Eisenhauer v. State

Constitution Texas. State Pros- ecuting presents ground Attorney for

rehearing that for asserts three reasons

finding unconstitutional, Act one caption

which is the contention.

None of those as contentions and

sertions were advanced in the Dallas Court Appeals deny appellant’s as reasons to

ground error; presented are here rehearing.

for the first time on Because appeals

the court of in this nev cause was

er asked to consider the constitutionality Act, that court did not render a decision questions,

for this Court to review on those original

either on submission or now rehearing. 44.45(b),

motion

V.A.C.C.P., 202(a). Tex.R.App.Pro.Rule

See Lambrecht v.

(Tex.Cr.App.1984).

Furthermore, question, as to the caption Baggett

we have held in 722 S.W. (Tex.Cr.App.1987),

2d 700 that under the long

recent amendment to 35 a court no power

er has the to declare an act of the

Legislature unconstitutional for insuffi caption.

cient See Coronado (Tex.Cr.App.1987).

Accordingly, the State’s motions for re-

hearing are now overruled. McCORMICK,

ONION, P.J., and JJ., WHITE, concur

CAMPBELL result.

in the EISENHAUER, Appellant,

Lee Warren Texas, Appellee.

The STATE

No. 149-85. Appeals Criminal

En Banc.

March Houston, appel- Carpenter,

W. Scott lant. Holmes, Jr., Onion, Atty. writing majority, B. Tim- for the

John Dist. concluded Taft, Houston, othy Atty., application Dist. of Appeals’ G. Asst. the Court of Huttash, Atty., erroneous, two-prong Robert State’s and Alfred the Aguilar test was Walker, Asst., Austin, Atty., First rule State’s as federal law on the of the rested the for State. Illinois v. U.S. denied, rehearing 76 L.Ed.2d 104 S.Ct. L.Ed.2d 1453 required the which review of totali- ON

OPINION STATE’S PETITION FOR ty of This was care- circumstances. Court REVIEW DISCRETIONARY to point ful out that both Eisenhauer entirely upon rested federal Eisenhauer II McCORMICK, Judge. grounds. appeal pos- This is from a conviction for reversing Appeals the After Court of substance, of a session controlled to-wit: II, this remanded the Eisenhauer Court plea Following appellant’s cocaine. of nolo appellant’s case for consideration of court, punishment contendré the before grounds of review based on state law. The imprisonment, years’ was assessed six yet remand resulted another decision $2,000. probated, and fine of styled Eisenhauer v. 684 S.W.2d 782 trial, appellant Prior to the bench filed a 1984) (here (Tex.App. [1st Dist.] — Houston Only pretrial suppress. po- motion one to III). inafter In Eisenhauer Eisenhauer hearing lice officer testified at the and the III, Appeals faced with the of was Court Thereafter, appel- motion was overruled. probable determining the of whether task plea entered his contendré and the lant nolo cause for the search and seizure existed seized a result of the search evidence as concluding In under Texas law. the plea support utilized to his and the was Appeals illegal, the arrest was Court 1.15, judgment. See Article V.A.C.C.P. again applied analysis Aguilar the conviction, appealed only appellant After Texas, supra. ruling, From the State pretrial sup- denial of motion to the the discretionary filed petition review permissible was under Article press, which to granted which was this Court deter 44.02, V.A.C.C.P.1 (1) sufficiently mine: appellant whether In Eisenhauer v. review; preserved law grounds State 1988) (here (Tex.App. [1st Dist.] — Houston (2) it was for the Court of whether error I), the inafter same search Eisenhauer Appeals apply the rule being before the Court and seizure tested determinations based on cause a federal today subject was the constitu (3) law, State whether cause challenge. Appeals The Court of tional Texas We now reverse existed under law.2 appellant of the found that arrest Appeals the decision of Court and, cause as a supported trial court. judgment affirm result, subsequent fruits search point must be ad decision The first inadmissible. The was based were grounds, sufficiently appellant dressed is whether solely on federal constitutional point of error for incorrectly ap preserved the State law Appeals Court of bench, ap Before trial at rule of review. plied suppress. (1964). pellant written filed a motion 12 L.Ed.2d 723 alia, stated, It inter “Defendant was granted that: This review the Eisen and without a warrant arrested without I decision in Eisenhauer v. hauer IV, V, (herein probable (Tex.Cr.App.1984) violation the Constitution II). Presiding Judge and XIV Amendments to after Eisenhauer issues, disposition light adopted 2. of the Court’s succinct statement of We have unnecessary a fourth for us to reach it becomes by Presiding presented Onion in this facts point presented the State of error prior opinion. Court’s gave the search in appellant consent to whether question. properly preserved the United States and in violation of the for review since both and the motion objection laws and Tex- to suppress Constitution the State of solely hearing motion, as.” appel- grounds. At the on were based on federal objected ground of attorney lant’s State’s first review is overruled. arrest grounds, stating: federal deal- “We are poses following The State next ing Draper-Aguilar-Spinelli situa- ground “The First of review: argues The State tions....” the above Appeals holding erred that under Texas quoted language, light even taken in of the probable upon hearsay law cause based motion, preserve written to is insufficient satisfy of two-prong must the test the appeal. error for on review (sic), 1509, 12 v. State (1964).” L.Ed.2d 723 Though long it has been the that a rule general imprecise specific objection or presents the This case the preserve insufficient to appeal, error for opportunity first clear cut since the United grounds where objection the of the are Court handed down Illi States to opposing obvious the court or the coun Gates, supra, to nois v. establish a uniform sel, the error waived. Carter v. guideline not be will determining the existence State, 60 (Tex.Cr.App.1986); 717 S.W.2d probable the cause under constitution and State, Samuel v. (Tex.Cr. 688 S.W.2d 492 laws of State of Texas. While the numer State, App.1985); Zillender v. 557 S.W.2d ous cases have dealt with (Tex.Cr.App.1977). find latter We this determinations, the our research indicates exception controlling to be in the case at majority solely vast have dealt with federal appellant’s bar. The clear thrust of chal Very constitutional issues. few cases lenge propriety was directed toward the sought presented before this have the subsequent warrantless arrest and grounds, redress on State law and even I, search. Article Section the Texas fewer resulted decisions have based directly point. Constitution is on to Failure upon independent law of State I, explicitly state “Art. 9” should not be e.g., Marquez State, v. Texas. See review, an impediment particularly to v.Ware (Tex.Cr.App.1987); S.W.2d 217 where, here, this Court remanded the State, 38 (Tex.Cr.App.1986); 724 S.W.2d case of Appeals specif to the Court for the State, (Tex.Cr. Cassias v. hearing ic purpose appellant’s state law App.1986). points error. Appeals of the Court of It also timely has been held that a filed III relies on the Aguilar-Spi- Eisenhauer suppress to motion will be sufficient to analysis, despite nelli existence of preserve argument error even oral without contrary important standard. It is federal suppression Vicknair hearing. no Appeals to note that the Court of cites State, (Tex.App. 670 S.W.2d 286 Moreover, authority for this conclusion.3 — Houston refused). logical review It [1st Dist.] has research indicates that this Court never ly suppress that a motion follows will adopt stepped affirmatively forward to preserve alleged sufficient error two-pronged Aguilar-Spinelli test as THE some, argument where the oral but covers assessing method of cause under all, grounds of the raised in the motion. the State the constitution and laws of presented in lacking, This is not like the situation it Finding precedent Texas.4 valid State, Nelson v. (Tex.Cr. pronounce- S.W.2d 554 up to this Court to make a App.1980), in proper which this Court held ment State model as to so, grounds urged doing In we assessing probable State law the defendant cause. appeal analyze for the first time on had not been must the nature and extent Indeed, Court, II, State, Eisenhguer specifical- Marquez it was stated that 4. In Aguilar-Spinelli." always used ly judgment "this state has that case the Court reserved the assertion unnecessary found it Appeals in Texas Court of Eisenhauer question of test would be address Aguilar-Spinelli. followed question was used in as the affidavit in Texas and Gates. found to both (1964) protections offered the Texas Constitu- and Gates this State followed tion, statutory pronouncements lead the United States Legislature interpretive and the caselaw. applied tacitly Aguilar-Spi- Court and challenges nelli test based both on feder I, An of Article examination Section e.g. al and state law. See Jones virtually it is reveals that identical (Tex.Cr.App.1982); 640 S.W.2d 918 Green counterpart, to its federal constitutional (Tex.Cr.App.1980); I, the Fourth Amendment. Article Section (Tex.Cr. Kleasen v. 9 reads as follows: However, App.1977). line of cases fol people “The shall be secure in their lowing Aguilar-Spinelli model cannot houses, persons, papers possessions, demonstrate, be said and of them from all unreasonable seizures and selves, judicial preference for a broader searches, no warrant search interpretation of Article Section 9 which place, any person thing, to or seize provides greater protections than the describing shall issue without them as Fourth Amendment. As this Court stated be, may nor near as without State, supra: v. “We decline Brown ... cause, supported by oath or affirmation.” invitation to attach to Article [defendant's] The Fourth Amendment states: I, Section 9 our Constitution a Texas right people “The to be secure protection more standard of restrictive houses, effects, persons, papers their provided by than Amendment.” Fourth against unreasonable searches and sei- also, State, See 726 107 Osban v. S.W.2d zures, violated, shall no not be and War- State, (Tex.Cr.App.1986); supra; Daniel v. issue, upon probable shall rants but (Tex. State, Andrada v. 695 S.W.2d 230 cause, supported by affirmation, Oath or 1985); App. Corpus Christi Kann v. — describing particularly place State, (Tex.App. 694 S.W.2d 156 — Dallas searched, persons things be and the 1985). be seized.” adopted Argument this has Article Section 9 of the Constitution of Aguilar-Spinelli by implication is also with- State, and this the Fourth Amendment Lacking a positive pronounce- out merit. are, in the Federal Constitution all material adopting Aguilar-Spinelli, ment it can be State, aspects, the same. Brown v. 657 argued equal force that this Court has (Tex.Cr.App.1983); S.W.2d 797 Crowell v. applied two-pronged test because State, 147 180 343 Tex.Cr.R. S.W.2d law it.5 The fact that federal demanded (1944); State, 952 Daniel v. 704 S.W.2d consistently applied the this Court has to- 1986). argu (Tex.App. Worth — Fort analysis prob- tality of the circumstances greater protections ments for advanced challenges supports able cause since Gates here must be on the basis of addressed pro- As this conclusion.6 caselaw fails interpretive legislative pro caselaw or question, vide a clear answer to the an nouncements. statutory au- examination the relevant procedures A review the used thority appropriate. is past determining probable Court in the proba- little, deciding In insufficient there was provides any, guidance. if case, arrest in this During period Aguilar support ble cause of time between State, State, e.g., Hennessy pre-Gates Wright v. grounds, v. see and federal 5. Take the decision testing (Tex.Cr.App.1983). (Tex.Cr.App.1983), 646 S.W.2d In cases in 660 S.W.2d 87 affidavit, sufficiency noted: of an the Court does reflect state which the record whether stay “We be we within determinative, must ever mindful e.g., grounds were see or federal requirements of constitutional boundaries State, (Tex.Cr.App. Thomas v. 701 S.W.2d prescribed by as the United States State, (Tex.Cr. 1985); Whaley S.W.2d 950 v. Aguilar." Court in State, (Tex. 1985); v. App. Glass S.W.2d 599 State, Cr.App.1984); Spencer v. 672 S.W.2d solely grounds, 6. Both in cases based federal State, Wright v. (Tex.Cr.App.1984); 646 S.W.2d State, (Tex.Cr. e.g., Angulo see v. State, 1983); Marquez v. (Tex.Cr.App. cf. su State, App.1987); Armstrong pra. State, 1985); Bellah v. (Tex.Cr.App. S.W.2d (Tex.Cr.App.1983), on state and cases based (Citations omitted). Appeals specifically Aguilar relied on the Court 18.01(b), effect, supra, 84 S.Ct. at 1514. In hold V.A.C.C.P. two-pronged Aguilar ing that “... test brief, appellant asserts: support position, must met.” In of their finding for a basis “[T]he sufficient Appeals the Court of cites Winkles Aguilar cause referred to (Tex.Cr.App.1982), 634 S.W.2d 289 the historic test. The use of the ’ ' (Tex.Cr. and Glass v. in the 1965 words ‘sufficient facts App.1984). Though analysis entire accompa- to Article 18.01 amendments State, supra, is based on the Winkles patently nied the commentaries estab- requirements Aguilar, con legislative incorporate intent to lishes a any independent tains no mention of state part independent as state Therefore, grounds of review. it cannot be law.” persuasive authority said to be to a claim argument persuasive We find this neither Moreover, on state the citation

based law. Legislature nor sound. While the modified State, supra, actually of Glass v. under language of Article 18.01 in 1965 after position Appeals mines the of the Court of decision Aguilar v. Texas Su- Aguilar, since and not is mentioned Court, preme necessarily it does not follow example necessary of what Legislature adopt that the intended to establish cause. Aguilar two-prong analysis.7 anything, If congruous pattern these actions are with a comparison A language of Article following the lead of the United States 18.01, supra, language Aguilar with the interpreting Court in search and reveals that the statute neither follows nor seizure issues. incorporates two-prong the test. Article authority, appellant For refers almost ex- 18.01(b) reads: clusively to the commentaries that accom- “No search warrant shall issue for 18.01, pany supra.8 Article It is true that purpose in this state unless sufficient Judge “Interpretive Morrison in this Com- presented satisfy facts are first the mentary” under Article 18.01 that observed issuing magistrate probable that cause recently the Court had invalidated in does fact exist for its A issuance. some Texas convictions the affida- because setting sworn affidavit forth facts estab- vits for search warrants “did not contain lishing probable cause shall be filed in satisfy magistrate sufficient facts every instance in which search warrant probable in that cause did fact exist....” requested....” Presiding Judge And it is likewise true that Aguilar states: “Special Commentary” Onion in his cites he Aguilar; but confines his reference “Although may an affidavit be based requirement Aguilar the basic hearsay re- information and need not “there must be sufficient facts personal

flect the direct observations of Judge present....” Nowhere do Morrison affiant, must be in- prongs or mention the Onion two underlying formed of some of the cir- any statement to the ef- Aguilar or make cumstances from which the informant analysis was intended to be fect that such concluded that the were where narcotics incorporated in the statute. they were, he claimed and some of the underlying opportunity circumstances from which This had the to inter- informant, 18.01(b), supra, light concluded in pret officer Article identity Hennessy whose need not disclosed was in Aguilar v. ” (Tex.Cr.App.1983). Hennessy, In ‘credible’ or his information ‘reliable.’ all, Texas, Consti- in the Su- with the constraints of the United States 7. After preme then-existing prob- tution. Court found the Texas analysis able violative of the federal Con- cause Attorney’s surprise quote liberally stitution. It should no one that the from the State’s 8. We Legislature bring this issue. acted to State law into line brief on alleged pense defendant that a search requirements warrant with the two used in underlying was invalid because the Rather, affida- Aguilar-Spinelli test. in Illi- satisfy vit “failed to Gates, supra, nois v. the United Sates Su- requirements of Aguilar v. Texas ... and preme application Court criticized the strict 18.01(b), Art. This V.A.C.C.P.” Court held prongs Aguilar-Spinelli, of the two stat- that the affidavit was sufficient under ing although veracity and basis of analysis. reasoning Gates We find the knowledge highly of the informant are rele- Hennessy sound and reaffirm that decision. vant factors: principles Gates’ standards and should be “These elements are not to be under- applied in determining whether the de- entirely separate indepen- stood 18.01(b) mands of Article have been met.9 requirements rigidly dent to be exacted timate that have repugnant tial” facts. basic established existence of nois v. nelli v. S.Ct. The underlying inquiry application Gates, supra, United changed to Article Court created to aid in arriv L.Ed.2d 637 of Article 18.01 concerns the “sufficient” and “substan rule. The of Gates is are the measures which 18.01, cause, do not supra. which must be only things supra; Spi change and Illi no way ul tions: a pensated reliability. as to the relevant considerations in the has reliability circumstances “Instead every ¤ guided probable deficiency case. for, of a other, ^[*] (103 analysis tip, by (103 are better understood as determining # in one S.Ct. at cause determina- ^[*] some indicia of strong showing 2329).” may traditionally the overall 2327). totality ^[*] be com- ^[*] also, Whaley supra; See ing Hennes- at a determination of the existence of sy supra. sufficient facts to show cause. Aguilar-Spinelli,

Under the measure was conclusion, In Aguilar was not followed Gates, In two-prong test. the measure Texas order to Article Sec- totality Only is the of the circumstances. tion 9 of the Texas constitution or Article determining if methodology the basic 18.01, Y.A.C.C.P.; it was followed because changed, rule has has been satisfied it. no federal law demanded Federal law the basic rule itself. like area, longer demands it. the laws 18.01, continues demand for sufficient and constitution of the State of Texas im- and substantial facts. standard, pose greater no restrictive leav- ing the Texas courts free to follow the lead The fact that the arrest in the in of the Court of the United States. stant case was made without a warrant is binding authority being There no to the probable analysis. cause irrelevant to the contrary, today’s opinion stay is made to totality approach The of the circumstances step the federal constitutional model with as applies to warrantless as well warrant probable for cause determinations. persons property. United seizures of (5th Mendoza, al., 722 F.2d 96 States v. et duty reviewing The of the court is to look Cir.1983); State, 727 S.W.2d 276 Angulo v. totality to de of the circumstances State, (Tex.Cr.App.1987); Whaley v. 686 if termine there exists a substantial basis (Tex.Cr.App.1985); Eisenhauer S.W.2d 950 concluding for that cause existed State, (Tex.Cr.App.1984). 678 S.W.2d 947 questioned action. An at the time of the State, supra, at 278. Eisen gulo v. adoption It is to be remembered II, applying totality of the cir hauer analysis does not mean aban- Gates analysis appellant’s federal doning Aguilar-Spinelli. did not dis- cumstances Gates 1985); Hennessy Andrada v. widely recog (Tex.App. Worth The decision has been 9. — Fort State, (Tex.App. Corpus Appeals adopting Christi 695 S.W.2d 230 nized the Courts of — State, 1985); (Tex.App.— Ellis v. Elliot v. jurisprudence. e.g., Gates into Texas See State, 1984), 1986); aff'd S.W.2d 359 (Tex.App. Houston [14th Dist.] S.W.2d — Dallas Garcia v. (Tex.Cr.App.1985); (Tex.App.— Roldan ref'd). pet. 1985); (Tex.App. Corpus Christi Correll v. S.W.2d Beaumont — claim, constitutional this Court concluded “No search warrant shall for issue purpose that there was a substantial basis for de- this State unless a com- sworn termining probable plaint cause in the arrest therefor shall first be filed issuing magistrate appellant. setting search forth suf- logically It fol- satisfy magistrate ficient facts to lows necessity that there is no for another cause does in fact exist for Appeals. remand to the Court of its issuance.” judgment Appeals Court of The recommendation or addition was judgment reversed and the of the trial holding made because of the in Aguilar, court affirmed. presented sufficient facts must be him that ONION, Presiding Judge, concurring. cause does in fact exist for the issuance of I opinion by Judge concur in the McCor- a two-prong search warrant. The test of mick. It is with reluctance that I add Aguilar determining probable another already those extant in not, however, change written into the compelled cause. am do so view proposed Article 18.01 the said State misinterpretation by of the serious the dis- Bar Committee. senting opinions my Special Commenta- The recommendations of the State Bar 18.01, ry V.A.C.C.P., to Article written Committee as to revision of the 1925 Code years ago. more than 22 Thank God I am of Criminal Procedure were made to the prevent still around to my commentary Legislature, including the one as to Article being from used to something mean Thereafter, 18.01 a new Code of was never intended. Criminal adopted by Procedure was provided: V.A.C.C.P. Legislature. Leg., Acts 59th ch. order, “A ‘search warrant’ is a written 18.01, effective Jan. 1966. Article with- issued magistrate, and directed to a change out from the recommendations peace officer, commanding him to search from adopted the State Bar Committee was personal property, and to seize the Legislature part as a of the new bring same and magis- it before such have, Legislature code. While it could trate, order, or it is a like written com- did not write into two-prong statute the manding peace officer to search a sus- Aguilar. test of pected place alleged where it is stolen In 28 Texas Bar Journal property concealed, is commonly or im- Onion, Commentary on the Revised Code of plements kept purpose being for the Procedure, Criminal this writer wrote: used in the any designated commission of “The United States offense.” Aguilar v. An early examination of the drafts of the a Texas voided search warrant State Bar Committee on the Revision of the merely upon information,’ based ‘reliable (1925) Code of Criminal Procedure on which and held that there must be sufficient Judges Erisman, Morrison and I served presented magistrate facts in pro- showed that 1962 and 1963 it was cause does in fact exist for posed bring Article 304 forward un- the issuance of a search warrant. changed as Article 18.01 of Code new “The new code has been reworded of Criminal Procedure. 1964 the deci- requirements. meet these Therefore the sion in Aguilar v. 378 U.S. officer) (usually police affiant an affi- 12 L.Ed.2d 723 was longer davit search warrant can no handed down. in- merely state he has reliable received

Thereafter, (usual- credibly person it was recommended formation from a unnamed) ly said State Bar has Committee that addition- that an offense been committed, paragraph al without section or subsection etc. The affidavit must show (Justice proposed magistrate numbers be added to the of the Peace cases) 18.01 as follows: most additional facts to for a suf- Gates, holding ficient basis in fact for a determination in Illinois v. (1983). 76 L.Ed.2d 527 Con-

exists for the issuance of a search war- sequently, there is no reason for this Court (Authorities omitted.) rant.” cited compelled “stay step to feel with the attempt An made to show influ- federal constitutional model for was Aguilar upon change ence of made in cause determinations.” language of old Article 304 when it Supreme The United States Court is not 18.01, became but there no claim made the infallible institution that this Court two-prong that the test had been statutori- occasion has assumed it to For exam- be. ly adopted. Court Brown v. ple, plurality of this Special 18.01, Commentary to Article (Tex.Cr.App.1983) S.W.2d (See I, 315, 316), p. Y.A.C.C.P. Vol. inwas opted interpret stated: court has “[T]his language the same as the Bar Journal. harmony our Constitution in with the Su- I Interpretative have reread the Com- preme opinions interpreting Court’s mentary Judge to Article 18.01 the late Id., at 799. Osban Fourth Amendment.” W.A. Morrison of this Court and that of the (Tex.Cr.App.1986). Judge Longview, late Fred Erisman of unwilling arbitrarily I am to be so submis- I Chairman of the State Bar Committee. sive. agree they contrary my cannot are commentary. Supreme Because the Court is not invest nothing guidance, ed with divine there is fully I am aware of the results that inherently improper in state court Judges Teague Clinton and would like to diverging Supreme authority from cause, respect I reach this their views, sadly they misinterpret my very simple but com- on the basis that there is a mentary upon rely. seek to disagreement viable on the matter of inter pretation. Professor Williams As Robert

DUNCAN, Judge, concurring. system has of federal commented: “Our I majority’s concur with the conclusion contemplated always ism has such dis I, that neither Art. 9 of the Texas Consti- Williams, § In the agreement.” Robert F. 18.01, V.A.C.C.P., require tution or Art. Legitimacy Court’s Shadow: upon hearsay that an affidavit based must Rejection Rea State Aguilar-Spinelli comport with the doc- Result, soning and S.C.L.Rev. Further, trine. find that McCor- instance, analysis, in mick’s textual If I Art. 9 of the had concluded that law, prior review of state case Texas Constitution or Art. 18.01V.A.C.C.P. applicable appropriate and state statute Aguilar- required strict adherence to the are methods of commendable. These Spinelli doctrine I would not hesitate to so others, review, among this Court supra. Illinois v. despite state examining should follow our Constitu- Linde, “E tion. See Hans Pluribus —Con- I concur. With these comments Courts,” in Theory stitutional and State Developments in Constitutional State CAMPBELL, JJ., join. MILLER and Williamsburg Conference, Law: The ed. (St. Paul, Minn.: West Bradley D. McGraw CLINTON, Judge, dissenting. 1985) Co., Publishing pp. 227-305. independent “Texas is a free and However, object majority’s I to the do of the subject only to the Constitution Unit- was decided as it comment that case 1, States,” I, Rights, Article Bill of ed § step stay in order “to with of Texas. The of The State Constitution federal constitutional model specifically provides Tenth Amendment is no consti- cause determinations.” There “powers delegated not United specif- requirement tutional that this Court Constitution, prohibited by nor reasoning ically adopt either the or the States are reserved to the States, by it to the searches and unreasonable seizures and for respectively, States people.” or to the upon probable may warrants cause. States infringe not guar- on federal constitutional today dealing Thus here we are with the antees, they power but have full and com- very sovereignty of The State of Texas and plete authority provide greater protec- integrity the basic reposi this Court as a Milton v. citizenry. tion to the tory keeper and of that sovereignty crim see Ol- 190, (Tex.Cr.App.1977); S.W.2d inal law matters. With Chief Justice Mar son v. 762, at and authorities shall, forget we must “never it is a post. 2, cited note McCul expounding,” constitution we are Maryland, loch v. (4 Wheat.) 316, 17 U.S. sepa Elsewhere have chronicled “the 407, 4 L.Ed. 579 and “as to the true 9.” Brown v. I, rate life of Article § scope Constitution, of the Texas we must 797, (Tex.Cr. 806 n. 27 Olson v. ultimately lights,” follow our own (Clinton, J., Now, App.1983) concurring). State, (Tex.Cr.App.1972) majority merely along reads (Opinion Rehearing). Amendment, the Fourth and is content say language that because the The Fourth is “in all Amendment to the Constitu- same,” respects, material arguments tion of the United “sought guard States against greater protections an abuse “must that more than be addressed any one single gave interpretive factor on the leg rise to basis of or American inde- caselaw States, Harris v. pendence,” United pronouncements.” islative At 162. How ever, simplistic 67 S.Ct. preclude 91 L.Ed. 1399 notion would (1947) (Justice dissenting, Frankfurter enduring principles at consideration S.Ct., 1105). Yet, provides “federalism,” it no policy as well as relevant more than minimum safeguards against considerations.2 emphasis throughout 1. All is mine unless other- tions to determine the extent which the feder- wise noted. system protects rights.” Raney, al individual System, “The Federal Part One: A Salute to the Constitution, 2. The the laws of the United States Rights," Texas Bill Vol. 50 No. 3 Texas Bar authority and all treaties made under of the (March 1987) (emphasis origi- Journal supreme United States are "the Law of the nal). Land; Judges every and the State shall be Texan Forefathers inserted toward the end of them, by any Thing bound in the Constitution Rights,” their first constitution a “Declaration of Contrary or Laws of State to the notwith- Constitution, part and declared it to be "a of this VI, Yet, standing." para. Article 2d that certain and shall never be violated.” The last Bill of rights are identified in the Constitution “shall Rights adopted everything in 1876 declared that deny not disparage be construed to or others excepted general powers therein “is out of the Amendment, by people," retained Ninth and inviolate, government, and shall forever remain "powers delegated not to the United States contrary and all laws thereto ... shall be void.” Constitution, prohibited by nor it to the § 29. States, respectively, are reserved to the States people If for no other reason than the people,” ordaining Tenth Amendment. Republic of Texas and then of The State of establishing the Constitution in the name of dearly rights they Texas so valued their States, People genius of the United protection against upon insisted intrusion maintaining sovereignty Framers was in very government they authorities of the had government of the United States of America maintaining, established and preserving were members integrity while of each constituent Department constitutionally the Judicial tire Fry State. See 547, v. United 421 U.S. “preserve, protect n. bound their oath to 95 S.Ct. 44 L.Ed.2d 363 rights, guarantees protec- defend” those policy" That "constitutional has come to be XVI, § tions. Article aspect called "federalism.” In its criminal law reasons, many While there are other a few may abridge States federal constitutional will suffice. Since citizens of Texas have more rights, guarantees protections, but are law, Rights Hass, state Bill of enlarge Oregon contact with their own free to them. 420 U.S. 714, 719, 1215, 1219, "closely should be scrutinized" their courts. 43 L.Ed.2d 570 cit., (1975); Raney, op Michigan at 310. And a state consti- Mosley, 120- 321, 334, (1975) tutional claim should be considered ahead of 46 L.Ed.2d 313 because, (Brennan, J., Thus, dissenting). federal claim Dean W. Frank Newton Presi- paper presented Young Lawyers points unpublished dent of Texas out in an Association has discerned, Session, incisively Judges Appellate Texas Judicial Confer- "It takes both the United ence, 25, 1986, September may States Constitution and constitu- if the issue the 50 state 168

Moreover, However, simply compare language Gerry he drew on Article majority indicates that has lost its XIV of the Massachusetts Constitution history. of sense draft the one that would become the Fourth Bill Amendment 1791 when the rights rights Declarations of or bills of Rights formally part of made a many came first in constitutions of states— States, Constitution. su- Harris United before there was a Constitution of United (Frankfurter pra, dissenting, 331 U.S. at States of America. The “most influential” 158, 1105); legislative 67 S.Ct. at its Virginia Rights was the Declarations of history, see The Constitution of the United Mason; by George framed it became “al- States, Office, Printing U.S. Government copybook most the for other B. states[.]” 1973, Washington: at 1041-1043.4 Mitchell, Mitchell & L.P. A Biography of (2nd the Constitution the United In due course other states were formed States of Ed.) Press, University Oxford York: New from territories and admitted to the Union. 1975, subject at 196-197. Contrary popular But on the belief those states did protection governmental intrusion, necessarily from use the federal Constitution own; rather,- they the model was laid in Article XIV the as a model for their mainly 1780 Constitution of the Commonwealth of turned to their territorial charters Massachusetts in 1761 where James Otis or to constitutions of other states. Com- ment, moving argument against had made such Rights Individual and State Consti- general Interpretations: Putting warrants that John Adams was First tutional declaim, inspired First, 493, indepen- Things Baylor “American 37 at 497 L.Rev. 1985). dence was (Spring By then and there bom.” Harris v. 1938 the constitution of States, (Frankfurter supra, every United dissent- State contained “a clause like that of 157, 159, S.Ct., ing, 1104, 331 U.S. at 67 at the Fourth Amendment and often its 1105.)3 160, wording.” Harris, supra, precise at S.Ct., 67 at 1106.

Among delegates to the constitutional then, course, Eldbridge Gerry guarantees convention of 1787 were Even in the Rights Madison of Bill of not intended to Massachusetts and James federal were Virginia; protect against both were also members of the and did not “state action.” Baltimore, (7 Congress. During 32 Mayor First the course Barron v. U.S. rat- Pet.) 242, (1833): proposed ification of the federal 8 L.Ed. 672 “These Constitu- expression there was a clamor inclusion of amendments contain no indicat- tion rights ing apply them to the declarations of individual and liber- an intention State Congress governments. apply ties. In the First Madison intro- This court cannot so Id., mostly Spies duced a set of resolutions taken them.” at 250. Accord: v. Illi- 131, 21, 24, nois, Virginia Rights. from 123 U.S. 31 Declarations history compelling disposed on basis there is no need to 3. The rich events has been States, unnecessary appel- many e.g., Boyd question, retold times: v. United reach the federal (1886); and, problems 6 S.Ct. 29 L.Ed. 746 most late review are avoided v. United importantly, sovereignly preserved. Weeks state (1914); concludes, Moreover, L.Ed. 652 Harris v. United Dean Newton "This ‘states S.Ct., U.S., 157-159, at 1104- protection at approach grants to Tex- first’ double ans, contemplated by 1105. as our two-constitution system." federal Therefore, Finally, Oregon Supreme Court Justice it entire- Justice Frankfurter found 4. commented, emphasizing ly appropriate Hans A. Linde has use construction to “look to the rights placed early of states' bills of "will lead all of us to Massachusetts Court on which the face Id., progenitor closer to home some values that of the Fourth Amendment.” fundamental U.S., public Early have de- has become accustomed to 67 S.Ct. at 1106. See, e.g., by faraway just Dupree cided for them oracles in the marble that. Texas Courts did 301, 303, 306, Linde, temple.” Things "First First: Rediscover- S.W. 102 Tex. McGirr, Rights,” citing discussing ing Baltimore Fisher v. the States’ Bills 9 U. (1 by Raney, Gray) Cer- quoted approvingly Mass and Commonwealth v. L.Rev. Tickets, (5 Cush.) cit., Lottery Mass op tain at 310.

169 (1887).5 span of one disaffection L.Ed. Thus over a Increased with the national years priva- rights to government representatives hundred fundamental mu- caused of protections arbitrary cy against intru- and Felipe nicipalities again to convene at San by government sion state and local were 1835; they de Austin in November declared granted secured to the extent and and a state of war created a Provisional See, by provided state Com- constitutions. id., Ibid. See for Texas. at Government cit., op ment, 497, citing supra, at New- 509 and 511.6 man, The “Old Federalism”: Protection formally grievances Their were more Rights Constitu- Individual State of 2, 1836, March in enumerated the Declara- an Era tions in Federal Passivi- Court of Independence With- tion of from Mexico.7 ty, 15 Conn.L.Rev. (1983). at 22 had and two weeks formulated early Texans, seeking separation In 1832 adopted Constitution of of the Republic Coahuila, from the State of convened in Texas. Vernon’s Texas Constitution Felipe up pro- de San Austin and drew 1955) (Vernon 523 ff. posed constitution modeled on Massa- That mandated Con- Constitution Comment, chusetts Constitution of 1780. gress to introduce statute the common 38; at n. Interpretive Commen- England “with such law of modifications tary following Preamble to Texas Constitu- circumstances, 1876; may judgment our their tion of Vernon’s Texas Constitution 1955) (Vernon (Interpretive provided Commenta- require,” and that “in all criminal Stephen ry). F. Austin a mis- undertook of cases the common law shall be the rule City present proposed sion to Mexico IV, In decision.” 13. a schedule § petitions, constitution related and was it was that “all in force declared laws now jail. clapped into Texas, and not inconsistent with force, Constitution, shall un- remain in full Along development pro- with others that void, altered, repealed, til or ex- declared grievances duced aired at conven- other Schedule, pire by their own limitation.” tions in October 1834. Introduction Con- l.8 preamble stitutions Texas Con- Declaration Vernon’s (Vernon 1955) (Introduction). Rights stitution part makes the Declaration a Although adoption long dungeon, 5. of the Amend Fourteenth “It in a incarcerated proclaimed was time, citizens, ment until Gitlow of our one no other York, 652, 666, 45 625, 630, 268 U.S. New S.Ct. procure accept- endeavor to but a zealous L.Ed. 1138 69 suggest did the Constitution, ance of our and the establish- may through states be bound its Due government.” state ment of a by rights guaran Clause Process and liberties commandants, military ‘It suffered the has Rights. teed in Bill of Palko v. See also us, among arbitrary acts stationed exercise Connecticut, 319, 325, 149, 152, 302 U.S. 58 S.Ct. tyranny, trampling oppression and thus (1937). People 82 L.Ed. 288 Wolf rights upon most sacred citizen!.]” Colorado, State 338 U.S. demanded the num- ‘It has surrender of a L.Ed. 1782 curity held se citizens, military de- ber of our ordered privacy against arbitrary intrusion carry to seize tachments them into police against through is enforceable the States trial[J” interior for the Due Process Clause. ary exclusion The federal people Accordingly, the “a of Texas constituted trader the was not rule Fourth Amendment SOVEREIGN, FREE, AND RE- INDEPENDENT Ohio, applied 643, Mapp to the states until PUBLIC,”“fully rights invested with all the 6 L.Ed.2d properly belong independent attributes which latter, Judiciary 6. In the the Provisional Independence, Ver- Declaration of nations!.]” jurisdiction granted "all and misde- over crimes (Vernon 1955) non’s Constitution 521- .Texas recognized common meanors and known to the 522. England;" judges empowered to law of were grant writs of arrest "established the ‘Civil 20,1840, January 8.An Act of made the common and 'Code Code’ Louisiana, of Practice’ of the State England, far law so as not inconsistent thereof,” regulated to be in the forms Congress and Acts of then Constitution VI, proceed- and "in criminal cases the Article ings decision; force, repealed all it also the rule regulated upon shall and conducted prior September laws in force 1836—“ex- England," principles Arti- of the common law of cept of the Consultation and Provision- the laws cle VII. Introduction, supra, Government!.]” al here, three are 7. At least relevant viz' seen, early and declares it shall Constitution “never be As we have Texans resisted whatever,” any pretence violated on and in invasions, just strongest such demanded in against guard transgression order to “the protection against power, terms abuse of high powers [delegated elsewhere],” and, fought rights winning for their their “everything in declared that this bill of freedom, their created and established own rights people.” ... reserved free, government sovereign form of and —a independent republic. many From sources lights,” thus in “our When examined own constitution; then, provisions they the fact that of 9 and the framed a under- § “are, Fourth Amendment in material as- standing appreciating “transgres- and that same,” pects, proves nothing. Justice delegated high powers” being sion of the to Harris, supra, Frankfurter remarked in Republic prevented, The of Texas must be regarding S.Ct. at that “one’s views particularized the Framers in the Declara- [given circumstances in a ultimately case] Rights every right tion of then deemed depend upon understanding one’s of the worthy protection, of “never be violat- [to] history and the function of the Fourth any pretence ed on whatever.” That is to Amendment.”9 is needed a tyere So similar say, by governmental not to be violated understanding §',9; correctly compre- of Republic. being There authorities of hended, 9 reads like the Fourth § provider any pro- no from other source of merely Amendment is a coincidence of his- against abridgement by tection officers of torical facts. departments government, they of created a There is no indication Framers drew judicial department charged it to en- and on the Fourth Amendment rather than a rights force those in accordance with the similar declaration from a state or territo- England, as all common law of as well ry. no to more Texans had reason have extant laws of Texas not inconsistent with than a civil interest the Fourth Amend- of the Constitution—not the Constitution any protection provide ment: It could not the United States.10 Republic of whatever to citizens of Nevertheless, disdaining genesis its be- Texas; Union, joined even after Texas language the. Fourth cause the of 9 and § a restric- the Fourth Amendment remained same, in substantially Amendment are government alone on the federal until tion accepting wholesale the Court’s long present of 1876 after the Constitution “totality approach the circumstances” Therefore, adopted. the issue cannot was evaluating reliability hearsay ten- seeking the Framers were be whether dered to show cause under § “greater protection” provided by than First, majority proceeds on two bases. against arbitrary inva- Fourth Amendment reports procedures it that “a review of the Rather, government. privacy by sions of past for determin- by used this Court question protection must what did be little, provides if ing probable cause contemplate independent- was the Framers “tacitly ap- guidance,” they only in that ly by vouchsafed their own Constitution. law. At Comment, plied” the federal test to state supra, at 509. Reconstruction, during may unpleasantness" and a decision Justice Frankfurter added that 9. gives op- government equally Amendment a turn on "whether one hostile which Rights, place Bill of or against rep- second to none in the pressive. guard or To continuation nuisance, a evils, considers it on the whole a kind delegates again to of those met etition against impediment crime." serious in the war Using former constitution. form another Ibid. model," working "as a drafters 1845 constitution present Constitution included ideas taken voluntarily people never relin- 10. The of Texas from, e.g., of Louisiana and Penn- constitutions right protections granted quished to claim 201; Comment, Id., sylvania. at original Declaration. The Constitu- Fifth Through accompanying it all text. n. 38 and was drawn on a new constitution tion remained in- substance of the Fifth Declaration proposed and the constitution Louisiana security against right tact as a statement government general plan but the seizures, as well unreasonable searches rights patterned to be on the the bill of seem government. against prohibitions state and local Republic. Interpretive Com- Constitution of the mentary, supra, the "late at 199. Then came Second, resorting “legislative now, bound, pro- equally duty free if not nouncements,” leg- according lights” finds essentially it fashion to “our own islative action taken after standard under Art. v. Tex- as, 12 L.Ed.2d determine when information that is hear- Judges say does not mean what as to a search warrant affiant will be Onion, Jr., sufficiently F. support W.A. Morrison John deemed reliable to commentaries, respective finding “probable wrote in their be- cause.” Unless we prongs specify happen agree adopted did not “the two that the standard Aguilar” otherwise indicate that Court is the most effica- analysis incorpo- guaranteeing rights such was “intended to cious also vouch- Hyper- constitution, rated within statute.” At 163. safed our state the Su- extreme, preme critical to an neither of these ar- does not demand need and we guments particularly persuasive. parrot opinions. its State, 629, guidance aplenty past

There is as to In Aguillar v. 172 Tex.Cr.R. (1962), “procedures” by Supreme used first 362 S.W.2d defendant chal- lenged pur- Court of Texas and this Court to determine admission fruits of a seizure law, nearly aspects warrant, including contending all suant to a search cause, probable my demonstrated con- the affidavit was not “a sufficient state- State, curring opinion supra, probable in Brown v. ment comply cause to with the by at 800-801: “if not delineated their own Constitution of the United States and of precedents, State,” Id., necessity young out of Texas at S.W.2d 113. Writ- ing rehearing Judge courts looked to the common or took law for the Court on Mor- respectable expressed law from other rison the notion if “that we have properly source.” Just in that fashion did the Su- decided this case under our Con- preme prop- Court of Texas introduce into state stitution and statutes then it has been probable law a erly definition cause. Ibid. decided under the Constitution of the 4, holding See note ante. Mapp United States and the Ohio, supra.” commonly form Ibid. Of a Certainly scope the Fourth 1965, used recited: before affidavit I, 9, indeed, Amendment and of Art. all § — affiants “have reason to believe and similar, state versions of the same—are party possesses do believe named [that safeguard inasmuch as both would the se- drugs purpose for narcotic unlawful curity of the people against evidentiary given date]; or sale that on about a “probable searches absent cause.” That _ have received in- Affiants reliable provisions require “proba- all constitutional person formation from a credible and do cause,” however, facially ble does not man- pos- believe narcotics are there so [that particular guidelines implementa- date Ibid. sessed].” to, tion. This Court was free and in fact did, working formulate its had “often held” such own definition Because Court “probable applied cause” to in context “constitutes a sufficient recita- an affidavit ” I, 9, ‘probable [citing only cause’ Davis Art. order to determine wheth- tion of § State, er evidence must be excluded under now v. 165 Tex.Cr.R. 38.23, V.A.C.C.P., (1957) having ], the unable to conclude

Art. as been “ob- Court was exclusionary the affi- any provisions tained ... in violation of that “our statute and Texas,” process deprive an accused of due the Constitution ... of the State of davit Id., opposed the Federal Constitution.” to the federal constitution. See under State, supra Brown v. at 806. We are S.W.2d at 114-115.11 State, pri- of a 11. Davis supra, indicate 806. It also involved the search does not particular dwelling, stat- vate this time under a whether it held the affidavit sufficient under persons impor- requiring of two Amendment an ute that affidavits § Fourth or but cites place Chapin is a where in- tant decision “show that such residence Court— toxicating liquor The affida- is sold [et cetera].” Tex.Cr.R. 296 S.W. 1095 again "methodology" that "affiants have reason shows utilized vits recited believe, believe, early The con- do [et cetera].” on. See Brown v. In supra, straight Supreme from prong formulated its “two States, Giordenello v. United test,” judgment reversed the of the Court 2 L.Ed.2d 1503 and remanded the cause. On remand the tention was that fruits of a give search were obtained meaning proba- not intend to to the term I, in violation of both Article § ble "prevailing cause different from that in the Fourth States, Amendment in that Supreme warrant was issued Court of the United announced cause, supported by States, "without oath or in the adopted statutes of the United Id., affirmation." 296 S.W. at Union," 1096-1097. practically all of the states of the Writing provide opinion, Presiding did not intend to Judge lead that a warrant pointed private dwelling might Morrow search a upon out that to authorize search of issue an fact, private circumstance, dwelling giving for contraband affidavit a warrant "no or de- show, must showing, be issued in accord with tending tailed information requirement dwelling of Article purpose and noted that the was used for the de- "[bjefore our Constitution conveyed [of nounced 1876] statutes which adopted," Court of Texas had de- ... no information from which to Obert, fined cause in Landa v. justified 45 Tex. determine whether the facts issuance of Id., See Brown v. at 801. the warrant.” at 1100. Reviewing Accordingly, works of learned scholars and deci- he concluded: courts, including sions of state and federal seeking ‘If the affiants a search warrant have Presiding Court of the private United dwelling reason to believe that a many precedents Morrow found storage liquor, declar- used for the no sound rea- ing upon perceived invalid a search warrant failing issued son is to disclose the grounds affidavit that "affiants had reason presented to believe and of belief in the affidavit believe," great weight did magistrate.... and that the of author- the ‘give The rule is intended to belief, is, ity grounds is "that the guaranty for that the against to the citizen searches upon facts and circumstances or dependent upon information and seizures such uncertain- founded, which the belief is by interposing must be exhibited ties between him and the rash Id., in the affidavit.” 296 S.W. unscrupulous judgment at 1097. The or accusers the of a ” question validity support- magistrate of the warrant and chosen the state.’ ing affidavits "must criminating be determined the con- “Because the evidence was obtained statute], through struction of in upon legal [the connection with a search a warrant without Rights, previous article Bill authority, improperly § and the it was received over the interpretation ‘probable objections of the term appellant." Judgment cause’ as of the was re- Id., Rights." used in the Bill of at 1098-1099. versed and the cause remanded. Ibid. First he Judge found that the terms of the opinion statute Hawkins concurred with an in legislative indicated "a intent to point adhere to the much the same vein. At one he reasoned interpretation requirement of the simply constitutional that an affidavit which states affiant ‘probable good cause’ that the affidavit state the "believes and has reason to believe" that upon facts and circumstances which the belief cause exists "seeks to substitute the founded," required opinion judgment because it the affidavit to of the affaint for the of the place magistrate "show” that the upon residence was a where the who in such case is called violated, law judicially any knowledge was and "show” means "to make act without of the facts apparent; prove, upon clear or predicated omit- [citations the affiant his belief.” Id., Id., "nothing ted].” at 1101. He discovered in our Turning exclusionary present any purpose then to the Texas rule in statutes which indicates (now 38.23, Legislature attempt departure former article 727a Article V.A.C.C. the from the P.), Morrow, Presiding Judge having holding examined well-established of the United States sources, pointed majority other authorities from like out: Courts and those of a of the other “Belief on undisclosed information does not states to the effect that an affidavit for a search search, ‘probable show cause’ for as that term warrant which furnishes no facts or informa- magistrate issuing is used in the state and federal constitutions. tion to the ... does not com- expressed ply provisions Such is the view of the United with the of our own and the nearly requiring ‘probable States courts and of all the state federal Constitution cause’ Id., ‘probable courts.... The definition of cause’ to be shown." at 1102. dissented, Supreme expressing announced Court of the this state Lattimore extant, present adopted language before the Constitution was adherence to of statutes then courts, and, like that in the federal the state and refusal "to follow federal courts their insufficient, Id., holding procedure rulings." courts belief the at 1102-1108. Constitution, adopting opinions Chapin, supra, the the definition was The of the Court in approved." preceded by thirty years note the Id., Supreme at 1099. in Gior- Court United States Comparing the statute involved in an earlier denello v. United Supreme Dupree holding decision of the Court in 2 L.Ed.2d and its that 102 Tex. 119 S.W. 301 Presid- mere conclusions in an affidavit are not suffi- ing Judge Legislature Morrow believed the did cient. summarily judgment Legislature Court reversed on account recent deci- Aguillar Court, conviction. 382 S.W.2d sions and each (Tex.Cr.App.1964).12 provision states the is to meet their new Presiding requirements; Judge Onion Aguilar experience taught The Texas points out that “voided a Texas Aguilar one, major that two lessons: what statu- merely search warrant based ‘reliable provisions tory authorizing there were information,’ there and held must be suffi- of an issuance arrest or search warrant did satisfy magis- cient presented facts muster;13 two, meet constitutional that trate does in fact exist recently prevailing views on the warrant;” for issuance of a search he then expounding sufficiency of an affidavit again states what is insufficient what “probable meaning show cause” within show, identifying affidavit must produce of Article failed to even § other cases. protection. They minimal federal will be discussed seriatim. dismissing majority reality The blinks contemporaneous

Before those general statute deal- commentaries con- ing with a cerning statutory search warrant was former arti- dictates of new (C.C.P.1925); merely 18.01(b), cle 304 it is a defini- specious ground on the tion, having sufficiency little to do with of do prongs not “mention two an affidavit.14 See Historical Note to Arti- or any make statement to the effect that 18.01, cle paragraph the first of which is such analysis incorporated is intended to be former article 304. It retained in Surely major- the statute.” At 163. revision, light but in of Aguilar ity straight would not with a contend face Legislature paragraph: added the second (b) to Article was added 18.01 for search any “No warrant shall issue for Special other reason. Committee purpose in this State unless a sworn com- Revision of the Code Criminal Proce- plaint therefor shall first be filed with the dure expressly identified consideration issuing magistrate setting forth sufficient Aguilar among v. Texas several recent de- facts to proba- cisions “which have ble cause does in exist fact for its is- adversely long accepted prac- affected the suance.” It too was revised 1973. Erisman, tices our Texas courts.” In- 18.01,

Both commentaries to Article su- troduction to 1965 Revision Texas Code of pra, Procedure, make by clear the addition 1 was made Criminal Vernon’s 15.05, holding prescriptions supra, 12. Giordenello mere conclu in Article to minimal presaged contempora requirements, are sions insufficient all federal constitutional but both litiga Interpretative neous decisions in similar search warrant late Morrison tion, State, Commentary Presiding Judge Etchieson v. 372 S.W.2d 690 Onion in his viz: (Tex.Cr.App.1963),judgment following Special Commentary vacated and cause article in 15.05 remanded, 589, 1932, Supreme 378 U.S. 12 dicate that L.Ed. the Barnes remand, (1964), supersedes 1041 2d on Court statute. (Tex.Cr.App.1964); see also arrest warrant liti gation (Tex. in Barnes v. procedure, criminal 14.The 1925 code of as remanded, Cr.App.1964), Code, reversed and Barnes v. provided authority all codes since the Old Texas, 253, 942, 380 U.S. 13 L.Ed.2d S.Ct. specific issue search warrants limited remand, (Tex.Cr.App. 390 S.W.2d 270 purposes, e.g., acquired by “property theft” etc. 1965). 305, reproduced See former article in Historical 18.02, following Note Article V.A.C.C.P. Con- 1965, statutory provision comitantly, requisites statutory Prior to for a for a "written "complaint" magistrate complaint” sufficient to authorize a sworn before were like- 222, purpose. particular issue an arrest wise warrant article now related to the See for- 15.05, Article V.A.C.C.P. That both are constitu mer articles C.C.P. car- tionally inadequate substantially task is ried to the demonstrated forward into the 1965 C.C.P. Texas, 18.07, by Barnes v. See Articles Historical Notes to 18.08 and 18.09, (1965), summarily reversing They by judg respectively. L.Ed.2d 818 were all deleted (Tex.Cr. conforming in Barnes v. ment substitution of amendments to the Code, 399, p. App.1964), light by Leg., 63rd of Giordenello v. United Penal 982, Acts ch. Texas, supra, 2(E), 18.01(b) supra. leaving pre- § Pre sumably requisites. the reversal came too late to raise scribe Annotated general Code of Criminal setting Procedure requisites statutes out of a (Vernon 1977) xv, at xix-xx.15 To under- complaint application for search warrant test,” “two-pronged stand its all con- 310-312, specific, were not that articles cerned reader has to Agui- do is consult believe, C.C.P. the Court came to lar,16 Texas, supra, in Aguilar v. a statement must,

Acknowledging, as it that to merely chal- that an affiant “received reliable lenges “tacitly” ap- under 9 the Court § person” information from a credible suf- plied test,”17 Aguilar-Spinelli “the the ma- Id., 1513; ficed. atU.S. 84 S.Ct. at jority nevertheless “judicial does not find State, supra, Davis v. at 420. S.W.2d preference” for interpretation a broader event, certainly it is true that before 9 than the Fourth Amendment. But it is § I, neither Article “preference.” not a matter of When “tac- 9 nor the statutes of the State had been § itly” put or otherwise the 9 to Court “the § require construed the Court to a show- Aguilar-Spinelli certainly test” it was in- ing probable particular- cause such as corporating meaning into in Aguilar. ized But once Aguilar was requirements cause in imposed 9 those § applicable made this Court and § by Aguilar-Spinelli, making thus them a (b) caused the addition of to Article 18.01 § part of the constitutional law of search and Legislature, under our federalism Supreme seizure for this State. That the the fact that a reconstituted Court of the United States modified its own changed part Court of its collective mind requisite showing views as to a protections as to minimal afforded coun- meaning cause within the of the Fourth trywide by the Fourth Amendment will not Amendment will not serve to withdraw a ipso overrule decisions of this Court meaning cause attributed facto repeal Legisla- an enactment of our this Court to Article 9 of the Constitu- longer ture. That the “no tion of Texas. utterly demands it” is irrelevant. The Su- Opinions majority of a of the Court in preme may not demand a State undo Chapin followings, and its already validly that which the State has belief, required grounds “that the that is done in exercise of its own constitutional the facts or circumstances or information power. The Tenth Amendment reserves upon founded, the belief is must be exhibit- power to the State of Texas—to this affidavit,” id., ined 296 S.W. at Legislature, respective- Court and to the readily susceptible and that is Agui- to an analysis. apparently ly.18 lar But because our

15. After Moreover, citing Aguilar litigation, Judge thought. apply Eris- father principles” retroactively man wrote: “Gates’ standards and years every twenty to a state statute defies rea- filing “The the of sufficient facts statutory sonable canon of construction. Magistrate probable that cause does in fact warrant, exist for of a search the issuance a 17. 410, Spinelli U.S. v. United 393 89 18.01, 18.08, requirement of Articles and 18.- 584, (1969): 21 S.Ct. L.Ed.2d 637 Affidavit must 09, 304, 311, supplementing CCP 312.” of affiant and inform- not state conclusion Erisman.) (Emphasis supplied by Judge magistrate er but also include facts from which warranted; can find conclusions are facts must 16. Almost twenty years after was decid- magistrate allow to conclude his information is 18.01, (b) ed and had been added to Article § reliable and informer is credible. issued, Illinois a Panel v. Gates was and Court composed judges opinion an in two delivered states, Recently, among other Massachusetts Hennessy (Tex.Cr.App. illuminatingly proved point Upton the in the 1983). majority says Hennessy presented The 562, Upton, case. 390 Mass. Commonwealth 18.01(b), “opportunity interpret an Article remanded, (1983); 458 N.E.2d 717 reversed and However, light Aguilar." except for in 727, Upton, U.S. Massachusetts v. 2085, 18.01(b) indicating support was cited to remand, (1985); L.Ed.2d 721 on Com- contention, judge opinion her the two never 363, Upton, Mass. 476 N.E.2d monwealth short, again so much as alluded to it. In (1985). opportunity. failed to seize the To find now Gates, reasoning Notwithstanding Hennessy Supreme "the sound” vis a vis the Illinois v. the Judicial Court of Massachusetts continued to statute when there is none is to make the wish

17 prohibited, probable Unless otherwise cause. Once a is, course, always “free to follow the has determined he has information Court, Supreme lead” of the but mind- reasonably him he can say before lessly, wildly abandoning years jurispru- been in way by has obtained a a reliable dence statutory and of this as law person, creditable he ample has room to majority would have this Court do to- use his sense to apply common and a day. practical, conception nontechnical majority The does not even take time to probable cause.” Gates, consider the soundness of Illinois v. at S.Ct. at Instead, nor did Hennessy panel. short, “two-prong” L.Ed.2d at 580. In majority silently defers to much Spinelli test derived from and rejecting rhetoric Gates. Yet for bases never impediment practical, an com- two-prong test, in precedent both and mon sense evaluation information its in logic, thoroughly have been undermined tendency probable to establish cause. justices state court and noted commen- Rather, guide it was a to the threshold tators on Fourth jurispru- Amendment inquiry of whether information E.g., dence. Upton, Commonwealth v. su- hearsay as to the warrant affiant should be pra; Jackson, State 102 Wash.2d sufficiently considered reliable in first (1984); LaFave, 688 P.2d 141-43 place even to be measured for its Search and Seizure: A Treatise on cause value. Amendment, 3.3(a) 620-25; Fourth at (2nd 1987) Kamisar, Gates, ed. Y. “Proba- majority Because the failed to Gates Cause,” Faith,” ble “Good and Beyond, distinction, recognize this it was able to 571-77, Iowa Law Review 583-84 prongs conclude that Agui the two of the lar/Spinelli test “are better understood as relevant totality-of- considerations here, question as in is wheth- analysis the-circumstances that traditional hearsay er may information be credited. guided ly has Once determina creditable, that information is deemed 233, 103 sense, then we should U.S. at at apply “a common tions[.]” analysis” Accordingly non-technical 76 L.Ed.2d at 545. to decide whether it it was con up adds deficiency cause. As Justice cluded that a in the “basis of Brennan dissenting opinion: observed his knowledge” might prong compensated ample showing “veracity,” [Aguilar/Spinelli “Neither stan- ] However,

dards their nor effects are vice versa. as inconsistent Professor LaFave with ‘practical, conception out, nontechnical’ pointed has even: rely Aguilar-Spinelli applying proba- zures has If such occurred. a violation did requirement place, ble cause opinion of the Fourth Amend- take of that much court’s first Supreme ment. The opinion naught." United States all of this Court’s are for Id., Supreme said the at at Judicial Court "misunderstood Gates," S.Ct. 2089. thereby our Supreme decision in fell into remand On Judicial Court heed- admonition, Upton, error. Massachusetts v. and in ed that effect rendered its separate Supreme 104 S.Ct. at 2087-2088. first Court "for opinion, concurring naught.” given Justice Stevens took For its reasons own and others courts, rejected "totality Judicial Court task. commentators and it my opinion ‘In Judicial Court of test" circumstance standard for determin- ing probable Massachusetts reflects an error of a more of cause under Article'XIV its own Rights. Up- fundamental character than the this one Declaration of Commonwealth ton, 556, today. Court corrects It rested its decision on 476 at n. N.E.2d and 10. In- stead, telling adopted Aguilar-Spinelli the Fourth us it Amendment without “stricter" tests whether the warrant valid as of for a matter as the state standard several includ- reasons through- provides protection ing law. Massachusetts omitted that it more [Notes substantive thereby according It has its as does the out]. increased burdens than Fourth Amendment to Id., well as For ours. when the case returns Gates. at 556-558. court, 777, Bottari, probable- it must review then the In Commonwealth v. Mass. 395 321, again (1985) cause issue once decide and whether 482 N.E.2d Judicial pro- applied Aguilar-Spinelli not a violation of the to warrantless state constitutional Court a Id., against tection sei- unreasonable searches and arrest. 482 N.E.2d 176 Searches, the Test preferred Fourth Amendment satisfying method of 4 “[t]he for knowledge requirement, 1985).

basis of direct a 88 The (Spring Crim.J.Ethics statement from the informant himself as Aguilar-Spinelli test is rule. just such a information, he to how came is The Legislature incorporated virtually it worthless when comes from into in 1965. its search and seizure law an individual from the criminal milieu The Court has followed Aguilar-Spinelli veracity judgment pos- about whom no is twenty years. for is more than The test sible. And information tendered a early consistent of the Court with decisions person unquestioned credibility of is and of Declara- intent of Framers the Fifth very judgment worth when no little is preserve sovereignity tion. of this We possible as to of his the basis conclusions integrity this State and maintain of not, —whether or use the Court’s oft- adhering precedent has quoted language, merely reporting he is justice system. served well our criminal neighbor- ‘an offhand remark heard at a ” “stay this in notion that Court must hood bar.’ step” with the Court of the Unit- LaFave, supra fact, at 622-23. as Jus ed States is the antithesis of our sworn pointed concurring in his tice White out duty preserve, protect defend the and opinion Gates, in information even from a Tex- Constitution and laws of the State proven provides informant which little or gratuitous as. a To such abdication no indication the source of his knowl Court, I authority responsibility and of this edge conclusory would be to a tantamount dissent. peace simply affidavit from a officer stat ing suspect he “that has cause to and does TEAGUE, Judge, dissenting. patent believe” information to be true — dissenting join I filed data, under Nathanson v. ly insufficient However, giv- in this Clinton cause. United majority opinion en that is au- what the (1933), support magistrate’s L.Ed. by Judge thored and McCormick states independent conclusion that cause holds, file strongly compelled I to also am Stanley inheres. See also Md. dissenting opinion. this App. A.2d Yet the Walker, I Hon. First Gates ratified holding in find that Alfred majority petition in Nathanson. Attorney, Assistant State’s in has filed discretionary for review that he “two-pronged I would adhere to the test” has suc this cause on behalf Aguilar-Spinelli purposes for of Art. cinctly, perhaps correctly, formulated and 9 of our because of its utili- Constitution reso is issue that before guiding complete to a ty in all concerned question lution he states: “The when basic creditability. informant assessment [, given in this case is whether what guide police, is useful both Such Legislature the Su of Texas enacted after prepare must on the who affidavits basis preme decided Court of United States hearsay, to magistrates and who must eval- Texas, Aguilar v. 84 S.Ct. U.S. independently them to deter- uate order which, 1509, 12 for Fed L.Ed.2d hearsay story mine whether the declarant’s pur Amendment Constitutional eral Fourth trustworthy. Trustworthiness a func- making prong poses, adopted a two test tion, honesty or reliability whether an affidavit the determination informant, but source fact issue], should the rules a search warrant agree for his information. with the ob- principles of Illinois v. [462 “[pjolice, magistrates, servation L.Ed.2d question proba- courts confront the trial prong two abandoned the every every day, hour of often ble Texas Aguilar test], should be followed They little time to reflect. are best preference princi older rule by rules mark off served forbidden U.S., Spinelli ples of possible.” as [v. territory conspicuously 584, 637 410, 21 L.Ed.2d Wald, U.S. 89 S.Ct. The Unreasonable Reasonableness 177 (1969) 3, (Page issue, however, State’s Petition for Dis- The real that is before ].” Review.) cretionary Given the fact that this Court is whether this Court should Supreme what the Court stated and held in merely parrot exist to mimic and the deci Gates, v. Illinois lessening Supreme sions of the Court of the United cases, Court, State’s burden in if Supreme search warrant States or should exist as adopted, extremely easy independent will make it member of the Judicial warrant, the State to now obtain a search ap Branch of our State Government. To arrest, or to preciate present make a warrantless it is under- struggle internal why exists, standable Walker advocates that presently over what standard should Supreme adopted,1 should adhere to what necessary it is first for the Gates, Illinois v. Court stated and held in go reader to and read what was stated and of Aguil supra. by held this Court in its State, struggle, by (Wyo.1983). The kind of that was caused 672 P.2d 1291 Gates, Supreme Court decision of Illinois v. su time, With the score 16-5 at this with at pra, today, that exists within this Court is not having gone least record, States 29 at this time not just struggle limited to this Court. It is a appEirent it is me if we are Nation, among appellate exists courts of our counting accept- the number of States that have Recently, from the Atlantic to the Pacific. Lat Gates, supra, against ed the number of States zer, tm Associate Professor of Government at rejected long way that have we are a off Justice, Jay College John of Criminal in his hearing Lady" sing from ‘Tat in this area of article entitled “Limits of the New Federalism” the law. appeared January, in the 1987 issue of that, appears regardless It to me of what the Report, study Search and Law made a Seizure be, may might ultimately count be, now or what it of, among things, accept other which States had going if this Court is to adhere to the doc- rejected Supreme ed and which States had decisis, trine of stare which in recent times is Gates, supra. Court’s decision of Illinois v. Lat highly questionable pointed for reasons I out zer’s research reflects that those States of the dissenting opinion that I filed in Brown v. high Union whose courts have maintained their State, (Tex.Cr.App.1983), 657 S.W.2d 797 it judicial independence following: are the Alaska: should at least continue subscribe to what .to Jones, (Alas.1985); State v. 706 P.2d 317 Con in, example, this Court has stated and held Kimbro, 219, necticut: State v. 197 Conn. 496 following cases: (1985); A.2d 498 Massachusetts: Common State, (Tex.Cr.App. v. 457 S.W.2d 894 Ruiz 363, Upton, wealth v. (1985); 394 Mass. 476 N.E.2d 548 1970), (Held, opinion by Judge Dougltts, "In the Johnson, People New York: v. 497 N.Y. case, present if the affidavit is construed 618, (1985); Washing S.2d 488 N.E.2d 439 by show that the information was furnished Jackson, 432, ton: State v. 102 Wash.2d 688 P.2d (footnote omitted), Hewett an informtuit legist high 136 At sixteen State courts following then the statement have, unfortunately, opted, ag much like the applicable: Court of the United States is though ‘Al gressive majority and Etssertive of this Court may hearsay an affidavit be based on opts, nothing to also become more than mimics per and need information not reflect the direct jesters or court for the Court of the affiant, magis sonal observations of the ... They following: United States. are the Arizona: underly trate must be informed of some of the Bolt, 260, (1984); State v. 142 Ariz. 689 P.2d 519 ing circumstEinces from which the informant Pannebaker, People Colorado: (Colo.1986); v. 714 P.2d 904 he concluded that the narcotics were where Lang, Idaho: State v. P.2d 672 561 were, they claimed ...’ v. 378 (Idaho 1983); Tisler, People Illinois: v. 103 Ill. 108, 1509, U.S. 12 L.Ed.2d 723. See 226, 613, (1984); 2d 82 Ill.Dec. N.E.2d 469 147 410, Spinelli v. United 393 89 Bousman, (Iowa Iowa: State v. 387 N.W.2d 605 State, (895); 21 L.Ed.2d 637.” Powers 456 1986); Walter, Kansas: State v. 234 Kan. (Tex.Cr.App.1970)opinion apparently (1983); Maryland: P.2d 1354 Potts v. held, by Judge Douglas, "The in the recitations Md. A.2d Malcolm v. informed affidavit that the affiant had been reliable, (1987); Maryland, Md.App. 521 A.2d 796 trustworthy credible and citizens that Michigan: People Chapman, 425 Mich. appellants possessed marihuana Eire not suffi (1986); Mississippi: 387 N.W.2d 835 Lee v. underlying no circumstances cient. There are (Miss.1983); Hamp So.2d New present shown in the affidavit in the case Hampshire Bradberry, shire: New 68, 129 N.H. infor inform the 'from which the (1986); A.2d North Carolina: State were where mant concluded that the narcotics Arrington, were,’ required by v. (1984); 311 N.C. 319 S.E.2d 254 the Su he claimed reason, Pennsylvania: Gray, Aguilar. preme Commonwealth Court in For this (1985); Virginia: 509 Pa. 503 A.2d 921 West search war marihuana seized virtue Adkins, (W.Va.1986); upon State v. 346 S.E.2d 762 should not have rant bttsed the affidavit (98); Boggess, Wis.2d Heredia v. Wisconsin: State v. been admitted into evidence.” (1983); (Tex.Cr.App.1971), opin Wyoming: N.W.2d 516 Bonsness v. 178 State, Texas, Aguilar v. 629,

lar v. 172 Tex.Cr.R. 362 S.W.2d this State enacted after (1962); land; go Supreme supra, 111 and read what the became the federal law of the go spokes stat and Court of the United States thereafter and read what some of the Aguilar v. persons in its of of this of criminal ed and held decision State the field Texas, law, Judge Onion, supra, Presiding a of this such as which was review now State, Aguillar v. Morrison, Presiding Judge su former Court’s decision of former Erisman, go Legislature of District and a host of other pra; and read what the Odom, held, State, by Judge (Tex.Cr.App.1977); "We note v. 577 ion authored 938 Gonzales 226, (Tex.Cr.App.1979); the that informa the recitations in said affidavit S.W.2d State, Tolentino v. 1982); (Tex.Cr.App. a and credible informer who tion 'from reliable 638 S.W.2d 499 Peltier State, has furnished truthful and reliable information (Tex.Cr.App.1981); 626 and v. S.W.2d 30 past’ State, in the and This informer further stated he (Tex.Cr.App. Schmidt v. 659 S.W.2d 420 actually and 1983, Gates, had been inside this room’ had 1983). It was in in Illinois v. Thus, pronged purchased two heroin. test Court, Supreme Fourth Amendment for Texas, 1509, Aguilar v. 378 U.S. 84 purposes, “Aguilar-Spinelli abandoned the two (834). So, been met. 12 L.Ed.2d has "totality pronged cir test” in favor of a of the adequate proba show order for the affidavit to approach, which nebulous cumstances” under underlying set forth circum ble cause it must issuing magistrate amorphous standard the magistrate necessary to enable the inde stances only "practical, is now to make a common-sense pendently judge validity of the affidant's probability” decision whether there a fair being belief that heroin was used and sold in sought place will be found in the the evidence motel room number 17 at the Frontier Motel. Thus, issuing searched. task of the “[t]he States, Spinelli v. United 393 U.S. 89 S.Ct. simply practical, to make a [now] 637; Texas, supra.” v. 21 L.Ed.2d whether, given commonsense decision all the State, (835). (Tex.Cr. Nicol v. 470 S.W.2d 893 circumstances set forth in the affidavit before Odom, 1971), opinion by Judge App. authored him, including ‘"veracity” and ‘"basis sufficiency "Appellant which attacks the knowledge’” persons supplying hearsay in ground that the affidavit search warrant on formation, probability con- there is a fair adequate probable does not reflect cause and of a crime will be found in trabland or evidence satisfy 'underlying sufficient circumstances’ place.” particular 103 S.Ct. at a Texas, requirements v. 378 my case that 2332. I made cut-off with the last Held, 723.” "In 84 S.Ct. L.Ed.2d this Court decided before Illinois v. I find that determining sufficiency of the aforemen Gates, supra, what was decided. Given affidavit, cor we are bound the four tioned stated, have I find above decisions of this Court (894). document.” After exam ners ining alarming Judge McCormick to it rather affidavit, this Court also held: 'The "Moreover, following re make the statements: probable cause. It is information reflects no never search indicates that this Court has conclusionary unsupported by sufficient affirmatively stepped adopt the two- forward to (894). satisfy Aguilar, supra.” facts to the test pronged Aguila-Spinelli THE method of test as Aguilar, supra, requires more. It ‘The test in assessing probable the constitution cause under requires came his infor that if the informer Finding the State of Texas. valid and laws of explain indirectly, affidavit should mation precedent lacking, up Court to make it is to this why Spinelli reliance. v. Unit his sources were proper model pronouncement State States, 21 L.Ed.2d ed 161.) (Page assessing probable To cause.” in the instant case The affidavit "unsup decisions as characterize the above supplies information as to the neither sufficient authority ported by is, considered dicta” and to be reliability sufficient of the informer’s source nor minimum, carelessly, but to at a not description appellant’s activities to opin erroneously, of those belittle the authors requirements. conclude the affidavit these We writing opinions had no those ions who Spinelli su v. United to be insufficient. pra; Aguilar in that were re choice about the matter supra.” For other cases v. provisions similar, quired by of Article III very identical state if apply, therein, State, accept not Kemp Federal Constitution v. can be found see ments State, withstanding personal their views (Tex.Cr.App.); whatever Polanco v. S.W.2d 141 subject, might on the (Tex.Cr.App.1971); have been Stoddard v. S.W.2d 763 Aguilar, supra, Spinelli, State, (Tex.Cr.App.1972); Court’s decisions Low 475 S.W.2d 744 true, course, author State, supra. that had the (Tex.Cr.App.1973); It is ery 499 S.W.2d 160 v. choice, might rejected State, have that test. (Tex.Cr.App. he had S.W.2d 221 Ashmore v. State, point had choice 1974); is that none of them S.W. and Dean v. Abercrombie provisions State, because of Bridget about the matter (Tex.Cr.App.1974); 2d 578 Today, the Federal Constitution. (Tex.Cr.App.1974); Article III of however, Calderera and S.W.2d a choice to be the lead State, (Tex.Cr.App. Court has Walker v. State, (Tex.Cr. judiciary independent of this 1974); er of Avery jester for the simply or court become a mimic App.1977); Poindexter of the United States. S.W.2d (Tex.Cr.App.1977); Kleasen alive, spokespersons, some still thereafter biturates and other narcotics and narcotic Supreme wrote about what the Court had paraphernalia being kept are at the above Texas, in Aguilar supra, Spi held and premises purpose of the of sale described States, supra. nelli v. I find that United provisions contrary and use to the of the appreciate then can one and under shows that it recites sufficient facts law’] why stand I am so concerned about what and information to constitute why majority adopts and to be the law (at cause for the issuance of the warrant.” subject. of this State on this 112). rehearing, opinion by Judge On in an Morrison, this stated that the Court defend- unequivocally Given what Court has questioned origi- ant the soundness of unambiguously and stated for over the past years, subscribing opinion. opinion rehearing to the two nal stat- test, pronged “Aguilar-Spinelli” before ed that had the defendant contended on replaced by experimental test an appeal that the affidavit for the search test, amorphous majority opinion by warrant, as a matter of both Federal and Judge McCormickshould at least direct our law, State Constitutional was deficient be- by leading attention to articles written cause it did not set out a sufficient state- spokespersons of the criminal law of this reject- ment of cause. This Court give justifiable why State which reasons contention, holding past ed that that in the test, pronged “Aguilar-Spinelli” the two this Court often held that an affidavit “has tested, which has now been time which identical to the one above constitutes a members of the law enforcement establish ‘probable sufficient recitation of cause.’ certainly ment adequately have more than 2, Davis v. 165 Tex.Cr.R. 302 S.W.2d with, cope learned to point where (1957).” It further stated: “We are police agencies some past pre have in the Supreme aware of no decision of the pared pre-printed and used “fill-in-the- holding that such an affidavit is insuffi- type forms, blank” see Brown v. bring cient ... We are unable to ourselves (Tex.Cr.App.1968), should no to the exclusionary conclusion that our longer test”, be “the and just inform 38.23, statute Art. [now V.A.C.C.P.] the reader what he and those members of deprives affidavit before us here an join opinion this Court who might process accused of due under the Federal personally prefer. (at 113-114). Constitution.” In Aguillar the defend- In ant in objected that cause in the trial court States, Court of the then United which was to the admission of evidence that was ob- court, certiorari, granted appar a moderate pursuant tained to the execution of a ently because it was concerned about the warrant, search ground on the different standards that then existed in the affidavit for the search warrant was system systems. federal and the state It hearsay, “based on did not set forth a pointed opinion first out its that “the clear, statement of the plain offense in proscriptions Fourth ‘Amendment’s are en intelligible language, and was insufficient through against forced the States the Four to authorize the issuance of the search Amendment,’ teenth and that ‘the stan (362 112). objec- warrant.” S.W.2d at His dards reasonableness are the same un tion was overruled. opinion by one der the Fourth and Fourteenth Amend Commissioners, opinion of its then ” Relying upon ments.’ 84 S.Ct. at 1512. Court, approved by the trial California, its decisions Ker v. 374 U.S. affirmed, court’s decision was 23, (1963), 83 S.Ct. 10 L.Ed.2d 726 holding following: “An examination States, Nathanson v. United merely the affidavit stated the basis [which obtaining S.Ct. L.Ed. Gior the search warrant was the following: 357 & .S. day ‘that on or about the 8 denello v. United it ulti January, A.D. Affiants L.Ed.2d have received person mately information from a held that for Fourth and Fourteenth reliable credible heroin, marijuana, purposes, do believe that bar- Amendment establish warrant, immunized from federal review. See Mi- cause in an affidavit for a search facts, simply personal real and not belief chigan Long, conclusions, in the facts or had to be stated 77 L.Ed.2d 1201 affidavit for the search warrant before Agui- held in When the Thus, valid search warrant could issue. Texas, supra, the reasonable- lar v. obtaining a search the same standard Fourth Amend- requirement ness cause, warrant a federal which was by the ment had not been satisfied affidavit information, upon hearsay that the based cause, causing constitu- in that thus it to be magistrate must informed of some of deficient, III Federal tionally from which underlying circumstances members required this Court’s Constitution that the contra- the informant concluded holding. to adhere to that was, he claimed it and band was where States, supra, Spinelli decided v. United underlying circumstances from some of the later, detract from years did not several the affiant concluded that the infor- which Texas, Aguilar stated in v. what had been disclosed, mant, identity whose need not be decision, merely that supra; it refined or his information “reli- was “credible” which, purposes of federal constitution- able”, applicable thereafter would be law, the law of the land as to obtaining in a state case. al became a search warrant in supra, govern found would Aguilar, The affidavit in was minimum standard that provide deficient it failed to obtaining be because a search warrant. magistrate for a find- a sufficient basis test, pronged Aguilar-Spinelli The two ing cause. many decisions of this as reflected Texas, supra, re- was Aguilar After v. that rejected that claims and other courts Court, to this this Court did not turned deficient, and lack an affidavit was choose to on or discuss what elaborate enforcement authori real criticism law held, opting Supreme stated and Court had pass. ties, actually quite simple test to merely opinion that instead to write an based on In order for a search warrant lines, in fol- consists of which the test, mag “The hearsay to issue under the lowing, up opin- 4 lines of the which took (1) informed of the simply be istrate must ion, holding “The of the Su- was stated: from which it can underlying circumstances requires that the conviction be preme Court his that the affiant received be determined judgment aside. The is reversed set mag way in and the information a ‘reliable’ v. Aguillar the cause is remanded.” (2) simply be informed istrate must also (Tex.Cr.App.1964). allegations from which specific factual court pause point out that State the source was ‘cred concluded that affiant minimum below the may not set standards Absent his information ‘reliable.’ ible’ or Supreme that are set standards is not suffi allegations, there such factual particular in a Court of the United States magistrate to neutral for a cient basis law, Article III by "virtueof area of the initial determination make an it is bound of the Federal Constitution State, 634 S.W. v. cause exists.” Winkles How- minimum standards. enforce those (On original (Tex.Cr.App.1982) 2d ever, now and appellate courts are State submission). interpret their always been free to have reli- twenty years, this Court For over in a more respective constitutions and laws to what giously subscribed way fashion than the Su- liberal in and held had stated might interpret them under preme v. United Texas, Spinelli Oregon constitution. See the federal Agui- refined merely States, supra, which Hass, Texas, supra. lar necessary, It is how- L.Ed.2d 570 Marquez v. interpretation, ever, making such unanimous in his almost (Tex.Cr.App.1987), plain make a statement court to the State Court, Judge Me Cor- opinion for the law did not com- indicating that the federal any reserva- joined without himself mick result, its decision will be so that pel the whatsoever, qualifications Judge tions or Code of Criminal Procedure”. Former Pre- Davis, opinion, W.C. the author of that Morrison, siding Judge, Judge then correctly pointed following: out the “Since “Interpretive Commentary”, point- further always this State has used the stricter following: ed this he out when stated the Aguilar-Spinelli analyzing probable test for merely incorporated “The Committee cause under Article 9 of the Section holdings by effect of [‘the Texas Constitution we will the in- review Court which had invalidated convic- two approach.” using stant affidavit from tions Texas because the affidavits for McCormick, however, Judge implicitly the search warrants did not contain suffi- opinion, states footnote 4 in his without cient facts to acknowledging that most of what he states cause did fact exist for the in his authority without issuance of the the code so into warrant’]2 dicta, should considered has the audaci- requirements that such be made would ty to state that holding unsup- “was magis- known and available to the local ported by authority and is to be considered Onion, Presiding Judge trates.” in his seen, however, easily dicta.” As “Special Commentary”, expressly after dis- Davis, making statement, the above cussing stated the merely recognizing on behalf of this Court following: “The new Code has re- been persons, what all but a appar- few which requirements.” to meet Pre- worded these ently Judge did not then exclude McCor- siding Judge gave suggestions Onion then mick, of, fully were then aware that the requirements might as to how these be pronged Aguilar-Spinelli “two test” had Judge McCormick, satisfied. if implicitly become written in stone far as this expressly, page not states on of his Court was concerned. Judge that because neither Morri- History, not Judge but McCormick’s Presiding Judge quoted son nor Onion opinion, teaches us that soon Aguilar after Texas, Aguilar supra, entirety, in its v. Texas, supra, by was decided the Su- permit that this omission should the reader preme Court of the United the 59th they express- to conclude or infer that what Legislature of this State enacted a new ly print they in stated was not what actual- Procedure, Code of Criminal which final ly meant to state in print. Judge McCor- product primarily was the effort of the Judge mick states: “Nowhere do Morrison Special State Bar of Texas’ Committee for Judge prongs or Onion mention the two the Revision of the Code of Criminal Proce- Aguilar any or make statement to the ef- dure. Legislature, The Committee and the analysis fect that such was intended to be obviously Texas, then aware of Aguilar v. incorporated suppose in the statute.” I supra, incorporated it into the Code of actually that if one sees a ratt- means Procedure, Criminal which effec- became any- body, ler into his but fails to tell bite 1,1966. January Judge Erisman, tive Fred him, one that a rattler in fact bit that he the chairman of the State Bar of Texas— rattler, really was not bitten the not- Special Committee for the Revision of the withstanding he almost died from thé (Nov. 11,1958- Code of Criminal Procedure course, 1965), rattler’s Of if one takes the clearly pointed June this out in bite. approach does, Judge his “Introduction to 1965 Revision Texas McCormick (Tex.Cr. 2. The also Court's reversed this sion of Barnes v. 390 S.W.2d 266 decision of Etchieson v. approved App.1964), which had an affidavit for (Tex.Cr.App.1963), which had held that an affi search not basis a warrant which did set out only davit which stated that the belief of the simply belief and the affiant’s stated that following based was suffi affiant was cient: '1 have been informed of the existence of on the premises affiant believed that inside of the sought unlawfully obtained searched was reliable, foregoing set the ble, out facts a credi reversed, money. The see Dallas, trustworthy Dallas citizen of Texas, Barnes v. 85 S.Ct. Texas, County, Texas." See Etchieson v. (1965), merely citing Giordenello v. L.Ed.2d 818 12 L.Ed.2d 1041 Texas, States, supra, Aguilar su United Texas, merely Aguilar supra. cited which Supreme pra, authority. as its deci Court also reversed this Court's anything cause, in the inter- printed support probable then was must be vening years (1) 20 some odd personal since on either based observa- Texas, decided, really affidavit, was was making tions of the officer or represents such illusion in printed; (2) a mere personal proven a observations of reader, eyes ig- informant, and should be (3) personal reliable ob- nored. reliability of an servations informer whose plus unproven, corroborating observa- case, suppose If that is the I that we making made tions officer affi- disregard must review article that law (i.e., underlying from davit circumstances attorney, briefing now McCor- then the officer concluded that infor- in 3 Mary’s St. Law Review mick wrote was credible mant and his information reli- (1971), entitled “Search Warrants: The able).” (107). Validity”, Requisites of in which he made suggestions following obtaining in issue, attempting per- In I resolve the Determine, whether, “2. search warrant: sonally have found arti- each above itself, reading the from affidavit an infor- extremely helpful, cles and do not view mant was involved. If an informant was something them as either an illusion or involved, apply then the rules announced ignored. can be Spinelli 3. If no informant Illinois v. involved then the sufficien- determine Supreme Court decided to abandon the of Giordenello cy light of the evidence “Aguilar-Spinelli pronged two test” fa- Nathanson [see my discussion of amorphous “totality of an of the cir- vor Aguilar v. ante].” approach, cumstances” under which nebu- suppose applicable also same is amorphous issuing lous and standard the the article written McClung Paul J. “prac- magistrate is now to make Bar Texas Journal entitled “Re- tical, common-sense decision whether there Seizure”; Developments in cent Search and probability” a fair the evidence is that by Woody Clyde the article written W. sought place in the to will be found Texas Law in South Marian S. Rosen Thus, issuing searched. task of the “[t]he Journal (1969-1970), entitled “Fourth practical, magistrate simply to make a Amendment, Reviewed”; the Viewed and whether, given commonsense decision all in 21 by Saul Bernstein article written W. in the the circumstances set forth affidavit Law (1967), Southwestern Journal entitled him, including ‘veracity’ and before ‘ba- Procedure”; article Law and “Criminal knowledge’ persons supplying sis of South S. in 10 written Carol Vance information, proba- hearsay there is a fair (1967-1968), entitled Texas Law Journal bility that contraband or evidence a Texas Code “The 1967 Amendments to the particular place.” found crime will be in a Procedure; Re- A Prosecutor’s of Criminal Gates, supra, 103 This is S.Ct. at 2332. flections”; and, course, the article writ- Judge that McCormick, test and those who Presiding Judge his then ten Onion for, opinion, replaces join his vote which briefing attorney E. “Whizzer” Warren and time-tested two the time-honored Texas White, appeared in 10 South that gave Aguilar-Spinelli pronged test Law (1967-1968), “Texas Journal entitled us, enforcement which Court and law 1965 & of Criminal Procedure-Its Code religious- years have for personnel over Changes Affecting Corporation to. ly subscribed Practices”, Police & which Courts Thus, today, rule supra, under following stated: result was “As a direct purposes, federal law constitutional changes Aguilar, important a number of ob- cause to arrest whether made in the 1965 Code of Criminal were warrant, upon hear- a which is based tain Article de- 18.01 which Procedure. information, exist is made is found to warrant, para- say a new fines a search added the circum- considering totality 18.01(b)) (now In order Article ... graph practical, at a present- set forth arrive stances ‘underlying circumstances’ for the decision as to whether there common-sense magistrate to be sufficient ed to probability is a fair following: that contraband or evi- “Article 18.01 which de- particular dence place. will be found in a warrant, para- fines a search added a new This, unquestionably, is a lesser standard graph provides as follows: ‘No proof than that stated in the two purpose search warrant shall issue for pronged test, and, Aguilar-Spinelli be- complaint this State unless a sworn right cause the States adopt have the a issuing therefor shall first be filed more liberal standard than the magistrate setting forth sufficient facts to adopted Court has for federal constitution- ” purposes, al law the main issue to be decid- does in exist for the fact issuance.’ Also ed this Court is whether it will continue briefing attorney, Judge see then but now pronged subscribe to the two Aguilar- article, supra. Thus, McCormick’s Spinelli opt test or will for the above statutory 18.01(b), provision of Article su- amorphous “Gates test”. pra, although expressly part enacted page Judge comprehensive McCormick states 163 of codification of search war- opinion oppor- practice procedure, “This Court had the rant actually was tunity interpret 18.01(b), adoption codification and of the test enunci- light Aguilar in Hennessy v. in Aguilar-Spinelli, supra. ated (Tex.Cr.App.1983).” (My pronged Aguilar-Spi Because the two emphasis.) However, if one will take the nelli test has written been into our statu peruse time to Hennessy, supra, he will law, tory only implicitly such applies albeit easily see McCormick’s state- searches, to warrantless arrests and ment, if it means or implies opin- that that hearsay issue here is whether the informa ion an En opinion, totally was Banc erro- arresting tion that the officer had when he opinion neous because that a two appellant arrested was sufficient under the judge panel opinion and was not an En E.g., statute to establish cause. Banc of this Court. Sherbine, People 421 Mich. Why is the rule now extant as a result of N.W.2d 658 Gates, supra, terribly wrong? Well, so IV, bar, In Eisenhauer the case at place, the first predictability it throws appeals point court of on remand first precision judicial review of search and thought by many ed out what was to be cases, seizure both warrantless and with law, sacrosanct: “Under Texas an affidavit warrant, winds, give and fails to law upon hearsay a search warrant based personnel any “bright enforcement line” two-prong must test that guidance in performing E.g., their duties. underlying be informed of the Johnson, People v. supra. Thirdly, and circumstances which render the informa just important, sought as change after of tion and that he of reliable be informed public policy our adopt amorphous specific allegations factual which render Gates, supra, standard of has not surfaced. the source of the information reliable. contrary, To the although Legislature (Vernon 1977); Tex.Crim.P. art. 18.01 Win regular has met in special both session State, (Tex.Cr.App. kles v. Gates, several times supra, since was decid- 1982). (Tex. v. Glass ed, legislation at no time has it any enacted (785). Cr.App.1984).” ap The court of might expressly repeal that it what enacted peals, sustaining appellant’s first Texas, decided, Aguilar supra, after v. was error, grounds second of which asserted 18.01(b), namely supra, Art. provi- which appellant’s proba “that arrest without was part sion was not of former Art. evi ble cause” and “there was insufficient Procedure, predeces- Code of Criminal 18.01, credibility dence to establish the supra, placed sor to Art. but was informant”, 18.01, following: stated the “In the supra, solely within Article as a re- matter, present he being the officer testified that supra, sult of de- mentioned, any never information from previously Presiding cided. As had received phone Judge briefing attorney previous and his the informant to the con Onion then 16,1982. many, many years ago February He had no White wrote the versation of example necessary to the information was accurate as an of what is idea whether it, cause, cited, upon when he acted and he testified that establish but was using had seen the the informant himself never the context of information obtained appellant source, Ac- anonymous cocaine the was obtain. from such as from an officer, cording informant anony- to the all the an anonymous telephone an call or person supposed to letter, knew was that ‘a mous would not be sufficient what go Miami and obtain some cocaine.’ cause. The court of establish testimony Glass, There was no as to the credibili- supra, appeals correctly thus cited an affirmative ty of the informant or even authority support of its statement. previously showing that the officer had stated, of I have because Given what informant.” received information from the Legislature enacted after what the decided, Texas, supra, was and the au- opinion denigrates Judge McCormick’s thereto, pertaining it thoritative comments Winkles, supra, this Court’s be- the Texas unecessary to decide whether it “contains no mention of inde- incorporates concepts Constitution grounds of I find pendent state review.” E.g., People test. Aguilar-Spinelli slept if only that it is one has for over Sherbine, supra. years, or has not had a chance to past really me Judge What shocks about Mc- many opinions on the read this Court’s opinion, in addition to what I Cormick’s during handed subject that have been down stated, he has already is the fact that have actually one make past years, can this long paradigmatic judge been this Judge statement. says McCormick subscribing dogmatically Court in Glass, appeals’ citation to that the court or act that this Court should never be view “actually position undermines the Legislature”, as seen “Super as a Gates, Appeals since and not Long that he filed in dissenting opinions example Aguilar, is mentioned as (Tex.Cr.App.1987), 742 S.W.2d necessary to establish what obligation not to act as “This Court has the 163.) it is (Page find that cause.” substituting opin- super-legislature, our yet read one has not in the instance where govern- ion for that of the second branch Glass, mentions part instead, have, responsibility ment. We only men- supra, which is Illinois v. statutes in a constitutional to construe opinion, can one in the entire tioned once (Citations possible.” omit- manner where Judge make the statement McCor- ted), and Jackson v. anony- discussing why an mick makes. majority today (Tex.Cr.App.1986),“The call, alone, standing will telephone mous legislative caps and overrules puts on its provide sufficient facts would never specific in contravention precedent and search, arrest or authorize a warrantless however, it legislative Today, intent ...” unreasonable, and that per se which is longer appears McCormick no required proba- “Something more is before views; it those otherwise subscribes to make a arrest cause to warrantless ble reason, Legisla- given what stands to exist,” I, as the author search is shown law, area of the see enacted ture has Court, did state the opinion for the of that writing 18.01(b),supra, would be he Art. “E.G., following: Illinois opinion. dissenting his own opinion to [2326], 76 [227], 103 S.Ct. 2317 U.S. 213 opinion concludes McCormick’s Judge (1983)”. only to I did so L.Ed.2d doing keeping this opinion is that all his to the reader emphasize point out con- step the federal “in [lock?] much like anonymous telephone call was cause deter- stitutional model in Illi- anonymous letter that existed However, 164.) if (Page mination.” Gates, supra, nois v. Gates, supra, Judge McCormick’s expressly held would never itself “role to be actually intended opinion are probable cause. to establish sufficient determination”, probable cause models for Thus, Judge McCormick’s contrary to model” term “role I find that then view, Gates, supra, not cited Illinois v. stricken from our dictionaries should be our vocabularies.

To-the tortured route that McCor- conclusion that

mick takes to reach the Appeals is judgment

“The of the Court of judgment of the trial

reversed and the affirmed”, respectfully dissent with

court vigor my command. Also see

all

Washington Irving, The Book Sketch (London, 1920), Crayon, Gent. Geoffrey story happened of what

which concerns Rip Winkle after he

to the character Van twenty years.

slept for NICHOLS,

Joseph Appellant, Bernard Texas, Appellee.

The STATE of

No. 68981. Appeals

Court of Criminal

En Banc.

April

Case Details

Case Name: Eisenhauer v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 23, 1988

Citation: 754 S.W.2d 159

Docket Number: 149-85

Court Abbreviation: Tex. Crim. App.