Eisenhauer v. State

678 S.W.2d 947, 1984 Tex. Crim. App. LEXIS 778

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal is from a conviction for possession of a controlled substance, to-wit: cocaine. Following appellant’s plea of nolo contendere before the court, punishment was assessed at six years’ imprisonment, probated, and a fine of $2,000.00.

Prior to the bench trial, the' appellant filed a pre-trial motion to suppress evidence seized pursuant to his warrantless arrest and the search incident thereto. At a hearing on the motion to suppress, only one police officer testified and the motion was overruled. Thereafter appellant entered his nolo contendere plea and the evidence seized as a result of the search was utilized to support his plea and the judgment. See Article 1.15, V.A.C.C.P. After conviction, the appellant appealed only the denial of the pre-trial motion to suppress, which was permissible under Article 44.02, V.A.C.C.P.

On appeal the conviction was reversed by the Houston (1st) Court of Appeals. Eisenhauer v. State, 657 S.W.2d 184 (Tex.App.—Houston [1st]). That court found the trial court erred in overruling the motion to suppress in that the warrantless arrest of appellant was based on an informer’s tip which failed to meet the second prong of the test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

It is clear that the decision of the Court of Appeals was solely based on federal constitutional grounds.

We granted the State’s petition for discretionary review to determine the correctness of that decision. The State urges that the Court of Appeals erred in not applying Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which rejected the rigid two-prong test of Aguilar.

In his motion to suppress appellant urged:

“I.

“Defendant was arrested without a warrant and without probable cause in violation of the IV, V, and XIV Amendments to the Constitution of the United States and in violation of the laws and Constitution of the State of Texas.

“II.

“That the search of Defendant’s person and luggage does not fall within any cogent exception to the Fourth Amendment.”

After a hearing on said motion, appellant’s counsel offered no authority to support his position that no probable cause had been shown except a reference to “Draper-Aguilar-Spinelli situations.” The motion to suppress was overruled.

In his first ground of error on appeal, appellant contended:

“The trial court erred in failing to suppress the evidence for the reason that appellant’s (sic) arrest was without probable cause.”

Among the authorities urged were Aguilar, Spinelli, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Shimel v. State, 640 S.W.2d 666 (Tex.App.—Houston [14th] 1982), applying Draper.

In grounds of error two, three and four appellant expressly contended the search was in violation of state law. In grounds of error five and six he contended there was insufficient evidence to show he consented to the search, and if he did consent, such consent to search was secured through the exploitation of his illegal arrest.

The Court of Appeals sustained appellant’s first ground of error on federal constitutional grounds finding no probable cause for the warrantless arrest and that any evidence derived from the arrest should have been suppressed citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Court of Appeals also sustained the fifth and sixth grounds of error regarding consent. As to appellant’s contentions regarding state statutes and law, the Court wrote:

“Appellant’s second, third, and fourth grounds of error also address the illegality of the search. In view of the fact that the Aguilar test of probable cause was not met, these grounds need not be addressed.”

The State in its petition for discretionary review urged that the “panel opinion of the First Court of Appeals erred in its failure to apply Illinois v. Gates ... to this case.” ¹

Thus the only question before us for review is whether the Court of Appeals properly applied federal constitutional law in finding that there was no probable cause for the warrantless arrest and that the trial court erred in overruling the motion to suppress evidence.

Initially we look to the facts developed at the suppression hearing.

Houston Police Officer D.D. Furstenfeld of the Narcotics Division was assigned to the Houston Intercontinental Airport on February 16, 1982. About 1 p.m. he received a telephone call at his office in Terminal A. He revealed the call was from “a reliable informant, confidential” who gave him information concerning an individual named Lee Eisenhauer. Furstenfeld was told Eisenhauer would depart from the airport at 1:30 p.m. en route to Miami, Florida, and would return to Houston on the same day with cocaine in his possession.

The informant gave the following description of Eisenhauer: white male, approximately 22 years of age, 5' 10" tall, weighing 160 pounds, with short, dark hair. He told Furstenfeld that Eisenhauer would be wearing a beige tweed jacket, blue jeans, and white tennis shoes.

Officer Furstenfeld went to Terminal C and observed the plane for Miami leaving the gate. He went to the Continental Airlines ticket desk and ascertained that a Lee Eisenhauer was on the 1:30 flight to Miami, and was booked on a return flight the same day which would arrive in Houston at 8 p.m.

At 8:03 p.m. Furstenfeld saw an individual fitting the description given by the informant, deplane. He testified that while the individual was dressed as described, etc., he still did not know the individual’s name. The individual looked around the gate lobby, appearing somewhat nervous. The individual was carrying a piece of carry-on luggage. He walked at a fast pace down the concourse, looking over his shoulder twice. He took the escalator to the baggage area, bypassed that area, and approached the north exit.

At this point Furstenfeld and his partner, Officer Burnias, approached the individual, identified themselves as police officers, and asked if they could talk to him. The individual agreed. He moved toward a small phone booth or cubicle and put his bag down. The officers asked if he had just returned from Miami. He stated he had.

When asked for his ticket and other identification, the individual complied. The airline ticket and other identification bore the name Lee Eisenhauer.

When appellant inquired “What’s this all about?” Furstenfeld advised Eisenhauer, identified as the appellant, that he believed him to be in possession of cocaine brought in from Miami. Appellant, according to the officer, became nervous, his hands began to shake, perspiration broke out on his forehead and he began to stutter.

At this juncture, another police officer,² Castillo, standing nearby, approached the appellant and told him that they “were onto his game” and knew he had gone to Miami to “score cocaine” and asked if he had it with him. Appellant looked at the officers and stuttered, “What happens now?” Fur-stenfeld advised they would like for him to consent to a search of his person and bag, that he did not have to consent, that he had a right to require a search warrant before any search was made.

What happened thereafter varies somewhat from the direct to the cross-examination of the officer.

On direct examination by the State Fur-stenfeld related appellant responded to his advice about consent by taking off his jacket, handing it to Officer Burnias and stating, “It’s in the pocket.” Burnias looked in one pocket and Furstenfeld looked in the other pocket, and he (Furstenfeld) recovered a small ziploc baggie wrapped in a napkin, containing approximately 28 grams of white powder. Furstenfeld field-tested it and it reacted positive for cocaine.

On cross-examination Furstenfeld stated that after his statement regarding consent that appellant stuttered but did not say anything. It appears that the appellant’s bag was then searched which did not reveal any contraband. At this point Officer Gan-non, standing nearby, suggested the cocaine might be in appellant’s sock. Officer Castillo then said to appellant, “Give it up, you are caught” or something “like that.” It was then that appellant handed his coat to the officers who found the cocaine.

In Aguilar, the Supreme Court wrote:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 [11 L.Ed.2d 887] was ‘credible’ or his information ‘reliable’.” 378 U.S. at 114-115, 84 S.Ct. at 1514.

The holding in Spinelli was, inter alia, that corroborating facts from police observations which are stated in the search warrant can be taken into account to determine whether the affidavit as a whole meets the requirements of Aguilar.

The Court of Appeals in this warrantless arrest case found the first prong of Aguilar was “satisfied by the highly detailed nature of the informant’s allegations,” citing Spinelli, but found the second prong was not met since it was not shown why the officer deemed the informant credible and the information reliable.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (June 8, 1983), the Supreme Court held that the rigid “two prong test” under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant would be abandoned and a “totality of the circumstances” approach that traditionally has informed probable cause determinations would be substituted in its place, and that probable cause for the search warrant authorizing search of the Gates’ home and automobile was established by anonymous letter indicating that the defendants were involved in activities in violation of State drug laws and predicting future criminal activities where major portions of the letter’s predictions were corroborated by information provided to af-fiant by federal agents.

In Gates the Court wrote:

“We agree with the Illinois Supreme Court that an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report. We do not agree, however, that these elements are entirely separate and independent requirements to be rigidly exacted in every case which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.

“This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.

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“As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

U ⅜ * *

“Unlike a totality of circumstances analysis, which permits a balanced assessment of the relative weight of all the various indicia of reliability (and unreliability) attending an informant’s tip, the ‘two pronged test’ has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.

(C ⅜ * *

“For all these reasons, we conclude that it is wiser to abandon the ‘two-pronged test’ established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States, supra; United States v. Ventresca, supra; Brinegar v. United States, supra. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concludpng]’ that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 80 S.Ct., at 736. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. ”

The Court in Gates emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.

To emphasize what it intended in Gates, the Supreme Court recently reversed the Supreme Judicial Court of Massachusetts in Massachusetts v. Upton, — U.S. —, 104 S.Ct. 2085, 80 L.Ed.2d 721, 35 Cr.L. 4044 (May 14, 1984). In Upton the Massachusetts court apparently viewed Gates as merely adding a new wrinkle to the two-pronged test of Aguilar and Spinelli: where an informant’s veracity and basis of knowledge are not sufficient, substantial corroboration of the tip may save an otherwise invalid warrant. The Supreme Court, however, called attention to its explicit language in Gates that it was abandoning the Aguilar-Spinelli approach, and faulted the Massachusetts court for conducting a de novo probable cause determination instead of merely deciding whether the evidence viewed as a whole provided a “substantial basis” for the magistrate’s finding of probable cause.

We here observe that Aguilar and Spinelli and Gates all concerned search warrants, but it is well established that the standard for determining the sufficiency of the informant’s tip is the same for either search warrants or arrest warrants. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.1972) (footnote 2). And the standards applicable to determining whether the facts of a case support an officer’s probable cause assessment at the time of the challenged warrantless arrest and search are at least as stringent as the standards applied when reviewing the decision of a magistrate. Whiteley v. Warden, Wyoming State Penitentiary, supra; Ochs v. State, 543 S.W.2d 355 (Tex.Cr.App.1976), cert. den. 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977); Truitt v. State, 505 S.W.2d 594, 596 (Tex.Cr.App.1974); Cole v. State, supra; Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972).

In United States v. Mendoza, et al., 722 F.2d 96 (5th Cir.1983), the court in footnote # 5 stated:

“We recognize that Gates dealt with probable cause for the issuance of a warrant for the search of a vehicle and a house. This determination of probable cause, however, is applicable to both warrant and warrantless searches. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ....”

It is clear that the “totality of the circumstances” standard of Gates is applicable to warrantless arrests and searches.

In Bellah v. State, 653 S.W.2d 795 (Tex.Cr.App.1983), this court held that Gates applied instead of Aguilar in a case involving an affidavit for an arrest warrant.

Without reaching an application of Gates, the State argues in its brief that the warrantless arrest and search incident thereto in the instant case could be upheld under the Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)—Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970), line of cases. See Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969); Fry v. State, 493 S.W.2d 758 (Tex.Cr.App.1972); Rivas v. State, 506 S.W.2d 233 (Tex.Cr.App.1974); Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975); Ochs v. State, 543 S.W.2d 355 (Tex.Cr.App.1976) cert. den. 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977); Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977); Hicks v. State, 545 S.W.2d 805, 858 (Tex.Cr.App.1977). See also United States v. Acosta, 411 F.2d 627 (5th Cir. 1969); Fry v. Estelle, 527 F.2d 420 (5th Cir. 1976).

Almendarez involved a warrantless arrest and a search incident thereto. There a police officer received information from a previously reliable informer. The information given included detailed description of automobiles of defendant and his companion, including license numbers, and marihuana could be found in the vehicle which would be located at a certain location. The officer was not told the informer had seen marihuana or how he had come by his information. The officer went to the location and found the automobiles as described. There this court wrote: “There would appear to be some indication that the informer spoke with personal knowledge or had gained his information in a reliable way. At the point of interception every fact except the presence of marihuana was verified.” The arrest and the search that followed was upheld. See also Fry v. Estelle, supra.

In Buitrón, supra, it was held on the basis of the independent observations of the officers coupled with the information from the reliable informer, there was probable cause to search the red and white pickup and the defendant. See also Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Hicks v. State, supra.

This line of cases, as in Draper,³ nearly always includes a tried and true informer which satisfies the second prong of Aguilar, and situations where the details given by the informer and corroboration of the details by the officers satisfies the first prong of Aguilar. See Jones v. State, 640 S.W.2d 918 (Tex.Cr.App.1982). While this line of cases is instructive, the informer in the instant case was not shown to be a previously reliable informer, or one which had a proven track record.

We now look at the “totality of the circumstances” approach. Officer Fursten-feld testified he received his information from “a reliable informant, confidential.” He did not testify nor was he asked whether the informer had given him previously reliable information, etc.⁴ A mere assertion or conclusion that an informer is credible, without more, is insufficient to establish credibility. Aguilar, supra; Cole v. State, 484 S.W.2d 779, 782 (Tex.Cr.App.1972). This much of Aguilar is still retained by Gates. 462 U.S. at -, 103 S.Ct. at p. 2332. Moving on, we observe that once Officer Furstenfeld received the informer’s tip, he went immediately to Terminal C of the airport and found the plane to Miami at 1:30 p.m. was leaving. At the Continental Airlines ticket counter he found a Lee Eisenhauer was on the departed flight and booked to return to Houston that night, just as the informer had reported. At this point he was unable to verify the physical descriptions given, etc., by the informer. As Furstenfeld related, he would not have at the time been able to present probable cause to a magistrate. He met the incoming flight from Miami, At 8:08 p.m. he observed an individual wearing the clothes described by the informer and meeting the physical description. The individual, carrying a bag, looked around the gate lobby appearing nervous. Then he walked at a fast pace down the concourse looking over his shoulder twice. He bypassed the baggage area and headed for the north exit. Officer Furstenfeld admitted that most of these actions were common in airports and were innocent in themselves.

In Gates, 462 U.S. at -, 103 S.Ct. at p. 2335, n. 13, the Court observed that seemingly innocent activity may become suspicious in the light of the initial tip. The Court wrote:

"... As discussed previously, probable cause requires only a probability or substantial chance .of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands ... In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-criminal acts.” See also United States v. Mendoza, et al., 722 F.2d 96 (5th Cir. 1983).

As Furstenfeld saw the individual head for the north exit, he and his partner approached him and identified themselves as police officers. They asked if they could talk to him. The individual agreed and affirmatively answered the question of whether he had been to Miami. He complied with the request for his airline ticket and other identification. The ticket and other identification bore the name Lee Ei-senhauer as given by the informer.

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Court wrote:

“Second, law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, 442 U.S. 200, 120, n. 12, 99 S.Ct. 2248, 2255, n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 31, 32-33, 88 S.Ct. 1868, 1885-1886, 20 L.Ed.2d 889 (1968) (Harlan, J., concurring); ed. at 34, 88 S.Ct. at 1886 (White, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.). The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, supra, 392 U.S. at 32-33, 88 S.Ct. at 1885-1886 (Harlan, J., concurring) id, at 34, 88 S.Ct. at 1886 (White, J., concurring).

“Asking for and examining Royer’s ticket and his driver's license were no doubt permissible in themselves .... ” Royer 460 U.S. at 497, 103 S.Ct. at p. 1326.

The request in the instant case for and examination of Eisenhauer’s airline ticket and other identification was likewise permissible in and of themselves.

At this juncture Eisenhauer, who was identified as the appellant, asked “What’s this all about?” Furstenfeld advised him that it was believed that he was in possession of cocaine brought from Miami. Ei-senhauer then became nervous, his hands began to shake, perspiration appeared on his forehead, and he began to stutter. Officer Castillo approached from his observation post, told appellant they were “onto his game” and asked if he had the cocaine he brought from Miami. Furstenfeld asked appellant to consent to a search, that he did not have to consent, that he could require a search warrant. The exact sequence of events thereafter is not clear. Appellant either immediately handed his coat to the officers after the warnings concerning consent, or when he said nothing after the consent admonishment, there was a fruitless search of his bag, a suggestion that “it” was in his sock and at that time the appellant relinquished his coat.

Regardless, it appears that when Castillo approached appellant was in a phone cubicle surrounded by four plainclothes officers, accusing him of transporting narcotics and requesting consent to search, or stating a search warrant would be obtained, and without indicating in any way that he was free to depart.⁵ “These circumstances surely amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (Opinion of Stewart, J.).” Florida v. Royer, 460 U.S. at 497, 103 S.Ct at p. 1326. Thus appellant was effectively seized for the purposes of the Fourth Amendment.

Even if the informer was anonymous, he gave the officer a fair detailed physical description of the appellant and his clothing, giving appellant’s name, and predicting his future actions that day and the purpose of appellant’s trip. Then the corroborative efforts of the police began. At the time of the interception, the arresting officer had personally verified every facet of the information given him by the informer except whether appellant had accomplished his mission and the cocaine was on his person or in his bag.⁶ These circumstances, along with appellant’s actions in the airport after arrival, albeit mostly innocent, together with his reactions when he learned the officers believed he possessed cocaine brought from Miami, furnished a substantial basis for Officer Furstenfeld to conclude there was probable cause to arrest the appellant, particularly when the “totality of circumstances” test is applied. The arrest was valid, and fruits of the search incident thereto were admissible in evidence as a matter of federal constitutional law. The trial court did not err in overruling the motion to suppress on this basis. Illinois v. Gates, supra.⁷; United States v. Peyko, 717 F.2d 741 (2nd Cir. 1983).

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for action not inconsistent with this opinion, and to answer the grounds of error with regard to Texas law left unanswered because of the reversal of the conviction.

1 . After sustaining the first ground of error on federal constitutional grounds, the court added footnote # 1:

"In Gate v. Illinois (sic), no. 81-430, U.S. Supreme Court, decided June 8, 1983 [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527], abolished two-prong standard set forth in Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723], but said, however, that the states could retain and follow the-two-prong standard at its election. Texas, as yet, has not elected to abandon the two-prong standard.”

The court did not base its decision on ground of error $1 on any discussion that independent of federal constitutional law Texas had in fact adopted the Aguilar test, as part of the state law, or that having adopted the same had not elected to abandon the same. All we have is the assertion in the footnote. Since the Court of Appeals did not reach the grounds of error relating to Texas law, it is not clear why the footnote was added. In view of our disposition of this cause we make no comment on the soundness of the statement made in the footnote.

2 . All officers involved were dressed in mufti.

3 . See and cf. footnote 12 of Gates relating to Draper.

4 . The Court of Appeals was in error in stating that Furstenfeld had never received any information from the informer prior to the telephone call on February 16, 1982. The record on cross-examination reflects:

"Q When did you receive your information from the informant?

"A At approximately 1:00 o’clock p.m.

“Q Had he given you any information before 1:00 o’clock with respect to Mr. Eisenhauer?

"A No, sir.

"Q Did he give you any information after 1:00 o'clock, with respect to Mr. Eisenhauer?

“A After I spoke to him on the phone one is all I talked to him, no, sir." (Emphasis supplied.)

This does not translate into the conclusion reached by the Court of Appeals, and we find no other record evidence relating to the matter.

5 . It is not clear whether appellant’s airline ticket and other identification had been returned to him.

6 . There would certainly appear to be some indication that the informer spoke with personal knowledge or had gained his information in a reliable way.

7 . There is a constitutional preference for a warrant issued by a magistrate. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). We, however, observe what this court said in Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975), is here controlling:

“It would have been a greater intrusion, and unnecessary, to hold the occupants until either of the two magistrates in the county could be found. There was no error in the search conducted. Chambers v. Maroney, supra; Harris v. State, 486 S.W.2d 88 (Tex.Cr.App.1972); Coyne v. State, supra [485 S.W.2d 917 (Tex.Cr.App.1972) See also Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976); Craddock v. State, 553 S.W.2d 765 (Tex.Cr.App.1977).