Cassias v. State

• Decision Date: 19 November 1986
• Docket Number: No. 629-82,629-82
• Citation: 719 S.W.2d 585
• Parties: Timothy R. CASSIAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 585

719 S.W.2d 585

Timothy R. CASSIAS, Appellant, v. The STATE of Texas, Appellee.

No. 629-82.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 19, 1986.

Bobby Perel, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Nick O. Martinez, Jr. and R. Bradford Stiles, Asst. Dist. Attys., El Paso, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW ON

MOTION FOR REHEARING

CLINTON, Judge.

Our prior opinion in this cause has been challenged by appellant on motion for rehearing.

Appellant was convicted of the offense of possession of cocaine and his punishment assessed at six years in the Texas Department of Corrections.

In his sole ground of error on appeal he maintained that the affidavit in support of the search warrant whereby the evidence against him was obtained was deficient under state and federal constitutions. Specifically he argued that the affidavit was "insufficient on its face under Aguilar v. Texas, 378 U.S. [108, 84 S.Ct. 1509, 12 L.Ed.2d] 723, (1964)," and under this Court's panel opinion in Carmichael v. State, 607 S.W.2d 536 (Tex.Cr.App.1980). The affidavit, sworn to at 10:45 a.m. on April 4, 1980, reads in relevant part as follows:

"I, TRINI RABE, do solemnly swear that heretofore, on or about the 3 day of April, 19780 [sic], in El Paso County, Texas, one TIM CASSIAS, also known as TIMOTHY R. CASSIAS, did then and there unlawfully possess a narcotic drug, to wit: Marihuana and cocaine, seen by informant in the last 24hrs., and I do have good reason to believe and do believe that said narcotic drug is now concealed by TIM CASSIAS AKA TIMOTHY R. CASSIAS, in the City of El Paso, County of El Paso, Texas, at: 724 Del Mar Street. [A brief description of "a red brick home" with "white garage door" follows], which said premises are in the possession and under control of TIM CASSIAS aka TIMOTHY R. CASSIAS. My belief as aforesaid is based on the following facts: A confidential informant who is well known in the community, a reputable person and who is gainfully employed and who affaint [sic] has known for many years to be reliable person. Affaint [sic] has checked criminal history on people involved and shows evidence the two people involved show the most recent arrest as Dec. 1979, arrest made for possession of dangerous drugs and possession of stolen property. Surveillance has been set up and activity is taking place in the garage area, where these people back their cars all the way into the garage, where a storage is visibly seen directly in back of the garage area. One Keith Henderson was observed by affaint [sic] on 4-2-80 carrying brick type packages believed to be marijuana. A plastic tub with plastic tubeing [sic] was also observed being carried into the back yard by one Keith Henderson. Informant has also revealed that Keith Henderson frequents the place on a daily basis. This information has been checked out by affaint [sic] and surveillance began since March 31, 1980, by affaint [sic]. Affaint [sic] has also observed several narcotic users in and out of 724 Del Mar, staying for brief periods of time.

The unpublished opinion of the El Paso Court of Appeals was issued on June 16, 1982, one year prior to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The court of appeals held that the information contained in the affidavit pertaining to the informant met neither the "veracity and reliability" nor the "basis of knowledge" prong of the test of Aguilar, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Nevertheless, looking to the information derived from the surveillance and apparently within the firsthand knowledge of the affiant himself, the court of appeals found "that the facts submitted were sufficient to justify the magistrate's conclusion that the contraband sought was probably on the premises to be searched at the time of the affidavit. Gish v. State, 606 S.W.2d 883, 886 (Tex.Cr.App.1980)."

In his petition for discretionary review appellant contends that in so ruling the court of appeals "has so far departed from and is in such conflict with the applicable decisions of this Honorable Court that the Court of Criminal Appeals must exercise its power of supervision." See Tex.Cr.App.R., Rule 302(c)(6), now Tex.R.App.Pro. Rule 200(c)(6). We granted his petition to examine this contention.

Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. E.g., Gish v. State, supra; Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App.1983). Where facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a man of reasonable caution in the belief that items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Tolentino v. State, 638 S.W.2d 499 (Tex.Cr.App.1982); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976); Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983) (Clinton, J., concurring). A search warrant affidavit must be read in a commonsense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances contained within its four corners. Lopez v. State, supra; Winkles v. State, 634 S.W.2d 289 (Tex.Cr.App.1982) (Opinion on State's Motion for Rehearing). It is on the basis of these latter two principles that the court of appeals held the information within the affidavit sub judice provided probable cause. We disagree.

The only information provided by the confidential informant in this affidavit is that sometime within twentyfour hours of the morning of April 4, 1980, he had seen "Marihuana and cocaine," apparently in appellant's possession, at an undisclosed location. This informant is "well known in the community, a reputable person ... who is gainfully employed and who affaint [sic] has known for many years to be reliable person." Clearly there exist some bases to conclude the information thus acquired was trustworthy. Under the Aguilar test, which provides relevant though no longer determinative criteria in assessing informant reliability under the Fourth Amendment, we must look to the informant's "veracity" and to the "basis of his knowledge." Here, the basis of the informant's knowledge was personal observation. Furthermore, his veracity was established to some extent by virtue of his gainful employment, though conclusory statements as to his reliability and reputation in an undisclosed community establish little if anything. ¹ But even assuming total trustworthiness on the informant's part, his information alone fails to show that contraband could be found at 724 Del Mar Street. Neither appellant nor the drugs are connected in any way with that address. ²

This is not, therefore, a case in which we are primarily concerned with evaluating the reliability of information that is hearsay as to the affiant, whether under the test of Aguilar or that of Gates. Rather, we must decide, at least for Fourth Amendment purposes, whether under the "totality of the circumstances" the information in the affidavit which was a product of the surveillance of 724 Del Mar, and thus presumably within the personal knowledge of the affiant, is such as to provide a "substantial basis" to support the magistrate's finding that a cautious man would be warranted in the belief that contraband would presently be found on that premises. Gates, supra; Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). We find that it did not.

The affiant states that he "checked criminal history on two people involved[,]" and found "the most recent arrest as Dec., 1979," for possession of dangerous drugs and stolen property. A number of questions arise from these assertions. To begin with, the identity of the "two people involved" is not disclosed, nor what they are allegedly "involved" in. Perhaps these "two people" are appellant and Keith Henderson, but such a conclusion is strictly conjectural. Nor is the neutral reader told by what means the criminal history of these people was checked, and whether the "most recent arrest" was for one, the other, or both of these people. That an arrest for one or both of them concerned possession of a dangerous drug, see V.A.C.S., Art. 4476-14, Sec. 2(a), or stolen property does not make it probable they will presently possess controlled substances. Finally, neither of these "two people" is connected in any way with the home at 724 Del Mar Street, unless, of course, one of them happens to be Keith Henderson.

The affidavit next informs that "surveillance was set up[,]" but does not say where. While it is not totally unreasonable to believe the residence of 724 Del Mar is what is meant, that is by no means selfevident. We are told some undescribed "activity" took place "in the garage area" at some unspecified time during the surveillance (which we are later informed "began since March 31, 1980"). That "these people[,]" (presumably but not definitively the "two people" alluded to above), back their cars all the way into the garage is not conduct unusual on its face. Nor is the presence of some kind of "storage" there. We are not even told that the "activity" in the garage somehow involved this storage facility. Thus far the affidavit has described only innocent facts.

Next it is revealed that on "4-2-80" affiant observed "[o]ne Keith Henderson" "carrying brick type packages believed to be marihuana." We are not told how affiant can identify Keith Henderson....