*1
summаry
The movant
judg
for a
burden
establishing
ment has
that
no
exists
material
there
issue of fact and
movant is
to judgment
entitled
as
summary
law.
judgment
The
matter
not
here does
establish as
evidence
matter
no genuine
there is
of law that
issue of fact
more of the essential
as
elements
Collins,
McGuire,
Collins,
Levy
John E.
&
action; therefore,
cause of
plaintiff’s
of the
petitioners.
Irving, for
summary judgment
it will not
for
Ford,
Burford,
Wayne
Ryburn
Pearson
&
Swilley
Hughes,
the defendant.
Bohannan, Dallas,
respon-
Dan
J.
and
(Tex.1972); Farley
Prudential
dent.
Company,
(Tex.
Insurance
both on the floor that same people fell other
five although an area other than where
night, fell; I found a build- that “afterwards
she ABERCROMBIE, Appellant, my the bottom of shoes F. Karl material up of a wax substance.” as I identified summary judgment basis Texas, Appellee. The STATE defendants’ uncontradicted sum- DEAN, Appellant, refut- successfully evidence judgmеnt G. mary Dennis allegations of plaintiff’s negligence. ed testimony of the deposition defendants’ Texas, Appellee. STATE effect that floor was to the employees 48334, 48335. Nos. April July between been waxed had occurred; no oil or additional the fall when Appeals of of Criminal Texas. Court waxes; between applied been had wax July 1974. swept prior to ban- the ballroom floor was not over and that quet; Rehearing Nov. Denied slick. The defendants’ unduly waxed 15, 1975. Rehearing Opinion Oct. inspected testified she director personnel following morning thаt it the floor a normal condition.
inwas
various containers and vessels. Abercrom- Jerry Wayne and one Davis bie apartment when the search Dean, a conducted. lessee of the resi- dence, shortly was arrested thereafter while *3 driving belonging a vehicle to Abercrombie. appellants’ hearing A was held on motion suppress evidence seized in the search overruling action in court’s and the appellants’ contention. gives rise to urge Appellants allegations of made to the affidavit the search Petsch, Rio, Del for Aberсrom- Joe Slator are insufficient to meet the warrant bie. requirements of prong Gonzalez, Rio, Del for Dean. Arturo C. Texas, S.Ct. Pettit, Atty., F. Edwin E. Dist. John 723, requiring that Rio, Atty., Dist. Del Jim D. Asst. Springer, circumstances from state which it Vollers, Atty., and David S. McAn- State’s unnamed determined informer was Austin, Atty., gus, Asst. State’s and reliable. credible State. portion pertinent of the affidavit of Gardner reads:
Officer OPINION THE “MY BELIEF OF AFORESAID IS THE BASED ON FOL- STATEMENT DAVIS, Commissioner. LOWING FACTS: are taken convictions for Appeals person, and credible “A reliable herein- of marihuana. After verdicts informant, called after sometimes by punish- the jury, were returned guilty identity reliable of such and credible per- years seven for appel- was assessed at ment I informant wish not son and such years three Dean and lant disclose, me has stated to on this date 25 Abercrombie. 1972, he plastic found two that “the search war- Appellants contend plant substance bags by believed magistrate issued based rant marijuana in his yard adjacent him reliability, cause because the probable upon Broadway East at approximately to 2O8V2 informant was not of the undisclosed any, if AM 24 November 1972. He 3:00 in affidavit.” established bags green plant twо substance officers, armed approximately reflects until The record his 9:00 in warrant, a search a conducted date and at which AM the same time he East Broad- located 208½ residence went 208½ in a asked Del Rio on November approximately in white male way Street one to 25 pound one of mari- age, heavy tall and build Approximately years 1972. dwelling. four-room bushy beard, hair having was found dark and dark addition, quantity of marihuana was photograph identified as a later sus- being bathroom. Offi- narcotic user pected in a commode Dennis G. found he saw Abercrombie such time the informant testified At asked cer Gardner something Dean he had in his Dennis G. lost said the bathroom run in reply and Dean’s something yes. later with reappear seconds hand (sic) drug it and it out dogs of marihuana was found Evidence empty. hands this time the and at infor- yard dwelling. Particles into throughout plastic bags of the two returned clothing and mant were found substance to green plant the said Dennis supra; State, supra; Polanco v. Kemp v. and he did carry G. Dean then and there plastic bags green plant the two sub- The State cites United Stаtes v. into the house at stance 208½ East supra, proposition the infor- Broadway. The informant states that in mant’s declaration he past had handled and smoked mar- prove would tend to the reliability and cred- ijuana and he further states the contents ibility the informant. The affidavit in plastic bags of the two to be of the same the instant case recites: “The informant that he handled and smoked in past states that in the he had handled and past being marijuana. It is believed marijuana smoked and he further states the green plant time the at this substance is plastiс bags contents of the two to be of the concealed in the house at 208½ East same substance that had handled *4 Broadway Street.” past.” Harris, In smoked the Su- cites Adair v. said, preme Court “Concededly, admissions
247, Tex.Cr.App. proposition that an always of do not credibility crime lend to allegation prior of reliability is not neces- contemporaneous later of accusations an- sary underlying if the circumstances reflect other.” The affidavit in Harris recites reliability. See United States purchased “that the informant had illicit 2075, 91 S.Ct. L.Ed.2d 73. It the whiskey desсribed, residence for a noted, however, should that the affidavit exceeding years, period two most recently State, supra, in Adair went further than The Supreme two weeks.” within Court merely stating that informer was “credible plainly this “was noted and reliable” and recited that the informer against interest readily since could war- record, a criminal lacked had favorable prosecution rant a could sustain a con- reputation neighborhood and was against the viction informant himself.” In by thought well associates.1 the case the instant affidavit refleсts that appears It urging State is past stated “in the informant had han- the unnamed informant’s credibility was marijuana” dled and smoked without di- by verifying confirmed the information he vulging when or where have Beto, In furnished. Gonzales v. 425 F.2d questionable occurred. It is highly if such (5th 1970), Cir. it was stated that an statement tended to prove credibility the tip informer’s can be significantly but Clearly statement, the informant. such it- “independent tressed if by observations the more, self and without does not furnish corroborate affiant sufficient details of the underlying sufficient circumstances to war- (whether tip suspicious not) nеgate finding rant a that the unnamed informer possibility the informer ‘fabri- was credible and reliable. ” report out whole cloth.’ eat[ed] Polanco See S.W.2d Tex. We are mindful that affidavits for search Cr.App. and cases cited therein. If such normally warrants are drafted in the midst occurred in corroboration the instant case and haste of a criminal investigation, and the affidavit fails recite such verification teachings adhere of the United tips by informer’s affiant. Supreme deter Court States in United States v. mining sufficiency hearsay Ventresca, of a affida 380 U.S. 85 S.Ct. probable to reflect cause for is vit they L.Ed.2d interpreted must be warrant, suance of we are bound “in a commonsense realistic fashion.” the four corners thereof. Adair v. See Cummins Tex. following should noted that cases, com- be used as such in future as is often regarding ap- ment affidavit in Adair upheld where this done cases court has peared in footnote 2 therein: “The affidavit sufficiency of a certain affidavit.” nevertheless is not a model and should not Nonetheless, in our Cr.App. efforts OPINION ON STATE’S MOTION and strict we interpretation, technical avоid REHEARING FOR stay ever mindful we within must be ONION, Presiding Judge. require of constitutional the boundaries Bridger ments. See motion for On the State’s rehearing we 801, Tex.Cr.App. carefully reconsidered the contention appellants that “the search warrant the affidavit based We conclude magistrate issued was not based hearsay information did meet the upon upon probable cause because the reliability, Aguilar concerning requirement any, of the undisclosed informant was not credibility of the informer and relia- established in the affidavit.” information. bility of his Appellants urge thе court judgments are reversed erred in and the caus- over- ruling suppress their motion to since the es remanded. support of the search warrant to meet the was insufficient second prong approved by Court. Opinion requirements Texas, MORRISON, Judge (dissenting). corners of From the four following: learn *5 Aguilar, Supreme the Court wrote: past admitted informant that “Although an be based and handled smoked marihuana. he had hearsay information and need re- that also states the informant The affidavit personal flect the direct observations of that he had marihuаna in his stated affiant, States, Jones United possession. same into yard took the 4 L.Ed.2d S.Ct. was unlawful. Article Such magistrate must be informed of some of 725b, 2(a), V.A.P.C. The informant Sec. underlying circumstances from which he later the mari- also delivered stated concluded that the the informant narcot- Therefore, appellant Dean. to the they were, he claimed ics where had sworn the affiant informant underlying some of the circumstances possessed him that he to and then admitted officer from which the concluded that the in question. delivered the This informant, identity need whose not be inter- clearly disclosed, Rugendorf v. States, see United requirements satisfies of U. S. est and 528, 84 376 U.S. S.Ct. L.Ed.2d [11 also Harris, supra. See Aranda v. or his 887], was ‘credible’ information ‘re- 221, Tex.Cr.App. 506 S.W.2d ” (Emphasis Supplied) liable.’ 378 U.S. important is also 114-115, 84 at 1514. at S.Ct. gave informer affiant a reflects mind, we perti- With this in consider the description specific physical portion nent of the affidavit of Officer was, affidavit, according to the Dean, who Gardner: suspected aas narcotic “. . identified . ” “MY BELIEF OF THE has thus AFORESAID . This affiant user . ON THE STATEMENT IS BASED FOL- are to “a which tantamount sworn to facts LOWING FACTS: knowledge of a susрect’s repu- policeman’s tation”, supra. person, “A credible reliable and herein- opinion that Adair v. informant, I also called am after sometimes is au- Tex.Cr.App. identity of such reliable and per- credible this search warrant. I thority supporting such informant wish son and not to
disclose, to me on this has stated date 25 DOUGLAS, J., joins. plastic he found two
5«3
green
bags
plant
substance believed
plant substance which he knew to be mari-
marijuana
yard
him be
in his
adjacent
to
actually
huana and had
delivered the same
East
at approximately
to 2O8V2
tо Dennis Dean
a stated address. These
3:00 AM November 1972. He
underlying
enough
circumstances are full
to
green
plastic bags
plant
two
prong of
meet the first
test.
until
approximately
in his
9:00
appellants
We
not understand the
do
same date and at
AM the
which time he
otherwise,
being
contend
their contention
went
208V2East Broadway
and asked
that it is the second prong of the Aguilar
one white male approximately 20 to 25
is not satisfied by
affidavit,
test which
age, tall
years
heavy
build and
particularly since the unidentified informer
having
bushy beard,
dark hair and a dark
not shown
known оr tested
by a photograph
later identified
as a sus-
reliability.
being
user
pected narcotic
one Dennis G.
It is true
many
cases dealing with a
At
time
such
the informant asked
search warrant affidavit based solely upon
the said Dennis G. Dean if he had lost
hearsay involve an unidentified informer
something
Dean’s reply
yes.
proven
who is described as one of
reliability
dogs
(sic)
found it and drug
it out
by having previously given true and correct
yard and at this
into the
time the infor-
leading
information
to the discovery of nar
returned
two
bags
mant
cotics, arrests, convictions, etc. Thеse alle
substance into
plant
the house at
gations
type
description of the usual
208¾ n Broadway.
The informant
police
undoubtedly
informer
stemmed from
past
states that
he had handled
States,
Jones
United
marijuana
and smoked
and he further
S.Ct.
5»5
Likewise,
in the instant case
need not
would be difficult
imagine
a case
penal
provided
whether a declaration
where
information
decide
was with
such
interest,
just
particularity.
alone or
what
detail
minute
standing
nature
a declaration
In
instant case
the magistrate was
alone,
standing
is sufficient to
with an
confronted
affidavit in such detail
credibility
reliability
of the informer.
reasonably
it could
be inferred the
is so because there are other factors
This
gained
informer had
his information
ain
bearing
probable cause.
way
reliable
and was sufficiently incrimina-
fact
ting, plus the
that the informer made a
Squella-Avendano,
In
States
United
against penal interest,
and fur-
(5th
1971),
Cir.
F.2d
court in
ther
awas
citizen informer who came for-
a three tier
applying
testing
method
information, and,
ward
although
Aguilar requirements
whether
revealed,
his
name was
the location of
part:
said in
met
been
his
was in
residence
effect revealed. We
First,
“.
.
.
if the information
conclude that when the
con-
such
is in
‘detail’ and
provided
‘minute
as
sidered
a whole in the common sense and
magistrate,
‘a
particularity’
when
way
realistic
recommended in United States
detail,
with such
confronted
could reason-
Ventresca,
S.Ct.
ably
that the
gained
(1965),
infer
informant has
prong
of the
way,’
a reliable
test was
his information
then
met. We need not there-
sufficiently
fore discuss whether the
report,
incriminating,
affidavit also could
as
more,
construed
may,
grounds
reflecting the
without
for find-
officer-affi-
persоnal knowledge
ant’s
reputa-
.
.”
Dean’s
ing probable cause.
See and
a suspected
tion as
narcotic user.
State, supra.
cf. Adair
appellants challenge
Both
sufficiency
light
above,
an examina
of the evidence to show the
of pos-
offense
tion of the
warrant affidavit reveals
marijuana
session of
as to each of them.
informer,
unnamed,
though
stated
The record reflects that
on November
yard adjacent
that “in his
to 2O8V2East
officers,
peace
armed with a search
Broadway” he had on
24, 1972,
warrant, conducted a search at a house at
green plant
substance in two
2O8V2East
Broadway Del
Deputy
Rio.
bags which he knew was marihuana from sheriff Joe Gardner testified that as he
it,
past experience
his
he approached the house he saw six
and then took it
hours
to 208½ East
through
Abercrombie
the screen door sit-
male,
where a white
described in
got
a chair who
ting
up
with a bundle in
detail,
marihuana,
took
claiming he lost
began
“running,
hand
moving fast”
it, and
took
same into the house. From in
easterly
an
direction. When he entered
description given,
Dennis Dean was
house,
coming
Abercrombie was
out of
as the white male
bathroom,
identified
involved.
where in the commode there
*8
(Fla.App.1975) (sufficient); Manley Com-
participation
robbery,
admissions of
in
ob-
monwealth,
211 Va.
dle officers question. they
the house in As entered he coming seen from the bathroom where immediately officers found plastic bag marihuana, as well as marihuana ciga
rettes commode. Marihuana or of the same literally
traces found everywhere Early in the house. on the BOUIE, Appellant, John Elson morning of the search Marston plas bags marihuana yard adjacent tic in his by appellant to the house rented Texas, Appellee. The STATE Dean, When six hours later he talked to No. 50305. had lost “something” admitted he and asked Appeals Court of Criminal of Texas. he had it. Marston if When Marston re 10 to 15 turned within seconds with the July 1975. marihuana, a hand reached out door Rehearing Denied Oct. 1975. see the same. Marston never did Dean took during the house leave time. There Rehearing Second Denied Nov. passing Dean was was also evidence a foot street near his rented house. ball Dean was not at the
While time control, search, the house was under his literally everywhere, and he
marihuana accepted in the house had
or someone brought Marston after conversation with him. We
Dean’s con-