Imo v. State

• Decision Date: 13 August 1991
• Docket Number: No. 6-90-099-CR,6-90-099-CR
• Citation: 816 S.W.2d 474
• Parties: Sift Oneybuchi IMO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 474

816 S.W.2d 474

Sift Oneybuchi IMO, Appellant, v. The STATE of Texas, Appellee.

No. 6-90-099-CR.

Court of Appeals of Texas Texarkana.

Aug. 13, 1991.

Rehearing Overruled Aug. 28, 1991.

James P. Finstrom, Jefferson, for appellant.

Tony Hileman, Jefferson, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Sift Oneybuchi Imo ¹ appeals from his conviction for the offense of possession of cocaine. The jury assessed his punishment at ten years' confinement, probated.

Imo contends that his motion to suppress evidence obtained through an invalid search warrant was improperly denied by the trial court in violation of his rights under article 1, § 9 of the Texas Constitution and the fourth amendment of the United States Constitution.

The Court of Criminal Appeals has recently held in Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), that the United States and Texas Constitutions may be interpreted differently. The court recognized that it had repeatedly held that article 1, § 9 of the Texas Constitution and the fourth amendment of the United States Constitution are the same in all material aspects. ² Gordon v. State, 801 S.W.2d 899 (Tex.Crim.App.1990). However, the court went on to recognize that the State of Texas is free to reject federal holdings as to state constitutional issues so long as state action does not fall below the minimum standards provided by federal constitutional protection.

We shall separate our discussion of the application of the fourth amendment of the United States Constitution and the application of article 1, § 9 of the Texas Constitution. We shall begin our analysis with a discussion of the requirement of probable cause. We shall then discuss the application of the exclusionary rule under both constitutions.

Imo specifically argues in the present case that the affidavit used to obtain the search warrant does not state the probable cause necessary to support the acquisition of a search warrant. The affidavit reads as follows:

5. AFFIANT has probable cause for said belief by reason of the following facts: That The Affiant has received information within the past 24 hours from a police officer who has purchased narcotics from the above described premises which said narcotics are believed to be Cocaine. That this officer has provided information to the Affiant on several occassions (sic) in the past concerning narcotics and the officer's information has always proven to be reliable and correct. Further that this officer has provided narcotics information to other police officers in the past and their information has always proven to be reliable and correct. Affiant does not wish to name this officer due to the fact that he is currently in an undercover capacity and to divulge his identity would be hazzardous (sic) to the safety of the officer at this time. Further that this officer has worked undercover for several years and is well aware of the different types of narcotics and that he is sure that the narcotics purchased from these premises are Cocaine.

This affidavit states that the officer who obtained the warrant had obtained information from an undercover police officer within the last twenty-four hours that he had purchased narcotics from an individual on the named premises.

The standard to be applied in assessing probable cause under the United States Constitution is the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The same standard has been held to apply in assessing probable cause under article 1, § 9 of the Texas Constitution. Bower v. State, 769 S.W.2d 887, 903 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989).

The probable cause standard is not technical, it is practical, and deals with probabilities, not hard certainties. Affidavits for search warrants must be interpreted in a common sense and realistic manner. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Cantu, 785 S.W.2d 181 (Tex.App.-Houston [14th Dist.] 1990, no pet.). Probable cause to support the issuance of a search warrant exists where the facts submitted are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued.

At trial, Imo objected to the admission of cocaine seized during the search because the affidavit did not indicate any time frame during which the offense allegedly occurred. The trial judge overruled his motion to suppress and his trial objection and admitted the evidence.

It is impossible to determine from the contents of the affidavit when some unnamed individual possessed the contraband at the residence. It clearly states that the police officer gave the information to the affiant within the twenty-four hours prior to his signing of the affidavit, but it does not state when the actual sale occurred. We have examined the remainder of the affidavit for any clue which would shed light upon this question without avail. Even though the magistrate's determination of probable cause should be given great deference by a reviewing court, the affidavit should have shown that the information was not stale.

The facts attested to must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Because the affidavit in the present case does not show that the facts were closely related in time, it is defective under the probable cause requirements of the fourth amendment of the United States Constitution.

The Texas Court of Criminal Appeals has repeatedly held that an affidavit which does not demonstrate when the unlawful incident took place is insufficient to support issuance of a search warrant. Schmidt v. State, 659 S.W.2d 420 (Tex.Crim.App.1983); Heredia v. State, 468 S.W.2d 833, 835 (Tex.Crim.App.1971). Often, the Texas courts do not mention or discuss whether they are speaking in terms of probable cause based on the United States Constitution, the Texas Constitution, or articles 1.06 and 18.01 of the Texas Code of Criminal Procedure. We have found no Texas case that distinguishes the meaning of probable cause in the Texas Constitution from its meaning in the Code of Criminal Procedure. We conclude that the affidavit was defective under the probable cause requirements of article 1, § 9 of the Texas Constitution.

Next, we must determine if the evidence should have been excluded because of the defective affidavit. The exclusionary rule was adopted by the federal government for enforcement of fourth amendment rights as a way to deter federal police officers from making illegal searches and seizures. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The fourth amendment of the United States Constitution was made applicable to the states through the due process clause of the fourteenth amendment by the United States Supreme Court decision in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

The United States Supreme Court created the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court considered a situation in which a police officer executed a facially valid search warrant issued by a state court judge. A motion to suppress evidence seized under this warrant was granted by the trial court because it concluded that the affidavit was insufficient to establish probable cause. The question presented is whether the fourth amendment exclusionary rule "should be modified so as not to bar the use ... of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." Leon, 468 U.S. at 900, 104 S.Ct. at 3409, 82 L.Ed.2d at 684. The Court reasoned that exclusion of evidence due to judicial error would not effectively encourage the police to act in an ethical, legal fashion and would only penalize the police for a mistake of law made by the issuing magistrate.

The Supreme Court in Leon initially sets forth four justifications for suppression of evidence: (1) when the magistrate or judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or the affiant would have known was false except for his reckless disregard of the truth; (2) when the issuing magistrate wholly abandons his judicial role and instead of serving in an neutral and detached manner becomes merely a rubber stamp for the police; (3) when the warrant is based on an affidavit which is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) when the warrant itself is facially deficient on such matters as failing to particularize the place to be searched or the things to be seized, so that the officers cannot reasonably presume it to be valid.

The only argument in the present case that could be made for exclusion would be on the basis of probable cause. The Supreme Court said in Leon that the exclusionary rule's purposes will only rarely be served in applying it in such circumstances. The question under Leon is whether the officer executing the warrant could have harbored an objectively reasonable belief in the existence of probable cause to search the house. Because the informer was a police officer, it is reasonable for another police officer to assume that the informing officer would have reported the illegal sale of narcotics as soon as possible after the occurrence, and inasmuch as the report was made within the last twenty-four hours, the information would not have been stale. The affidavit involved is not a "bare bones" type of statement. It provides specific information about the location of the place to be searched...