The offense is the possession of intoxicating liquor for the purpose of sale, punishment fixed at confinement in the penitentiary for one year.
In the indictment there were two counts, one charging the unlawful sale of intoxicating liquor; the other, the unlawful possession. The first count was not submitted to the jury. The verdict rests upon the second count, that is, the possession of intoxicating liquor.
Upon executing a search warrant, officers discovered in the
private dwelling occupied by the appellant about a gallon of whiskey. The appellant's abode was a tent, but was none the less a private dwelling. Penal Code, Arts. 1391 and 1395; Hipp v. State, 45 Tex.Crim. Rep.; Hooper v. State,105 S.W. 816; Favro v. State, 39 Tex.Crim. Rep..
The state relies upon the testimony of the officers showing the possession of the liquor mentioned and the statute making the possession of more than one quart of intoxicating liquor prima facie evidence of guilt. Art. 671, C. C. P., 1925. The admissibility of the testimony showing the result of the search is challenged upon the ground that it was obtained in violation of the provisions of the Constitution of this state and of the United States, wherein it is declared that no search warrant shall issue "without probable cause supported by oath or affirmation." See Art. 1, Sec. 9, Constitution of Texas; (Fourth Amendment to the Federal Constitution).
Appellant relies upon the statute of this state penalizing an illegal search. See Art. 4a, C. C. P., 1925, and Art. 727a, C. C. P., declaring that evidence obtained in violation of the Constitution and laws of this state or of the United States shall not be received in any criminal case. In the instant case, the search warrant was issued upon the affidavit of two persons stating that "the affiants have reason to believe and do believe that in the house and premises described intoxicating liquors are kept and sold in violation of law." Exemption from unreasonable search is a cherished right which the makers of the Constitution and the laws have been zealous in guarding and the courts in preserving. A search without probable cause is unreasonable. The search, without warrant, of persons and vehicles has been sanctioned by lawmakers and courts upon the ground of necessity. Such sanction, however, is withheld, unless in advance of the search, there be evidence of facts showing probable cause. See Battle v. State,290 S.W. 763; Carroll v. United States, 267 U.S. 132. So, the search without warrant of a person and place made contemporaneously with a lawful arrest is permissible. See Agnello v. United States, 69 Law Ed. 20. But to search a private dwelling occupied as such for contraband property such as intoxicating liquor, the possession of a search warrant legally issued is imperative. This can only be had in accord with the Bill of Rights (Art. 1, Sec. 9, Constitution of Texas), saying:
"No warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."
Before our Constitution was adopted, the term "probable
cause," as embraced in the Federal Constitution, had a fixed meaning in the courts of other jurisdictions, as well as in our own. The Supreme Court of this state defined it thus:
"A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." (Landa v. Obert, 45 Texas Rep. 539.)
That belief alone is not "probable cause" is illustrated by many judicial decisions and expressions of text writers. Among them are the following:
"And the law in requiring the showing of reasonable cause for suspicion intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well-founded; for the suspicion itself is no ground for the warrant except as the facts justify it." (Cooley's Constitutional Limitations, 6th Ed., p. 368.)
"The inviolability of the accused's home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law." (Veeder v. U.S., 252 Fed. 414, 164 C. C. A. 338.)
From an opinion of the United States Supreme Court we take the following:
"The information upon which the search warrant was issued states only that affiant 'has good reason to believe and does believe the defendant has in his possession' such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States." (Byars v. U.S., 71 Law Ed. 331.)
Many precedents are found declaring invalid a search warrant issued upon an affidavit stating that the "affiants had reason to believe and did believe." The great weight of authority is that the grounds of belief, that is, the facts or circumstances or information upon which the belief is founded must be exhibited in the affidavit. A citation of cases in details will not be undertaken. Suffice it to say that in the courts of nearly all of the states of the Union and the Federal courts, the announced law is as above stated. Many of them will be found collated in the
following text-books and reports: Ruling Case Law, Vol. 24, p. 707; Underhill's Crim. Ev., 3rd Ed., Sec. 745; Cornelius on Search and Seizure, Sec. 83, p. 248. Apparent exceptions are found in some of the states based upon statutes attempting to dispense with the necessity of a statement of the grounds of belief. Some of these have been held void by the courts. See Peterson v. State, 27 Wyo. 185, 13 Amer. Law Rep., p. 1284.
For many years the statute-law pertaining to search warrants was embraced in Title 6, C. C. P., 1925, in which authority is given for the issuance of warrants permitting the search for property acquired in violation of the Penal Code. In Arts. 310, 311 and 312 certain requisites of a complaint or application for a warrant are given. In but one of these, namely, that in which the location of the property is not known, the statute sanctions the issuance upon an affidavit based upon"information and belief." In other words, it appears to be contemplated that the application for a search warrant should be framed in accord with the requisites of "probable cause" as the term was understood at the time the Constitution was written and the statutes enacted.
On April 5, 1907 (Gammel's Laws of Texas, 1903-1907, p. 156), the Legislature enacted a law authorizing magistrates to issue warrants to search and seize intoxicating liquor illegally possessed. The statute expressly declared that the warrant should be issued on an affidavit based upon information andbelief. The Supreme Court, in the case of Dupree v. State, 102 Texas Rep. 455, declared the law void because it was in conflict with Art. 1, Sec. 9, of the Bill of Rights, upon the ground that it permitted the search of places without describing them. From the opinion we quote:
"The most that the Act can be held to require as a basis for the issuance of the search warrant is that it describe a place where the affiant believes 'intoxicating liquor' is being sold, or is being kept or possessed for the purpose of being sold, in violation of law. * * * Upon this and no more the Act requires the magistrate to issue the warrant. The writ is made to confer authority upon the sheriff or constable to enter and search not only 'such place,' etc., that is, the place which has been described in the affidavit, but 'any place,' etc., where the 'affiant' has good reason to believe any such person has placed or secreted any such liquor. This is so apparent a contradiction of the Bill of Rights that the point of conflict scarcely needs to be pointed out. The Bill of Rights forbids the issuance of any warrant to search 'any place' — without describing it."
The court stated in substance that the fault in the statute above mentioned being fatal to its validity, no expression of opinion would be made concerning that part of it which permitted the warrant to issue on information and belief, the determination of that point being unnecessary to the decision of the case. However, it was said that in view of the statute permitting an arrest on an affidavit of information and belief, that the court would hesitate to annul the statute in question on that ground alone. The sufficiency of the complaint for arrest is not here involved. It can be said, however, that for such complaint on information and belief there is express statutory authority (Art. 415, C. C. P.), while for a search warrant on such showing the Legislature has given no sanction. On the subject, however, the Supreme Court, in the opinion on the subject of warrants, plainly indicated that an affidavit for a search warrant was not sufficient to show "probable cause" when it was made on information and belief without stating the grounds of belief. From the opinion (Dupree v. State, 102 Texas Rep. 464) we quote:
"It will be seen that they do not lay down any rule, compliance with which will be impossible, or even difficult in practice, such as that warrants cannot issue except where the informer has positive knowledge of the facts upon which they are to be based, but that they merely require that the facts from which he has formed his belief shall be stated to the magistrate in the affidavit or deposition, so that he and not the informer shall be the judge whether or not they constitute the probable cause required by the Constitution. When we consider the great diversities in human minds and characters, we have no doubt that this is what the law ought to require when an affiant cannot swear from his personal knowledge. By some minds that is readily accepted as sufficient foundation for firm belief which in others generates, at most, only vague suspicion. In the formation of beliefs and in the readiness to swear to them, men differ to an almost infinite extent according to the constitution of their minds and characters. Some are cautious and scrupulous, others hasty or unscrupulous, sometimes both; and when the affiant's belief is made the only measure of probable cause, there is no fixed standard at all. The theory of the authorities before cited is that the Constitution intends to give a guaranty to the citizen against searches and seizures dependent upon such uncertainties by interposing between him and the rash or unscrupulous accusers the judgment of a magistrate chosen by the state. But that view is not the only one that has
been taken and practically followed in legislative practice and judicial construction."
In 1919 the Legislature again took up the subject and enacted Art. 691, P. C., as follows:
"A search warrant may be issued under Title 6 of the Code of Criminal Procedure for the purpose of searching for and seizing and destroying any intoxicating liquor possessed, sold or to be sold or transported, or manufactures in violation of this law. * * * No warrant shall be issued to search a private dwelling,occupied as such, unless some part of it is used as a store,shop, hotel or boarding house, or for some purpose other than aprivate residence, or unless the affidavits of two crediblepersons 'show' that such residence is a place whereintoxicating liquor is sold or manufactured in violation of theterms of this Act. The application for the issuance of and theexecution of any such search warrant, and all proceedingsrelative thereto, shall conform as near as may be to theprovisions of Title 6, of the Code of Criminal Procedure,except where otherwise provided in this title."
In construing the existing statute on search and seizure, viz.: Title 6, C. C. P., and Art. 691, P. C., that part of Title 6 embraced in Art. 311, supra, must necessarily beignored, because it undertakes to authorize the search of places without demanding that they be described. Thereby it offends against the Constitution requiring that the place to be searched be described. That provision was clearly denounced in the Dupree Case, supra, Art. 311, supra, and the affidavit for its issuance, have relation to and are limited to a search warrant to search for property at any undescribed place, a thing that cannot be under the Bill of Rights. Obviously, that article can have no bearing on the present matter. In so far, therefore, as Title 6 applies to a search for intoxicating liquors, it contains no authority to make the search upon an affidavit based alone upon information and belief. The question, therefore, must be determined by the construction of Art. 691, supra, in connection with Art. 1, Sec. 9, Bill of Rights, and the previous interpretation of the term "probable cause" as used in the Bill of Rights. The terms of Art. 691 are indicative of the legislative intent to adhere to the interpretation of the constitutional requirement of "probable cause" that the affidavit state the facts or circumstances upon which the belief is founded. The statute upon which the issuance of the search warrant is based forbids the issuance of such warrant unless it show that the residence was a place where the law was violated. The affidavit in question
goes no further than to state that the "affiants had grounds for believing and did believe." "Show" and "state" are not synonymous. To "show" means to make clear or apparent; to prove. See Coyle v. Commonwealth, 104 Pa. 133; Cox v. U.S.,50 P. 175; 5 Okla. 701; First National Bank v. Swan,23 P. 743; Spalding v. Spalding (N.Y.), 3 How. Prac. 297, 301; also Hennessy v. Hall, 133 P. 350, 14 Cal.App. 759; In re: Lee, 85 N.Y. Supp. 224, 41 Misc. Rep. 642; Roberts v. Fagan,92 P. 559, 76 Kan. 536. In another statute, upon a like subject, the Legislature has made a distinction between the term "show" and "to state" the grounds for belief. See Art. 222, C. C. P. (1925), Subdivision 2.
This court, in 1922, held that though the search was unauthorized, there being no statute penalizing the officer making it, the evidence of crime obtained in the search would not be excluded. (Welchek v. State, 93 Tex.Crim. Rep..) This holding was contrary to that of the Federal courts but in harmony with that of most of the state courts. Subsequently, in 1925, the Legislature passed the statutes upon which the appellant relies, namely: Arts. 4, 4a, and 4b, in which Sec. 9, of Art. 1, of the Bill of Rights, was re-enacted. The statutes also specifically declare it unlawful to search without a warrant, and also declare it to be a misdemeanor penalized by a fine or imprisonment or both. The Legislature also passed Art. 727a, C. C. P., which reads thus:
"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
The manifest purpose of these statutes was to reverse the rule applied by this court in the Welchek case, and it now becomes the duty of this court to give effect to the legislative intent thus expressed.
Subsequent to the declarations of the Federal court, quoted from Veeder v. U.S., 164 C. C. A. 338, insisting that an affidavit for a search warrant be based upon facts and not merely upon information and belief and giving reasons therefor, the Federal Congress has put into statutory law that which previously rested in the judicial interpretation, declaring:
"A search warrant cannot be issued but upon probable cause supported by affidavit, naming or describing the person and particularly the property and the place to be searched." (Title 11, Sec. 3, 40 U.S. Stat. at Large, 228.)
"The affidavits or depositions must set forth the facts tending
to establish the grounds of the application or probable cause for believing that they exist." (Sec. 5, Id.)
By this means the Federal Congress has made unlawful the search of a habitation upon a search warrant issued upon an affidavit failing to show "probable cause" by setting forth the facts upon which the belief is based. This law of Congress is among those known as the National Prohibition Acts enforcing the provisions of the Eighteenth Amendment to the Constitution of the United States, in which it was declared that "Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. This amendment, unlike many other provisions of the Constitution of the United States, confers concurrent power, that is, power in each of the governments, state and Federal, by appropriate legislation to enforce the prohibition of the "manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes." This has been repeatedly declared by the Supreme Court of the United States and by this court. See Ex Parte Gilmore, 88 Tex.Crim. Rep..
Belief on undisclosed information does not show "probable cause" for search as that term is used in the state and Federal Constitutions. Such is the expressed view of the United States courts and of nearly all the state courts. With one exception, we believe that in the few states holding the contrary view, there is a statute expressly declaring an affidavit on information and belief sufficient. In some of the states having such a statute, it has been held void by the courts. In this state there is no such statute. The only statute of that kind ever passed in this state was held void by the Supreme Court of this state on other grounds. The definition of "probable cause" announced by the Supreme Court of this state before the present Constitution was adopted is like that in the Federal courts and the state courts holding the belief insufficient, and in adopting the Constitution, the definition was approved. In holding the statute of 1907 void the Supreme Court clearly indicated that the weight of authority and the better reason was opposed to the issuance of a search warrant upon the belief of the affiants. The dictum of the Supreme Court at that time touching warrants of arrest is not of weight, for the reason that it is but dicta, and for the further reason that there is express statutory authority for a
warrant of arrest on information and belief, while as to a search warrant there is no such statute.
In passing Arts. 4, 4a, 4b, and Art. 727a, supra, the Legislature indicated the desire to disapprove the refusal of this court to follow the Federal courts in the holding by this court that evidence obtained through an illegal search could be used in a criminal trial. Thus, by implication, the Legislature sanctioned the construction by the Federal courts of the search and seizure clause of the Constitution.
In passing the present law on searching a private dwelling embraced in Art. 691, supra, the Legislature used language incompatible with the validity of such a search warrant on information and belief, thus indicating that the language used in the statute of 1907 (criticised by the Supreme Court in the Dupree case, supra) was not expressive of the legislative intent, but that by the use of the word "show" it was intended that the facts upon which the belief was based would be necessary to a valid search warrant of a private dwelling. Such interpretation of the legislative intent brings the state law in harmony with the Federal decisions and statutes on the subject of search and seizure, so far as they relate to the search of a private dwelling, and the enforcement of the Eighteenth Amendment to the National Constitution.
Upon the consideration hereinabove stated, and in the light of the history of the search and seizure law of this state giving effect to the rule which we understand governs in the interpretation of statutes, the writer believes it to be the duty of this court to declare that in the enactment of Art. 691, supra, stating the conditions upon which a private dwelling occupied as such, may be searched, the Legislature did not intend to give a meaning to the term "probable cause" embraced in the Bill of Rights different from that prevailing in the Supreme Court of the United States, announced in the statutes of the United States and adopted by practically all of the states of the Union where the subject has been discussed. In other words, nothing is found in the statute which conveys to our minds the idea that it was the intention of the Legislature to announce that a warrant to search a private dwelling might be issued upon an affidavit in which there was given no fact, circumstance or detailed information showing or tending to show that the dwelling was used for the purpose denounced by the statute which conveyed to the magistrate in whom the law vested the authority and upon whom it imposed the duty of issuing a warrant upon "probable
cause," no information from which to determine whether the the facts justified the issuance of the warrant.
The abandonment of the language used in the law of 1907, permitting the issuance of a search warrant in an affidavit of "information and belief," and the selection of more specific terms embraced in Art. 691, supra, are confirmatory of this view. In the absence of unequivocal announcement, it cannot be assumed that the Legislature intended to depart from the construction of "probable cause" adhered to by Congress and the Supreme Court of the United States, and most of the states of the Union as properly giving effect to the Bill of Rights, and to adopt in its stead the terms of annulled statute of 1907, which terms were embraced in the statutes of other states, have been by the courts of such states condemned as in conflict with the Bill of Rights. In the search of an automobile, while permissible without warrant, the law forbids a search upon suspicion or belief and demands evidence of facts showing "probable cause." Odenthal v. State, 290 S.W. 743; Battle v. State, 290 S.W. 762; Carroll v. U.S., 69 L.Ed. 543. It is not believed that the Legislature has placed the search of a private dwelling upon a lower plane. If the affiants seeking a search warrant have reason to believe that a private dwelling is used for the storage of liquor, no sound reason is perceived for failing to disclose the grounds of belief in the affidavit presented to the magistrate. As said by the Supreme Court of this state, the demand that the affidavit exhibit the facts upon which the belief is founded "does not lay down any rule, compliance with which will be impossible, or even difficult in practice." The rule is intended to "give a guaranty to the citizen against searches and seizures dependent upon such uncertainties by interposing between him and the rash or unscruplous accusers the judgment of a magistrate chosen by the state."
Because the criminating evidence was obtained through a search upon a warrant issued without legal authority, it was improperly received over the objections of the appellant. Therefore, the judgment is reversed and the cause remanded.
Reversed and remanded.
CONCURRING OPINION.
I desire briefly to state my reasons for concurring in the opinion of my Brother Morrow.
There is now no valid statute in this state authorizing a search warrant to issue upon an affidavit predicated upon the
"belief" of the affiant. So far as the writer knows there never did exist but two such statutes, one being under the circumstances stated in Art. 311, Title 6, C. C. P., which undertakes to authorize a warrant to issue where the affiant has "good ground to believe" that property was stolen but not alleged to be concealed at any particular place. If it be true that affiant does not know where the alleged stolen property is concealed it follows that no description of the place to be searched could be given, and such statute is inoperative and was so held by our Supreme Court in Dupree v. State, 102 Tex. 455
[102 Tex. 455], as of necessity it must have been, as being violative of Sec. 9, Art. 1, of the Constitution of this state which forbids the issuance of a search warrant unless the place to be searched is described. The only other statute which undertook to authorize the issuance of a search warrant upon the "belief" of the affiant was that passed in 1907, Chapter 77, of the Acts of the Thirtieth Legislature, which related to searches for intoxicating liquor stored in districts where the "Local Option Law" was in effect. That statute was under consideration in Dupree v. State (supra). It is apparent to the writer from the opinion in that case that the Supreme Court thought the great weight of authority to be against upholding that feature of the statute, but they found it unnecessary to base their opinion on that provision. Any reasons for hesitation the Supreme Court may have had to hold such statute unconstitutional does not confront this court because that statute is no longer operative and no statute is in force which undertakes to authorize a search warrant to issue where the affidavit therefor is based only upon a stated "belief" of the affiant.
In order to put into operation the present "Statewide Intoxicating Liquor Prohibition Law" the Legislature in 1919 (Thirty-sixth Legislature, Second Called Session, Chapter 78, p. 228) again took up the subject of searches and seizures of intoxicating liquor and enacted the law which is carried forward in the 1925 Revision of the Penal Code, as Art. 691. The language employed in this last enactment is much different from that found in the law of 1907, and nowhere does it undertake to authorize the issuance of search warrants upon affidavits based upon information and belief. Sec. 9, Art. 1, of the Constitution of this state reads:
"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be,nor without probable cause, supported by oath or affirmation."
This provision of our Constitution is practically the same as that found in the Constitution of the United States. When is it made to appear to the issuing magistrate from the oath or affirmation that "probable cause" exists? Can it be said that an affidavit which simply states that affiant "believes and has good reason to believe" that circumstances exist which authorize the warrant to issue does any more than inform the magistrate that the affiant believes the warrant should issue? It seeks to substitute the opinion of the affiant for the judgment of the magistrate who in such case is called upon to act judicially without any knowledge of the facts upon which the affiant predicated his belief. Shortly after the adoption of our present Constitution the Supreme Court of this state, speaking through Judge Moore in Landa v. Obert, 45 Tex. 539, approved a definition of "probable cause" which, though couched in somewhat different language, is in substance and meaning the same as that adopted by the Supreme Court of the United States and by the courts of a great majority of the states. The Sixty-fifth Congress in 1917, by Title 11, Secs. 3 and 5, enacted the following statute:
"Sec. 3. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched."
"Sec. 5. The affidavits or depositions must set forth thefacts tending to establish the grounds of the application or probable cause for believing that they exist."
This was only a recognition by congressional enactment of the construction long theretofore given the Federal Constitution by the Supreme Court of the United States. It must be presumed that the Legislature of our own state was aware of the statutes and the decisions of the Supreme Court of the United States relative to the subject when the law of 1919 was enacted and when it was carried forward in the revision of our statutes in 1925. It is apparent also that the Legislature was not in accord with the rule announced in Welchek v. State, 93 Tex. Crim. 271, 247 S.W. 524, as indicated by the passage in 1925 of the law which now appears in the Code of Criminal Procedure as Arts. 4a and 727a, and it must also be presumed that the Legislature was aware of the statutes of the United States heretofore quoted when Arts. 4a and 727a were enacted, and which read:
"Art. 4a. It shall be unlawful for any person or peace officer or state ranger to search the private residence, actual place of
habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."
"Art. 727a. No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
While the statutes of the United States do not control the courts of this state in matters of procedure, yet they may properly be looked to in discovering the intention of our own Legislature in subsequent enactments. Courts are not so much concerned about the consequences of legislation as with its true interpretation. I discover nothing in our present statutes which indicates any purpose of the Legislature to attempt a departure from the well established holding of the United States Courts and those of a majority of the other states to the effect that an affidavit for a search warrant which furnishes no facts or information to the issuing magistrate, but merely avers affiant's belief relative thereto, does not comply with the provisions of our own and the Federal Constitution requiring "probable cause" to be shown. Any statute embracing such a departure would most certainly be out of harmony with the Federal statutes and decisions on the same subject.
I therefore record my concurrence in the opinion of Presiding Judge Morrow.