Abercrombie v. State

• Decision Date: 24 July 1974
• Docket Number: 48335,Nos. 48334,s. 48334
• Citation: 528 S.W.2d 578
• Parties: Karl F. ABERCROMBIE, Appellant, v. The STATE of Texas, Appellee. Dennis G. DEAN, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 578

528 S.W.2d 578

Karl F. ABERCROMBIE, Appellant, v. The STATE of Texas, Appellee.

Dennis G. DEAN, Appellant, v. STATE of Texas, Appellee.

Nos. 48334, 48335.

Court of Criminal Appeals of Texas.

July 24, 1974.

Rehearing Denied Nov. 5, 1975.

Opinion in Rehearing Oct. 15, 1975.

Joe Slator Petsch, Del Rio, for Abercrombie.

Arturo C. Gonzalez, Del Rio, for Dean.

John F. Pettit, Dist. Atty., Edwin E. Springer, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for possession of marihuana. After verdicts of guilty were returned by the jury, punishment was assessed at seven years for appellant Dean and three years for appellant Abercrombie.

Appellants contend that 'the search warrant issued by the magistrate was not based upon probable cause because the reliability, if any, of the undisclosed informant was not established in the affidavit.'

The record reflects that officers, armed with a search warrant, conducted a search in a residence located at 208 1/2 East Broadway Street in Del Rio on November 25, 1972. Approximately one pound of marihuana was found in the four-room dwelling. In addition, a quantity of marihuana was found in a commode in the bathroom. Officer Gardner testified he saw Abercrombie run in the bathroom with something in his hand and reappear seconds later with his hands empty. Evidence of marihuana was found throughout the dwelling. Particles of marihuana were found in clothing and various containers and vessels. Abercrombie and one Jerry Wayne Davis were present in the apartment when the search was conducted. Dean, a lessee of the residence, was arrested shortly thereafter while driving a vehicle belonging to Abercrombie.

A hearing was held on appellants' motion to suppress evidence seized in the search and the court's action in overruling same gives rise to appellants' contention.

Appellants urge that the allegations of the affidavit made to support the search warrant are insufficient to meet the second prong of the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, requiring that the affidavit state circumstances from which it may be determined that the unnamed informer was credible and reliable.

The pertinent portion of the affidavit of Officer Gardner reads:

'MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:

'A reliable and credible person, hereinafter sometimes called informant, the identity of such reliable and credible person and such informant I wish not to disclose, has stated to me on this date 25 November 1972, he found two plastic bags of green plant substance believed by him to be marijuana in his yard adjacent to 208 1/2 East Broadway at approximately 3:00 AM 24 November 1972. He kept the two plastic bags of green plant substance in his possession until approximately 9:00 AM the same date and at which time he went to 208 1/2 East Broadway and asked one white made approximately 20 to 25 years of age, tall and heavy build and having dark hair and a dark bushy beard, later identified by a photograph as a suspected narcotic user being one Dennis G. Dean. At such time the informant asked the said Dennis G. Dean if he had lost something and Dean's reply was yes. The dogs found it and drug (sic) it out into the yard and at this time the informant returned the two plastic bags of green plant substance to the said Dennis G. Dean and he did then and there carry the two plastic bags of green plant substance into the house at 208 1/2 East Broadway. The informant states that in the past he had handled and smoked marijuana and he further states the contents of the two plastic bags to be of the same substance that he handled and smoked in the past being marijuana. It is believed at this time the green plant substance is concealed in the house at 208 1/2 East Broadway Street.'

The State cites Adair v. State, 482 S.W.2d 247, Tex.Cr.App. for the proposition that an allegation of prior reliability is not necessary if the underlying circumstances reflect reliability. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 73. It should be noted, however, that the affidavit in Adair v. State, supra, went further than merely stating that informer was 'credible and reliable' and recited that the informer lacked a criminal record, had a favorable reputation in the neighborhood and was well thought of by associates. ¹

It appears that the State is urging that the unnamed informant's credibility was confirmed by verifying the information he furnished. In Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970), it was stated that an informer's tip can be significantly buttressed if 'independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informer 'fabricat(ed) his report out of the whole cloth." See Polanco v. State, 475 S.W.2d 763, Tex.Cr.App. and cases cited therein. If such corroboration occurred in the instant case the affidavit fails to recite such verification of the informer's tips by affiant. In determining the sufficiency of a hearsay affidavit to reflect probable cause for the issuance of a search warrant, we are bound by the four corners thereof. Adair v. State, supra; Polanco v. State, supra; Kemp v. State, 464 S.W.2d 141, 147.

The State cites United States v. Harris, supra, for the proposition that the informant's declaration against penal interest would tend to prove the reliability and credibility of the informant. The affidavit in the instant case recites: 'The informant states that in the past he had handled and smoked marijuana and he further states the contents of the two plastic bags to be of the same substance that he had handled and smoked in the past.' In Harris, the Supreme Court said, 'Concededly, admissions of crime do not always lend credibility to contemporaneous or later accusations of another.' The affidavit in Harris recites 'that the informant had purchased illicit whiskey from the residence described, for a period exceeding two years, most recently within two weeks.' The Supreme Court noted this 'was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself.' In the instant case the affidavit reflects that informant stated 'in the past he had handled and smoked marijuana' without divulging when or where same may have occurred. It is highly questionable if such statement tended to prove the credibility of the informant. Clearly such statement, itself and without more, does not furnish sufficient underlying circumstances to warrant a finding that the unnamed informer was credible and reliable.

We are mindful that affidavits for search warrants are normally drafted in the midst and haste of a criminal investigation, and adhere to the teachings of the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, that they must be interpreted 'in a commonsense and realistic fashion.' See Cummins v. State, 478 S.W.2d 452, Tex Cr.App. Nonetheless, in our efforts to avoid technical and strict interpretation, we must be ever mindful that we stay within the boundaries of constitutional requirements. See Bridger v. State, 503 S.W.2d 801, Tex.Cr.App.

We conclude that the affidavit based upon hearsay information did not meet the second requirement of Aguilar concerning the credibility of the informer and the reliability of his information.

The judgments are reversed and the causes remanded.

Opinion approved by the Court.

MORRISON, Judge (dissenting).

From the four corners of the affidavit we learn the following:

The informant admitted that in the past he had handled and smoked marihuana. The affidavit also states that the informant stated that he had found marihuana in his yard and took the same into his possession. Such possession was unlawful. Article 725b, Sec. 2(a), V.A.P.C. The informant also stated that he later delivered the marihuana to the appellant Dean. Therefore, the affiant had sworn that the informant admitted to him that he possessed and then delivered the marihuana in question. This is clearly a declaration against penal interest and satisfies the requirements of U.S. v. Harris, supra. See also Aranda v. State, 506 S.W.2d 221, Tex.Cr.App.

It is also important that the affidavit reflects that the informer gave affiant a specific physical description of the appellant Dean, who was, according to the affidavit, '. . . identified as a suspected narcotic user . . .' This affiant has thus sworn to facts which are tantamount to 'a policeman's knowledge of a suspect's reputation', in Harris, supra.

I am also of the opinion that Adair v. State, 482 S.W.2d 247, Tex.Cr.App. is authority supporting this search warrant.

DOUGLAS, J., joins.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

On the State's motion for rehearing we have carefully reconsidered the contention of the appellants that 'the search warrant issued by the magistrate was not based upon probable cause because the reliability, if any, of the undisclosed informant was not established in the affidavit.'

Appellants urge the court erred in overruling their motion to suppress since the affidavit in support of the search warrant was insufficient to meet the second prong of the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

In Aguilar, the Supreme Court wrote:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, And some of the underlying...