Nicol v. State
Decision Date | 23 September 1971 |
Docket Number | No. 43982,43982 |
Parties | Charlie Wayne NICOL, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
John E. Dorris, Carsner, Carsner & Bissett by Gerald T. Bissett, Victoria, for appellant.
Robert J. Seerden, Dist. Atty., Victoria, 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. The punishment was assessed by a jury at 15 years.
The record reflects that on March 12, 1970, an informant notified Victoria police that he had seen appellant and Bruce Leger 'possess what he was told--marihuana.' The informant further stated the marihuana was wrapped in 'red cellophane packages, the approximate size of a brick, and that between 5:00 P.M. and 5:30 P.M. appellant and Leger would be repacking and dispersing the marihuana at an apartment.
Victoria police officers acquired a search warrant on the basis of such information, and thereafter accosted appellant and Leger outside the described apartment. They both read the warrant, while two officers went to the apartment manager and obtained a key to open the apartment. No consent was given to the search. The officers proceeded to search the apartment and found three red packages of what was later identified as marihuana inside of a fan outlet on the wall. Both men were then placed under arrest.
Appellant attacks the sufficiency of the search warrant on the ground that the affidavit does not reflect adequate probable cause and sufficient 'underlying circumstances' to satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. In determining the sufficiency of the aforementioned affidavit, we are bound by the four corners of that document. Gaston v. State, Tex.Cr.App., 440 S.W.2d 297 (Onion, J., concurring), cert. denied, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435.
The affidavit, omitting the formal parts, reads:
'I, CARL BELLIS, do solemnly swear that heretofore, on or about the 12th, day of MARCH, 1970, in Victoria County, Texas, That at apt. B, located on the ground floor of 1704 N. Azalea Street, being a light yellow four apartment building, being rented by BRUCE LEGER is being used for the unlawful possession and use of narcotics and dangerous drugs: to wit-marijuana. That between 5:00 PM March 12, 1970, and 5:30 PM, March 12, 1970, these drugs and narcotics are to be picked up and dispersed. Also that known narcotic users will be present in the apartment (Apt. B) for the purpose of packaging the said narcotics and drugs which are concealed in Apt. B.
My belief of the foregoing is based upon the following facts:
That I, Carl Bellis, having received reliable information from a confidential informant whose information has aided in the arrest of narcotic users in the past, received information at 3:45 PM, March 12, 1970, that the informant had seen BRUCE LEGER, tenant of Apartment B, 1704 N. Azalea Street, and CHARLES NICOL, possess what he was told marijuana. Informant stated that the marijuana is wrapped in red cellophane packages, the approximate size of a brick.
During the hours of 5:00 PM and 5:30 PM, March 12, 1970, BRUCE LEGER and CHARLES NICOL are to take these packages of marijuana and package them in smaller amounts and disperse them.'
We first note that the top portion of the affidavit does not mention the appellant, nor is he mentioned in the search warrant itself. This portion reflects only that drugs and narcotics are going to be dispersed within a certain time frame and that an apartment being rented by Bruce Leger is being used for the unlawful possession and use of drugs. This information reflects no probable cause. It is conclusionary and unsupported by sufficient facts to satisfy the test of Aguilar, supra.
Secondly, the lower portion (all after 'My belief of the foregoing * * *) of the affidavit which reflects the 'underlying circumstances' is also deficient. While a search warrant may be properly issued on the basis of 'hearsay information,' a substantial basis for crediting the hearsay...
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