Full opinion text
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. 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. 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. 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. 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. The fact that this Court has consistently applied the totality of the circumstances analysis to probable cause challenges since Gates supports this conclusion. 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. 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. 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. 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. . We have adopted the succinct statement of facts presented by Presiding Judge Onion in this Court’s prior opinion. . 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. . 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. . 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. . 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." . 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. . 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. . We quote liberally from the State’s Attorney’s brief on this issue. . 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).
ONION, Presiding Judge, concurring. I concur in the opinion by Judge McCormick. It is with reluctance that I add another opinion to those already extant in this cause. I am compelled to do so in view of the serious misinterpretation by the dissenting opinions of my Special Commentary to Article 18.01, V.A.C.C.P., written more than 22 years ago. Thank God I am still around to prevent my commentary from being used to mean something that was never intended. Article 304, V.A.C.C.P. (1925), provided: “A ‘search warrant’ is a written order, issued by a magistrate, and directed to a peace officer, commanding him to search for personal property, and to seize the same and bring it before such magistrate, or it is a like written order, commanding a peace officer to search a suspected place where it is alleged stolen property is commonly concealed, or implements kept for the purpose of being used in the commission of any designated offense.” An examination of the early drafts of the State Bar Committee on the Revision of the Code of Criminal Procedure (1925) on which Judges Erisman, Morrison and I served showed that in 1962 and 1963 it was proposed to bring Article 304 forward unchanged as Article 18.01 of any new Code of Criminal Procedure. In 1964 the decision in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was handed down. Thereafter, it was recommended by the said State Bar Committee that an additional paragraph without section or subsection numbers be added to the proposed Article 18.01 as follows: “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.” The recommendation or addition was made because of the holding in Aguilar, that sufficient facts must be presented to the magistrate to satisfy him that probable cause does in fact exist for the issuance of a search warrant. The two-prong test of Aguilar for determining probable cause was not, however, written into the change to proposed Article 18.01 by the said State Bar Committee. The recommendations of the State Bar Committee as to revision of the 1925 Code of Criminal Procedure were made to the Legislature, including the one as to Article 18.01 in 1965. Thereafter, a new Code of Criminal Procedure was adopted by the Legislature. Acts 1965, 59th Leg., ch. 722, effective Jan. 1, 1966. Article 18.01, without change from the recommendations from the State Bar Committee was adopted by the Legislature as a part of the new code. While it could have, the Legislature did not write into statute the two-prong test of Aguilar. In 28 Texas Bar Journal 727, 795 (1965), Onion, Commentary on the Revised Code of Criminal Procedure, this writer wrote: “The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, voided a Texas search warrant based merely upon ‘reliable information,’ and held that there must be sufficient facts presented to satisfy the magistrate that probable cause does in fact exist for the issuance of a search warrant. “The new code has been reworded to meet these requirements. Therefore the affiant (usually a police officer) an affidavit for search warrant can no longer merely state he has received reliable information from a credibly person (usually unnamed) that an offense has been committed, etc. The affidavit must show the magistrate (Justice of the Peace in most cases) additional facts to for a sufficient basis in fact for a determination by the magistrate that probable cause exists for the issuance of a search warrant.” (Authorities cited omitted.) An attempt was made to show the influence of Aguilar upon the change made in the language of old Article 304 when it became 18.01, but there was no claim made that the two-prong test had been statutorily adopted. The Special Commentary to Article 18.01, Y.A.C.C.P. (See Vol. I, p. 315, 316), was in the same language as the Bar Journal. I have reread the Interpretative Commentary to Article 18.01 by the late Judge W.A. Morrison of this Court and that of the late Judge Fred Erisman of Longview, Chairman of the State Bar Committee. I cannot agree that they are contrary to my commentary. I am fully aware of the results that Judges Clinton and Teague would like to reach in this cause, and I respect their views, but sadly they misinterpret my commentary upon which they seek to rely.
DUNCAN, Judge, concurring. I concur with the majority’s conclusion that neither Art. I, § 9 of the Texas Constitution or Art. 18.01, V.A.C.C.P., require that an affidavit based upon hearsay must comport with the Aguilar-Spinelli doctrine. Further, I find that Judge McCormick’s textual analysis, in this instance, review of prior state case law, and the applicable state statute appropriate and commendable. These are the methods of review, among others, that this Court should follow in examining our Constitution. See Hans Linde, “E Pluribus — Constitutional Theory and State Courts,” in Developments in State Constitutional Law: The Williamsburg Conference, ed. Bradley D. McGraw (St. Paul, Minn.: West Publishing Co., 1985) pp. 227-305. However, I do object to the majority’s comment that his case was decided as it was in order “to stay in step with the federal constitutional model for probable cause determinations.” There is no constitutional requirement that this Court specifically adopt either the reasoning or the holding in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Consequently, there is no reason for this Court to feel compelled to “stay in step with the federal constitutional model for probable cause determinations.” The United States Supreme Court is not the infallible institution that this Court on occasion has assumed it to be. For example, a plurality of this Court in Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983) stated: “[T]his court has opted to interpret our Constitution in harmony with the Supreme Court’s opinions interpreting the Fourth Amendment.” Id., at 799. Osban v. State, 726 S.W.2d 107 (Tex.Cr.App.1986). I am unwilling to be so arbitrarily submissive. Because the Supreme Court is not invested with divine guidance, there is nothing inherently improper in state court opinion diverging from Supreme Court authority on the very simple basis that there is a viable disagreement on the matter of interpretation. As Professor Robert Williams has commented: “Our system of federalism has always contemplated such disagreement.” Robert F. Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C.L.Rev. 353, 368 (1984). If I had concluded that Art. I, § 9 of the Texas Constitution or Art. 18.01 V.A.C.C.P. required strict adherence to the Aguilar-Spinelli doctrine I would not hesitate to so state despite Illinois v. Gates, supra. With these comments I concur. MILLER and CAMPBELL, JJ., join.
CLINTON, Judge, dissenting. “Texas is a free and independent State, subject only to the Constitution of the United States,” Article I, § 1, Bill of Rights, Constitution of The State of Texas. The Tenth Amendment specifically provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus here today we are dealing with the very sovereignty of The State of Texas and the basic integrity of this Court as a repository and keeper of that sovereignty in criminal law matters. With Chief Justice Marshall, we must “never forget that it is a constitution we are expounding,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819), and “as to the true scope of the Texas Constitution, we must ultimately follow our own lights,” Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972) (Opinion on Rehearing). The Fourth Amendment to the Constitution of the United States “sought to guard against an abuse that more than any one single factor gave rise to American independence,” Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) (Justice Frankfurter dissenting, at 159, 67 S.Ct., at 1105). Yet, it provides no more than minimum safeguards against unreasonable searches and seizures and for warrants upon probable cause. States may not infringe on federal constitutional guarantees, but they have full power and complete authority to provide greater protection to the citizenry. Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977); see Olson v. State, supra, at 762, and authorities cited in note 2, post. Elsewhere I have chronicled “the separate life of Article I, § 9.” Brown v. State, 657 S.W.2d 797, 806 n. 27 (Tex.Cr.App.1983) (Clinton, J., concurring). Now, the majority merely reads § 9 along with the Fourth Amendment, and is content to say that because the language is “in all material respects, the same,” arguments for greater protections “must be addressed on the basis of interpretive caselaw or legislative pronouncements.” At 162. However, that simplistic notion would preclude consideration of enduring principles of “federalism,” as well as relevant policy considerations. Moreover, simply to compare language indicates that the majority has lost its sense of history. Declarations of rights or bills of rights came first in constitutions of many states— before there was a Constitution of United States of America. The “most influential” was the Virginia Declarations of Rights framed by George Mason; it became “almost the copybook for other states[.]” B. Mitchell & L.P. Mitchell, A Biography of the Constitution of the United States (2nd Ed.) Oxford University Press, New York: 1975, at 196-197. But on the subject of protection from governmental intrusion, the model was laid in Article XIV of the 1780 Constitution of the Commonwealth of Massachusetts where in 1761 James Otis had made such moving argument against general warrants that John Adams was inspired to declaim, “American independence was then and there bom.” Harris v. United States, supra, (Frankfurter dissenting, 331 U.S. at 157, 159, 67 S.Ct., at 1104, 1105.) Among delegates to the constitutional convention of 1787 were Eldbridge Gerry of Massachusetts and James Madison of Virginia; both were also members of the First Congress. During the course of ratification of the proposed federal Constitution there was a clamor for inclusion of declarations of individual rights and liberties. In the First Congress Madison introduced a set of resolutions mostly taken from Virginia Declarations of Rights. However, with Gerry he drew on Article XIV of the Massachusetts Constitution to draft the one that would become the Fourth Amendment in 1791 when the Bill of Rights was formally made a part of the Constitution. Harris v. United States, supra, (Frankfurter dissenting, 331 U.S. at 158, 67 S.Ct. at 1105); for its legislative history, see The Constitution of the United States, U.S. Government Printing Office, Washington: 1973, at 1041-1043. In due course other states were formed from territories and admitted to the Union. Contrary to popular belief those states did not necessarily use the federal Constitution as a model for their own; rather,- they turned mainly to their territorial charters or to constitutions of other states. Comment, Individual Rights and State Constitutional Interpretations: Putting First Things First, 37 Baylor L.Rev. 493, at 497 (Spring 1985). By 1938 the constitution of every State contained “a clause like that of the Fourth Amendment and often in its precise wording.” Harris, supra, at 160, 67 S.Ct., at 1106. Even then, of course, guarantees in the federal Bill of Rights were not intended to and did not protect against “state action.” Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 242, 8 L.Ed. 672 (1833): “These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Id., at 250. Accord: Spies v. Illinois, 123 U.S. 131, 166, 8 S.Ct. 21, 24, 31 L.Ed. 80 (1887). Thus over a span of one hundred years fundamental rights to privacy and protections against arbitrary intrusion by state and local government were secured only to the extent granted and provided by state constitutions. See, Comment, op cit., supra, at 497, citing Newman, The “Old Federalism”: Protection of Individual Rights by State Constitutions in an Era of Federal Court Passivity, 15 Conn.L.Rev. 21, at 22 (1983). In 1832 early Texans, seeking separation from the State of Coahuila, convened in San Felipe de Austin and drew up a proposed constitution modeled on the Massachusetts Constitution of 1780. Comment, supra, at 497, n. 38; Interpretive Commentary following Preamble to Texas Constitution of 1876; 1 Vernon’s Texas Constitution 198 (Vernon 1955) (Interpretive Commentary). Stephen F. Austin undertook a mission to Mexico City to present the proposed constitution and related petitions, and was clapped into jail. Along with others that development produced grievances aired at other conventions in October 1834. Introduction to Constitutions of Texas, 3 Vernon’s Texas Constitution (Vernon 1955) 507 (Introduction). Increased disaffection with the national government caused representatives of municipalities to convene again at San Felipe de Austin in November 1835; they declared a state of war and created a Provisional Government for Texas. Ibid. See id., at 509 and 511. Their grievances were more formally enumerated March 2, 1836, in the Declaration of Independence from Mexico. Within two weeks they had formulated and adopted the Constitution of the Republic of Texas. 3 Vernon’s Texas Constitution (Vernon 1955) 523 ff. That Constitution mandated the Congress to introduce by statute the common law of England “with such modifications as our circumstances, in their judgment may require,” and provided that “in all criminal cases the common law shall be the rule of decision.” Article IV, § 13. In a schedule it was declared that “all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force, until declared void, repealed, altered, or expire by their own limitation.” Schedule, § l. The preamble to the Declaration of Rights makes the Declaration a part of the Constitution and declares it shall “never be violated on any pretence whatever,” and in order to guard against “the transgression of the high powers [delegated elsewhere],” declared that “everything in this bill of rights ... is reserved to the people.” When thus examined in “our own lights,” the fact that provisions of § 9 and the Fourth Amendment “are, in material aspects, the same,” proves nothing. Justice Frankfurter remarked in Harris, supra, 67 S.Ct. at 1104, that “one’s views regarding [given circumstances in a case] ultimately depend upon one’s understanding of the history and the function of the Fourth Amendment.” So tyere is needed a similar understanding of §',9; correctly comprehended, that § 9 reads like the Fourth Amendment is merely a coincidence of historical facts. There is no indication that Framers drew on the Fourth Amendment rather than a similar declaration from a state or territory. Texans had no reason to have more than a civil interest in the Fourth Amendment: It could not provide any protection whatever to citizens of The Republic of Texas; even after Texas joined the Union, the Fourth Amendment remained a restriction alone on the federal government until long after the present Constitution of 1876 was adopted. Therefore, the issue cannot be whether the Framers were seeking “greater protection” than provided by the Fourth Amendment against arbitrary invasions of privacy by government. Rather, the question must be what protection did the Framers contemplate was independently vouchsafed by their own Constitution. Comment, supra, at 509. As we have seen, early Texans resisted just such invasions, demanded in strongest terms protection against abuse of power, fought for their rights and, winning their freedom, created and established their own form of government — a free, sovereign and independent republic. From many sources they framed a constitution; then, understanding and appreciating that “transgression of the high powers” being delegated to The Republic of Texas must be prevented, the Framers particularized in the Declaration of Rights every right then deemed worthy of protection, “never [to] be violated on any pretence whatever.” That is to say, not to be violated by governmental authorities of the Republic. There being no provider from any other source of protection against abridgement by officers of departments of government, they created a judicial department and charged it to enforce those rights in accordance with the common law of England, as well as all extant laws of Texas not inconsistent with the Constitution — not the Constitution of the United States. Nevertheless, disdaining its genesis because the language of § 9 and the. Fourth Amendment are substantially the same, in accepting wholesale the Supreme Court’s “totality of the circumstances” approach to evaluating the reliability of hearsay tendered to show probable cause under § 9, the majority proceeds on two bases. First, it reports that “a review of the procedures used by this Court in the past for determining probable cause provides little, if any guidance,” in that they only “tacitly applied” the federal test to state law. At 162. Second, resorting to “legislative pronouncements,” it finds essentially that legislative action taken after Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), does not mean what Judges W.A. Morrison and John F. Onion, Jr., wrote in their respective commentaries, because they did not specify “the two prongs of Aguilar” or otherwise indicate that such analysis was “intended to be incorporated within the statute.” At 163. Hypercritical to an extreme, neither of these arguments is particularly persuasive. There is guidance aplenty as to past “procedures” used first by the Supreme Court of Texas and this Court to determine nearly all aspects of the law, including probable cause, demonstrated in my concurring opinion in Brown v. State, supra, at 800-801: “if not delineated by their own precedents, out of necessity young Texas courts looked to the common law or took the law from any other respectable source.” Just in that fashion did the Supreme Court of Texas introduce into state law a definition of probable cause. Ibid. See note 4, ante. Certainly the scope of the Fourth Amendment and of Art. I, § 9, — indeed, all state versions of the same — are similar, inasmuch as both would safeguard the security of the people against evidentiary searches absent “probable cause.” That all constitutional provisions require “probable cause,” however, does not facially mandate particular guidelines for implementation. This Court was free to, and in fact did, formulate its own working definition of “probable cause” to be applied in context of Art. I, § 9, in order to determine whether evidence must be excluded under now Art. 38.23, V.A.C.C.P., as having been “obtained ... in violation of any provisions of the Constitution ... of the State of Texas,” as opposed to the federal constitution. See Brown v. State, supra at 806. We are equally free now, if not duty bound, to fashion according to “our own lights” a standard under Art. I, § 9, by which to determine when information that is hearsay as to a search warrant affiant will be deemed sufficiently reliable to support a finding of “probable cause.” Unless we happen to agree that the standard adopted by the Supreme Court is the most efficacious also in guaranteeing rights vouchsafed by our state constitution, the Supreme Court does not demand and we need not parrot its opinions. In Aguillar v. State, 172 Tex.Cr.R. 629, 362 S.W.2d 111 (1962), defendant challenged admission of fruits of a seizure pursuant to a search warrant, contending that the affidavit was not “a sufficient statement of probable cause to comply with the Constitution of the United States and of this State,” Id., 362 S.W.2d at 113. Writing for the Court on rehearing Judge Morrison expressed the notion “that if we have properly decided this case under our Constitution and statutes then it has been properly decided under the Constitution of the United States and the holding in Mapp v. Ohio, supra.” Ibid. Of a form commonly used before 1965, the affidavit recited: that affiants “have reason to believe and do believe [that named party possesses narcotic drugs for purpose of unlawful sale in that on or about a given date]; _ Affiants have received reliable information from a credible person and do believe [that narcotics are there so possessed].” Ibid. Because the Court had “often held” such an affidavit “constitutes a sufficient recitation of ‘probable cause’ ” [citing only Davis v. State, 165 Tex.Cr.R. 2, 302 S.W.2d 419 (1957) ], the Court was unable to conclude that “our exclusionary statute and the affidavit deprive an accused of due process under the Federal Constitution.” Id., 362 S.W.2d at 114-115. In Aguilar v. Texas, supra, straight from Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the Supreme Court formulated its “two prong test,” reversed the judgment of the Court and remanded the cause. On remand the Court summarily reversed the judgment of conviction. Aguillar v. State, 382 S.W.2d 480 (Tex.Cr.App.1964). The Aguilar experience taught Texas two major lessons: one, that what statutory provisions there were for authorizing issuance of an arrest or search warrant did not meet constitutional muster; two, that views recently prevailing on the Court in expounding sufficiency of an affidavit to show “probable cause” within the meaning of Article I, § 9, failed to produce even minimal federal protection. They will be discussed seriatim. Before Aguilar the general statute dealing with a search warrant was former article 304 (C.C.P.1925); it is merely a definition, having little to do with sufficiency of an affidavit. See Historical Note to Article 18.01, the first paragraph of which is former article 304. It was retained in the 1965 revision, but in light of Aguilar the Legislature added the second paragraph: “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.” It too was revised in 1973. Both commentaries to Article 18.01, supra, make clear the addition was made by the Legislature on account of recent decisions by the Supreme Court, and each states the new provision is to meet their requirements; Presiding Judge Onion points out that Aguilar “voided a Texas search warrant based merely on ‘reliable information,’ and held there must be sufficient facts presented to satisfy the magistrate that probable cause does in fact exist for issuance of a search warrant;” he then states what is insufficient and again what the affidavit must show, identifying the other cases. The majority blinks reality in dismissing those contemporaneous commentaries concerning new statutory dictates of Article 18.01(b), on the specious ground that they do not “mention the two prongs of Aguilar or make any statement to the effect that such analysis is intended to be incorporated in the statute.” At 163. Surely the majority would not contend with a straight face that § (b) was added to Article 18.01 for any other reason. The Special Committee for Revision of the Code of Criminal Procedure expressly identified consideration of Aguilar v. Texas among several recent decisions of the Supreme Court “which have adversely affected the long accepted practices in our Texas courts.” Erisman, Introduction to 1965 Revision Texas Code of Criminal Procedure, 1 Vernon’s Annotated Code of Criminal Procedure (Vernon 1977) xv, at xix-xx. To understand its “two-pronged test,” all any concerned reader has to do is consult Aguilar, Acknowledging, as it must, that to challenges under § 9 the Court “tacitly” applied “the Aguilar-Spinelli test,” the majority nevertheless does not find “judicial preference” for a broader interpretation of § 9 than the Fourth Amendment. But it is not a matter of “preference.” When “tacitly” or otherwise the Court put § 9 to “the Aguilar-Spinelli test” it certainly was incorporating into the meaning of probable cause in § 9 those requirements imposed by Aguilar-Spinelli, thus making them a part of the constitutional law of search and seizure for this State. That the Supreme Court of the United States modified its own views as to a requisite showing of probable cause within the meaning of the Fourth Amendment will not serve to withdraw a meaning of probable cause attributed by this Court to Article I, § 9 of the Constitution of Texas. Opinions of a majority of the Court in Chapin v. State, supra, and its followings, required “that the grounds of belief, that is the facts or circumstances or information upon the belief is founded, must be exhibited in the affidavit,” id., 296 S.W. at 1097, and that is readily susceptible to an Aguilar analysis. But apparently because our general statutes setting out requisites of a complaint or application for search warrant were not that specific, articles 310-312, C.C.P. (1925), the Court came to believe, as in Aguilar v. Texas, supra, a statement merely that an affiant “received reliable information from a credible person” sufficed. Id., 378 U.S. at 113, 84 S.Ct. at 1513; Davis v. State, supra, 302 S.W.2d at 420. In the event, it is certainly true that before Aguilar v. Texas, supra, neither Article I, § 9 nor the statutes of the State had been construed by the Court to require a showing of probable cause such as particularized in Aguilar. But once Aguilar was made applicable to § 9 by this Court and caused the addition of § (b) to Article 18.01 by the Legislature, under our federalism the fact that a reconstituted Supreme Court changed a part of its collective mind as to minimal protections afforded countrywide by the Fourth Amendment will not ipso facto overrule decisions of this Court and repeal an enactment of our Legislature. That the Supreme Court “no longer demands it” is utterly irrelevant. The Supreme Court may not demand a State undo that which the State has already validly done in exercise of its own constitutional power. The Tenth Amendment reserves that power to the State of Texas — to this Court and to the Legislature, respectively. Unless otherwise prohibited, this Court is, of course, always “free to follow the lead” of the Supreme Court, but not mindlessly, wildly abandoning years of jurisprudence and statutory law of this State, as the majority would have this Court do today. The majority does not even take time to consider the soundness of Illinois v. Gates, nor did the Hennessy panel. Instead, the majority silently defers to much of the rhetoric in Gates. Yet bases for rejecting the two-prong test, both in precedent and in logic, have been thoroughly undermined by state court justices and noted commentators on Fourth Amendment jurisprudence. E.g., Commonwealth v. Upton, supra; State v. Jackson, 102 Wash.2d 432, 688 P.2d 136, 141-43 (1984); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.3(a) at 620-25; (2nd ed. 1987) Y. Kamisar, Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa Law Review 551, 571-77, 583-84 (1984). The question here, as in Gates, is whether hearsay information may be credited. Once that information is deemed creditable, then we should apply “a common sense, non-technical analysis” to decide whether it adds up to probable cause. As Justice Brennan observed in his dissenting opinion: “Neither the [Aguilar/Spinelli ] standards nor their effects are inconsistent with a ‘practical, nontechnical’ conception of probable cause. Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a creditable person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause.” 462 U.S. at 287, 103 S.Ct. at 2358, 76 L.Ed.2d at 580. In short, the “two-prong” test derived from Aguilar and Spinelli was never an impediment to practical, common sense evaluation of information for its tendency to establish probable cause. Rather, it was a guide to the threshold inquiry of whether information that is hearsay as to the warrant affiant should be considered sufficiently reliable in the first place even to be measured for its probable cause value. Because the majority in Gates failed to recognize this distinction, it was able to conclude that the two prongs of the Aguilar/Spinelli test “are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations[.]” 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed.2d at 545. Accordingly it was concluded that a deficiency in the “basis of knowledge” prong might be compensated for by an ample showing of “veracity,” and vice versa. However, as Professor LaFave has pointed out, even: “[t]he preferred method of satisfying the basis of knowledge requirement, a direct statement from the informant himself as to how he came by the information, is virtually worthless when it comes from an individual from the criminal milieu about whom no veracity judgment is possible. And information tendered by a person of unquestioned credibility is worth very little when no judgment is possible as to the basis of his conclusions —whether or not, to use the Court’s oft-quoted language, he is merely reporting ‘an offhand remark heard at a neighborhood bar.’ ” LaFave, supra at 622-23. In fact, as Justice White pointed out in his concurring opinion in Gates, information even from a proven informant which provides little or no indication of the source of his knowledge would be tantamount to a conclusory affidavit from a peace officer simply stating “that he has cause to suspect and does believe” his information to be true — patently insufficient data, under Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), to support a magistrate’s independent conclusion that probable cause inheres. See also Stanley v. State, 19 Md.App. 507, 313 A.2d 847, 861 (1974). Yet the majority in Gates ratified the holding of Nathanson. I would adhere to the “two-pronged test” of Aguilar-Spinelli for purposes of Art. I, § 9 of our Constitution because of its utility in guiding all concerned to a complete assessment of informant creditability. Such a guide is useful both to the police, who must prepare affidavits on the basis of hearsay, and to magistrates who must evaluate them in order independently to determine whether the hearsay declarant’s story is trustworthy. Trustworthiness is a function, not only of the honesty or reliability of the informant, but of the source in fact for his information. I agree with the observation that “[pjolice, magistrates, and trial courts confront the question of probable cause every hour of every day, often with little time to reflect. They are best served by rules that mark off the forbidden territory as conspicuously as possible.” Wald, The Unreasonable Reasonableness Test for Fourth Amendment Searches, 4 Crim.J.Ethics 2, 88 (Spring 1985). The Aguilar-Spinelli test is just such a rule. The Legislature incorporated Aguilar into its search and seizure law in 1965. The Court has followed Aguilar-Spinelli for more than twenty years. The test is consistent with early decisions of the Court and intent of Framers of the Fifth Declaration. We preserve the sovereignity of this State and maintain the integrity of this Court by adhering to precedent that has served well our criminal justice system. The notion that this Court must “stay in step” with the Supreme Court of the United States is the antithesis of our sworn duty to preserve, protect and defend the Constitution and laws of the State of Texas. To such a gratuitous abdication of authority and responsibility of this Court, I dissent. . All emphasis is mine throughout unless otherwise noted. . The Constitution, the laws of the United States and all treaties made under authority of the United States are "the supreme Law of the Land; and the Judges in every State shall be bound by them, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, 2d para. Yet, that certain rights are identified in the Constitution “shall not be construed to deny or disparage others retained by the people," Ninth Amendment, and "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” Tenth Amendment. In ordaining and establishing the Constitution in the name of the People of the United States, the genius of the Framers was in maintaining sovereignty of the government of the United States of America while preserving integrity of each constituent State. See Fry v. United States, 421 U.S. 542, 547, n. 7, 95 S.Ct. 1792, 44 L.Ed.2d 363 (1975). That "constitutional policy" has come to be called "federalism.” In its criminal law aspect States may not abridge federal constitutional rights, guarantees and protections, but they are free to enlarge them. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Michigan v. Mosley, 423 U.S. 96, 120-121, 96 S.Ct. 321, 334, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting). Thus, as the President of Texas Young Lawyers Association has incisively discerned, "It takes both the United States Constitution and the 50 state constitutions to determine the extent to which the federal system protects individual rights.” Raney, “The Federal System, Part One: A Salute to the Texas Bill of Rights," Vol. 50 No. 3 Texas Bar Journal (March 1987) 309 (emphasis in original). Texan Forefathers inserted toward the end of their first constitution a “Declaration of Rights,” and declared it to be "a part of this Constitution, and shall never be violated.” The last Bill of Rights adopted in 1876 declared that everything therein “is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto ... shall be void.” Article I, § 29. If for no other reason than the people of The Republic of Texas and then of The State of Texas so dearly valued their rights that they insisted upon protection against intrusion by authorities of the very government they had established and were maintaining, members of the Judicial Department tire constitutionally bound by their oath to “preserve, protect and defend” those rights, guarantees and protections. Article XVI, § 1. While there are many other reasons, a few will suffice. Since citizens of Texas have more contact with state law, their own Bill of Rights should be "closely scrutinized" by their courts. Raney, op cit., supra, at 310. And a state constitutional claim should be considered ahead of a federal claim because, Dean W. Frank Newton points out in an unpublished paper presented to Appellate Judges Session, Texas Judicial Conference, September 25, 1986, if the issue may be disposed of on that basis there is no need to reach the federal question, unnecessary appellate review problems are avoided and, most importantly, state sovereignly is preserved. Moreover, Dean Newton concludes, "This ‘states first’ approach grants double protection to Texans, as contemplated by our two-constitution federal system." Finally, as Oregon Supreme Court Justice Hans A. Linde has commented, emphasizing use of states' bills of rights "will lead all of us to face closer to home some fundamental values that the public has become accustomed to have decided for them by faraway oracles in the marble temple.” Linde, "First Things First: Rediscovering the States’ Bills of Rights,” 9 U. Baltimore L.Rev. 379 (1980), quoted approvingly by Raney, op cit., supra, at 310. . The rich history of compelling events has been retold many times: e.g., Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Harris v. United State, supra, 331 U.S., at 157-159, 67 S.Ct., at 1104-1105. . Therefore, Justice Frankfurter found it entirely appropriate to “look to the construction which the early Massachusetts Court placed on the progenitor of the Fourth Amendment.” Id., 331 U.S., at 161, 67 S.Ct. at 1106. Early on Texas Courts did just that. See, e.g., Dupree v. State, 102 Tex. 455, 119 S.W. 301, 303, 306, 307 (1909), citing and discussing Fisher v. McGirr, 67 Mass (1 Gray) 1, and Commonwealth v. Certain Lottery Tickets, 59 Mass (5 Cush.) 369. . Although adoption of the Fourteenth Amendment was proclaimed in 1868, not until Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138 (1925), did the Supreme Court suggest states may be bound through its Due Process Clause by rights and liberties guaranteed in the Bill of Rights. See also Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). In Wolf v. People of the State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Supreme Court held security of privacy against arbitrary intrusion by police is enforceable against the States through the Due Process Clause. The federal exclusionary rule trader the Fourth Amendment was not applied to the states until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). . In the latter, the Provisional Judiciary was granted jurisdiction over "all crimes and misdemeanors recognized and known to the common law of England;" judges were empowered to grant writs of arrest "established by the ‘Civil Code’ and 'Code of Practice’ of the State of Louisiana, to be regulated in the forms thereof,” Article VI, and "in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England," Article VII. . At least three are relevant here, viz' “It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our Constitution, and the establishment of a state government.” ‘It has suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyranny, thus trampling upon the most sacred rights of the citizen!.]” ‘It has demanded the surrender of a number of our citizens, and ordered military detachments to seize and carry them into the interior for trial[J” Accordingly, the people of Texas constituted “a FREE, SOVEREIGN, AND INDEPENDENT REPUBLIC,” “fully invested with all the rights and attributes which properly belong to independent nations!.]” Declaration of In