Polanco v. State, No. 44230

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION; In Spinelli; ODOM
• Citation: 475 S.W.2d 763
• Parties: Louis POLANCO, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 14 December 1971
• Docket Number: No. 44230

Page 763

475 S.W.2d 763 Louis POLANCO, Appellant,
v.
The STATE of Texas, Appellee. No. 44230. Court of Criminal Appeals of Texas. Dec. 14, 1971.
Rehearing Denied Feb. 16, 1972.

James Moore, Houston, for appellant.

Robert O. Smith, Dist. Atty., Lawrence Wells and Phoebe Lester, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin where the punishment was assessed by a jury at 35 years.

There is no challenge to the sufficiency of the evidence. Austin police officers, armed with a search warrant, went to a trailer house belonging to a Dudley Bryant at 2 p.m. on July 11, 1969. Bryant, the appellant Polanco and a known addict Keto Wilson were found in the front room of the house. A search uncovered heroin and Bryant and the appellant were charged with the possession of such narcotics.

At the outset appellant contends the court erred in admitting into evidence heroin seized under a search warrant which was based on an affidavit which did not reflect probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution. See also Article I, Sec. 9, Texas Constitution, Vernon's Ann.St.

The affidavit, omitting the formal parts, reads:

'Before me, the undersigned authority, on this day personally appeared the undersigned affiants, who being by me severally sworn, upon their oaths state, that: A certain building, house and place, occupied and used as a private residence, located in Austin, Travis County, Texas, described as a yellow and silver trailer with a small grove of banana trees growing across the front of the trailer. The trailer is designated as 23A located in Pecan Grove Trailer Park, 1518 Barton Springs Road, Austin, Travis County, Texas and being the building, house or place of DUDLEY BRYANT, WM dob 5--23--28, APD #8191 and other person or persons unknown to affiants by name, identity or description is a place where we each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building,

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house and place has in his possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 11th day of July, A.D., 1969, Affiants have received information from a reliable and credible informant that DUDLEY BRYANT, WM dob 5--23--28, APD#8191, is keeping and selling narcotics to-wit HEROIN in his residence at 23A Pecan Grove Trailer Park, 1518 Barton Springs Road, Austin, Travis County, Texas. The informant further states that people are going up to the trailer house belonging to DUDLEY BRYANT, going inside or calling them outside and then they go over to the ball park located in the 1500 block of Toomey Road and exchange objects. Based on these observations, a surveillance was maintained on DUDLEY BRYANT'S trailer from July 9, 1969 through July 10, 1969 and numerous people known to be drug addicts and pushers go to BRYANT'S trailer, stay a few seconds and then go into the ball park, and an object believed to be HEROIN was exchanged for money and then the customer would leave. Based also on our observations, DUDLEY BRYANT is keeping his narcotics in a small utility shed belonging to his trailer space and inside the trailer too.'

In determining the sufficiency of the affidavit we are bound by the four corners thereof. Art. I, Sec. 9, Tex.Const.; Article 18.01, Vernon's Ann.C.C.P.; Nicol v. State, Tex.Cr.App., 470 S.W.2d 893; Gaston v. State, Tex.Cr.App., 440 S.W.2d 297 (concurring opinion), cert. den. 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435; Ruiz v. State, Tex.Cr.App., 457 S.W.2d 894 (concurring opinion); Hall v. State, Tex.Cr.App., 394 S.W.2d 659; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447, 448.

A search warrant affidavit may be based entirely on hearsay information and need not reflect the direct personal observations of the affidavit so long as there is a substantial basis for crediting the hearsay. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, made clear, however, that in such cases, 'the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable."

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the rule was referred to as 'Aguilar two prong test.' And in 53 California Law Review 840, it was said:

'The Aguilar synthesis combined the requirement that the informer be reliable with the requirement that he have an adequate basis for his allegations, emphasizing the need for 'underlying circumstances' in support of each element.' at p. 844.

Applying these principles we first consider the weight to be given the informer's tip when it is considered apart from the rest of the affidavit. The affiants swore their informant was 'reliable and credible' and offered the magistrate no reason in support of such conclusion. It is thus clear that the second prong of Aguilar was not mert. Spinelli v. United States, supra. What about the first prong? The affiants swore the informant told them Dudley Bryant was keeping and selling heroin at his residence giving th address and further stated 'that people were going up to the trailer house belonging to Dudley Bryant, going inside or calling them outside and then they would go over to the ball park located in the 1500 block of Toomey Road and exchange objects.' There was no showing that the informer personally observed the transactions he reported

Page 766

or acquired the information by personal knowledge, nor was there a showing that the informer otherwise based his information reliably. The affidavit fails to explain how the informant came by his information.

If we were dealing with an affidavit which contained hearsay alone, it would be insufficient to satisfy the Aguilar test.

In addition to the hearsay, there are other facts set forth obtained from a police surveillance.

In Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, the hearsay set forth in the affidavit failed to satisfy one prong of the Aguilar test, but as a result of a surveillance set up after the receipt of the tip the affiants observed several persons known to be narcotic users enter the house in question, remain approximately five minutes and leave. These...