Barton v. State

• Citation: 962 S.W.2d 132
• Decision Date: 25 February 1998
• Docket Number: No. 09-96-115,09-96-115
• Parties: Joe BARTON, Sr., Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Court of Appeals of Texas

Page 132

962 S.W.2d 132

Joe BARTON, Sr., Appellant, v. The STATE of Texas, Appellee.

No. 09-96-115 CR.

Court of Appeals of Texas Beaumont.

Submitted May 1, 1997.

Decided Dec. 17, 1997.

Discretionary Review Refused Feb. 25, 1998.

Charles W. Medlin, Houston, for appellant.

Scott W. Rosekrans, Criminal District Attorney, Coldsprings, for State.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice.

Appellant Joe Barton entered an agreed plea of guilt to the offense of possessing 400 or more grams of cocaine with a recommendation of twenty years' confinement and no fine from the State. This appeal only tests the trial court's denial of appellant's Motion to Suppress.

Point of error one contends that the trial court erred in denying the motion to suppress because the affidavit which secured issuance of the search warrant failed to provide the reviewing magistrate enough evidence so as to determine whether the unnamed informant was adequately credible or reliable. The operative portion of the probable cause affidavit reads as follows:

Affiant is a peace officer in and for the State of Texas, and is currently employed as the sheriff of San Jacinto County, Texas. Affiant will show that on October 25, 1995, he was at the Sheriffs Department and while at the office affiant received a 911 call from a residence in the Pine Valley area of San Jacinto County, in reference to narcotic trafficking. Affiant will show that he travelled to the location of the 911 call and affiant met with a confidential informant, who advised affiant that they, informant, had recovered a package wrapped in cellophane and tape, that informant believed contained illegal narcotics. Affiant observed the package and noted that the package was of the type commonly used to conceal cocaine. Affiant cut into the package, and found it to contain a white powdery substance that when field tested by affiant, showed positive for cocaine. Affiant spoke with informant in regards to where the package had been discovered, and informant advised that the package had been located in an outbuilding, located on property in the care, control and custody of Joe Barton, as described above in this affidavit. Informant advised that there were several more packages located on the same property, and wrapped in the same manner. Informant advises affiant that informant has been on the premises in the last 24 hours and resides at the location with Joe Barton, and this allowed informant access to the property, as well as the contraband turned over to affiant.

A search warrant may not legally issue unless it is based on probable cause. U.S. C ONST. amend. IV; T EX. C ONST. art. I, § 9; T EX. C ODE C RIM. P ROC. ANN. art. 1.06 (Vernon 1977); Hughes v. State, 843 S.W.2d 591, 593 (Tex.Crim.App.1992). Under both the Fourth Amendment and article I, section 9, an affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2331-2332, 76 L.Ed.2d 527, 549 (1983); Bower v. State, 769 S.W.2d 887, 902 (Tex.Crim.App.1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Probable cause sufficient to support a search warrant exists if the facts contained within the four corners of the search warrant affidavit ¹ and the reasonable inferences drawn therefrom justify the magistrate's conclusion that the object of the search is probably on the premises at the time of the warrant's issuance. Cassias v. State, 719 S.W.2d 585, 587-588 (Tex.Crim.App.1986). While appellant's brief contains numerous citations to Gates and its progeny, we feel that appellant's argument on the issue continues to take the very rigid approach to review of probable cause determinations that Gates expressly intended to eradicate.

Gates recognized that when basing a search warrant on information provided by a confidential informant, the issuing magistrate should generally have before her sufficient information to adequately reveal, first, the informant's "basis of knowledge," which the Supreme Court described as "the particular means by which he (the informant) came by the information given in his report." Gates, 462 U.S. at 228, 103 S.Ct. at 2326-27, 76 L.Ed.2d at 542. Additionally, the issuing magistrate should examine the affidavit for information establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report. Id. at 229, 103 S.Ct. at 2327-28, 76 L.Ed.2d at 542. Gates, therefore, appears to distinguish, in some sense, between an informant's "veracity," and the "reliability" of the information provided by the informant. And while the Gates court recognized that "an informant's 'veracity,' 'reliability,' and 'basis of knowledge' are all highly relevant in determining the value of his report[,][it] d[id] not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case[.]" Id. at 230, 103 S.Ct. at 2328, 76 L.Ed.2d at 543. The Court further loosened the grip of these three elements vis a vis appellate review by noting that they "should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Id.

We cannot emphasize enough to criminal practitioners the importance of a close and careful reading of Gates in order to get the full impact of just how much more relaxed the appellate standard of review was to be in its wake. We include the following rather lengthy quote from Gates to illustrate this point.

This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302 [, 1311], 93 L.Ed. 1879 (1949). "In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., at 175, 69 S.Ct. at 1302, 93 L.Ed. at 1879. U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), regarding "particularized suspicion," is also applicable to the probable-cause standard:

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

As these comments illustrate, probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921[, 1923-24], 32 L.Ed.2d 612 (1972): "Informants' tips, like all other clues and evidence coming to a policemen on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid.

Moreover, the "two-pronged test" directs analysis into two largely independent channels--the informant's "veracity" or "reliability" and his "basis of knowledge." (footnote signal omitted) There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e.g., Adams v. Williams, supra, 407 U.S. 143 at 146-47, 92 S.Ct. 1921 [at 1923-24], 32 L.Ed.2d 612; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

....

... Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.

....

We have also recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741[, 745-46], 13 L.Ed.2d 684 (1965). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 92 S.Ct. 2119[, 2121-23], 32 L.Ed.2d 783 (1972). The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision,...