Helton v. State
| Decision Date | 20 February 1957 |
| Docket Number | No. 28727,28727 |
| Citation | 164 Tex.Crim. 488,300 S.W.2d 87 |
| Parties | Billv Joe HELTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Charles W. Tessmer, Dallas, for appellant.
Henry Wade, Dist. Atty., William F. Alexander, George P. Blackburn and Frank Watts, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the possession of marijuana; the punishment, 11 years.
In view of our disposition of this case, a recitation of the facts will not be deemed necessary other than to observe that the officers searched a residence under and by virtue of a search warrant. At the time the evidence was offered, it was objected [164 TEXCRIM 489] to, among other grounds, as follows: We quote the pertinent part from the affidavit and the search warrant: '* * * in a (6) residence situated in Dallas County, Taxas at (7) 719 Bonnie View which said (5) Billy Joe Helton occupies, possesses, controls and has charge of.' We are not so concerned with the failure to state whether Bonnie View is a street, avenue or boulevard, but the entire absence of any mention as to the name of the city where the same is located renders the search warrant vague and defective in describing the premises to be searched.
We are aware of the rule of law recently expressed in Gaines v. State, 161 Tex.Cr.R. 589, 279 S.W.2d 96, 97, as follows: 'The occupancy and ownership of the premises as stated in the affidavit may be looked to in aid of the description given,' but we do not believe that proof of occupancy and ownership can dispense with the necessity of describing the premises to be searched as near as may be.
Article I, Section 9, of our Constitution reads as follows:
'The people shall be secure in their persons, houses, papers and possessions, from all unreasoanble 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.'
Out of the multitude of cases which have been decided by this Court on the precise question before us here, there is only one case which holds that the name of the county alone is sufficient. It is Cruze v. State, 114 Tex.Cr.R. 450, 25 S.W.2d 875, 68 A.L.R. 1186. The cases cited in the Cruze opinion do not support the decision there reached, and it is interesting to note that the Cruze case has been cited only once. It was cited recently in Franklin v. State, Tex.Cr.App., 291 S.W.2d 322, 323, as supporting the sufficiency of the following description:
"* * * a certain private dwelling, located in Fisher County, Texas, described as (a) Virgil Franklin residence, Block 153, in the original town of Rotan, Texas and being the premises [164 TEXCRIM 490] occupied by, in charge of and under the control of Virgil Franklin."
It should be noted that in the Franklin case the name of the city was given as well as the location of the residence within such city.
The sufficiency of the description in the Franklin case is clearly adequate, but that holding does not make adequate the description in the Cruze case or in the case at bar.
While the rule announced in the Cruze case may have been a sufficient description of the premises to be searched in some sparsely settled county a number of years ago, we judicially know that Dallas County is today one of the most heavily populated counties in the State.
We are unable to reasonably say that in that county there would be only one person having the name of the person named in the search warrant and that, therefore, the premises to be searched might be ascertained. To the contrary, there may be numerous persons residing in Dallas County having the same name.
Under the peculiar facts here presented, we are constrained to conclude that the description in the search warrant was insufficient.
Appellant's counsel in his brief poses this poignant question,
We have concluded that the Cruze case insofar as it conflicts with the holding herein is unsound and should be overruled. The test 'as near as may be' has not been met by the description in the affidavit and warrant before us. In Willson's Criminal Forms, 6th Edition, Section 3251, we find this admonition: '(here describe the place where the property is concealed as accurately as possible.)'
For the error of the court in admitting the fruits of the search in evidence, the judgment is reversed and the cause remanded.
[164 TEXCRIM 491] DAVIDSON, Judge.
I concur in the reversal of this case for the reason assigned in the majority opinion, but I am of the further opinion that the search warrant is subject to other defects which transcend in importance that upon which the reversal is predicated.
Upon its face, the affidavit for the search warrant sought a warrant to search a private residence for specifically described personal property. The search warrant issued thereon and used in this case authorized the search of a private residence for the specifically described property.
A warrant to search a private residence must be based upon an affidavit evidencing probable cause for its issuance. Stevens v. State, 159 Tex.Cr.R. 247, 262 S.W.2d 716.
Whether probable cause existed for the issuance of the warrant must be determined from the face of the affidavit. Aguirre v. State, 109 Tex.Cr.R. 584, 7 S.W.2d 76. 'Probable cause,' as that term is used, means a reasonable ground of suspicion, supported by circumstances warranting a cautious man in the belief that the accused is guilty. Silver v. State, 110 Tex.Cr.R. 512, 8 S.W.2d 144, 9 S.W.2d 358, 60 A.L.R. 290; Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095; Landa v. Obert, 45 Tex. 539.
An affidavit on information and belief which states no facts or circumstances constituting probable cause will not support or authorize the issuance of a search warrant. Pate v. State, 129 Tex.Cr.R. 45, 83 S.W.2d 984; Trimmer v. State, 135 Tex.Cr.R. 372, 120 S.W.2d 265. Belief, alone, is not probable cause. Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095.
The affidavit, here, is based entirely upon information and belief. No facts are stated therein which would constitute probable cause. The most that can be said of the affidavit upon that subject is that the affiant swears that he has reason to believe and does believe that the alleged stolen property was concealed in the residence of the appellant and that the basis of that belief was that two informers had told him that they so believed. There are no facts stated in the affidavit by which it could be said that a cautious person would be warranted in believing that the stolen property was concealed in the residence of appellant. Nowhere is it stated what the informers represented [164 TEXCRIM 492] to affiant whereby the magistrate might conclude that probable cause existed for the issuance of the search warrant.
For the reason stated, the search warrant was invalid. The search of the residence of appellant was, under that warrant, in direct violation of the constitutional guarantee against unreasonable searches.
It is my opinion that there is another and additional reason why the search warrant was invalid, and that is that it was based and issued upon the affidavit of but one affiant. It is my opinion that a search warrant to search a private residence may issue only upon the affidavit of two credible persons, without reference to the character of property to be searched for.
The Constitution of this state, Art. 1, Sec. 9, and also the Fourth and Fourteenth Amendments to the Federal Constitution protect one against unreasonable searches and seizures. If the search is reasonable, the constitutional guarantees are not violated; if unreasonable, they are violated.
Under Title 6 of the Code of Criminal Procedure, the legislature, by a general law, prescribed the rules whereby a reasonable search of one's premises might be accomplished by virtue of a search warrant. Such a search warrant could be issued 'whenever written sworn complaint' was made to a magistrate, setting forth certain facts, Arts. 310, 311, and 312, C.C.P.
Under that title, the affidavit of one person was sufficient, without reference to the character of place to be searched--that is, whether residence or place of business.
However, when the legislature came to prescribe rules for the issuance of search warrants to search for intoxicating liquor, the affidavit of two credible persons was required as a condition precedent to the issuance of a search warrant to search a private dwelling, Art. 666-20, V.A.P.C. Under that statute, then, a search warrant to search a private dwelling, in order to constitute a reasonable search within the meaning of the Constitution, must have been issued upon the affidavit of two credible persons.
If a search of a private residence for intoxicating liquors under a search warrant be a reasonable search only when issued upon the affidavit of two persons, it follows that a search of a [164 TEXCRIM 493] private residence by authority of a search warrant issued upon the affidavit of one person would be an unreasonable search and prohibited by the Constitution.
The legislature cannot prescribe different definitions of reasonableness as...
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...(Citations.)" (45 F.2d 459, 461.) Defendants have cited to this court, as they did in the trial court, the case of Helton v. State (1957), 164 Tex.Cr.R. 488, 300 S.W.2d 87, in which a description giving the street address and the county, as well as the name of the owner and occupier of the ......
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