Williams v. State
| Decision Date | 21 December 1971 |
| Docket Number | No. 44337,44337 |
| Parties | Alfred James WILLIAMS, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Carmen Glazner, Fort Worth (Court Appointed on Appeal), for appellant.
Frank Coffey, Dist. Atty., Marvin D. Snodgrass and Clinton Starr, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., Austin, for the State.
DAVIS, Commissioner.
This is an appeal from a conviction of possession of marihuana with punishment assessed by the court at twenty years.
Fort Worth police officers, armed with a search warrant went to the home of appellant on September 12, 1969, searched appellant's house and found a yellow piece of paper between the mattress and box springs of a bed which contained marihuana.
Appellant contends the court erred in admitting evidence based on a search warrant issued upon an affidavit which failed to set out sufficient facts to constitute probable cause.
The affidavit reads:
'The State of Texas
I, G. T. Cox, do solemnly swear that heretofore, on or about the 10th day of September, A.D. 1969, in the City of Ft Worth, Tarrant County, Texas, one Alfred James Williams, Jr. known as 'Al' and Lemmie Williams did then and there unlawfully possess and does at this time unlawfully possess a narcotic drug and dangerous drug, to-wit: Heroin and Marihuana in Private Residence being described as a single story light green frame, duplex with Alfred James Williams occupying the west side of structure, located on the south side of the street 2924 Ennis Avenue in the City of Fort Worth in Tarrant County, Texas, which said Private Residence is possessed, occupied, under the control and charge of Alfred James Williams Jr., and Lemmie Williams.
MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
On September 10, 1969, Fort Worth Police Narcotic Officer Cox received information from a credible and previously reliable source that Alfred James Williams Jr. and Lemmie Williams had some narcotic drugs, heroin and marihuana secreted on the premises at 2924 Ennis Avenue. This credible source related details of having been to 2924 Ennis Ave., on several occasions to purchase drugs, the most recent being within the past 24 hours, being a user, the source has a knowledge of drugs. This credible source has provided true and correct information on several occasions which has led to the seizure of illicit drugs. Narcotic Officers have also received credible information from two other reliable sources stating the activities of Alfred James Williams, Jr. and Lemmie Williams in relation to the Use and distribution of drugs. Affiants own investigation has revealed that 2924 Ennis Avenue is occupied and controlled by Alfred James Williams, Jr. and Lemmie Williams and have observed both on the premises as well as others on recent occasions.
Wherefore, I ask that a warrant to search for and seize the said narcotic drug and dangerous drug at the above described premises be issued in accordance with the law in such cases provided.
G. T. Cox
Sworn to and subscribed before me by Ft. Worth Narcotic Officer G. T. Cox, on this the 10th day of September, A.D. 1969.
W. W. Matthews
MAGISTRATE
Justice of the Peace, Precinct No. 1, Place 1 _ _ County, Texas'
The affidavit is largely based on hearsay information. To meet the requirements set forth by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 273, '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 determining the reliability of the informer, we must look to the affidavit which shows that affiants received information from a 'credible and previously reliable source', and a 'credible source has provided true and correct information on several occasions which has led to the seizure of illicit drugs.' The affidavit furnished sufficient underlying circumstances from which the magistrate could conclude that the informer's information was reliable.
In determining if the magistrate was informed of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, the affidavit recites: 'This credible source related details of having been to 2924 Ennis Ave., on several occasions to purchase drugs, the most recent being within the past 24 hours, being a user, the source has a knowledge of drugs.'
The recitations of personal and recent activity of the informant going to appellant's residence to purchase drugs are factors showing that the information had been gained in a reliable manner. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. While we recognize, as appellant contends, that no statement is made that informant made any purchase or saw any drugs, at appellant's residence, we find it difficult to imagine that a user of drugs would go to a place to purchase same on several occasions unless drugs were actually present. If the word 'purchased' rather than 'purchase' had been used, all uncertainty would have been removed. We must recognize as the court did in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (June 28, 1971), that affidavits for search warrants 'are normally drafted by nonlawyers in the midst and haste of a criminal investigation', and noted:
'Such a construction of the affidavit is the very sort of hypertechnicality--' of elaborate specificity once exacted under common law'--condemned by this Court in Ventresca. A policeman's affidavit 'should not be judged as an entry in an essay contest,' Spinelli, supra, 393 U.S. at 438, 89 S.Ct. (584) at 600 (21 L.Ed.2d at 657) (Fortas, J., dissenting), but rather must be judged by the facts it contains.'
Unlike the affidavit condemned in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the affidavit recites how the informant came by his information. The affidavit contains allegations which go beyond the affiant's mere suspicion. Ruiz v. State, Tex.Cr.App., 457 S.W.2d 894.
While we are satisfied that the dual requirements of Aguilar have been met, we note that the affidavit is not based solely on hearsay, since there are assertions within affiant's knowledge contained therein. The recitation, 'Affiants own investigation has revealed that 2924 Ennis Avenue is occupied and controlled by Alfred James Williams, Jr. and Lemmie Williams and have observed both on the premises as well as others on recent occasions', lends credence to otherwise unsupported conclusions and apprises them that the informer's story was not entirely out of the whole cloth. In Gaston v. State, Tex.Cr.App., 440 S.W.2d 297 (concurring opinion), where the affidavit recited that of affiant's own personal knowledge that the accused occupied the bottom half of the building at the address given by informer, it is said:
'Whether such information was acquired by independent corroboration or surveillance is not revealed but none of such information is attributed solely to the informer. Since they personally knew the location of the building and of the existence of the accused they knew the informer's story was not entirely out of the whole cloth. Such personal knowledge lends support to their otherwise unsupported conclusion that the informant is 'credible and reliable."
We reject appellant's contention that the search warrant was based on an affidavit which did not reflect probable cause.
Appellant urges that the search warrant was invalid in that the jurisdiction of a justice of the peace acting as a magistrate is coextensive with the boundaries of his particular county, and neither the warrant nor the affidavit upon which it...
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