Frazier v. State
Decision Date | 19 April 1972 |
Docket Number | No. 44638,44638 |
Parties | Charles Edward FRAZIER, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, Dallas (Court Appointed), for appellant.
Henry Wade, Dist. Atty., John B. Tolle, and Robert Baskett, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: marihuana. Punishment was assessed by the court at ten years.
Initially, appellant complains that the trial court improperly overruled his motion to suppress evidence. He argues that the affidavit for the search warrant does not show that probable cause existed for the search.
The affidavit in question reads in part:
A search warrant was issued upon this affidavit. Officer Larry M. Adamson and other officers of the Dallas Police Department executed the warrant at the named address. During the search, a plastic bag of pills, which were identified as pentobarbital, was found in the toe of a shoe located in a closet in the room in which appellant was found. Appellant was placed under arrest and he began to put on his coat. The coat was searched, and a marihuana cigarette was found in the left breast pocket.
The search of the coat was within the permissible scope of a search incident to arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Appellant argues that the arrest was unlawful. He contends that the arrest was unlawful because it was the result of an unlawful search and that the search was unlawful because the affidavit for the search warrant failed to furnish information showing that the named person who gave the information concerning appellant's possession of dangerous drugs was credible and reliable.
Hearsay may be the basis for a warrant. 1 Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). When hearsay forms the basis of an affidavit for a search warrant, two types of information must be disclosed: (1) information showing that matter which is lawfully subject to seizure is probably where it is alleged to be; and (2) information showing the reliability of the informant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744. Corroborating facts from police observations which are stated in the affidavit can be taken into account to determine whether the affidavit as a whole meets both requirements of Aguilar. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
While the standards applicable to determining whether the factual circumstances support an officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to reviewing the decision of a magistrate, 2 probable cause requirements for warrantless searches have been met where officers Acted immediately upon information furnished to them by witnesses to a crime without first investigating the reliability and credibility of those witnesses. e.g. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Green v. State, Tex.Cr.App., 470 S.W.2d 901; Johnson v. State, Tex.Cr.App., 466 S.W.2d 735. As the Supreme Court noted in Jones v. United States, supra:
To uphold appellant's contention in the instant case would lead to anomalous results. On the one hand, an officer could, under the holdings of such cases as Chambers and Hayden, make a search without a warrant in a situation in which he would not have probable cause to obtain a warrant. Such a result runs exactly contrary to the reasoning in Jones v. United States, supra. See also, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Fry v. State (No. 44,537 2--23--72). On the other hand, if the standards espoused by appellant were applied equally in reviewing probable cause for searches conducted both with and without a warrant, law enforcement officials would be so overburdened with investigating the reliability and credibility of witnesses to crimes that they would have little time to apprehend the criminals.
Neither result is required by the Constitution of the United States. In order for an affidavit to show probable cause, it must set forth sufficient circumstances to enable a magistrate to judge, independently, the validity of the affiant's belief that contraband is at the place to be searched. e.g. Nicol v. State, Tex.Cr.App., 470 S.W.2d 893; Heredia v. State, Tex.Cr.App., 468 S.W.2d 833. No magical formula exists for stating such information. As was stated in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):
The reasons for detailing the basis for an officer's belief in information gained from an undisclosed informant simply do not apply where a private citizen, whose only contact with the police or criminal activity is a result of having witnessed a single criminal act committed by another, furnishes law enforcement officials with information and vouches for such information by allowing the officers to use his name. Recently the United States Court of Appeals for the Fifth Circuit stated in United States v. Bell,457 F.2d 1231:
We hold that the requirements of Aguilar v. Texas, supra, are met when the hearsay...
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