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, and the State of Texas, Respondents-Appellees.

Nos. 27882, 28259.

United States Court of Appeals, Fifth Circuit.

May 6, 1970.

Rehearing Denied and Rehearing Denied June 29, 1970.

John J. Browne, Clyde W. Woody, and Marian S. Rosen, Houston, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen. of Texas, Jo Betsy Lewallen, Asst. Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before THORNBERRY, DYER, and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied in No. 27882 June 29, 1970.

THORNBERRY, Circuit Judge:

These two habeas corpus cases, which we have consolidated for opinion purposes, concern the validity of search warrants under two controlling Supreme Court decisions, Aguilar v. Texas¹ and Spinelli v. United States.² In each of the cases at bar, the district court denied the petition for habeas corpus. We affirm the denial of relief in both cases. It should be noted, however, that the reasoning we follow differs from that of the district courts. The district courts held the warrants invalid, justifying both searches on the ground that they were incident to arrests, while we rest our decision solely upon the validity of the warrants. We reach this decision because the preference accorded searches under warrants militates against the restrictive interpretation here imposed by the district courts upon the supporting affidavits. Before discussing the issues, we first proceed to set out the essential facts of both cases.

I. FACTS

A. No. 27882: Acosta v. Beto

The case against appellant Joe Givas Acosta began when the Houston police got a tip from an unnamed informer to the effect that appellant was keeping narcotics at his house. Police officers Chavez and Moore set up a surveillance of the house, and in the course of one day's observation they saw several persons, whom they personally knew to be users of narcotics, enter the house, remain for about five minutes each, and then leave. At this point, the officers procured a search warrant covering the house and grounds. The affidavit had as its operative elements the following three allegations: (1) The fact that the unnamed informer had told the police that appellant possessed narcotics at his house; (2) the assertion that the informer was a credible person who had given information concerning narcotics to the affiants on about four prior occasions, with the information proving to be true each time; and (3) a brief description of the surveillance and its results as the affiant officers themselves observed them.³

When the officers went to execute the warrant, they found appellant, with his wife and minor son, driving away from his residence. They immediately arrested him. Taking him back to the house, the officers made a thorough search of both the house and its grounds. After about three hours of work, the officers found a glass jar containing heroin buried in the back yard. On the basis of this and other evidence, appellant was convicted of possession of heroin and sentenced, as a second offender, to thirty years in prison. The police never furnished appellant with the identity of the informer upon whose tip the warrant was based.

After having exhausted his remedies in the state courts, appellant petitioned the district court below for a writ of habeas corpus. In the course of a careful and excellent opinion, which has been of great help to this Court notwithstanding our disagreement with its reasoning, the district court denied the petition.⁴ The court held that the warrant was invalid because it failed to meet the standards set by the Spinelli case. The court went on, however, to hold that information the officers had about appellant but did not allege in the affidavit could be combined with circumstances of appellant's apprehension to justify the arrest without a warrant. One factor in the court's decision was the fact that appellant was driving away from his house at the time he was apprehended, which the court viewed as an indication that appellant might have been escaping. Having thus found the arrest valid, the court took the further step of approving the search of appellant's house as a search incident to the arrest. The court recognized that its reasoning conflicted somewhat with the principle that searches under a warrant are preferred. It concluded, however, that because of the procedure for determining probable cause, "the paradox is this * * *. From a practical standpoint, it would seem that a warrantless search would stand a better chance of being upheld than a search under a warrant."

B. No. 28259: Gonzales v. Beto

The procurement of the warrant in this case presents facts identical to those of Acosta v. Beto. Houston police officers Garcia and Tissue received a tip from an unnamed informer, set up surveillance of appellant Adiel F. Gonzales' house, observed several persons whom they knew to be users of narcotics enter the house for about five minutes each, and swore out an affidavit closely similar to that described above in Acosta's case. In fact, the affidavit is sworn out on a form provided by the Houston Police Department, and consequently it is identical in language to that used against Acosta except as to particulars.⁵

When the officers went to execute the warrant, they knocked on appellant's door and apparently alerted the occupants as to the purpose of their mission. They heard and saw the occupants running about in the house. As they entered, they heard appellant shout to another occupant, Shirley Wells, that she should "grab the heroin." The officers entered the kitchen, where they found appellant standing at the sink cleaning meat and Shirley Wells attempting to exit through the back door. One of the officers asked Shirley Wells whether she had anything and she handed over a small package containing heroin. Appellant, before any questions were addressed to him and before the police warned him of his rights, stated that the package was his and that no one else in the house knew what was in it.⁶ On the basis of this evidence, appellant was convicted of possession of heroin and sentenced, as a third-time offender, to life imprisonment.

On appellant's petition for a writ of habeas corpus, the district court followed the reasoning of the Acosta decision and denied relief. As in Acosta, the court held that the warrant was invalid. It held further, however, that the conduct of the occupants of the house after the officers' knock, particularly their running and appellant's direction to Shirley Wells to grab the heroin, coalesced with the officers' prior knowledge to create probable cause for an arrest without a warrant. The court went on to conclude that the heroin was seized as a result of a legal search incident to the arrest.

II. THE BASIS FOR WARRANT REQUIREMENTS

The searches involved in these cases must be measured against the fourth amendment, which prohibits "unreasonable" searches and seizures and states that "No Warrants shall issue, except upon probable cause, supported by Oath or affirmation * * *." The question whether warrants are required for various types of searches incident to arrests has produced some of the most confusing decisions in the history of constitutional law.⁷ It remains a difficult question to this day. The district courts in these cases resolved the question by viewing liberally the power of police to search without warrants. In Acosta, for example, the common, everyday act of driving away from one's house accompanied by one's family became an element of probable cause for a warrantless search.⁸ In Gonzales, the suspects' panicky actions after the knock on the door was used to justify the search.⁹ In both cases, facts within the knowledge of the police from the beginning but not alleged in the affidavits were used as major determinants of probable cause.¹⁰ We conclude that the district courts did not accord enough weight to the preference that should be given searches under warrants.¹¹ As a concomitant to this error, the district courts gave an overly restrictive construction to the standards by which warrants are judged.

The requirement of a search warrant is unquestionably a strong bulwark against the evils at which the fourth amendment is directed. Although the paradox observed by the district courts — greater difficulty in justifying searches under warrants — unfortunately exists in many cases, we are inclined to attach great weight to the preference. The fourth amendment was written in terms of "reasonableness" so that it would bring about its expressed purposes not as a theoretical but as a practical matter. As Mr. Justice Clark observed in Mapp v. Ohio,¹² "There is no war between the Constitution and common sense." We should not adopt a construction of the fourth amendment that will, as a practical matter, make it more difficult for police to procure a warrant when there is time to do so than to justify their search on the ground that it accompanies an arrest.

Thus the preference for warrants necessitates, as a practical matter, both careful scrutiny of warrantless arrest searches and a reasonable construction of warrant affidavits if the paradox observed by the district court is to be kept at a minimum. The decisions of the Supreme Court, of course, establish minimal standards for probable cause that we must adhere to. The standards, as the courts below recognized, are partly technical, but they are open-ended in that if the technical requirements are not entirely met the warrant may still be valid if when viewed as a whole it measures up to certain benchmarks of probable cause. We next proceed to consider the standards of probable cause against the facts of this...