Chapin v. State

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

In the indictment there were two counts, one charging the unlawful sale of intoxicating liquor; the other the unlawful possession. The first count was not submitted to the jury. The verdict rests upon the second count; that is, the possession of intoxicating liquor.

Upon executing a search warrant, officers discovered in the private dwelling occupied by the appellant about a gallon of whisky. The appellant’s abode was a tent, but was none the less a private dwelling. Penal Code 1925, arts. 1391 and 1395; Hipp v. State, 45 Tex. Cr. R. 200, 75 S. W. 28, 62 L. R. A. 973 ; Hooper v. State (Tex. Cr. App.) 105 S. W. 816; Favro v. State, 39 Tex. Cr. R. 452, 46 S. W. 932, 73 Am. St. Rep. 950.

The state relies upon the testimony of the officers showing the possession of the liquor mentioned and the statute making the possession of more than one quart of intoxicating liquor prima facie evidence of guilt. Article 671, Pen. Code 1925. The admissibility of the testimony showing the result of the search is challenged upon the ground that it was obtained in violation of the provisions of the Constitution of this state and of the United States, wherein it is declared that no search warrant shall issue “without probable cause, supported by oath or affirmation.” See article 1, § 9, Const, of Texas (Fourth Amendment to the federal Constitution).

Appellant relies upon the statute of this state penalizing an illegal search. See article 4a, C. C. P. 1925, and article 727a, C. C. P. 1925, declaring that evidence obtained in violation of the Constitution and laws of this state or of the United States shall not be received in any criminal case. In the instant case, the search warrant was issued upon the affidavit of two persons stating that “the af-fiants have reason to believe, and do believe, that in the house and premises described intoxicating liquors are kept and sold in violation of law.” Exception from unreasonable search is a cherished right, which the makers of the Constitution and the laws have been zealous in guarding and the courts in preserving. A search without probable cause is unreasonable. The search, without warrant, of persons and vehicles has been sanctioned by lawmakers and courts upon the ground of necessity. Such sanction, however, is withheld, unless, in advance of the search, there be evidence of facts showing probable cause. See Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 763; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. So, the- search without warrant of a person and place made contemporaneously with a lawful larrest is permissible. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145. But to search a private dwelling occupied as such for contraband property such as intoxicating liquor, the possession of a search warrant legally issued is imperative. This can only be had in accord with the Bill of Rights (article 1, § 9, Const, of Texas), saying:

“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.”

Before our Constitution was adopted, the term “probable cause,” as embraced in the federal Constitution, had a fixed meaning in the courts of other jurisdictions as well as in our own. The Supreme Court of this state defined it thus:

“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.” Landa v. Obert, 45 Tex. 539.

That belief alone is not “probable cause” is illustrated by many judicial decisions and expressions of text-writers. Among them are the following:

“And the law in requiring the showing of reasonable cause for suspicion intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well-founded; for the suspicion itself is no ground for the warrant extept as the facts justify it.” Cooley’s Const. Limitations (6th Ed.) p. 368.

“The inviolability of the accused’s home is to' be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law.” Veeder v. United States, 252 F. 414, 164 C. C. A. 338.

Erom an opinion of the United States Supreme Court we take the following:

“The information upon which the search warrant was issued states only that affiant ‘has good reason to believe and does believe the defendant has in his possession’ such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States.” Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. —.

Many precedents are found declaring invalid a search warrant issued upon an affidavit stating that the “affiants had reason to believe and did believe.” The great weight of authority is) that the grounds of belief, that is, the facts or circumstances ox-information upon which the belief is founded, must be exhibited in the affidavit. A citation of cases in detail will not be undertaken. Suffice it to say that in the courts of nearly all of the states of the Union and the federal courts the announced law is as above stated. Many of them will be found collated in the following text-books and reports: 24 Ruling Case Law, p. 707; Underhill’s Crim. Ev. (3d Ed.) § 745; Cornelius on Search and Seizure’, § 83, p. 248. Apparent exceptions are found in some of the states based upon statutes attempting to dispense with the necessity of a statement of the grounds of belief. Some of these have been held void by the courts. See State v. Petei-son, 27 Wyo. 185, 194 P. 342, 13 A. L. R. page 1284.

For many years the statute-law pertaining to search warrants was embraced in title 6, C. C. P. 1925, in which authority is given for the issuance of warrants permitting the search for property acquired in violation of the Penal Code. In articles 310, 311, and 312 certain requisites of a complaint or application for a warrant are given. In but one of these, namely, that in which the location of the property is not known, the statute sanctions the issuance upon an affidavit based upon “information and belief.” In other words, it appears to be contemplated that the application for a search warrant should be framed in accord with the requisites of “probable cause” as that term was understood at the time the Constitution was written and the statutes enacted.

On April 5, 1907 (Gammel’s Laws of Texas, 1903-1907, p. 156), the Legislature enacted a law authorizing magistrates to issue warrants to search and seize intoxicating liquor illegally possessed. The statute expressly declared that the warrant should be issued on an affidavit based upon information and belief. The Supreme Court, in the case of Dupree v. State, 102 Tex. 455, 119 S. W. 301, declared the law void because it was in conflict with article 1, § 9 of the Bill of Rights upon the ground that it permitted the search of places without describing them. From the opinion we quote:

“The most that the act can be held to require as a basis for the issuance of the search warrant is that it describe a place where the affiant believes ‘intoxicating liquor’ is being sold, or is being kept or possessed for the purpose of being sold, in violation of law. * * * Upon this and no more the act requires the magistrate to issue the warrant. The writ is made to confer authority upon the sheriff or constable to enter and search not only ‘such place,’ etc., that is, the place which has been described in the affidavit, but 'any place,’ etc., where the ‘affiant’ has good reason to helieve any such person has placed or secreted any such liquor. This is so apparent a contradiction of the Bill of Rights that the point of conflict scarcely needs to be pointed out. The Bill of Rights forbids the issuance of any^ warrant to search ‘any place’ * * * without describing it.”

The court stated in substance that, the fault in the statute above mentioned being fatal to its validity, no expression of opinion would be made concerning that part of it which permitted the warrant to issue on information and belief; the determination of that point being unnecessary to the decision of the case. However, it was said .that, in view of the statute permitting an arrest on an affidavit of information and belief, the court would hesitate to annul the statute in question on that ground alone. The sufficiency of the complaint for arrest is not here involved. It can be said, however, that for such complaint on information and belief there is no express statutory authority (article 415, O. C. P.), while for a search warrant on such showing the Legislature has given no sanction. On the subject, however, the Supreme Court, in the opinion on the subject of warrants, plainly indicated that an affidavit for a search warrant was not sufficient to show “probable cause” when it was made on information and belief without stating the grounds of belief. From the opinion (Dupree v. State, 102 Tex. 464, 119 S. W. 305) we quote:

“It will be seen that they do not lay down any rule compliance with which will be impossible, or even difficult in practice, such as that warrants cannot issue except where the. informer has positive knowledge of the facts upon which they are to be based, but that they merely require that the facts from which he has formed his belief shall be stated to the magistrate in the affidavit or deposition, so that he and not the informer shall be the judge whether or not they constitute the probable cause required by the Constitution. When we consider the great diversities in - human minds and characters, we have no doubt that this is what the law ought to require when an affiant cannot swear from his personal knowledge. By some minds that is readily accepted as sufficient foundation for firm belief which in others generates, at most, only vague suspicion. In the formation of beliefs and in the readiness to swear to them, men differ to an almost infinite extent according to the constitution of their minds and characters. Some are cautious and scrupulous, others hasty or unscrupulous, sometimes both; and when the affiant’s belief is made the only measure of probable cause, there is no fixed standard at all. The theory of the authorities before cited is that the Constitution intends to give a guaranty to the citizen against searches and seizures dependent upon such uncertainties' by interposing between him and rash or unscrupulous accusers the judgment of a magistrate chosen by the State. But that view is not the only one that has been taken and practically followed in legislative practice and judicial construction.”

In 1919 the Legislature again took up the subject, and enacted article 691, P. C. 1925 as follows:

“A search warrant may be issued under Title 6 of the Code of Criminal Procedure for the purpose of searching for and seizing and destroying any intoxicating liquor possessed, sold, or to be sold or transported, * * * or manufactured in violation of this law. * * * No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons sliow that such residence is a place where intoxicating liquor is sold or manufactured- in violation of the terms of this act. The application for the issuance of and the execution of any such search warrant, and all proceedings relative thereto, shall conform as near as may be to the provisions of title 6 of the Code of Criminal Procedure, except where otherwise provided in this title.”

In construing the existing statute on search and seizure, viz., title 6, C. C. P. 1925 and article 691, P. C., 1925, that part of title 6 embraced in article 311, supra, must necessarily be ignored, because it undertakes to authorize the search of places without demanding that they be described. Thereby it offends against the Constitution requiring that the place to be searched be described. That provision was clearly denounced in the Dupree Case, supra, article 311, supra, and the affidavits for its issuance, have relation to and are limited to a search warrant to search for property at any undescribed place, a thing that cannot be under the Bill of Rights. Obviously, that article can have no bearing on the present matter. In so far, therefore, as title 6 applies to a search for intoxicating liquors, it contains no authority to make the search upon an affidavit based alone upon information and belief. The question, therefore, must be determined by the construction of article 691, supra, in connection with article 1, § 9, Bill of Rights, and the previous interpretation of the term “probable cause” as used in the Bill of Bights. The terms of article 691 are indicative of the legislative intent to adhere to the interpretation of the constitutional requirement of “probable cause” that the affidavit state the facts or circumstances upon which the belief is founded. The statute upon 'which the issuance of the search warrant is based forbids the issuance of such warrant, unless it show that the residence was a place where the law was violated. The affidavit in question goes no further than to state that the “affiants had grounds for believing and did believe.” “Show” and “state” are not synonymous. To “show” means to make clear or apparent; to prove. See Coyle v. Commonwealth, 104 Pa. 133; Cox v. United States, 5 Okl. 701, 50 P. 175; First National Bank v. Swan, 3 Wyo. 356, 23 P. 743 Spalding v. Spalding (N. Y.) 3 How. Prac. 297, 301; also Hennessy v. Hall, 14 Cal. App. 759, 113 P. 350; In re Lee, 41 Misc. Rep. 642, 85 N. Y. S. 224; Roberts v. Fagan, 92 P. 559, 76 Kan. 536. In another statute, upon a like subject, the Begislature has made a distinction between the term “show” and “to state” the grounds for belief. See article 222, C. C. P. (1925) subd. 2.

This court, in 1922, held that, though the search was unauthorized, there being no statute penalizing the officer making it, the evidence of crime obtained in the search would not be excluded. Welchek v. State, 93 Tex. Cr. R. 273, 247 S. W. 524. This holding was contrary to that of the federal courts, but in harmony with that of most of the state courts. Subsequently, in 1925,. the Legislature passed the statutes upon which the appellant relies; namely, Articles 4, 4a, and 4b, C. C. P. 1925, in which section 9 of article 1 of the Bill of Bights was re-enacted. The statutes also specifically declare it unlawful to search without a warrant, and also declare it to be a misdemeanor penalized by a fine or imprisonment or both. The Legislature also passed article 727a, C. C. P., which reads .thus:

“No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the .trial of any criminal case.”

The manifest purpose of these statutes was to reverse the rule applied by this court in the Welehek Case, and it now .becomes the duty of this court to give effect to the legislative intent thus expressed.

Subsequent-to the declarations of .the federal court quoted from Veeder v. United States, 252 P. 414, 164 C. C. A. 338, insisting that an affidavit for a search warrant be based upon facts, and not merely upon information and belief, and giving reasons therefor, the federal Congress has put into statutory law that which previously rested in the judicial interpretation declaring;

“A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.” Title 11, § 3, 40 U. S. Stat. at Large, 228 (U. S. Comp. St. § 10496%c).

“The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.” Id., § 5 (U. S. Comp. St. §. 10496]4e).

By this means the federal Congress has made unlawful the search of a habitation upon a search warrant issued upon an affidavit failing to show “probable cause” by setting forth the facts upon which the belief • is based. This law of Congress is among those known as the national prohibition acts enforcing the provisions of the Eighteenth Amendment to the Constitution 'of the United States, in which it was declared that “Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” This amendment, unlike many other provisions of the Constitution of the United States, confers concurrent power, that is, power in each of the governments, state and federal, by appropriate legislation to enforce the prohibition of the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, orthe exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes.” This has been .repeatedly declared by the Supreme Court of the United States and by this court. See Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Belief on undisclosed information does not show “probable cause” for search, as that term is used in the state and federal Constitutions. Such is the expressed view of the United States courts and of nearly all the state courts. With one exception, we believe that, in the few states holding the contrary view, there is a statute expressly declaring an affidavit on information and belief sufficient. In some of the states having such a statute it has. been held void by the courts. In this state there is no such statute. The only statute of that kind ever passed in this state was held void by the Supreme Court of this state on other grounds. The definition of “probable cause” announced by the Supreme Court of this state before the present Constitution was adopted is like that in the federal courts, and, the state courts holding the belief insufficient, and in adopting the Constitution, the definition was approved. In holding the statute of 1907 void, the Supreme Court clearly indicated that the weight of authority and the better reason was opposed to the issuance of a search warrant upon the belief of the affiants. The dictum of the Supreme Court at that time touching warrants of arrest Is not of weight, for the reason that it is but dicta, and for the further reason that there is express statutory authority for a warrant of arrest on information and belief, while as to a search warrant there is no such statute.

In passing articles 4, 4a, 4b, and article 727a, supra, the Legislature indicated the desire to disapprove the refusal of this court to follow the federal courts in holding by this court that evidence obtained through an illegal search could be used in a criminal trial. Thus, by implication, the Legislature sanctioned the construction by the federal courts of the search and seizure clause of the Constitution.

In passing the present law on searching a private dwelling embraced in article 691, supra, the Legislature used language incompatible with the validity of such a search warrant on information and belief, thus indicating that the language used in the statute of 1907 (criticized by the Supreme Court in the Dupree Case, supra) was not expressive of the legislative intent, but that, by the use of the word “show,” it was intended that the 'facts upon which the belief was based would be necessary to a valid search warrant of a private dwelling. Such interpretation of the legislative intent brings the state law in harmony with the federal decisions and statutes ' on the subject of search and seizure, so far as ’ they relate to the search of a private dwelling and the enforcement of the Eighteenth ' Amendment to the National Constitution.

Upon the considerations hereinabove stated, and in the light of the history of the search and seizure law of this state giving effect to the rule which we understand governs in the interpretation of statutes, the writer believes it to be the duty of this court to declare that, in the enactment of article 691, supra, stating the conditions upon which a private dwelling occupied as such may be searched, the Legislature did not intend to give a meaning to the term “probable cause” embraced in the Bill of Rights different from that prevailing in the Supreme Court of the United States, announced in the statutes of the United States, and adopted by practically all of the states of the Union where the subject has been discussed. In other words, nothing is found in the statute which conveys to our minds the idea that it was the intention of the Legislature to announce that a warrant to search a private dwelling might be issued upon an affidavit in which there was given no fact, circumstance, or detailed information showing,'or tending to show, that the dwelling was used for the purpose denounced by the statute which conveyed to the magistrate in whom the law vested the authority .and upon whom .it imposed the duty of issuing a ■warrant upon “probable cause,” no informa-idon from which to determine whether the facts justified the issuance of the warrant.

The abandonment of the language usediin .the law of 1907, permitting the issuance of a search warrant in an affidavit of “information and belief,” and the selection of more specific terms embraced in article 691, supra, are confirmatory of this view. In the absence of unequivocal announcement, it cannot be assumed that the Legislature intended to depart from the construction of “probable cause” adhered to by Congress and the Supreme Court of the United States, and most of the states of the Union as properly giving effect to the Bill of Rights, and to adopt in its stead the terms of annulled statute of 1907, which terms were embraced in the statutes of other states, have been by the courts of such states condemned as in conflict with the Bill of Rights. In search of an automobile, while permissible without warrant, the law forbids a search upon suspicion or belief, and demands evidence of facts showing “probable cause.” Odenthal v. State (Tex. Cr. App.) 290 S. W. 743; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. It is not believed that the Legislature has placed the search of a private dwelling upon a lower plane. If the affiants seeking a search warrant have reason to believe that a private dwelling is used for the storage of liquor, no sound reason is perceived for failing to disclose the grounds of belief in the affidavit presented to the magistrate. As said by the Supreme Court of this state, the demand that the affidavit exhibit the facts upon which the belief is founded “does not lay down any rule compliance with which will be impossible, or even difficult in practice.” The rule is intended to “give a guaranty to the citizen against searches and seizures dependent upon such uncertainties by interposing between him and the rash or unscrupulous accusers the judgment of a magistrate chosen by the state.”

Because the criminating evidence was obtained through a search upon a warrant, issued without legal authority, it was improperly received over the objections'of the appellant. Therefore the judgment is reversed and the cause remanded.

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