Stoddard v. State

• Decision Date: 02 February 1972
• Docket Number: No. 44389,44389
• Citation: 475 S.W.2d 744
• Parties: Floyd Grady STODDARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 744

475 S.W.2d 744

Floyd Grady STODDARD, Appellant, v. The STATE of Texas, Appellee.

No. 44389.

Court of Criminal Appeals of Texas.

Feb. 2, 1972.

Les Procter, Austin, for appellant.

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

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for unlawful possession of marihuana. Trial was before a jury with punishment set by the jury at four years confinement.

At the outset, it appears that appellant's brief was not timely filed in the trial court. The record was approved on November 16, 1970. On December 15, 1970, the trial court extended the time in which to file the brief until February 16, 1971. Appellant's brief was not filed until February 25, 1971. The brief not being timely filed, this Court will consider only those questions which 'should be reviewed in the interest of justice.' Art. 40.09, § 13, Vernon's Ann.C.C.P. Reeves v. State, 457 S.W.2d 924 (Tex.Cr.App.1970); Jackson v. State, 449 S.W.2d 242 (Tex.Cr.App.1969); Jackson v. State, 449 S.W.2d 245 (Tex.Cr.App.1966); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Sewell v. State, 440 S.W.2d 852 (Tex.Cr.App.1969); Harlan v. State, 430 S.W.2d 213 (Tex.Cr.App.1968); Castillo v. State, 421 S.W.2d 112 (Tex.Cr.App.1967).

Appellant raises only one ground of error in his untimely filed brief. He contends that the trial court erred in admitting evidence which was obtained as the result of a search of his automobile. He contends that the search was unlawful because of a defective search warrant and that probable cause did not exist for the issuance of the warrant. This ground of error will be considered as unassigned error. Art. 40.09, § 13, V.A.C.C.P.; Heltzel v. State, 462 S.W.2d 289 (Tex.Cr.App.1971); Dodd v. State, 436 S.W.2d 149 (Tex.Cr.App.1969); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968).

Captain Harvey Gann and other officers of the Austin Police Department, pursuant to a search warrant, conducted a search of appellant's office, which was located in Parlin Hall on the campus of the University of Texas at Austin. During the course of the search the officers found a quantity of dangerous drugs. As a result of their finding of the drugs, the officers arrested appellant, who was present at the time of the search, and transported him to the Austin police station, where he was 'booked' for unlawful possession of dangerous drugs.

At the time of the arrest, the officers requested permission to search appellant's automobile, which was parked on a street near the building where the office was located. This request was refused. After taking appellant to the police station, the officers obtained a warrant to search the car. The key to the car was taken from appellant in the course of a search of his person conducted at the police station. The officers, having obtained a warrant, returned to the car, which had been left 'under surveillance' by one officer, opened the trunk with the key and found a quantity of marihuana therein. Appellant's palm and fingerprints were found on one of the cointainers in which the marihuana was located.

Appellant contends that the marihuana which was found in the trunk of his automobile was unlawfully seized and that its admission into evidence was improper. He contends that the affidavit for search warrant did not set forth probable cause for the issuance of the warrant and that it was unintelligible as to the thing or place to be searched. We will first discuss whether the affidavit showed the existence of probable cause.

The relevant portion of the affidavit reads as follows:

'Affiants have received information from a credible and reliable informant that FLOYD STODDORD, WM approx. 32 years of age, is keeping and using narcotics, to-wit, MARIJUANA. STODDORD keeps the MARIJUANA in his office located at Room #224 at Parlin Hall, Austin, Travis County, Texas, and uses the above described vehicle to transport MARIJUANA between his house and his office. Informant further states that he has been present on numerous occasions when the marijuana was carried in the above described vehicle, the last time being within the past 72 hours.

'Prior to the writing of this warrant, STODDORD was found in possession of a quantity of DANGEROUS DRUGS and had just used his vehicle, described above, to come to the office. His actions at the time of arrest and his refusal to give a voluntary consent to search his motor vehicle, in addition to the informant's statement relating to the transportion of the MARIJUANA in his vehicle, indicate that he currently has drugs to-wit MARIJUANA concealed in his vehicle.'

An affidavit for a search warrant may be based on hearsay, but the magistrate who issues the warrant must be informed of, (1) some of the underlying circumstances upon which the informant has based his conclusions and, (2) some of the underlying circumstances from which the affiant has concluded that the informant was credible or that his information was reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Either of these two elements, if not contained in the portion of the affidavit based on hearsay, may be supplied by independent corroboration on the part of the affiant or affiants. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970).

The affidavit may also be based on a combination of hearsay and personal knowledge of the affiant. In such cases, however, the combined information must still meet the test of Aguilar, supra. Spinelli v. United States, supra; Gonzales v. Beto, supra.

In the instant case, the first paragraph or part of the affidavit is based on hearsay. The state contends that the second paragraph is based upon personal knowledge of the affiants. It is not necessary to determine whether the second part of the affidavit is based upon hearsay or personal knowledge, because in either event, the two parts when considered together do not meet the test of Aguilar v. Texas, supra.

The first part of the affidavit recites only that the informant was 'credible and reliable.' Nothing is stated in that part of the affidavit which would indicate the underlying circumstances which led the affiants to conclude that the informant was 'reliable and credible.' Therefore, if the affidavit is to furnish some further basis for belief by the magistrate, such basis must be found in the second part.

Even if the second part of the affidavit is construed as being the personal knowledge or observation of the affiants, it is not sufficient to provide a basis for belief that the informant was 'credible and reliable.' The second part of the affidavit does not detail circumstances which, by their specific nature, would indicate that marihuana was concealed in the automobile. Therefore, no corroborating circumstances are reflected which would tend to verify the informant's accusation, and thereby support the conclusion that he was 'reliable and credible.'

The second part merely recites that appellant 'Prior to the writing of this warrnat (sic) . . ..' No indication is given as to When he was found in possession of dangerous drugs. Further, the statement that 'His actions at the time of arrest and his refusal to give a voluntary consent to search his motor vehicle . . .' does not provide corroboration of the informant's statement so as to enhance his credibility. No detail is given as to what 'his actions at the time of arrest' were, so as to indicate why such actions would lead the affiants to conclude that marihuana was contained in the automobile. Therefore, the statement does not corroborate the informant's statement. Likewise, the statement that appellant refused to grant permission to search his car can be of no value whatsoever in establishing probable cause, or corroboration. If a person chooses to exercise a constitutional right, this cannot be used to his detriment by the state. See Art. 38.08, V.A.C.C.P.; United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956).

Even if the second part of the affidavit did contain sufficient underlying circumstances from which the issuing magistrate could conclude that the affiants were justified in their conclusion that the informant was 'credible and reliable,' it is not sufficiently clear that the affiants spoke from personal knowledge, rather than mere belief, or from knowledge gained through hearsay. In particular, the affidavits do not state how the affiants knew that appellant 'was found in possession of a quantity of Dangerous Drugs.' Whether they personally observed him in possession, or whether they had been told that he was in possession of drugs by the informant cannot be determined from the affidavit. The same is true in regard to the statement about 'His actions at the time of arrest.' Without more than the mere assertion that appellant was found in possession, the second part of the affidavit is merely an expression of the affiant's belief, which is insufficient to support the issuance of a warrant, and is insufficient to corroborate the informant's information. 'The unsupported assertion or belief of the officer does not satisfy the requirement of probable cause.' Spinelli v. United States, 393 U.S. 410, 423, 89 S.Ct. 584, 592, 21 L.Ed.2d 637 (Justice White concurring). Also see Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970) (Onion, J., concurring).

The test, as set forth in Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588, is: 'Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent...