Gonzales v. State
| Decision Date | 23 January 1986 |
| Docket Number | No. 01-85-0302-CR,01-85-0302-CR |
| Citation | 704 S.W.2d 508 |
| Parties | Russell GONZALES, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Herb H. Ritchie, Houston (Greg Glass, Houston, of counsel), for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Chuck Noll, Harris County Asst. Dist. Attys., Houston, for appellee.
Before LEVY, DUGGAN and DUNN, JJ.
Pursuant to a plea bargain agreement, appellant pled guilty to the charge of possession of cocaine, a controlled substance, and the trial court assessed punishment at 10 years confinement and a fine of one dollar.
The record reveals that on June 18, 1984, Houston Police Officer M.K. Jordan, accompanied by several other officers, executed a search warrant at 4800 La Monte, # 4207 within the City of Houston. After announcing themselves and forcing an entry, the officers discovered appellant and Mary Regina Hamilton sitting on a bed, and found a clear plastic ziplock bag containing about a gram of cocaine, a pistol, and some syringes on the bed in plain view. Officer Jordan served the search warrant and read appellant his Miranda warnings, which appellant stated that he understood. Appellant then pointed out a blue Crown Royal sack containing roughly an ounce and a half of cocaine concealed between the mattress and the headboard of the bed. Also discovered elsewhere in the house was a gram of heroin.
Appellant preserved his right to appeal from an adverse ruling on his motion to suppress the evidence seized in the search. In his two grounds of error, appellant alleges that the trial court erred in overruling his motion to suppress because the affidavit upon which the search warrant was based is insufficient to constitute probable cause as a matter of both federal and Texas law.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court reaffirmed the "totality of the circumstances" analysis in reviewing sufficiency of an affidavit to establish probable cause for issuance of a search warrant. Id., 103 S.Ct. at 2332. The court held:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Id., 103 S.Ct. at 2331. There is a "strong preference for warrants" that "is most appropriately effectuated by according 'great deference' to a magistrate's determination." United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); Gates, 103 S.Ct. at 2331. But Gates admonished that the affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and that the duty of a reviewing court is to ascertain that substantial basis. Gates, 103 S.Ct. at 2334.
In the case at bar, the affidavit recites that the informant had been inside the named residence within the preceding 24 hours and had observed heroin and cocaine in appellant's possession. The informant described the appearance of the heroin and cocaine, which he had seen on many prior occasions. The affidavit further recites that the informant was reliable and credible, and had supplied the officer with information in the past that had consistently proved true and correct.
The informant's veracity and basis of knowledge having been established, a substantial basis existed for the magistrate to conclude that there was a fair probability contraband would be found in the residence. The information was not stale nor was there a failure to establish credibility. Cf. Leon, 104 S.Ct. at 3411. Neither was the affidavit "bare bones" or wholly conclusory. Cf. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964). We conclude that the affidavit is sufficient to establish probable cause for issuance of the warrant. Appellant's first ground of error is overruled.
By his second ground of error, appellant contends that the affidavit is insufficient as a matter of Texas law.
Appellant cites Eisenhauer v. State, 684 S.W.2d 782 (Tex.App.--Houston [1st Dist.] 1984, pet. granted) 1 as authority for current law in this district. In Eisenhauer, this Court held:
Under Texas law, an affidavit for a search warrant based upon hearsay must satisfy the two-prong test that the magistrate be informed of the underlying circumstances which render the information reliable and that he be informed of specific factual allegations which render the source of the information reliable.
Id. at 785; see Glass v. State, 681 S.W.2d 599 (Tex.Crim.App.1984); Winkles v. State, 634 S.W.2d 289 (Tex.Crim.App.1981) (op. on reh'g); Tex.Code Crim.P.Ann. art. 18.01 (Vernon 1977 and Supp.1986)...
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...that an informant's previous information must have resulted in arrest or conviction. In fact, authority is to the contrary. Gonzales v. State, 704 S.W.2d 508, 510 (Tex.App.--Houston [1st Dist.] 1986, no pet.); see W. LaFave, Search and Seizure § 3.3(b) (2d ed. We find that appellant failed ......
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