Ramsey v. State
Decision Date | 07 February 1979 |
Docket Number | No. 55947,No. 3,55947,3 |
Citation | 579 S.W.2d 920 |
Parties | Jimmy Max RAMSEY, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Douglas Tinker and A. Deniz Tor, Corpus Christi, for appellant.
John H. Flinn, Dist. Atty. and Thomas L. Bridges, Asst. Dist. Atty., Sinton, for the State.
Before DOUGLAS and TOM G. DAVIS, JJ.
Appeal is taken from a conviction for possession of heroin. Punishment was assessed at three years.
Appellant contends that the trial court erred in failing to suppress evidence obtained in a search conducted under an invalid search warrant. He maintains that the affidavit supporting this warrant was insufficient as it contained misrepresentations as to material facts. He also alleges error in the trial court's refusal to allow him to call a witness to establish the misrepresentations in the warrant. These contentions necessarily require a review of the evidence entered at the suppression hearing.
The record reflects that the appellant had been arrested in a motel room in possession of a quantity of heroin. The arrest had been made pursuant to execution of a search and arrest warrant based on an affidavit by Donald Walker, a Department of Public Safety narcotics agent. The supporting affidavit alleged probable cause from an informer's tip as follows:
Officer Walker later testified that the informant that supplied this information was Kenneth Vaden.
Officer Walker was cross-examined as to an alleged discrepancy between the information set out in the affidavit and that set out in an investigation report prepared by him. In this report, the only statement as to the informer's tip was:
"On Friday, 06-18-76, Agent WALKER received reliable information from a confidential source that Jimmy and Beverly RAMSEY, husband and wife, were staying in Room # 126 of the Sea Palm Lodge, in Aransas Pass, and that they had in their possession a quantity of heroin."
The officer testified that the informant had told him that he had been in the room as set out in the affidavit, and that omission of this information in the report did not indicate the contrary.
Defense counsel then sought to call Vaden, the informer, as a witness. It was stipulated that Vaden was "in custody in the jail here in Sinton" at the time of this hearing. In response to the judge's inquiry as to what the defense expected to prove by this witness, defense counsel stated that Vaden had told him that he had never been in the motel room, and had not told officer Walker that he had. Defense counsel pointed out that this information was in conflict with the information in the affidavit. The court refused to allow Vaden to be called as a witness, but agreed that the statements of defense counsel could be included in the record as a Bill of Exception.
At the time of the appellant's trial, the trial court's refusal to allow the testimony of the informer was a correct interpretation of the then law. This Court had long held that a challenge to the affidavit's statement of probable cause could not go behind the face of the affidavit. Oubre v. State, Tex.Cr.App., 542 S.W.2d 875; Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852. Most recently, in Jones v. State, Tex.Cr.App., 568 S.W.2d 847, this Court again followed this rule and stated that "Our determination of the sufficiency of an arrest or search warrant affidavit's statement of probable cause is limited to the four corners of the affidavit." 568 S.W.2d at 855.
Subsequent to the cases cited above, however, the United States Supreme Court has reviewed a similar state rule and set out an exception to a blanket prohibition against any challenge to the veracity of the officer's statements in a search warrant affidavit.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that the Delaware "four corners" rule, insofar as it prohibited Every challenge to the veracity of the sworn statement in a warrant affidavit, violated the Fourth Amendment. In Franks, the court held that when the defendant alleges a deliberate falsehood or reckless disregard for the truth and accompanies this allegation with an offer of proof, that if disregarding the statement alleged to be false would render the affidavit insufficient, a hearing on those allegations is required. Before considering appellant's contention in light of Franks, however, we must determine if the holding in Franks is retroactive so as to be applicable to the present case.
In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Supreme Court considered the retroactive application of its earlier decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Almeida-Sanchez had held that a warrantless search by Border Patrol agents approximately 25 miles from the border without probable cause violated the Fourth Amendment. The court refused to apply Almeida-Sanchez retroactively, however, reasoning that the purpose behind the exclusionary rule would not be furthered by a post facto exclusion of evidence seized in good faith compliance with what was considered the constitutional standard at that time. Justice Rehnquist, speaking for the majority in regard to retroactive application of...
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