Evans v. State

• Citation: 530 S.W.2d 932
• Decision Date: 10 December 1975
• Docket Number: No. 50587,50587
• Parties: Kevin Dale EVANS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 932

530 S.W.2d 932

Kevin Dale EVANS, Appellant, v. The STATE of Texas, Appellee.

No. 50587.

Court of Criminal Appeals of Texas.

Dec. 10, 1975.

Rehearing Denied Jan. 7, 1976.

James M. Beauchamp, Houston, for appellant.

Carol S. Vance, Dist. Atty., and James C. Brough, Alvin M. Titus and Ned Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for possession of heroin; the jury assessed punishment at imprisonment for 9 years.

Appellant contends that the trial court erred in overruling his motion to suppress and in admitting into evidence the heroin that was seized. We agree and reverse the judgment.

The record reflects that on February 27, 1974, at about 11:00 p.m., several officers from the Houston Police Department and the Harris County Sheriff's Department arrived at a Houston motorcycle shop known as 'Chopper's Fair.' The officers had in their possession arrest warrants for one Marion Ray Lester, who was being sought in connection with an attempted murder of a police officer; the officers had information that Lester was at the above location. There were sliding metal doors in the front of the motorcycle shop, and those doors were chained and padlocked. The officers knocked, identified themselves and informed those inside the building that they had arrest warrants for Lester; the person who answered passed keys to the padlock through a gap between the doors. After gaining entry to the building, the officers fanned out and conducted a search for Lester, who was not found on the premises. Behind the metal doors was a workshop where parts were stored and motorcycles were repaired. This work area was separated from attached living quarters by double glass doors which had been painted black. The living area consisted of a living room, a few small bedrooms and a hallway which led to the kitchen which was located in the back of the building. Officer White and Sergeant Thomas entered the kitchen area and found the appellant and two others seated at a table; in the center of the table was a clear plastic bag filled with purple tablets. Directly in front of the appellant on the table was a small tinfoil package; the appellant was toying with the tinfoil package with the blade of a pocket knife. After the three men were searched and taken to another part of the building, Officer White returned to the kitchen to retrieve the bag of tablets and the tinfoil package; in the package was a white powdery substance, later identified as heroin, which was admitted in evidence.

The questions presented may be summarized as follows: (1) was the arrest warrant for Marion Ray Lester valid under the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), (2) since the arrest warrant was the means by which the officers gained entry to the building, if the warrant was invalid, was the consent to enter voluntarily given, and (3) if the consent was not voluntarily given, were the officers lawfully in a position to see the subject heroin in plain view in appellant's possession?

The Supreme Court has held that the same standards set forth in Aguilar for hearsay affidavits supporting search warrants apply to those given in support of arrest warrants. Whiteley v. Warden, Wyoming State Penitentiary,401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970); Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1965) (on remand). As applied to arrest warrants, Aguilar v. Texas, supra, would require that an affidavit based on hearsay that is used to support an arrest warrant must set out for the magistrate who issues the arrest warrant (1) underlying circumstances upon which the informer concluded that the named party committed the criminal act charged, and (2) the circumstances from which the affiant concluded the informer was credible or his information reliable.

The magistrate was shown a complaint and an affidavit; these documents are in the record before us. The pertinent portion of the complaint reads:

'IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

'Before me, the undersigned Assistant District Attorney of Harris County, Texas, this day personally appeared the undersigned affiant, who upon his oath says that he has good reason to believe and does believe that in the County of Harris and State of Texas one MARION RAY LESTER hereinafter referred to as Defendant, heretofore on or about February 26, 1974, did then and there unlawfully intentionally and knowingly attempt to cause the death of Rodney Scott Morgan, hereafter called complainant by cutting with a knife and the said Complainant was a peace officer acting in the lawful discharge of an official duty and the said defendant then and there knew the said Complaint was a peace officer.' the pertinent portion of the affidavit reads:

'WHEREAS complaint has been made by the undersigned affiant who upon his oath says that he has good reason to believe and does believe that in the County of Harris and State of Texas one MARION RAY LESTER hereinafter referred to as the Defendant, heretofore on or about February 26, 1974, did then and there unlawfully intentionally and knowingly attempt to cause the death of Rodney Scott Morgan, hereafter called Complainant, by cutting with a knife and the said Complainant was a peace officer acting in the lawful discharge of an official duty and the said Defendant then and there knew the said Complainant was a peace officer.

'PROBABLE CAUSE:

'F. G. Dodd personally observed and identified above Defendant acting as a principal in the commission of above offense.'

Both the complaint and the affidavit were signed by Officer John M. Donovan.

In determining the sufficiency of the affidavit we are bound by the four corners thereof. Art. I, Sec. 9, Texas Constitution; Art. 18.01, V.A.C.C.P.; Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969) (concurring opinion), cert. denied sub nom. Gaston v. Texas, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App.1973); Cook v. State, 497 S.W.2d 295 (Tex.Cr.App.1973); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App.1972); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App.1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1972); Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App.1971); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965).

The charging instrument, the complaint, containing no allegations that the officer-affiant spoke with personal knowledge of the matters contained therein and not indicating any sources for the officer-affiant's belief and not setting forth any other sufficient basis upon which a finding of probable cause could be made did not provide that necessary basis upon which a finding of probable cause could be made. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970).

The affidavit contains no allegation of personal knowledge the alleged offense on the part of the affiant; therefore, the statements contained therein are hearsay and the affidavit must pass the two-prong Aguilar test. The affidavit does not state how the affiant acquired the information alleged in the affidavit; it does not state that Dodd was the informer; it does not state the name of an informer or allege that an unnamed informer gave the information to the affiant. The affidavit merely states that F. G. Dodd personally observed the named party Lester acting as a principal in the commission of the stated offense. This might satisfy the requirement that the informer state underlying facts from which he concluded the accused committed the offense charged, if the affiant also stated he had been told by F. G. Dodd that he (Dodd) had personally observed the commission of the offense. However, the affidavit does not state how the affiant came to know that Dodd had witnessed the offense; that is, the affidavit does not allege that Dodd communicated with the affiant at any time. Looking only to the affidavit, it is open to the interpretation that yet another unnamed person communicated to the affiant information to the effect that Dodd had been a witness to the commission of the offense. ¹ If that were the case, the affidavit would contain so-called 'double hearsay.' Of course, the mere fact that an affidavit contains 'double hearsay' does not automatically make it insufficient to supply probable cause. ² The inclusion of hearsay upon hearsay may be simply treated as one of the factors the magistrate weighs in determining whether the information contained in the affidavit is reliable. On the other hand, it has also been held that:

'. . . hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar.' United States v. Wilson, 479 F.2d 936 (7th Cir. en banc 1973).

Also see, United States v. Carmichael, 489 F.2d 983 (7th Cir. en banc 1973); United States v. Finn, 502 F.2d 938 (7th Cir. 1974); Aguilar v. State, supra, footnote 4. Under the latter line of cases, and interpreting the affidavit such that another, unnamed person communicated to the affiant information to the effect that Dodd had been a witness to the commission of the offense, the affidavit before us contains neither underlying circumstances upon which the informer concluded that the named party was involved in criminal activities nor circumstances from which the affiant concluded the informer was credible or his information reliable, and would therefore be insufficient under Both prongs of Aguilar.

Even if we were to assume that Dodd personally communicated with the...