Cummins v. State

• Decision Date: 05 April 1972
• Docket Number: No. 44764,44764
• Citation: 478 S.W.2d 452
• Parties: John Demontford CUMMINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 452

478 S.W.2d 452

John Demontford CUMMINS, Appellant, v. The STATE of Texas, Appellee.

No. 44764.

Court of Criminal Appeals of Texas.

April 5, 1972.

Jones, Blakeslee, Minton, Burton & Fitzgerald by John L. Foster, Austin, for appellant.

Robert O. Smith, Dist. Atty., H. Kelly Ireland and Michael J. McCormick, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for possession of marihuana with punishment assessed at five years probated. The trial was before the court upon a plea of not guilty.

The appellant's sole contention is that the court erred in overruling his motion to suppress evidence seized under a search warrant based upon an affidavit ¹ which was insufficient in that it did not allege that the described marihuana was being possessed Contrary to law.

Trial was based upon written stipulations which recite that if the arresting officers were present in court, they would testify they went to the premises located at 1808 West 29th Street in Austin, on July 27, 1970, armed with a search warrant authorizing the search of such premises; that upon entry of the premises, the officers found appellant asleep in a room where a vial and a baggie containing a substance officers believed to be marihuana were found in the top drawer of a dresser and that the officers found approximately one pound of a substance they believed to be marihuana in a foot locker next to the bed where appellant was lying. The stipulations further recite if Chemist Beardsley was present in court, he would testify that an analysis of the substance found by the officers showed the same to be marihuana.

Section 16, of Article 725b, Vernon's Ann.P.C., provides: 'Whenever any officers * * * shall have reason to believe that any person has in his possession any narcotic drugs contrary to the provisions hereof, he may file, or cause to be filed his sworn complaint to such effect before any magistrate of the county in which any such narcotic drugs are located and procure a search warrant * * *.'

Section 1(14), of Article 725b, V.A.P.C., includes 'cannabis' within the definition of 'narcotic drugs.'

Section 1(13) recites: 'The term 'Cannabis' shall include those varieties of Cannabis known as Marihuana * * *.'

Appellant argues that since Article 725b, V.A.P.C., provides for instances wherein it is lawful to possess narcotic drugs, and Sec. 16, of Article 725b, V.A.P.C., in authorizing a search warrant provides '* * * shall have reason to believe that any person has in his possession any narcotic drugs Contrary to the provisions hereof, he may file, or cause to be filed his sworn complaint To such effect * * *' (emphasis supplied by appellant), there is no provision for the search and seizure of lawfully possessed drugs. Thus, appellant urges, Section 16, of Article 725b, V.A.P.C., requires the affidavit, upon which a search warrant is based, to allege that the drugs are illegally possessed.

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, the United States Supreme Court said:

'If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They 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.'

'Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. (257) at 270, 80 S.Ct. (725) at 735 (4 L.Ed.2d 697).'

An affidavit for a search warrant must be judged by the facts it contains. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

The affidavit, in the instant case, reflects that the informant had seen a large quantity of marihuana and cocaine in the residence, on July 25, 1970, and further reflects that the affiant had conducted surveillance of the premises in question and observed several...