Opinion
No. C14-89-00276-CR.
July 11, 1991.
Appeal from the 337th Judicial District Court, Harris County, Jim Barr, J.
Victor R. Blaine, Houston, for appellant.
J. Harvey Hudson, Houston, for appellee.
Before PAUL PRESSLER, CANNON and ELLIS, JJ.
OPINION ON REMAND
Appellant, Floyd Wilson Curry, appeals his judgment of conviction for the offense of possession of a controlled substance, to wit, cocaine of less than 28 grams. TEX. HEALTH AND SAFETY CODE ANN. § 481.102(3)(D) and § 481.115(a), (b) (Vernon Pamph. 1991). After his motion to suppress was denied, appellant waived a trial by jury and pled "not guilty" to the Court. After examining the stipulated evidence, the Court found him guilty and assessed punishment at seven years confinement in the Texas Department of Corrections, probated for seven years and a five hundred dollar fine. This Court affirmed the conviction on October 5, 1989. Curry v. State, 780 S.W.2d 825 (Tex.App. — Houston [14th Dist.] 1989). The Court of Criminal Appeals reversed our judgment on April 10, 1991, 808 S.W.2d 481, stating that we misconstrued Article 38.23(b) TEX.CODE CRIM.PROC.ANN. (Vernon Supp. 1991).
On April 28, 1988, a Houston Police Department Vice Officer, G.D. Todd, obtained a search warrant for 2300 Milam. The search warrant concerned itself with illegal bookmaking operations at that location. Officer Todd had conducted a surveillance at the location and determined appellant was present at the 2300 Milam location. Officer Todd confirmed that appellant had two outstanding warrants for traffic violations out of Precinct 4, Position 1, in Harris County, Texas. Officer Todd and other officers executed the search warrant on April 28, 1988, at 2300 Milam, Houston, Harris County, Texas and arrested appellant on the traffic warrants.
In a search of appellant's person incident to that arrest, Houston Police Officer, K.D. Templeton, found 5.7 grams of cocaine. The cocaine was found in appellant's shirt pocket. Officer Templeton handed the cocaine to Officer H.L. Lewis who placed the cocaine in the narcotics lockbox of the Houston Police Department Crime Lab. Claudia Busby, a chemist with he Houston Police Department, received the cocaine, tested and weighed it. The substance was determined to be cocaine weighing 5.7 grams. The search warrant for the premises at 2300 Milam contained the name of a Scott Flanagan. Floyd Curry was not named in the search warrant but his presence at the Milam location was known to the officers before they made the search on April 28, 1988.
Appellant submits in his sole point of error that the Court erred by failing to sustain his Motion to Suppress the Evidence upon his arrest and search of his person. Appellant asserts that the evidence of the cocaine was seized in violation of the law and should not have been admitted into evidence at trial, contrary to the provisions of article 38.23 of the TEX.CODE CRIM.PROC.ANN. Specifically, appellant contends that the "traffic warrants" upon which he was arrested were invalid since they were not supported by affidavits stating probable cause. We agree and reverse the judgment of the trial court.
The warrants in this case ordered the arrest of appellant for the offense of speeding and failing to maintain proof of liability insurance. The supporting affidavits are similarly worded and state, in pertinent part, that the affiant "has good reason to believe and does believe that based on the following information, to wit: citation no. 4-66952 issued by P. Carpenter, HCCP, Curry, Floyd Wilson, hereafter styled the defendant, heretofore on or about 8-1-87 [or 8-7-87], in Precinct Four of Harris County, Texas, did then and there unlawfully, while operating a motor vehicle upon a public highway and street committed the offense of speeding and/or failing to maintain a policy of automobile liability insurance."
The affidavit attached to the speeding warrant contains this additional information "did then and there unlawfully while operating a motor vehicle upon a public highway and street operate said motor vehicle at an unreasonable speed of 62 miles per hour which was greater than was reasonable and prudent under the circumstances then existing, at which time and place the lawful maximum prima facie reasonable and prudent speed indicated by an official sign then and there was 35 miles per hour. Contrary to law and against the peace and dignity of the State." (See, appendices Nos. 1 and 2).
The affidavit attached to the failure to maintain liability insurance warrant contains this additional information: "While operating a motor vehicle upon a public highway and street, did fail to maintain a policy of automobile liability insurance in at least the minimal amounts necessary to provide evidence of financial responsibility and in such amount as is necessary to insure against potential losses, which may arise out of the operation of that vehicle, as required by the Texas Motor Vehicle Safety Responsibility Article, contrary to law and against the peace and dignity of the State. (See, appendices Nos. 3 and 4).
In our original opinion, we held that while the affidavits "may not have demonstrated the existence of probable cause, the arrest and search of appellant was lawful because the arresting officer acted in good faith in executing the traffic warrants. To support our holding, we relied on TEX.CODE CRIM.PROC.ANN. art. 38.23(b) which provides:
It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective and good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
The Court of Criminal Appeals held that we misconstrued art. 38.23(b) and stated that the plain wording of art. 38.23(b) requires an initial determination of probable cause citing Gordon v. State, 801 S.W.2d 899 (Tex.Crim.App. 1990) where the Court stated:
". . . We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), Because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer's belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without recourse to any "good faith" exception to the warrant requirement." Id. at 912, 913. (Emphasis added.)
The Court of Criminal Appeals vacated our judgment and remanded the cause to us for reconsideration of appellant's point of error in light of Gordon v. State. Thus we must direct on attention to the validity of the warrants and affidavits without recourse to any "good faith" exception to the warrant requirement.
The question presented is whether the arrest warrants for appellant were valid under the two prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The Supreme Court has held that the same standards set forth in Aguilar for hearsay affidavits supporting search warrants apply to those given in support of arrest warrants. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970); Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Crim.App. 1965) (on remand). As applied to arrest warrants, Aguilar v. Texas, supra, would require that an affidavit based on hearsay that is used to support an arrest warrant must set out for the magistrate who issues the arrest warrant (1) underlying circumstances upon which the informer concluded that the named party committed the criminal act charged; (2) the circumstances for which the affiant concluded the informer was credible or his information reliable. In determining the sufficiency of the affidavit we are bound by the four corners thereof. Art. I, Sec. 9, Texas Constitution; Art. 18.01, V.A.C.C.P. Evans v. State, 530 S.W.2d 932 (Tex.Crim.App. 1976); Ruiz v. State, 457 S.W.2d 894 (Tex.Crim.App. 1970); Gaston v. State, 440 S.W.2d 297 (Tex.Crim.App. 1969) (concurring opinion), cert. denied sub nom. Gaston v. Texas, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969).
The allegations in both of the affidavits in our case are hearsay. The Supreme Court has held that the same standards set forth in Aguilar exist for hearsay affidavits supporting arrest warrants as exist for those given in support of a search warrant. Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), reversing Barnes v. State (Tex.Crim.App.) 390 S.W.2d 266. The affidavits in our case contain no allegations of personal knowledge of the alleged offenses on the part of the affiant. (Sheila R. Edwards). Thus the statements contained therein are hearsay and the affidavit must pass the two prong Aguilar test. The affidavits do not contain underlying facts upon which P. Carpenter the affiant's informant, concluded appellant committed the offenses of speeding and failure to maintain liability insurance. Nor do the affidavits contain facts or circumstances from which the affiant concluded that P. Carpenter, the informant, was credible and his information reliable. Thus neither of the two prongs of Aguilar has been satisfied. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Lowery v. State, 499 S.W.2d 160 (Tex.Crim.App. 1973); Stoddard v. State, 475 S.W.2d 744 (Tex.Crim.App. 1972); Powers v. State, 456 S.W.2d 97 (Tex.Crim.App. 1970).
We find that the affidavits did not provide the magistrate a basis for an independent determination of probable cause and the warrants that issued were illegal. Therefore, appellant's arrest, under these warrants, was an unlawful seizure of his person. Accordingly, we find that the trial Court erred in not suppressing the cocaine seized upon the unlawful arrest and search of the person of appellant. Appellant's sole point of error is sustained.
The trial Court's judgment is reversed and the cause remanded.
APENDIX NO. 1
APENDIX NO. 2
APENDIX NO. 3
APENDIX NO. 4