Acosta v. Beto, Civ. A. No. 68-H-191.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: INGRAHAM
• Citation: 297 F. Supp. 89
• Parties: Joe Givas ACOSTA, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Docket Number: Civ. A. No. 68-H-191.
• Decision Date: 24 March 1969

297 F. Supp. 89

Joe Givas ACOSTA, Petitioner,
v.
Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 68-H-191.

United States District Court S. D. Texas, Houston Division.

March 11, 1969.

As Amended on Denial of Rehearing March 24, 1969.

297 F. Supp. 90

COPYRIGHT MATERIAL OMITTED

297 F. Supp. 91

Woody & Rosen (Clyde W. Woody and Marian S. Rosen), Houston, Tex., for petitioner

Crawford C. Martin, Atty. Gen., of Texas, and Lonny F. Zwiener, Asst. Atty. Gen., of Texas, Austin, Tex., for respondent.

INGRAHAM, District Judge.

Memorandum:

The petitioner, Joe Givas Acosta, was convicted of possession of heroin with a prior conviction of the same offense alleged for enhancement. A sentence of thirty years confinement in the state penitentiary was imposed by Criminal

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District Court No. 3 of Harris County, Texas, on October 20, 1965. The conviction was affirmed by the Court of Criminal Appeals of Texas, Acosta v. State, 403 S.W.2d 434 (Tex.Crim.App.1966), and motion for rehearing was denied, one judge dissenting. Id. at 438. Petition for writ of certiorari to the United States Supreme Court was denied on April 17, 1967, Justices Warren, Douglas and Fortas dissenting. Acosta v. Texas, 386 U.S. 1008, 87 S.Ct. 1352, 18 L.Ed.2d 449 (1967)

Petitioner filed his application for the writ of habeas corpus in this court on March 11, 1968. The questions raised in the petition were raised and passed upon both by the trial court and the Court of Criminal Appeals. Petitioner has therefore exhausted his state remedies. Reed v. Beto, 343 F.2d 723 (5 CA 1965), aff'd sub nom. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

The facts of the case, as set out in the opinion of the Court of Criminal Appeals, are not in issue. The grounds upon which petitioner asserts the writ should be granted involve questions of law. They are essentially three:

(1) Heroin seized at the time of his arrest was inadmissible because the affidavit supporting the issuance of the search warrant was insufficient to establish probable cause;

(2) The trial court did not conduct the hearing on the voluntariness of petitioner's confession in accordance with proper constitutional standards; and

(3) The trial court erred in not requiring the affiant to identify the informant whose information constituted part of the probable cause for the issuance of the warrant.

An evidentiary hearing on petitioner's application was held on January 6, 1969. Based on the evidence adduced at the hearing, the state court record, and the briefs of counsel, the court enters this memorandum on the merits of the petition, the following to constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

I.

The affidavit challenged as being insufficient to support the issuance of the search warrant reads as follows:

"On the 14th day of May, 1965, affiants received reliable information from a credible person that heroin was being possessed by Joe Givas Acosta, at 7515 Force Street, Houston, Harris County, Texas. Although I do not desire to name this person, on about four prior occasions he has given information to me concerning narcotics being possessed by certain individuals, and on every occasion his information has proven to be true. Based upon the information he gave to me, affiants on the morning of the 14th day of May, 1965, set up a surveillance of the house located at 7515 Force Street, and from approximately 7:00 a. m. to 10:00 a. m. of that day we observed several persons whom we know to be users of narcotics, enter the house, remain for approximately five minutes each and then leave."

As the first step in the analysis of this affidavit, it must be remembered that "(i)t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention." Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964) (emphasis by the court). Testimony heard in the trial court or in the hearing in this court which might tend to bolster the affiants' allegations is therefore irrelevant unless the information was conveyed to the magistrate at the time the warrant was issued. See Lopez v. United States, 370 F.2d 8, 10 (5 CA 1966); United States v. Myers, 270 F.Supp. 734, 738 (E.D.Pa. 1967), rev'd on other grounds, 398 F.2d 896 (3 CA 1968). In this case, evidence was presented in the trial court which showed that the affiant officers knew the two individuals seen entering Acosta's

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house to be narcotics users from first-hand knowledge—they knew their names and that charges were pending against them.¹ The record is devoid of any evidence, however, showing that this information, or any other information, was presented to the justice of the peace who issued the warrant.² To the contrary, there is positive testimony from one of the officers that only the information contained in the affidavit was given to the magistrate. Moreover, the magistrate could not even remember issuing the warrant, much less whether additional information was received. In this posture, "the affidavit must stand or fall by itself. It is only reasonable to assume that had there been any * * * (other matters presented to the magistrate), the respondents would have called them to the Court's attention in their answers or at the hearing." Foster v. Gilbert, 264 F.Supp. 209 (S.D.Fla.1967)

The fact that the affidavit must stand alone, the court being required to ignore all information adduced at the trial and at the hearing in this court which was not presented to the magistrate, presents an interesting paradox. It is certain that searches under a warrant are preferred, and that "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744 (1965); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Therefore, if certain information were sufficient to constitute probable cause for a search without a warrant, the same information would certainly support probable cause for the issuance of a warrant. But the procedure for determining probable cause in each situation is different. In warrantless search cases, the determination of the reasonableness of the search is, and must be, a judicial determination after the fact. A full-blown hearing delving in great detail into the information which was available to the police is held, either on motion to suppress or at the trial. The officers are questioned at length about the type of information upon which the reasonableness of the search was based, the source, reliability, and reasons for their reliance upon the information, as well as the extent and reliability of their corroborating evidence. All this evidence is considered by the court in its determination as to whether there was sufficient probable cause for the search. All this assumes that the search was one of the limited type allowed without a warrant, of course.

In situations in which the validity of a search must depend on the validity of a warrant, all the information available to the officers must be brought to the

297 F. Supp. 94

attention of the magistrate. If the officers fail to communicate any information later deemed necessary for a finding of probable cause, the error is irreparable

The results in the two situations are eminently sensible. Certainly no one would quarrel with the propriety of testing the officer's basis for probable cause in warrantless search cases on the one hand, or testing the sufficiency of probable cause from the viewpoint of the magistrate on the other. And it is patently reasonable in judging the magistrate's determination that only the information brought before him should be considered. But the paradox is this: it is settled policy that the courts are to encourage officers to proceed under warrants, that affidavits need not be hypertechnical documents, and that a "trial" on the question of probable cause before the magistrate is neither necessary nor desirable. From a practical standpoint, however, it would seem that a warrantless search would stand a better chance of being upheld than a search under a warrant. This is simply because, as noted above, all the details surrounding a warrantless search may be explored at trial. The prosecution, being more knowledgeable about the matters which must be brought to the fore than the police, can extract from the officers the requisite golden phrases which they might otherwise have overlooked or felt superfluous had they taken out a warrant. And the argument that the officers could merely tell the magistrate just a little more is unconvincing: the plethora of short, underworded affidavits challenged both before and after Aguilar clearly evidences most affiants' reticence.

The foregoing is not a plea to change the system. It is first, to delineate the court's scope of review, and second, to point out an anomaly which, it will be shown, is particularly pertinent to this case.

Whether an affidavit is sufficient to establish probable cause has been the subject of several Supreme Court decisions since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), held the exclusionary rule applicable to the states. The case which apparently has had the greatest effect on the form taken by search warrant affidavits is Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964). In Aguilar the Court held that when an affidavit is based upon hearsay information received from an informant, the affidavit must show (1) the manner in which the informant received his information—the underlying circumstances from which the informant concluded the narcotics were where he said they were, and (2) the "underlying circumstances from which the officer concluded that the informant * * * was `credible' or his information...