Adair v. State

• Decision Date: 19 July 1972
• Docket Number: 43667,Nos. 43666,s. 43666
• Citation: 482 S.W.2d 247
• Parties: Fred ADAIR, Appellant, v. The STATE of Texas, Appellee. John VIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 247

482 S.W.2d 247

Fred ADAIR, Appellant, v. The STATE of Texas, Appellee.

John VIA, Appellant, v. The STATE of Texas, Appellee.

Nos. 43666, 43667.

Court of Criminal Appeals of Texas.

July 19, 1972.

David J. Nagle, of Nagle & Barr, Houston, for appellants.

Bob Smith, Dist. Atty., Phillip A. Nelson, Jr., and Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

OPINION ON APPELLANTS' MOTION FOR REHEARING

Our opinion on original submission is hereby withdrawn and the following is substituted in lieu thereof.

These appeals arise out of convictions for possession of marihuana with the punishment being assessed at 10 years in each case. The imposition of the sentences was suspended and each appellant was placed on probation.

Appellants Adair and Via were jointly indicted with co-defendants Lawrence Cearley, Mary Kinslow, Terance O'Neil, Linda Roberts and Edwin Mark Stanton who were charged with 'acting together' in possession of a narcotic drug, to wit: marihuana.

After severance appellants were jointly tried before the court upon their pleas of not guilty after waivers of a jury trial were executed.

This case presents the question of what showing must be made to the magistrate issuing search warrants in order that there may be a substantial basis for crediting the report of a first time informer, known to the police but unidentified to the magistrate, who purports to describe personal knowledge of criminal activity but who has not previously given accurate information to the police.

The instant case also challenges the sufficiency of the evidence to show possession of the narcotics in either appellant.

I. Search and Seizure

At the outset appellants particularly contend the trial court erred in overruling a motion to suppress on the ground that the affidavit underlying the search warrant was insufficient to reflect probable cause, arguing that the second prong of the two prong Aguilar test is not satisfied by the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The record reflects that at approximately 2:20 a.m. on October 8, 1969, Austin police officer Jerry L. Spain sought a search warrant to search the premises of 'Linda Roberts, WF--18, and other person or persons unknown to affiant by name, identity, or description' at '700 West 10th, Austin, Travis County, Texas.'

The relevant portion of the affidavit presented to the magistrate and upon which the search warrant issued is as follows:

'Affiant has received information From a credible and reliable information (sic) that the above named subject Linda Roberts is keeping and using marijuana in her apartment located at 700 West 10th, Austin, Travis County, Texas. Informant has observed marijuana in the apartment within the past 24 hours and further states the marijuana is being kept in a match box, the type that kitchen matches come in and is in the front room of the apartment. Although the informant has not given information in the past, their (sic) reliability, and credilbility has been established by the fact of their (sic) lack of a criminal record, the reputation in the neighborhood, and are (sic) well thought of by their (sic) fellow associates.' (Emphasis supplied)

A search warrant may rest upon any one of three types of information. First, it may rest entirely upon an informer's tip which is hearsay provided, of course, there is a sufficient basis to credit the hearsay. Secondly, it may be based entirely upon facts within the personal knowledge of the affiant. Thirdly, it may be based upon a combination of the first two--that is a combination of hearsay and the personal knowledge of the affiant. It should be observed, however, that the search warrant affidavit must contain allegations that be beyond the affiant's mere suspicion or his repetition of another person's mere suspicion. See Gonzales v. Beto, 425 F.2d 963, 968 (5th Cir. 1970); Ruiz v. State, 457 S.W.2d 894, 896 (Tex.Cr.App.1970) (concurring opinion).

It is clear from an examination of the affidavit in the instant case that it fits within the first category discussed above--the probable cause being based entirely upon the informer's tip. See Kemp v. State, 464 S.W.2d 141, 147 (Tex.Cr.App.1970) (dissenting opinion adopted in part as opinion of the court on the motion for rehearing).

In determining the sufficiency of such affidavit to reflect probable cause for the issuance of the search warrant, we are bound by the four corners thereof. Article I, Sec. 9, Tex.Const. Vernon's Ann.St., Article 18.01, Vernon's Ann.C.C.P.; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447, 448 (1928); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.) (concurring opinion); Ruiz v. State,supra, 457 S.W.2d at 896 (concurring opinion).

Since the affidavit in question considered from its four corners reflects that it is based solely upon hearsay unaided by independent police investigation or other corroboration, we must determine whether it meets the two-pronged Aguilar test (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723).

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 circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable." (Emphasis supplied) 378 U.S. at 114--115, 84 S.Ct. at 1514.

A study of the affidavit in question reveals that it is sufficient to satisfy the first prong of the Aguilar test. The informer declared he had personally observed the narcotic in the apartment and revealed where it was kept and the type of container. These 'underlying circumstances' are full enough to meet the first part of the Aguilar test. We concern ourselves then with the honesty of the informer and whether the second prong of the Aguilar test has been satisfied, particularly since the unidentified informer is shown to be of unknown or untested reliability.

In most cases dealing with a search warrant affidavit based solely upon hearsay without independent corroboration, surveillance, etc., with which this court has had to deal, the unidentified informer has been described as one of proven reliability by having previously given true and correct information leading to the discovery of narcotics, arrests and convictions, etc. These allegations or type of description of the usual police informer undoubtedly stemmed from Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).

The absence of an allegation of prior reliability is not, ipso facto, a fatal defect in the affidavit. As Chief Justice Burger only recently said, speaking for himself and three other justices, '. . . this Court in Jones never suggested that an averment of previous reliability was necessary.' United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). Actually, as he noted, the inquiry in determining probable cause should be whether the informer's Present information is truthful and reliable.

The police are often confronted with the first time informer or citizen informer sometimes referred to as a 'walk in' who is unknown to the police and with whom the police have had no previous experience. When they give information as to criminal activity their information should not become unusable because there has not been a previous instance of reliability. When citizens are involved it cannot be expected that they would have had past transactions or dealings with the police. See People v. MacDonald, 480 P.2d 555 (Colo.1971). And while in many such cases less reason may exist for failing to disclose the informer's identity to the magistrate than where the ordinary police informer is involved, nevertheless, many citizens prefer to cooperate in anonymity with the police or fear possible retribution by the accused. ¹ Certainly where sufficient 'underlying circumstances' are presented to the magistrate so he can make an independent determination as to the credibility of the informer, the use of such informers is not to be excluded.

The problem confronting law enforcement officers is how to supply to the magistrate sufficient 'underlying circumstances' so there will be a 'substantial basis' for accepting the reliability of the first time informer. Jones v. United States, supra.

In the instant case the officer-affiant clearly realized that since days of the Aguilar decision his conclusory statement that the informer was 'credible and reliable' was not sufficient standing alone. He thus sought to give 'underlying circumstances' in support of such conclusion. He put the magistrate on notice that the informer had not previously given information and was thus a first time informer. He offered to the magistrate the fact that the informer's 'reliability and credibility' was established by

(1) lack of a criminal record

(2) the reputation in the neighborhood

(3) well thought of by fellow associates.

Is the lack of a criminal record entitled to be given any weight by the magistrate in the determination of the credibility of the first time informer? At first blush it would certainly seem so. We permit the impeachment of witnesses by the use of certain final convictions. See Article 38.29, V.A.C.C.P.; Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). And we held that the absence of a criminal record was entitled to some weight in determining probable cause in Yantis v. State, Doughty v. State, 476 S.W.2d 24 (Tex.Cr....