Brent Thomas GORDON, Appellant, v. The STATE of Texas, Appellee.
No. 560-89.
Court of Criminal Appeals of Texas, En Banc.
Dec. 12, 1990.
899 S.W.2d 899
W.C. DAVIS, Judge.
The proper focus is on the conduct of the informant, not whether he is criminally responsible.
“In a prosecution in which an actor‘s criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
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“(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.” (emphasis added).
Under the law of parties, as long as the conduct of the informant results in the “commission of an offense,” and appellant solicited that conduct, then a conviction may be had. The conduct of the informant which resulted in the commission of the offense does not require that he be “criminally responsible” for that offense.
Our holding is supported by the language of the statute itself. For example,
The Court of Appeals found that the informant “did knowingly or intentionally deliver amphetamine to Officer Brumley by actual transfer....” The informant‘s conduct resulted in the commission of an offense. Since the delivery was done at the appellant‘s instruction, his conviction is proper.
Reversed and remanded to the Court of Appeals for consideration of appellant‘s remaining ground for review.
TEAGUE and MALONEY, JJ., not participating.
Peter C. Speers, III, Dist. Atty., and Thomas D. Glenn, Asst. Dist. Atty., Conroe, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.
Appellant was convicted of aggravated sexual assault and a jury assessed punishment at 10 years confinement in the state penitentiary probated for 8 years and a fine of $8000.00.
Law enforcement officials in Hempstead suspected appellant of committing the robbery and sexual assault of a woman employed as office manager of the Hempstead Veterinary Clinic, but lacked probable cause to arrest and charge him with the crimes. Thereafter, police discovered the existence of an outstanding arrest warrant issued upon appellant‘s failure to appear before the municipal court in Deer Park. Based on this warrant, appellant was arrested, his apartment was searched, and appellant was interrogated regarding the robbery and sexual assault. The instant prosecution followed.
The record reflects evidence in the case consisted in the main of testimony of the complainant and videotaped and written confessions the defendant provided during his interrogation. On April 3, 1987, complainant was alone inside the veterinary clinic when a young Afro-American male entered through the front door and walked up to the counter where she was sitting. The complainant described the man as clean cut, in his early to mid-twenties, wearing a baseball cap and red-rimmed sunglasses. The man pulled out a small, silver-colored automatic pistol and announced, “this is a robbery, give me your money but turn around and don‘t look at me.” The robber was given all the money the clinic had in the cash box, about $35.00. He then made the complainant lock both front and rear doors and ordered her to give him the money in her purse as well as her driver‘s license. The complainant testified the robber wanted the latter article “so I can find you if you tell the police about me.” The offender then had the complaining victim take him to the rear of the building and into a bathroom, where he forced her to bend over the toilet while he raped her. Afterward, the man told her to remain inside the bathroom for ten minutes after he left and to tell the police she had been assaulted by a “guy six-foot tall, white man with a beard ... not a black man.” The victim waited about five minutes before calling the police. The victim testified she got only a glimpse of her attacker due to his repeated admonishments to her not to look at him, reinforced by his holding the pistol to the side of her head during the ordeal. Although she was not able to positively identify appellant as the perpetrator, she did state there were no noticeable differences in appearance between appellant and her attacker, and it was certainly possible that he was the man who robbed and raped her on the day in question.
The State also introduced a confession given by appellant subsequent to his arrest:
On April 3, 1987, I walked from the Apt. #31 were (sic) I live down 5th Street to the Hempstead Vet. Clinic. I walked in the front door, I saw a female sitting
behind the counter. I walked up, pull (sic) a pistol out, I ask her were (sic) the money was and give it to me. I told the female to put her head down, not to look at me. After I got the money I told her to go into the bathroom. Inside the bathroom I told the female to take her close (sic) off. Once she remove (sic) her clothes I decide to assault her. I told the female to bend over. I had a problem at first penetrating (sic) the female but I finally did so. I do remember I opened the bathroom window, I did this so I could hear if anyone came in. I also took the money out of her purse and I took her Drivers Lic. (sic). I told the female I‘m taking the drivers lic. so if you tell the police I know who you are. I told the female to describe me as a w/m, I can‘t remember what else. I left out the back door, ran down 5th street towards (sic) Bremond, I turned left on Bremond. While I was running I thru (sic) the females Drivers Lic. into the field on Bremond & 5th Street, Hempstead.
In the main it was this confession that was the object of appellant‘s motion to suppress which was subsequently denied.
Appellant‘s first two grounds for review are argued together, and both relate to the validity of the warrant and its execution. In his third ground for review, appellant contends the appeals court misapplied our Black decision by holding the prohibition against “pretext arrests” applies solely to warrantless arrests. The essence of appellant‘s claim is that his arrest by warrant was a pretext arrest, in that the arresting officers used a warrant for a minor traffic offense and failure to appear thereunder as a pretext to conduct what otherwise might be construed an impermissible search. We will begin by examining appellant‘s third ground in the context of what this and other courts have termed “pretext” seizures.
I.
So-called “pretext” seizures by law enforcement authorities may be broadly categorized as (1) those involving administrative or regulatory stops which lack initial suspicion of wrongdoing on the part of the detainees, see Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987); Boyle v. State (Tex.Cr.App. No. 69,743, Oct. 4, 1989, rehearing granted); Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985), and cases cited therein; and (2) those situations in which an individual is suspected of having committed a criminal act and is either temporarily detained for investigation or arrested. In this latter category, the act or crime for which the person is suspected of committing is almost always different from the conduct allegedly committed which forms the basis for the detention or seizure. See generally United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (Causey II); Black v. State, supra, and cases therein cited. It is this latter type of “pretext” arrest that forms the basis of the instant appeal.
Appellant is correct when he contends the Court of Appeals attempted to distinguish Black from the case at bar for the reason seizure in that case was made without a warrant. The appeals court then went on to cite Causey for the proposition the police had lawfully arrested appellant under auspices of a valid warrant and therefore their conduct was not “objectively unlawful.” As to the applicability of Black, we do not see presence of a warrant to change the basic proposition embodied in that case, to wit: “an arrest for one crime is not permitted to be used as a pretext to search for evidence of another.” Black v. State, 739 S.W.2d at 243. This is not to say the above proposition may be viewed in a vacuum; indeed, as will be seen infra, the foundation upon which the pretext doctrine was espoused in Black was never firm, and has since crumbled beneath the weight of reason and logical analysis of authority previously espousing the doctrine so as to become suspect. However, we do not believe the pretext doctrine, as applied through the
The origin of the doctrine or theory is generally accorded the Supreme Court decision in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Pursuant to an arrest warrant, federal agents arrested a suspect in a partitioned office that was ten feet by twenty feet. They searched the room extensively, including waste baskets, closed desk drawers, and closed cabinets. Books, papers and other articles were seized as evidence of the offense. The Court stated, “[t]he only question presented is whether the searches of the desks, waste baskets and of all drawers and closed cabinets and the seizure of the things taken from them were reasonable as an incident of the arrests.” Id. at 463, 52 S.Ct. at 423. The Court answered the question negatively by circumscribing the scope of a proper search incident to arrest. Holding the search and seizure violated the defendant‘s
Any examination of this precedent-setting dictum must be viewed within the context of the Lefkowitz case. There, the defendant was not arrested by officers whose real motivation, however weighed, was to engage in a search for evidence of another, more serious crime. Both the arrest and search involved but a single crime, whether measured by the objective or subjective conduct of the officers participating in the arrest and subsequent search. The2 facts of the case demonstrate no “pretext” or subterfuge; rather, there was a general search for evidence of the offense under warrant which was deemed impermissible due to the scope of the search by authorities.3 The Lefkowitz case is not, in fact, authoritative or instructive to the question of what constitutes a “pretext” search or seizure; later opinions from this and other jurisdictions which cited the case as authority fail to recognize the distinguishing characteristics of that case and the treatment afforded the case by the Supreme Court. If Lefkowitz had condemned a search that was within the letter of the law because the officer‘s “true motive” in making the arrest was to engage in an unconstitutional search, the Court would have had to explore the officer‘s motive for making the arrest. The opinion contains no discussion in examination or condemnation of these motives. Moreover, if such had been the intent of the Court, after Lefkowitz, a search as extensive and intrusive as the one conducted in that case would have been proper as long as the officer‘s motives in making the arrest were “true.” This reading is wholly inconsistent with the language in Lefkowitz condemning the search because of its scope.
In Black, a case in which a plurality of the Court joined Judge Miller‘s reasoned opinion, the defendant was under suspicion of murdering another man. Surveillance was established across the street from the defendant‘s apartment. When Black left the apartment in a friend‘s car, officers followed and observed him commit several traffic violations. The police arrested him, and thereafter told him they wanted to talk to him about the homicide.
After initially determining that police lacked probable cause and therefore could
The facts show that the officers did not try to get a warrant, but simply used the traffic violation as a pretext to get around the warrant requirement. Appellant‘s detention was, therefore, illegal.
Id. at 245. Our opinion did not stop at holding the particular arrest in Black im-
To the extent that Bain v. State, 677 S.W.2d 51 (Tex.Cr.App.1984) and Dodson v. State, 646 S.W.2d 177 (Tex.Cr.App.1983) (opinion on State‘s Motion for Rehearing) stand for the proposition that there can never be a pretext arrest when the defendant actually violated the traffic laws, they are overruled.
The Black opinion, joined by only three members of this Court, depends in large part for its authority upon the Fifth Circuit case of Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.1968), wherein a panel of the appeals court set out five criteria for determining whether a pretextual arrest occurred and then concluded the defendant‘s arrest for traffic violations was used as a pretext to search for drugs. Amador-Gonzalez did not hold “pretextual arrests” unconstitutional. Two of the three panel members concurred only in the result that the search in that case was unreasonable.5 In defining the parameters of the holding, it was stated:
The pretextual motivation did not vitiate the validity of the arrest.... Proof that a traffic arrest was only a pretext to search for evidence of another offense is significant legally only because it bears on the reasonableness of the search ... the emphasis is on the objective relationship between the nature of the offense and the nature (circumstances) of the search, rather than on the motivational cause of the arrest (emphasis added).
Amador-Gonzalez v. United States, 391 F.2d at 315. Far from being an overt indictment of a law officer‘s subjective intent, Judge Wisdom‘s notation reflects that
The “pretext arrest” issue was revisited by the Fifth Circuit almost twenty years later in United States v. Causey, 818 F.2d 354 (5th Cir.1987) (Causey I). An anonymous tipster identified Causey as the robber of a Baton Rouge bank, but police believed they lacked probable cause to arrest and interrogate the suspect. They discovered an outstanding warrant issued some years later for Causey‘s failure to appear in court to answer a petty theft charge. After verifying the warrant‘s validity, officers arrested Causey, gave him Miranda warnings, and interrogated him about the robbery. A confession was ultimately obtained.
In reliance on what was described as a “continuing line of Fifth Circuit authority,”7 a panel of the Court concluded unless an arrest is made with the appropriate subjective intent, it is invalid and any fruits arising therefrom are “tainted.” Thus, in addition to the constitutional requirement of a “knowing and voluntary” confession6, and to the Supreme Court‘s requirement that a statement taken during custodial interrogation must be preceded by the Miranda litany of safeguards, the Fifth Circuit panel appended an additional requirement that the law enforcement personnel who take a suspect into lawful custody must not have made the arrest with an improper motive, whether their conduct in making the arrest would have been any different in the absence of such a motive or not. Simply put, the panel held that police conduct otherwise lawful in every respect is rendered unconstitutional by their irregular subjective intent.
Sensing “a possible conflict between this holding and sound constitutional policy, as
Second, the Court found it difficult to determine what police misconduct was sought to be deterred by the rule. The police had used unlawful means to discover an outstanding warrant for Causey‘s arrest, executed a valid warrant, and had questioned Causey only after Miranda warnings were given. The subjective intent of the police in executing the warrant was not important to an analysis of the reasonableness of the arrest and subsequent interrogation. Id.
Finally, the en banc Court questioned the “motivational requirement” the panel sought to add to qualifications already laid down by the Constitution and Supreme Court in its Miranda decision for admissibility of a confession: voluntariness and administration of proper warnings. “To inject a new constitutional issue of subjective police intent into every case in which a suspect is arrested for one offense and later confesses to another (or others) seems to us unwarranted and to rest on no apparent constitutional basis or foundation.” Id.
As the en banc Court noted, the panel opinion, while ostensibly relying on a “continuing line of 5th Circuit authority” as basis for its ruling, apparently ignored the Supreme Court‘s pronouncements on the
We think the Government‘s position, which also served as the basis for decision in the Court of Appeals, embodies the proper approach for evaluating compliance with the minimization requirement. Although we have not examined this exact question at great length in any of our prior opinions, almost without exception in evaluating alleged violations of the
Fourth Amendment the Court has first undertaken an objective assessment of an officer‘s actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only ‘unreasonable’ searches and seizures. In Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court emphasized the objective aspect of the term ‘reasonable.’*
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We have since held that the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal justification for the officer‘s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), a suspect was searched incident to a lawful arrest. He challenged the search on the ground that the motivation for the search did not coincide with the legal justification for the search-incident-to-arrest exception. We rejected this argument: ‘Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.’ Id. at 236, 38 L.Ed.2d 427, 94 S.Ct. 467. The Court of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.
Scott v. United States, 436 U.S. at 137-38, 98 S.Ct. at 1723 (emphasis added; footnote omitted).
Judge Rehnquist‘s majority opinion adopted what he called “an objective assessment of the officer‘s actions in light of the facts and circumstances confronting him at the time.” Scott, 436 U.S. at 136, 98 S.Ct. at 1723. Under this approach, the Court analyzed what would have happened if the authorities had adopted guidelines designed to prevent the monitoring of non-target conversations without frustrating the purposes of the interception order. It was concluded the result would have been about the same. Agents would have termi-
The Supreme Court again rejected the line of reasoning which would vitiate an arrest based in part on “impure” motivation by reversing a panel of the 5th Circuit in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), and upholding the boarding of a sailboat by customs officers. The appellants claimed the officers, authorized by
Most recently, the Court upheld the Scott “bad faith” doctrine when addressing the issue in Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). In that case, a plainclothes detective entered an adult bookstore and purchased two magazines from the salesclerk with a marked $50 bill. The detective left the store and showed the magazine to other officers waiting nearby. Upon determining the magazines were “obscene,” the detectives returned to the store, arrested the clerk on a charge of distributing obscene materials in violation of a state statute, and retrieved the $50 bill from the register without returning change from the purchase. The trial court denied a pretrial
The Supreme Court, in reversing the decision by the state court below, first found the risk of prior restraint, which is the basis for special
Maryland v. Macon, 472 U.S. at 470-71, 105 S.Ct. at 2783.
In the face of such pronouncements by the Supreme Court, the 5th Circuit would not maintain a rule so contrary to that embraced by the Court, even if those decisions were not literally controlling. The relevant principle enunciated by the circuit is implied within the protection of the
The correct rule is that, while a showing of objectively good faith on the part of the police officers will ordinarily redeem honest errors and prevent the application of the exclusionary rule, in a case where the officers have taken no action except what the law objectively allows their subjective motives in doing so are not even relevant to the suppression inquiry. And the reason lies in the purpose of that rule: to deter unlawful actions by police. Where nothing has been done that is objectively unlawful, the exclusionary rule had no application and the intent with which they acted is of no consequence.
United States v. Causey, 834 F.2d at 1184-85.
As might be expected after the pronouncements of the Supreme Court, most circuits and commentators agree an objective rather than a subjective analysis is proper. United States v. Guzman, 864 F.2d 1512 (10th Cir.1988); United States v. Archer, 840 F.2d 567 (8th Cir.1988); United States v. Miller, 821 F.2d 546 (11th Cir.1987); United States v. Hawkins, 811 F.2d 210 (3rd Cir.), cert. denied 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Causey, supra; 1 W. LEFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.4; Haddad, Pretexual Fourth Amendment Activity: Another Viewpoint, 18 U.MICH.J.L.REF. 639 (1985); Amsterdam, Perspectives on the Fourth Amendment, 58 MINN.L.REV. 349, 436-37 (1974). Cf. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986) [whether arrest is mere pretext to search turns on motivation or primary purpose of arresting officers]; Burkoff, The Pretext Search Doctrine: Now You See It, Now You Don‘t, 17 U.Mich.J.L.REF. 523 (1984). There is a common sense reason underlying such recognition. The pretext doctrine lies at the junction of two distinct interests: that of the police in discovering or uncovering evidence of crime for purpose of prosecution, and the societal concern of privacy as shaped by the constitutional fabric of the system. An examination of a police officer‘s subjective intent in individual cases would unwisely involve the courts in unproductive inquiries where the officer has a cognizable theory for arrest and has not overtly abused the system of checks and balances within the
Arbitrary or capricious conduct on the part of the authorities is unreasonable within the meaning of the
But surely the catch is not worth the trouble of the hunt when courts set out to bag the secret motivations of police in this context. A subjective purpose to do something that the applicable legal rules say there is sufficient objective cause to do can be fabricated all too easily and undetectably. Motivation is, in any event, a self-generating phenomenon: if a purpose to search for heroin can legally be accomplished only when accompanied by a purpose to search for a weapon, knowledgeable officers will seldom experience the first desire without a simultaneous onrush of the second.
Amsterdam, supra, at 436-37. To the extent an officer‘s motivation for making an arrest can be enunciated, objective analysis requires that the subjective intent of the officer, absent other circumstances invalidating the arrest on constitutional or statutory grounds, is of no moment.
The discussion ante illuminates the basic fallacy underlying our adoption of a “pretext” doctrine which emphasizes the subjective motivation of police officers over the objective circumstances surrounding an otherwise valid arrest. As we have seen, the dictum in Lefkowitz has no applicability to a case in which an individual is arrested for one offense and questioned about another. That this dictum became authority for a subsequent line of federal circuit and state cases, including this Court‘s decision in Black, which were factually distinguishable from Lefkowitz, may be explained by reliance on the Fifth Circuit decision in Amador-Gonzalez, which appeared to expand the “pretext doctrine” to a stop for traffic violations and subsequent search for suspected drugs. As pointed out ante, however, two of the three Judges on the panel did not pass upon the lawful scope of a search incident to a valid traffic stop. The key there was that proof the stop was only a pretext to search for evidence of another offense was significant “only because it bears on the reasonableness of the search ... the emphasis is on the objective relationship between the nature of the offense and the nature (circumstances) of the search, rather than on the motivational cause of the arrest.” United States v. Causey, 834 F.2d at 1182 n. 6, quoting from Amador-Gonzalez v. United States, 391 F.2d at 315. In Causey, the “search“, comprised of a confession and objectively
Thus, although we believe the Court of Appeals erred in attempting to distinguish Black for the wrong reasons, their reliance on Causey II is both valid and proper. After analyzing the issue, we also believe our decision to overrule Bain and Dodson was incorrect.12 Those cases stand for the proposition that if a valid stop is made for any reason (e.g., an actual offense) and the officer‘s objective conduct in response (i.e., search, questioning, transport) does not exceed the constitutional and statutory limits applicable to such a stop, additional subjective intentions, suspicions, or motivations on the part of the officers are irrelevant. In other words, as we have stated ante, although there may be other
To those who would raise the spectre of misuse of the legal process by permitting arrest on so-called “minor” violations for purpose of questioning a person suspected in another offense, see Black, supra at 244, citing Adair v. State, 427 S.W.2d 67, 71, 72 (Tex.Cr.App.1967) (Onion, J., dissenting), it should be remembered that the purpose behind the exclusionary rules of federal and state manufacture is to deter unlawful police conduct, not prevent the valid exercise of police authority in the interest of security. One passage contained in a Causey footnote explains the matter in terms relevant to the facts of the instant case:
Part III of the dissent calls up the spectre of police combing the nation by computer to discover somewhere a delinquent parking ticket on the basis of which an arrest warrant can be obtained, an arrest made, and a custodial interrogation about an unconnected crime conducted. Assuming that these concerns are relevant to such a case as this—one in which the police arrested on an outstanding local warrant—a few observations seem to be in order.
The first is that government need not authorize arrest for petty offenses and, if they do so, should not be startled if warrants issued pursuant to their authorizations are taken seriously and occasionally executed. Presumably all issued were meant to be executed or the time and effort to issue them would not have been spent. Other means are frequently employed in the case of parking tickets: means, for example, such as seizing or immobilizing the automobile of the offender. It is possible to enforce the law without arresting petty offenders. Should the public become sufficiently exercised about what the dissent views as abuse of such arrest warrants, it can direct such a course of enforcement; it is not necessary for us to read another troublesome, unstated provision into the Constitution to serve such an end.
The second is that Causey, long before the police apprehended him, forfeited his right to be free from arrest. He was
already the object of an arrest warrant; he had been subject to arrest at all times since its issuance; and he can scarcely complain that the police finally got round (sic) to executing a valid warrant. The third is that there is no contention before us en banc that his interrogation did not fully comply with all constitutional requirements, so that for present purposes it must be assumed that the conduct of the police in that regard was impeccable and that Causey has received all that Miranda or the Fifth Amendment grants him.This being so, he is reduced at this juncture to complaining that it was unreasonable for the police to arrest him on an admittedly valid warrant because of the subjective motive which moved them to pick it up and execute it: that he had caught their eye again by robbing a bank. Even so, the dissent would ride to his rescue; and it is this police action that the dissent intones ‘violated the fourth amendment,’ thus assuming the answer to the question that it poses.
United States v. Causey, 834 F.2d at 1185.
This Court has previously held the Texas Constitution does not impose any greater restrictions on police conduct than those imposed by the
II.
In his first ground for review, appellant contends the Court of Appeals misapplied the ruling announced in Vallejo by holding it is unnecessary for the affidavit supporting the arrest warrant in this case to state sufficient facts as to constitute probable cause. In his second ground, hereinafter summarily sustained, appellant argues the appeals court erred in applying
Specifically, appellant asserts the complaint upon which the warrant was issued is wholly conclusory, without containing any factual information to show the underlying basis of those conclusions. He points to the language in several opinions, including two from this Court, as being examples of affidavit language found legally insufficient to support a valid arrest warrant. In Rumsey v. State, 675 S.W.2d 517 (Tex.Cr.App.1984), the following language was held insufficient:
I, Troy G. Braswell, ... state ... that I have personal knowledge and I charge that ... on or about the 4th day of April, A.D. 1980, ... Richard Emil Rubac did then and there intentionally and knowingly, unlawfully possess a controlled substance to-wit: lysergic acid diethylamide.
As in the instant case, the language in the Rumsey affidavit was conclusory. Judge McCormick, writing for a majority of the Court, noted the problem:
The complaint or affidavit recites that the affiant had personal knowledge that the appellant, Rubac, possessed LSD. See and compare Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1976). However, no facts are alleged in support of the14 averments to establish that the officer had personal knowledge of what he swore to. For example, it is not alleged that the officer saw Rubac in possession of LSD. The officer‘s ‘personal knowledge’ is but a conclusion which, like any other conclusion stated in an affidavit supporting a warrant must be supported by facts.
Rumsey v. State, 675 S.W.2d at 519 (emphasis in original).14
In Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981) cert. denied 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981), the appellant complained his written statement should have been excluded from evidence because it was obtained pursuant to his illegal arrest, citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The complaint on which the warrant for Green‘s arrest issued, alleged:
Before me, Tommy Turner, Assistant Criminal District Attorney of Lubbock County, Texas, this day personally appeared C.H. Blanchard, who, after being sworn, upon oath says that he has good reason to believe and does believe and charge that one Leroy Green ... on or about the 12th day of January, A.D. 1975, and before the making of this complaint in Lubbock County, and State of Texas, did then and there intentionally and knowingly cause the death of an individual, Warren Andrew McKay, by shooting him with a gun AGAINST THE PEACE AND DIGNITY OF THE STATE.
Analyzing appellant‘s complaint of an insufficient affidavit, an undivided panel of the Court, Judge Clinton writing, stated:
It is instantly apparent that this affidavit consists of nothing more than Sheriff Blanchard‘s conclusion that appellant perpetrated the murder described in the complaint.
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Thus it is clear that [t]he magistrate here certainly could not “judge for himself the persuasiveness of the facts relied on ... to show probable cause“. Judge Bolen necessarily accepted ‘without question’ Sheriff Blanchard‘s ‘suspicion,’ ‘belief’ or ‘mere conclusion’ that appellant committed the offense described in Blanchard‘s affidavit in the form of a complaint.
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We are constrained to conclude that the affidavit before us provided Judge Bolen with no basis for an independent determination of probable cause and the arrest warrant that issued pursuant thereto, was invalid.
Green v. State, 615 S.W.2d at 705-06, citing as authority Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Knox v. State, 586 S.W.2d 504 (Tex.Cr.App.1979); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975).15
I, Venture Cerda, do solemnly swear that I have good reason to believe, and do believe and charge, that heretofore, on, or about the 25th day of March, 1982, in the County of Hildago and State of Texas, Wilfred Miller, hereinafter called Defendant, did then and there while, in the course of committing theft and with intent to appropriate property of Roberto Mora to wit: money, without the effective consent of the said Roberto Mora and with tent (sic) to deprive the said Roberto Mora of said property, did then and there by using and exhibiting a deadly weapon, to wit: handgun (sic) intentionally and knowingly place Rebbeca Ramirez in fear of imminent bodily injury.
Judge Duncan, writing for a unanimous Court, stated the following:
Such an affidavit is insufficient to establish probable cause for a neutral and detached magistrate to issue an arrest warrant. This situation is very similar to that which this Court confronted in Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981). In Green the defendant was arrested pursuant to a warrant that was supported by a purportedly sufficient affidavit. The affidavit in the Green case and this case are identical in at least one particularly significant matter, they both contain the following language: ‘he [the affiant] has good reason to believe and does believe and charge....’ Id. at 705. Both affidavits then continue by the affiant merely reciting the statutory elements of the charged offenses—murder in the Green case and robbery in this case.
In Green, the insufficient conclusory affidavit rendered the arrest warrant invalid because it was not issued in response to probable cause. We are compelled to reach the same conclusion in this case. There is no information in the affidavit of Officer Cerda, other than his mere conclusion that the appellant committed the robbery, on which a neutral and detached magistrate could even perceive, much less accept, as probable cause. Consequently, the arrest warrant that was issued was invalid in that it was not supported by probable cause. Accordingly, the arrest of the appellant pursuant to the invalid arrest warrant was illegal.
Miller v. State, 736 S.W.2d at 647.
These cases relate to the necessity of stating facts constituting probable cause in a complaint or affidavit for the issuance of a warrant of arrest used as a basis for a search, or a search warrant, and have no application in a complaint made in corporation court as the basis of a criminal prosecution.
No warrant of arrest was issued upon the instant complaint, and the sole question is whether it is sufficient to charge an offense. The answer is ‘yes.’
In Vallejo, we were concerned with a complaint used as a misdemeanor charging instrument, not as a supporting affidavit for a warrant. Here, the opposite is true. Appellant is not attacking the sufficiency of the charging instrument; indeed, Vallejo teaches that the same particularity in stating facts sufficient to show commission of an offense is not required in a complaint qua charging instrument as it is in an indictment or information. Rather, appellant is challenging the factual sufficiency of the sworn document used to justify issuance and execution of his arrest warrant. The two uses for a complaint have distinct purposes, one to formally charge and give notice of the charge to an individual, and the other as an affidavit which functions to factually justify the legal seizure of a person or property.16 Because we are here concerned with the sufficiency of a complaint qua affidavit, Vallejo provides no support for the holding below.
The Supreme Court has held the exclusionary rule to be applicable to State prosecutions, with the same probable cause standards applicable to federal and state warrants under the
The decisions of this Court concerning
Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a war-
rant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinnelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).
Whiteley v. Warden, 401 U.S. at 564, 91 S.Ct. at 1035 (footnote deleted). See also Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) [no distinction drawn between felony and misdemeanor cases with regard to Whiteley rule where municipal court clerks authorized to issue warrants qualified as “neutral and detached magistrates” for purposes of
Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), like Evans, supra, and Knox, supra, applied the Whiteley rule to state cases. In the first two cases, this Court held the complaints upon which felony arrest warrants were issued and executed did not contain sufficient information to show probable cause. The Knox case concerned an arrest by capias for a theft offense, whereafter a quantity of heroin was discovered during the pat-down search incident to arrest. The Knox Court noted the complaint was conclusory, omitting the actual basis in terms of facts, allegations or source of the complainant‘s conclusions. The Court then noted the same caveat as stated above regarding the distinction to be drawn between a complaint used to support a warrant and a complaint used as a charging instrument:
The holding today should not be confused with those cases which hold that the requisites of an affidavit or com-
plaint or a complaint and information to support a prosecution are not as stringent as the requirements of a complaint or affidavit for a search warrant or an arrest warrant by which there might be a search incident to arrest. See Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974); Cisco v. State, 411 S.W.2d 547 (Tex.Cr.App.1967); Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967). In Chapa, this court wrote: ‘The purpose of the complaint is to apprise the accused of the facts surrounding the offense with which he is charged in order to permit him to prepare a defense to such charge.’
Knox v. State, 586 S.W.2d at 506 n. 1.
In the instant case, there is no doubt the complaint is wholly conclusory. There are factual conclusions, but as in Knox, no “actual basis” for those conclusions. Affiant “S. Hall” recites he or she “have good reason to believe, and do believe” appellant, on or about a certain date, unlawfully failed to appear in the municipal court of Deer Park. There is no allegation why such failure was unlawful or how affiant came to have such knowledge. While the “complaint” may have the statutory requirements for procedural validity, it lacks the necessary indicia of reliability demonstrated by facts showing probable cause for the magistrate to have made a proper evaluation of the allegations before issuing the warrant. It is in the form of a charge, not a supporting affidavit. There being no probable cause set forth in the complaint, the arrest of appellant was illegal. Appellant‘s first ground for review is sustained.
The search of appellant‘s apartment was made and his confession taken after he was illegally arrested. The confession should have been excluded unless there were intervening circumstances or events between the arrest and interrogation which relieved the “taint” of the procedure.17 Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Black,
The judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for further review consistent with this opinion.
CLINTON, J., concurs in the judgment of the Court.
TEAGUE, J., dissents.
CAMPBELL, MILLER and BAIRD, JJ., concur in the result reached in Part II of the opinion but cannot join Part I, believing it to be dicta and totally unnecessary to the disposition of the case.
STURNS, J., not participating.
BAIRD, Judge, concurring.
With all due respect to Judge Davis and his thorough and well written opinion, I can only concur in the remand of this cause to the Court of Appeals for further review under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
I find Part I. of the foregoing opinion wholly unnecessary to reach this result. In my opinion, there is no reason for this Court, in this cause, to discuss the propriety of the “pretext arrest” doctrine. I find that portion of the opinion to be only dicta, adding nothing to the jurisprudence of this state. However, I find Part II. to be a correct statement of the law and all that is necessary for this Court to remand this cause.
Accordingly, I concur in the result.
W.C. DAVIS
JUDGE