Ruiz v. State

457 S.W.2d 894, 1970 Tex. Crim. App. LEXIS 1289

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1970
• Docket: 42439
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The conviction is for the possession of heroin; the punishment, life.

The record reflects that the heroin introduced into evidence was obtained under a search warrant. It is contended that the affidavit used to obtain the search warrant did not show sufficient facts to constitute probable cause. The affidavit, dated December 7, 1968, omitting the formal parts, is as follows:

“I, Everette H. Hewett, do solemnly swear that heretofore, on or about the 7th day of December, 1968, in Victoria County, Texas, Alma Ruiz, alias Janie Ruiz did then and there unlawfully possess a narcotic drug, to-wit: Heroin, and I do have good reason to believe and do believe that said narcotic drug is now concealed by the said Alma Ruiz, Alias Janie Ruiz in said County and State in Room 10 of the Victoria Motel in Victoria, Texas, which said premises are occupied by and under the control of the said Alma Ruiz, alias Janie Ruiz.

“My belief of the foregoing is based upon the following facts: T know that on or about the 24th day of November, 1968, Walter Eugene Benda, Al G. Cantu and Alma Ruiz came to Six Flags Motel at Victoria in Victoria County, Texas, and occupied adjoining rooms with a connecting door; that the said Walter Eugene Benda later moved to another room in said motel; that after the said Walter Eugene Benda vacated said room, and before it was rented to another occupant, there was found in said room a syringe, spoon and piece of cotton, which items were of the type usually used by heroin addicts; that known and suspected heroin addicts frequented the room occupied by the said Al G. Cantu and Alma Ruiz; and that the said Al G. Cantu and Alma Ruiz left word that they would be back in Victoria on or about December 6th, 7th or 8th.”

There are neither sufficient facts nor underlying circumstances to show probable cause for the issuance of the search warrant. There is no showing in the affidavit that Hewett saw the syringe, spoon and piece of cotton, or that he saw the three people in the adjoining rooms.

In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, the complaint for an arrest warrant, in part, read:

“ ‘The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.’ ”

There the Court stated:

“ * * * The Complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner’s reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. * * * ”

In the present case, if the affidavit is construed to show that the information was furnished to Hewett by an informant,¹ then the following statement by the Supreme Court of the United States is applicable:

“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. * * * ” Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723²

See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.³

Because the affidavit does not meet the standards set out in the Giordenello and Aguilar cases by the Supreme Court of the United States, the cause is reversed and remanded.

1 . This Court does not consider testimony on the motion to suppress the evidence seized under the warrant to test the sufficiency of the affidavit; however, it is noted from such testimony that a large part of the affidavit was not based on Hewett’s personal knowledge but upon information furnished by others.

2 . After this decision, the Legislature adopted Article 18.01, Vernon’s Ann.C.C.P., which provides, in part: “No search warrant shall issue for any purpose in this State unless a sworn complaint therefor shall first be filed with the issuing magistrate setting forth sufficient facts to satisfy the magistrate that probable cause does in fact exist for its issuance.”

3 .It would serve no useful purpose to review the case where probable cause has been discussed by this Court. For one of the cases which held the affidavit to be sufficient, see Green v. State, Tex.Cr.App., 451 S.W.2d 893. The cases are collated under Article 18.01, V.A.C.C.P., Note 4.