Eisenhauer v. State

¶1OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

¶2This 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.

¶3Prior 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

¶4In 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 Aguilartwo-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.

¶5After 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 Aguilarto 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.

¶6The 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 *161of 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.

¶7Though 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.

¶8It 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.

¶9The 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).”

¶10This 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).

¶11The 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 *162protections offered by the Texas Constitution, the statutory pronouncements of the Legislature and the interpretive caselaw.

¶12An 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.”

¶13The 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.”

¶14Article 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.

¶15A 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).

¶16Argument 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 Gatessupports this conclusion.6 As caselaw fails to provide a clear answer to the question, an examination of the relevant statutory authority is appropriate.

¶17In deciding there was insufficient probable cause to support the arrest in this case, *163the 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.

¶18A comparison of the language of Article 18.01, supra, with the language of Aguilarreveals 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....”

¶19Aguilarstates:

“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.

¶20In his brief, appellant asserts:

“[T]he sufficient basis for a finding of probable cause referred to in Aguilaris the historic Aguilartest. 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 Aguilaras part of independent state law.”

¶21We 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 Aguilartwo-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.

¶22For 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 Aguilarthat “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.

¶23This Court had the opportunity to interpret Article 18.01(b), supra, in light of Aguilarin Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983). In Hennessy, the *164defendant 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 Gatesanalysis. We find the reasoning of Hennessysound 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

¶24The application of Gatesis 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.

¶25The 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).

¶26It is to be remembered that adoption of the analysis of Gatesdoes not mean abandoning Aguilar-Spinelli. Gatesdid 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).”

¶27See also, Whaley v. State, supra; Hennessy v. State, supra.

¶28In conclusion, Aguilarwas 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.

¶29The 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 *165constitutional 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.

¶30The judgment of the Court of Appeals is reversed and the judgment of the trial court affirmed.

¶40concurring.

¶41I 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.

¶42Article 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.”

¶43An 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.

¶44Thereafter, 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.”

¶45The 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 Aguilarfor determining probable cause was not, however, written into the change to proposed Article 18.01 by the said State Bar Committee.

¶46The 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.

¶47In 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 suf*166ficient basis in fact for a determination by the magistrate that probable cause exists for the issuance of a search warrant.” (Authorities cited omitted.)

¶48An attempt was made to show the influence of Aguilarupon 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.

¶49The 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.

¶50I 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.

¶51I 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.

¶52concurring.

¶53I 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.

¶54However, 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.”

¶55The 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.

¶56Because 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).

¶57If 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.

¶58With these comments I concur.