Gonzales v. State

• Decision Date: 10 January 1979
• Docket Number: No. 2,No. 59404,59404,2
• Citation: 577 S.W.2d 226
• Parties: Gilberto Ortega GONZALES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 226

577 S.W.2d 226

Gilberto Ortega GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 59404.

Court of Criminal Appeals of Texas, Panel No. 2.

Jan. 10, 1979.

Rehearing En Banc Denied March 7, 1979.

John J. C. O'Shea, Lubbock, for appellant.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from an order revoking probation. The appellant was convicted for possession of more than four ounces of marihuana. The punishment assessed was imprisonment for three years; the imposition of sentence was suspended and the appellant was granted probation.

The trial court revoked appellant's probation and pronounced sentence after finding that the appellant had possessed more than four ounces of marihuana in violation of a condition of his probation that he commit no offense against the laws of this State.

The appellant challenges the validity of two search warrants used by police officers who searched his residence and seized over forty marihuana plants. The officers obtained the two search warrants at the same time from the same magistrate. One warrant purported to authorize a search for alcoholic beverages possessed for the purpose of unlawful sale and the other a search for drugs and dangerous drugs unlawfully possessed. Both relied on information supplied by an unnamed informer. Appellant contends that the warrant for alcoholic beverages is defective because the affidavit upon which it is based fails to satisfy the requirements of Aguilar v. Texas, 378 U.S 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and contains false statements made by the affiants. He contends that the warrant for drugs or dangerous drugs is defective because it is a constitutionally proscribed general warrant; it fails to satisfy the second requirement of Aguilar, supra; and it contains false statements made by affiants. Appellant also contends that even if the drug warrant is valid, the search is irreparably tainted by the defective alcoholic beverages warrant.

We agree with appellant that the warrant for alcoholic beverages is invalid. The affidavit for that warrant does not state when the officers received the information from their informer nor when the informer obtained his information that alcoholic beverages were kept on the appellant's premises for the purpose of unlawful sale. In order to support the issuance of a search warrant the affidavit must show that the act or event upon which probable cause is based occurred within a reasonable time prior to the making of the affidavit. Hall v. State, 171 Tex.Cr.R. 227, 347 S.W.2d 262 (1961); 37B Tex.Jur., Searches and Seizures, Sec. 12, p. 461 and cases there cited. As no such showing was made in the affidavit used to obtain the search warrant for alcoholic beverages, that warrant is invalid.

The lawfulness of the seizure of marihuana, then, depends on the validity of the other search warrant. The appellant initially asserts that the warrant is insufficient because it is a general warrant not meeting constitutional requirements.

The Fourth Amendment to the Constitution of the United States provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, And particularly describing the place to be searched, and the persons or things to be seized." (Emphasis added.)

Art. I, Sec. 9 of the Constitution of this State provides:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue Without describing them as near as may be, nor without probable cause, supported by oath or affirmation." (Emphasis added.)

The affidavit which supports and which is incorporated in the search warrant in question describes the things to be seized as ". . . drugs or dangerous drugs . . . being unlawfully kept and possessed . . ." If this description is found to be unconstitutionally vague or "general" under the particularity of description requirements above, the warrant must be held invalid.

The United States Supreme Court has held that the Fourth Amendment prohibits general warrants which fail to particularly describe the property to be seized, and allow "general, exploratory rummaging in a persons's belongings." Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976), quoting from Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The reason for this requirement was aptly stated in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."

And see Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

The requirements for a sufficiently particular description can vary according to the thing being described. Books, papers, records, and documents; i. e., those things subject to First Amendment concerns, must be described with greater particularity than other things. In Stanford v. Texas, supra, the description ". . . books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas" was found to be "unconstitutionally intolerable." See also Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). At the same time, however, the Supreme Court in Stanford stated that it did not decide whether the description would have been too general had the things been weapons, narcotics, or "cases of whiskey." The latter description was upheld as sufficiently particular in Steele v. United States, 267 U.S. 498, 504, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

In reviewing federal cases and cases from this State and other states, it can generally be said that papers, books, records, etc., and property alleged to be stolen must be described more specifically than unlawfully possessed liquor and controlled substances. The papers, books, records, etc., necessitate a particular description because they are subject to stricter scrutiny under the First Amendment. The rule that stolen property should be described more particularly than liquor or controlled substances follows from the notion that if the search is for specific property, that property should be described so as to preclude the possibility of seizing something different; whereas in a search for property of a specified character which by reason of its character is illegal, such a specific description is unnecessary and ordinarily impossible. See Cornelius on The Law of Search and Seizure, Sec. 122, p. 331-332; 79 C.J.S. Searches and Seizures § 81c, p. 895 and the cases there cited; Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928 (1944); People v. Prall, 314 Ill. 518, 145 N.E. 610 (1924).

Applying this reasoning, the United States Court of Appeals for the First Circuit recently held that "certain 8-track electronic tapes and tape cartridges which are unauthorized 'pirate' reproductions" was an overbroad description offering no guidance to officers as to which tapes were pirated, or how the "pirate" tapes were to be differentiated from the legitimate tapes. United States v. Klein, 565 F.2d 183 (1st Cir. 1977). The California Court of Appeals has held that the designation "stolen property" is too general, Thompson v. Superior Court of Tulare County, 70 Cal.App.3d 101, 138 Cal.Rptr. 603 (1977), as is "merchandise stolen," Lockridge v. Superior Court, 275 Cal.App.2d 612, 80 Cal.Rptr. 223 (1969). And see the cases cited in 68 Am.Jur.2d, Searches and Seizures, Sec. 82, p. 736.

On the other hand, the generic description "intoxicating beverages" is usually held sufficiently particular for a warrant for alcoholic beverages. See Steele v. United States, supra; Parrack v. State, 154 Tex.Cr.R. 532, 228 S.W.2d 859 (1950); Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944); State v. Nejin, 140 La. 793, 74 So. 103 (1917); Cornelius on The Law of Search and Seizure, Sec. 122, p. 332.

Regarding controlled substances, the term "narcotics paraphernalia" has been held sufficiently particular, People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971), as has "a quantity of loose heroin," United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966). Contrary to the general rule (see 68 Am.Jur.2d, Searches and Seizures, Sec. 82, p. 736), courts have also upheld the seizure of controlled substances and dangerous drugs under warrants whose descriptions make statutory references. Compare, e. g., Ex parte Gomez, 389 S.W.2d 308 (Tex.Cr.App.1965), cert. denied 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810 (1967) ("Narcotic Drugs and Narcotic Paraphernalia unlawfully possessed in violation of the Uniform Narcotic Drug Act, being Article 725b of Vernon's Annotated Penal Code, State of Texas."); People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970) ("any and all narcotics and dangerous drugs as defined by the applicable Colorado Statutes, the possession of which is illegal."); People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970); ("Marijuana, (Cannabis Sativa L.) Dangerous Drugs, Stimulant Drugs, and Hallucinogenics, as defined in House Bill # 1021 . . ."); and State v. Hamilton, 236 N.W.2d 325 (Iowa, 1975) ("any and all controlled substances as defined in (Chapter) 205 of the 1973 Code of Iowa.").

Generic descriptions without express statutory references have also been approved State v. Quintana, 87 N.M. 414, 534 P.2d 1126 (N.M....