Phillips v. State (328 S.W.2d 873, 1959)

WOODLEY, Judge.

The offense is possession of marijuana, a narcotic drug; the punishment, fifteen years.

On the morning of October 26, 1957, J. M. Souter, Lieutenant of Detectives assigned to the Special Services Bureau of the Dallas Police Department, secured the issuance of a search warrant authorizing the search of appellant’s apartment.

In the affidavit made by Lt. Souter he swore that appellant and unknown persons unlawfully possessed marijuana and that he had cause to believe and did believe that said narcotic drugs were then concealed by appellant and unknown persons in said apartment (described therein) which appellant and unknown persons occupied, possessed, controlled and had charge of.

The affidavit also contained the following : “My belief as foresaid is based on the following facts : (A) I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas, (B) and further (9).”

Appellant’s counsel diligently sought to require that Lt. Souter disclose the name of his informer, but Souter declined to name him and the court refused to require him to do so.

The ruling of the trial court finds support in the holdings of this Court. Hudson v. State, 156 Tex.Cr.R. 612, 243 S.W.2d 841, 245 S.W.2d 259, and cases there cited; Shafer v. State, 151 Tex.Cr.R. 558, 209 S.W.2d 599. See also People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50.

Appellant insists that the affidavit shows no probable cause, in the absence of which the search thereunder was void. Judge Richburg, the magistrate who issued the warrant, was called by appellant in his effort to show that the search warrant was invalid. He testified before the court in the jury’s absence that Lt. Souter made the affidavit before him and that he was satisfied and decided that there was probable cause.

The search warrant appears to be valid. Davis v. State, Tex.Cr.App., 302 S.W.2d 419; Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095.

After keeping the apartment under surveillance for some hours, Lt. Souter went to appellant’s apartment after 9 P.M. on October 27, 1957, where he found appellant and served the warrant. He was accompanied by Dallas Police Officers Frazier and Revill of the Narcotics Squad.

Shortly after the officers arrived, one George Owens came to the apartment. Lt. Souter then found a marijuana cigarette in the apartment.

Appellant then told the officers “that if we would let George Owens go she would give us the rest of the marijuana she had.”

George Owens was permitted to leave, and thereupon appellant produced from her bosom a glass bottle containing marijuana. No authorities are cited in support of the contention that the officers’ promise made this statement inadmissible, and we know of none. The statement was res gestae and was admissible. Sparks v. State, 161 Tex.Cr.R. 100, 275 S.W.2d 494; Smith v. State, 157 Tex.Cr.R. 637, 253 S.W.2d 665; Glaze v. State, Tex.Cr.App., 310 S.W.2d 88.

The State offered this proof through the witness Lt. Souter and the marijuana cigarette and the bottle and contents were offered as Exhibits, marked and admitted without any objection being made at that time based upon the claim that such evir dence was unlawfully obtained. Under the following cases, any objection as to the results and fruits of the search were waived. Killingsworth v. State, Tex.Cr.App., 306 S.W.2d 715; Wyatt v. State, 162 Tex.Cr.R. 134, 282 S.W.2d 392, and Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356. See also Gonzales v. State, Tex.Cr.App., 320 S.W.2d 837.

The State offered further proof as to the substance in the cigarette and the contents of the bottle being marijuana, and corroborating Lt. Souter’s version of appellant’s possession thereof.

Appellant sought through cross-examination of the State’s witnesses and her own witnesses to establish that her telephone had been tapped and that the information which was used to secure the search warrant was illegally obtained in that manner, but the State’s witnesses denied tapping or intercepting any telephone conversation.

The cautious trial judge submitted to the jury appellant’s theory of the law regarding wire tapping and illegal interception of any conversation conveyed by telephone, and instructed the jury to disregard any evidence admitted before them which they believed or had reasonable doubt was obtained in violation of said law “by obtaining information that led directly or indirectly to the discovery of any of the evidence which the State introduced in this case.”

Evidence was introduced by appellant to the effect that the marijuana which appellant produced from her bosom and delivered to the officers belonged to Helen K. Smith, it having been given to her by Virginia Strom and left with appellant shortly before the officers arrived.

Appellant did not testify. Virginia Strom was called by appellant, claimed her privilege against self-incrimination and did not testify. Helen K. Smith testified that appellant agreed to her leaving the marijuana with her at her apartment after she told the appellant it was marijuana. Thus appellant’s witness placed her in possession of marijuana, rendering harmless any error in the admission of testimony of the State as to her possession of that marijuana. Schaefer v. State, 121 Tex.Cr.R. 220, 53 S.W.2d 302; Haykel v. State, 158 Tex.Cr.R. 359, 255 S.W.2d 1014.

We confess our inability to find any defensive issue in this testimony. Ownership may have been in the witness Smith, but possession was in appellant. If appellant has any ground of complaint in this regard, it must be that the punishment assessed by the jury suggests that they did not accept it as a mitigating circumstance.

Motion for change of venue was filed and was controverted, and after three witnesses had been examined the trial court announced that he would take the motion under advisement. After nineteen veniremen had been examined and none disqualified, the motion was overruled and appellant excepted.

The voir dire examination of the veniremen is not before us and there is nothing to show that any objectionable juror served or that appellant exhausted her challenges.

No error is shown in the court’s overruling the motion for change of venue. See Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Kizzee v. State, Tex.Cr.App., 312 S.W.2d 661, and cases cited; Slater v. State, Tex.Cr.App., 317 S.W.2d 203.

Appellant complains that her motion for new trial based upon the receipt of evidence by the jury after retirement should have been granted.

The evidence heard upon said motion and allegations at most raised an issue of fact which the trial court was warranted in determining contrary to appellant’s contention, and no abuse of discretion is shown.

We have examined the other propositions upon which reversal is sought and find no error which would warrant reversal.

The judgment is affirmed.

DAVIDSON, Judge

(dissenting).

If the Constitution of this state and that of the United States, which guarantee that one’s home is secure against an unreasonable and unlawful search and seizure, are in force and effect and are to be enforced and followed and obeyed by the courts, this conviction can not and ought not to be permitted to stand, for it was obtained in violation of those constitutional guarantees.

If the statute law of this state which says that no evidence obtained in violation of any provision of the Constitution and laws of the United States and of this state shall be admitted in evidence against the accused in the trial of a criminal case is in full force and effect in this state and which should be followed and obeyed by the courts, this conviction can not and ought not to be permitted to stand. That statute was violated in securing this conviction. Art. 727a, Vernon’s C.C.P.

This conviction rests upon evidence obtained as a result of the search of appellant’s home by peace officers acting under the authority of a search warrant.

There exists in this state no statute or other authority which authorizes the issuance of a search warrant to search one’s home for narcotics, or marijuana. The statute in this state which attempts to authorize the issuance of a search warrant for that purpose is void and unenforceable, because it is in direct violation of the Constitution of this state and that of the United States.

I will endeavor to demonstrate the correctness of the foregoing statements:

Art. 1, Sec. 9, of the Constitution of this state says:

“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.”

The Fourth Amendment to the Constitution of the United States reads as follows :

“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.”

These are not a mere mass of words or meaningless platitudes. They are solemn declarations of the people of this state and nation by which each citizen and all citizens of this state and nation are protected against unlawful arrests and searches and the use of governmental force to search their homes without their consent.

A reasonable 'search within the meaning of those constitutional provisions is one that is lawful and made in accordance with law. All others, then, are unlawful and are barred by the Constitutions.

Early in the history of this state, the legislature enacted Title 6 of our original code of criminal procedure, setting forth therein the procedure to be followed in securing and issuing search warrants. The legislature was there providing the procedure whereby it might be determined when a search of one’s home was reasonable and therefore lawful and not inhibited or condemned by the Constitutions.

Search warrants were there authorized to be issued to search for stolen property or property illegally acquired, for implements kept for use in forging and counterfeiting, and for arms or munitions kept or prepared for the purpose of insurrection or riot. Art. 305, C.C.P.

In none of the statutes comprising Title 6 does one find the words “probable cause.” The legislature made no effort to define what was meant by those words, as used in the Constitutions. There was no provision made in those statutes to require that an affidavit evidencing probable cause be filed as a condition precedent to the issuance of a search warrant. The meaning of “probable cause” was left to the courts.

The courts were not long in defining that term, as used in the Constitutions.

When the Supreme Court of this state had appellate jurisdiction in criminal cases, that court defined “probable cause,” in Landa v. Obert, 45 Tex. 539, as:

“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.”

That definition has stood unchanged and unchallenged throughout the years and appears to be the definition accepted by all jurisdictions.

It was not until 1937 that the legislature of this state legislated upon the subject of the issuance of search warrants to search for narcotics. This the legislature attempted to do by the enactment of Sec. 16 of the Uniform Narcotic Drug Act, appearing as Art. 725b, Vernon’s P.C.

Sec. 16 thereof furnishes the basis as well as the procedure for the issuance of a search warrant to search one’s home for marijuana.

It is by reason of Sec. 16 that the warrant to search this appellant’s home was issued. If that statute is void, it furnishes no basis for the issuance of a search warrant, and any warrant to search which is issued thereunder is void.

Sec. 16 is void,, because it authorizes a search warrant to issue to search one’s private residence without an oath or affirmation evidencing probable cause for the search, as required by our State and Federal Constitutions.

Under that section all that is necessary for the issuance of a search warrant to search one’s home for narcotics is for some peace officer to file or cause to be filed with some magistrate his “sworn complaint” that he has “reason to believe” that some person has in his possession narcotic drugs in violation of law. Upon the filing of such complaint the magistrate issues the search warrant under the applicable procedure set-out in Title 6 .of the Code of Criminal Procedure.

To make doubly sure that a search warrant could issue upon an affidavit of an officer only that he has “reason to believe,” the legislature made it clear that the provisions of Sec. 16 were to apply over any provision of Title 6, C.C.P., to the contrary.

By no stretch of the imagination can it be said that “information and belief” or “reason to believe” constitute “probable cause,” for no facts or circumstances are stated which evidence “probable cause.”

In Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095, 1098, this court held that “ ‘reason to believe’ ” and “ ‘do believe’ ” did not constitute probable cause.

In that case, an affidavit for search warrant upon information and belief was held illegal. That holding in the Chapin case has never been changed by this court but has been repeatedly followed heretofore. It is the law of this state today.

Under the Constitution of this state it is clear that a warrant to search one’s home can be issued only upon affidavit which evidences probable cause for the search and that it can not issue upon an affidavit of “information and belief.” See, also, Pate v. State, 129 Tex.Cr.R. 45, 83 S.W.2d 984, arid Trimmer v. State, 135 Tex.Cr.R. 372, 120 S.W.2d 265.

The federal decisions under the Constitution and laws of the United States are to the same effect. I need only to call attention to the case of Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, by the Supreme Court of the United States, to justify that statement. There, it was held that a search warrant issued upon an affidavit of information and belief was bad, under the Fourth Amendment to the Federal Constitution and the laws of the United States. See, also, the case of Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, by the Supreme Court of the United States, which holds that a search warrant issued upon an affidavit of suspicion and belief, without any statement of the facts or circumstances by which the issuing officer can find probable cause therefor, violates the Constitution and laws of the United States.

It is apparent that this court and the Supreme Court of the United States are in complete accord with the legal conclusion that a search warrant to search one’s private residence can not issue upon an affidavit of mere opinion or belief. It may issue only upon an affidavit evidencing probable cause for the search.

In addition to the Fourth Amendment to the Federal Constitution and the federal decisions, including the decisions of the Supreme Court of the United States, we have a federal statute which says that a search warrant under federal law can be issued only upon probable cause and that affidavits or depositions must set forth the facts tending to establish the grounds of the application or the probable cause for believing they exist. Sec. (c), Rule 41, Title 18 U.S.C.A.

So it is demonstrated that within the meaning of the Constitution of Texas and that of the United States a warrant to search a private residence can not issue upon an affidavit based solely upon information or belief — notwithstanding all of which, the legislature of this state said, in the enactment of Sec. 16, to the exact contrary: i. e., that a search warrant may issue upon the affidavit of a peace officer that he has “reason to believe,” with no requirement whatsoever of a showing of “probable cause.”

If Sec. 16 is valid, then Art. 1, Sec. 9, of the Constitution no longer exists. If Art. 1, Sec. 9, is a part of our Constitution, then Sec. 16 is void. The Constitution and Sec. 16 can not both be valid.

What does the Constitution of this state say about such act of the legislature? Here is what Art. 1, Sec. 29, of our Bill of Rights says:

“To guard against transgressions of the high powers herein delegated, we declare that everything in this ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.” [Emphasis supplied.]

As was said in Faulk v. Buena Vista Burial Park Ass’n, Tex.Civ.App., 152 S.W.2d 891, that section is so plain that, construction thereof is unnecessary.

Art. 1, Sec. 9, of the Bill of Rights says that a search warrant to search a private residence can issue only upon probable cause. By the enactment of Sec. 16, the legislature said to the exact contrary— that is, that a search warrant to search a private residence may issue upon information and belief. Art. 1, Sec. 29, of the Bill of Rights says that such an enactment by the legislature is void because it is in contravention of the Constitution.

To my mind, it is inconceivable how Sec. 16 may be judicially declared to be a valid statute and a search warrant issued in accordance with the provisions of Sec. 16 declared valid. Yet that is what my brethren hold when they affirm this conviction.

The legislature can no more disobey and violate the Constitution than can any private citizen of this state. The legislature was powerless to say that a warrant to search one’s private residence may issue upon an affidavit of a peace officer, upon his belief, without probable cause.

The search warrant used in this case as authority to search appellant’s residence, being based upon a void statute, was itself void.

For reasons other than that it was issued upon a void statute, the search warrant in this case was void:

What did the affiant swear in the affidavit? He swore, positively and without equivocation, that on the 26th day of October, 1957, in Dallas County, Texas, the appellant “Juanita Dale Phillips and unknown persons did then and there unlawfully possess a narcotic drug, to-wit: marijuana.”

If the affiant knew, as he swore he did, that appellant unlawfully possessed marijuana, it occurs to me that he should have arrested her because he knew she was committing a felony either in his presence or within his knowledge. The affiant appears not to have done that, but, instead, sought to secure a search warrant to search the home of Juanita Dale Phillips.

Note is also taken of the fact that the affiant did not say in the affidavit that he knew where appellant kept or how she possessed the marijuana which he says she unlawfully possessed.

Following the above quoted portion thereof, the affidavit states:

“And I have cause to believe and do believe that said narcotic drugs are now concealed by Juanita Dale Phillips and unknown persons in an apartment, #24A, situated in Dallas County, Texas, at 4328 McKinney Avenue, City of Dallas, Dallas County, Texas, which said Juanita Dale Phillips and unknown persons occupi