Winkles v. State

• Decision Date: 30 September 1981
• Docket Number: No. 67882,No. 2,67882,2
• Citation: 634 S.W.2d 289
• Parties: Homer Charles WINKLES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 289

634 S.W.2d 289

Homer Charles WINKLES, Appellant, v. The STATE of Texas, Appellee.

No. 67882.

Court of Criminal Appeals of Texas, Panel No. 2.

Sept. 30, 1981.

On Rehearing En Banc April 7, 1982.

Ed Paynter, Abilene, for appellant.

Patricia A. Elliott, Dist. Atty. and Randy E. Dale, Asst. Dist. Atty., Abilene, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, CLINTON and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

This is an appeal from a conviction for felony possession of marihuana. After a hearing was held on appellant's motion to suppress evidence, which was overruled, the appellant entered a plea of nolo contendere and was found guilty by the trial judge, who assessed his punishment at three years' imprisonment, together with a $250 fine, all of which was ordered probated.

The appellant challenges the validity of the search warrant that was used to obtain the evidence that caused him to be convicted of the alleged offense. ¹

At the pre-trial hearing on appellant's motion to suppress, Abilene police officer Terry Odom, the affiant in the search warrant, testified that at a late hour on August 19, 1980, or during the early morning hours of August 20, 1980, he had occasion to come in contact with the appellant when he, with other police officers, went to appellant's apartment, located at 1000 South Clack, apartment number 613, in the City of Abilene, to execute a search warrant for the controlled substance methamphetamine. He had obtained the search warrant on August 19, 1980, at 11:16 o'clock p.m. Appellant, with seven other persons, was arrested at the focal point of the search warrant. The record reflects that the other seven persons were not indicted because the controlled substance, methamphetamine, was not found on the premises. Only marihuana was recovered from the location. However, excluding one person who was a juvenile, the other six persons were charged "with Class B possession of marihuana. There was some that had it on their person and some out in plain sight that we (the police) charged them with." The above is a summary of all of the evidence presented at the pre-trial hearing. After oral arguments were heard, the trial judge overruled the appellant's motion to suppress.

Several days later, appellant reappeared in court and entered a plea of nolo contendere to the accusation. The State put on another Abilene police officer, John Vedro, who testified he was one of the participants in the execution of the search warrant, that based upon his training he could identify the plant substance of marihuana, and that he and other police officers seized 11.93 ounces of loose marihuana and marihuana seeds from the residence. He also testified that the residence was either in the possession of or was owned by the appellant.

Appellant attacks the sufficiency of the search warrant on the ground that the affidavit does not reflect adequate probable cause. He argues this affidavit does not detail sufficient underlying circumstances upon which the affiant based his belief that methamphetamine was at the location. He claims the affidavit does not substantiate the credibility of reliability of the unnamed source, ² as required by the "two prong test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). ³ In determining the sufficiency of the affidavit, we are bound by the four corners of that document. See Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969), cert. denied, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1979). Cf. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); and Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App.1979). The latter cases are not applicable to this cause as the issue of whether a false statement was made in the affidavit was neither raised nor presented in the trial court nor to this Court on appeal.

In Aguilar, supra, the Supreme Court held that an affidavit for a search warrant may be based upon hearsay information and need not reflect the direct personal observations of the affiant. However, if based upon hearsay, the issuing magistrate must (1) be informed of the underlying circumstances from which it can be determined that the affiant received his information in a "reliable" way, and the magistrate must also (2) be informed of specific factual allegations from which the affiant concluded that the source was "credible" or his information "reliable." Absent such factual allegations, there is not a sufficient basis for a neutral magistrate to make an impartial determination that probable cause exists. The above two requirements are commonly known as the "two prong test" of Aguilar, supra.

The "two prong test" of Aguilar is to ensure that the issuing magistrate is presented with sufficient facts from which he can make an independent determination that probable cause exists to believe that a criminal offense has been or is being committed and that a search of the named premises will likely reveal evidence of that offense. See Art. 18.01, V.A.C.C.P. However, this Court, as it stated in Powell v. State, 505 S.W.2d 585 (Tex.Cr.App.1974), has said many times in the past that:

In interpreting affidavits for search warrants, magistrates and courts must do so in a common sense and realistic fashion. The drafters are usually non-lawyers and their work is usually done in haste of criminal investigations and 'Technical requirements of elaborate specificity once enacted under common law pleadings have no proper place in this area.' United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See Frazier v. State, Tex.Cr.App., 480 S.W.2d 375, and Cummins v. State, Tex.Cr.App., 478 S.W.2d 452.

In order to ensure the impartial determination of probable cause, when the police request a search warrant, the issuing magistrate must have before him specific and articulable facts sufficient to support a finding of probable cause. The term "probable cause" means a basis upon which a man of reasonable caution has the belief that the action sought or taken is appropriate. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The standard is not what a police officer trained in a particular field would conclude, but rather what a reasonable, prudent man would conclude from the facts presented. United States v. 1964 Ford Thunderbird, 445 F.2d 1064 (3d Cir. 1971). The reasons given must "be possible to explain and to justify the arrest to an objective third party." Model Code of Pre-Arraignment Procedure 14 (Proposed Official Draft 1975).

A search warrant may issue in this State to search for and seize any of the items listed in Art. 18.02, V.A.C.C.P. The warrant may not issue unless sufficient facts are first presented which satisfy the issuing magistrate that probable cause in fact exists for its issuance. Arts. 18.01(b), 1.06, V.A.C.C.P.; Art. I, Sec. 9, Texas Constitution. The "Probable Cause," that is used to obtain a search warrant, may be predicated upon three broad categories of information, to-wit:

1. The direct personal observation of the affiant who is applying for the warrant; or

2. Hearsay information furnished to the affiant shown to be credible, or

3. Hearsay information furnished to the affiant shown to be reliable.

that a crime has been committed or is being committed by a person at a certain location. Art. 18.04, V.A.C.C.P. See Rangel v. State, 435 S.W.2d 143, 144 (Tex.Cr.App.1969); Aguilar, supra.

Because these broad categories are many times insufficient, standing alone, to establish "probable cause," sub classes, which are not limited to the following, have evolved.

1. A combination of direct observation by the affiant and hearsay information;

2. A combination of hearsay information and personal information furnished to the affiant by a "credible" source; or

3. A combination of hearsay information and personal information furnished to the affiant by a "reliable" source.

Aguilar, supra, demands that if information furnished to the magistrate by the affiant emanates from a source or an informant of the affiant, then sufficient underlying facts must be stated in the affidavit to show that the affiant's conclusion that a violation of the law was occurring is sustained; i.e., (1) that the informant or source had a valid basis for the belief that a crime was being committed or had been committed and evidence of the criminal act could be seized at a certain location, and (2) that the affiant had a reason for believing that the informant or source was "credible" and/or the information "reliable."

It is apparent from the affidavit in this cause that Odom was operating and acting pursuant to sub class 2, supra, when he sought the search warrant from the magistrate, for there is no evidence in this record of any direct observation by Odom or by any other officer, nor is there any corroboration of what the source told Odom. He was acting solely upon what he was told by his source; i.e., a combination of hearsay and personal information from his source, to-wit:

Within the last thirty-six hours this confidential informant has personally been in the living room of the above described suspected place, at which time the confidential informant did observe a quantity of white powder substance, that the suspected party claimed to be Speed, which is a common street word for Methamphetamine.

We are thus confronted at the outset with the question whether this affidavit meets the two-level hearsay from a source test. "Basis of knowledge may be satisfied when there is more than one level of hearsay, as when a participant in crime incriminates himself before a (source) who then relates this information to a police officer. However, Aguilar requires that at each level of hearsay the facts constituting knowledge be set forth in the affidavit." See Ringel, Searches & Seizures and Confessions, (1980 Edition), Vol. I, at page 4-27. Though we acknowledge that appellant made the above statement attributed to...