Eisenhauer v. State

754 S.W.2d 159, 56 U.S.L.W. 2602, 1988 Tex. Crim. App. LEXIS 53, 1988 WL 23637

• Court: Court of Criminal Appeals of Texas
• Decided: March 23, 1988
• Docket: 149-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This appeal is from a conviction for possession of a controlled substance, to-wit: cocaine. Following appellant’s plea of nolo contendré before the court, punishment was assessed at six years’ imprisonment, probated, and a fine of $2,000.

Prior to the bench trial, appellant filed a pretrial motion to suppress. Only one police officer testified at the hearing and the motion was overruled. Thereafter, appellant entered his nolo contendré 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, appellant appealed only the denial of the pretrial motion to suppress, which was permissible under Article 44.02, V.A.C.C.P.¹

In Eisenhauer v. State, 657 S.W.2d 184 (Tex.App.—Houston [1st Dist.] 1988) (hereinafter Eisenhauer I), the same search and seizure being tested before the Court today was the subject of a federal constitutional challenge. The Court of Appeals found that the arrest of the appellant was not supported by probable cause and, as a result, the fruits of the subsequent search were inadmissible. The decision was based solely on federal constitutional grounds, to which the Court of Appeals incorrectly applied the rule of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This Court granted review of the Eisenhauer I decision in Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984) (hereinafter Eisenhauer II). Presiding Judge Onion, writing for the majority, concluded that the Court of Appeals’ application of the Aguilar two-prong test was erroneous, as the federal law rested on the rule of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, rehearing denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), which required review of the totality of circumstances. This Court was careful to point out that both Eisenhauer I and Eisenhauer II rested entirely upon federal grounds.

After reversing the Court of Appeals in Eisenhauer II, this Court remanded the case for consideration of appellant’s grounds of review based on state law. The remand resulted in yet another decision styled Eisenhauer v. State, 684 S.W.2d 782 (Tex.App.—Houston [1st Dist.] 1984) (hereinafter Eisenhauer III). In Eisenhauer III, the Court of Appeals was faced with the task of determining whether probable cause for the search and seizure existed under Texas law. In concluding that the arrest was illegal, the Court of Appeals again applied the analysis of Aguilar v. Texas, supra. From this ruling, the State filed a petition for discretionary review which was granted by this Court to determine: (1) whether appellant sufficiently preserved State law grounds for review; (2) whether it was error for the Court of Appeals to apply the rule in Aguilar to probable cause determinations based on State law, and (3) whether probable cause existed under Texas law.² We now reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The first point that must be addressed is whether appellant sufficiently preserved the State law point of error for review. Before his trial at the bench, appellant filed a written motion to suppress. It stated, inter alia, that: “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.” At the hearing on the motion, appellant’s attorney objected to the arrest only on federal grounds, stating: “We are dealing with Draper-Aguilar-Spinelli situations....” The State argues the above quoted language, even taken in light of the written motion, is insufficient to preserve the error for review on appeal.

Though it has long been the rule that a general or imprecise specific objection is insufficient to preserve error for appeal, where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived. Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986); Samuel v. State, 688 S.W.2d 492 (Tex.Cr.App.1985); Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). We find this latter exception to be controlling in the case at bar. The clear thrust of appellant’s challenge was directed toward the propriety of the warrantless arrest and subsequent search. Article I, Section 9, of the Texas Constitution is directly on point. Failure to explicitly state “Art. I, § 9” should not be an impediment to review, particularly where, as here, this Court remanded the case to the Court of Appeals for the specific purpose of hearing appellant’s state law points of error.

It has also been held that a timely filed motion to suppress will be sufficient to preserve error even without oral argument at the suppression hearing. Vicknair v. State, 670 S.W.2d 286 (Tex.App.—Houston [1st Dist.] 1984, review refused). It logically follows that a motion to suppress will be sufficient to preserve an alleged error where the oral argument covers some, but not all, of the grounds raised in the motion. This is not like the situation presented in Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980), in which this Court held the State law grounds urged by the defendant for the first time on appeal had not been properly preserved for review since both the objection and the motion to suppress were based solely on federal grounds. The State’s first ground of review is overruled.

The State next poses the following ground of review: “The First Court of Appeals erred in holding that under Texas law probable cause based upon hearsay must satisfy the two-prong test of Aguilar v. State (sic), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).”

This case presents the Court with the first clear cut opportunity since the United States Supreme Court handed down Illinois v. Gates, supra, to establish a uniform guideline for determining the existence of probable cause under the constitution and laws of the State of Texas. While numerous cases have dealt with probable cause determinations, our research indicates the vast majority have dealt solely with federal constitutional issues. Very few cases presented before this Court have sought redress on State law grounds, and even fewer have resulted in decisions based upon the independent law of the State of Texas. See e.g., Marquez v. State, 725 S.W.2d 217 (Tex.Cr.App.1987); Ware v. State, 724 S.W.2d 38 (Tex.Cr.App.1986); Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986).

The opinion of the Court of Appeals in Eisenhauer III relies on the Aguilar-Spi-nelli analysis, despite the existence of a contrary federal standard. It is important to note that the Court of Appeals cites no authority for this conclusion.³ Moreover, research indicates that this Court has never stepped forward to adopt affirmatively the two-pronged Aguilar-Spinelli test as THE method of assessing probable cause under the constitution and laws of the State of Texas.⁴ Finding valid precedent lacking, it is up to this Court to make a pronouncement as to the proper State model for assessing probable cause. In doing so, we must analyze the nature and extent of the protections offered by the Texas Constitution, the statutory pronouncements of the Legislature and the interpretive caselaw.

An examination of Article I, Section 9, supra, reveals that it is virtually identical to its federal constitutional counterpart, the Fourth Amendment. Article I, Section 9 reads as follows:

“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and 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.”

The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article I, Section 9 of the Constitution of this State, and the Fourth Amendment of the Federal Constitution are, in all material aspects, the same. Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983); Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944); Daniel v. State, 704 S.W.2d 952 (Tex.App.—Fort Worth 1986). The arguments for greater protections advanced here must be addressed on the basis of interpretive caselaw or legislative pronouncements.

A review of the procedures used by this Court in the past for determining probable cause provides little, if any, guidance. During the period of time between Aguilar (1964) and Gates (1983), this State followed the lead of the United States Supreme Court and tacitly applied the Aguilar-Spi-nelli test to challenges based both on federal and state law. See e.g. Jones v. State, 640 S.W.2d 918 (Tex.Cr.App.1982); Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980); Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1977). However, the line of cases following the Aguilar-Spinelli model cannot be said to demonstrate, in and of themselves, judicial preference for a broader interpretation of Article I, Section 9 which provides greater protections than the Fourth Amendment. As this Court stated in Brown v. State, supra: “We ... decline [defendant's] invitation to attach to Article I, Section 9 of our Texas Constitution a more restrictive standard of protection than provided by the Fourth Amendment.” See also, Osban v. State, 726 S.W.2d 107 (Tex.Cr.App.1986); Daniel v. State, supra; Andrada v. State, 695 S.W.2d 230 (Tex.App.—Corpus Christi 1985); Kann v. State, 694 S.W.2d 156 (Tex.App.—Dallas 1985).

Argument that this Court has adopted Aguilar-Spinelli by implication is also without merit. Lacking a positive pronouncement adopting Aguilar-Spinelli, it can be argued with equal force that this Court has applied the two-pronged test only because federal law demanded it.⁵ The fact that this Court has consistently applied the totality of the circumstances analysis to probable cause challenges since Gates supports this conclusion.⁶ As caselaw fails to provide a clear answer to the question, an examination of the relevant statutory authority is appropriate.

In deciding there was insufficient probable cause to support the arrest in this case, the Court of Appeals specifically relied on Article 18.01(b), V.A.C.C.P. In effect, holding that “... the two-pronged Aguilar test must be met.” In support of their position, the Court of Appeals cites Winkles v. State, 634 S.W.2d 289 (Tex.Cr.App.1982), and Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984). Though the entire analysis in Winkles v. State, supra, is based on the requirements of Aguilar, the opinion contains no mention of any independent state grounds of review. Therefore, it cannot be said to be persuasive authority to a claim based on state law. Moreover, the citation of Glass v. State, supra, actually undermines the position of the Court of Appeals since Gates, and not Aguilar, is mentioned as an example of what is necessary to establish probable cause.

A comparison of the language of Article 18.01, supra, with the language of Aguilar reveals that the statute neither follows nor incorporates the two-prong test. Article 18.01(b) reads:

“No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth facts establishing probable cause shall be filed in every instance in which a search warrant is requested....”

Aguilar states:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, 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 was ‘credible’ or his information ‘reliable.’ ” (Citations omitted). Aguilar v. State, supra, 84 S.Ct. at 1514.

In his brief, appellant asserts:

“[T]he sufficient basis for a finding of probable cause referred to in Aguilar is the historic Aguilar test. The use of the words ‘sufficient facts ’ ' in the 1965 amendments to Article 18.01 accompanied by the commentaries patently establishes a legislative intent to incorporate Aguilar as part of independent state law.”

We find this argument neither persuasive nor sound. While the Legislature modified the language of Article 18.01 in 1965 after the Aguilar v. Texas decision by the Supreme Court, it does not necessarily follow that the Legislature intended to adopt the Aguilar two-prong analysis.⁷ If anything, these actions are congruous with a pattern of following the lead of the United States Supreme Court in interpreting search and seizure issues.

For authority, appellant refers almost exclusively to the commentaries that accompany Article 18.01, supra.⁸ It is true that Judge Morrison in this “Interpretive Commentary” under Article 18.01 observed that the Supreme Court had recently invalidated some Texas convictions because the affidavits for search warrants “did not contain sufficient facts to satisfy the magistrate that probable cause did in fact exist....” And it is likewise true that Presiding Judge Onion in his “Special Commentary” cites Aguilar; but he confines his reference to the basic requirement of Aguilar that “there must be sufficient facts present....” Nowhere do Judge Morrison or Judge Onion mention the two prongs of Aguilar or make any statement to the effect that such analysis was intended to be incorporated in the statute.

This Court had the opportunity to interpret Article 18.01(b), supra, in light of Aguilar in Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983). In Hennessy, the defendant alleged that a search warrant was invalid because the underlying affidavit “failed to satisfy the probable cause requirements of Aguilar v. Texas ... and Art. 18.01(b), V.A.C.C.P.” This Court held that the affidavit was sufficient under the Gates analysis. We find the reasoning of Hennessy sound and reaffirm that decision. Gates’ standards and principles should be applied in determining whether the demands of Article 18.01(b) have been met.⁹

The application of Gates is in no way repugnant to Article 18.01, supra. The ultimate inquiry of Article 18.01 concerns the existence of probable cause, which must be established by “sufficient” and “substantial” facts. Aguilar v. Texas, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Illinois v. Gates, supra, do not change the basic underlying rule. The only things that have changed are the measures which the Supreme Court created to aid in arriving at a determination of the existence of sufficient facts to show probable cause. Under Aguilar-Spinelli, the measure was the two-prong test. In Gates, the measure is the totality of the circumstances. Only the methodology of determining if the basic rule has been satisfied has changed, not the basic rule itself. Gates, like Article 18.01, continues the demand for sufficient and substantial facts.

The fact that the arrest in the instant case was made without a warrant is irrelevant to the probable cause analysis. The totality of the circumstances approach applies to warrantless as well as warrant seizures of persons and property. United States v. Mendoza, et al., 722 F.2d 96 (5th Cir.1983); Angulo v. State, 727 S.W.2d 276 (Tex.Cr.App.1987); Whaley v. State, 686 S.W.2d 950 (Tex.Cr.App.1985); Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984).

It is to be remembered that adoption of the analysis of Gates does not mean abandoning Aguilar-Spinelli. Gates did not dispense with the two requirements used in the Aguilar-Spinelli test. Rather, in Illinois v. Gates, supra, the United Sates Supreme Court criticized the strict application of the two prongs of Aguilar-Spinelli, stating that although the veracity and basis of knowledge of the informant are highly relevant factors:

“These elements are not to be understood as entirely separate and independent requirements to be rigidly exacted in every case. (103 S.Ct. at 2327).

♦ * # * * *

“Instead they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some indicia of reliability. (103 S.Ct. at 2329).”

See also, Whaley v. State, supra; Hennessy v. State, supra.

In conclusion, Aguilar was not followed in Texas in order to satisfy Article I, Section 9 of the Texas constitution or Article 18.01, Y.A.C.C.P.; it was followed because federal law demanded it. Federal law no longer demands it. In this area, the laws and constitution of the State of Texas impose no greater restrictive standard, leaving the Texas courts free to follow the lead of the Supreme Court of the United States. There being no binding authority to the contrary, today’s opinion is made to stay in step with the federal constitutional model for probable cause determinations.

The duty of the reviewing court is to look to the totality of the circumstances to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action. Angulo v. State, supra, at 278. In Eisenhauer II, applying the totality of the circumstances analysis to appellant’s federal constitutional claim, this Court concluded that there was a substantial basis for determining probable cause in the arrest and search of the appellant. It logically follows that there is no necessity for another remand to the Court of Appeals.

The judgment of the Court of Appeals is reversed and the judgment of the trial court affirmed.

1 . We have adopted the succinct statement of facts presented by Presiding Judge Onion in this Court’s prior opinion.

2 . In light of the Court’s disposition of the issues, it becomes unnecessary for us to reach a fourth point of error presented by the State as to whether appellant gave consent to the search in question.

3 . Indeed, this Court, in Eisenhguer II, specifically reserved judgment on the assertion of the Court of Appeals in Eisenhauer I that Texas followed Aguilar-Spinelli.

4 . In Marquez v. State, supra, it was stated that "this state has always used Aguilar-Spinelli." In that case the Court found it unnecessary to address the question of which test would be used in Texas as the affidavit in question was found to satisfy both Aguilar and Gates.

5 . Take the pre-Gates decision Wright v. State, 646 S.W.2d 460 (Tex.Cr.App.1983). In testing the sufficiency of an affidavit, the Court noted: “We must be ever mindful that we stay within the boundaries of constitutional requirements as prescribed by the United States Supreme Court in Aguilar."

6 . Both in cases based solely on federal grounds, see e.g., Angulo v. State, 727 S.W.2d 276 (Tex.Cr.App.1987); Armstrong v. State, 718 S.W.2d 686 (Tex.Cr.App.1985); Bellah v. State, 653 S.W.2d 795 (Tex.Cr.App.1983), and cases based on state and federal grounds, see e.g., Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983), and cases in which the record does not reflect whether state or federal grounds were determinative, see e.g., Thomas v. State, 701 S.W.2d 653 (Tex.Cr.App.1985); Whaley v. State, 686 S.W.2d 950 (Tex.Cr.App.1985); Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984); Spencer v. State, 672 S.W.2d 451 (Tex.Cr.App.1984); Wright v. State, 646 S.W.2d 460 (Tex.Cr.App.1983); cf. Marquez v. State, supra.

7 . After all, in Aguilar v. Texas, supra, the Supreme Court found the then-existing Texas probable cause analysis violative of the federal Constitution. It should surprise no one that the Legislature acted to bring State law into line with the constraints of the United States Constitution.

8 . We quote liberally from the State’s Attorney’s brief on this issue.

9 . The Hennessy decision has been widely recognized by the Courts of Appeals as adopting Gates into Texas jurisprudence. See e.g., Ellis v. State, 722 S.W.2d 192 (Tex.App.—Dallas 1986); Roldan v. State, 698 S.W.2d 741 (Tex.App.—Beaumont 1985); Correll v. State, 696 S.W.2d 297 (Tex.App.—Fort Worth 1985); Andrada v. State, 695 S.W.2d 230 (Tex.App.—Corpus Christi 1985); Elliot v. State, 681 S.W.2d 98 (Tex.App.—Houston [14th Dist.] 1984), aff'd 687 S.W.2d 359 (Tex.Cr.App.1985); Garcia v. State, 676 S.W.2d 202 (Tex.App.—Corpus Christi 1984, pet. ref'd).