Determining Probable Cause

February 2010

Ted Wood Assistant General Counsel Office of Court Administration State of Texas E-mail: [email protected] (512) 936-1183 FAX: (512) 463-1648

Jacob Barber Juris Doctor Candidate Class of 2010 Thurgood Marshall School of Law E-mail: [email protected] ______

1 INTRODUCTION The Fourth Amendment:

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.1

The requirement for probable cause found in the Fourth Amendment of the United States Constitution can also be found in the Texas Constitution2 and in the Texas Code of Criminal Procedure. For instance, Chapter 18.01(b) of the Texas Code of Criminal Procedure provides in pertinent part that:

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 substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.3

The United States Supreme Court in Maryland v. Pringle concluded that “[t]he probable- cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.”4

I. When does probable cause exist? Probable cause exists where “the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that an offense has been committed.”5 For a magistrate, this means making “a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him [or her], there is a fair probability that contraband or evidence of a crime will be found.”6 Put simply, to find probable cause, a magistrate wants to make a practical, common sense decision based on the “totality of the circumstances” that there is a fair probability that a crime has occurred.7

1 U.S. Const. amend. IV.

2 Tex. Const. art. 1 § 9.

3 Tex. Code Crim. Proc. art. 18.01(b).

4 Maryland v. Pringle, 540 U.S. 366, 371 (2003).

5 Dumbra v. United States, 268 U.S. 435 (1925).

6 Illinois v. Gates, 462 U.S. 213, 238 (1983)(emphasis added).

7 Gates, 462 U.S. at 238.

2 In order to meet this end, the United States Supreme Court, the Texas courts, and the Texas Legislature have developed a series of rules and steps for judges to follow in order to make a neutral and proper determination.

II. Requirements for determining probable cause to search and/or arrest. Although a magistrate need only employ common sense to determine probable cause, the Court has laid out some guidelines for handling these complex issues. More specifically, we are referring here to the inherent reliability issues associated with informant information, or “hearsay information.”8

In Illinois v. Gates, the Court settled on a “totality of the circumstances” analysis for determining probable cause.9 This analysis includes a two-part test designed for determining the reliability of hearsay information.10 The test takes into account, the “veracity” and “basis of knowledge” of the informant furnishing the information.11 This “two-pronged” test of the “veracity” and “basis of knowledge” is sometimes referred to as the Aguilar test or the Aguilar- Spinelli test named after the cases in which the test was developed.12

A. Analyzing Hearsay Information—The Aguilar test.

The Aguilar test is a two part test formulated and to be used only as a guide for determining the reliability of hearsay information.13 The test requires that the affidavit “contain sufficient information to reflect the credibility of the informer, and the underlying facts upon which the informant based his beliefs.”14

i. Basis of Knowledge Prong

For the “basis of knowledge” requirement, a judge must determine whether the information is itself reliable absent a conclusion as to the credibility of the informant.15 This means that where the information provided by the informant is not based on personal knowledge, there must be

8 Gates, 462 U.S. at 238.

10 Id.

11 Id.

12 Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986).

13 Gates, 462 U.S. at 232.

14 Ware, 724 S.W.2d at 40, see also Jones v. State, 522 S.W.2d 930, 931 (Tex. Crim. App. 1975).

15 Ware, 724 S.W.2d at 40.

3 evidence that the informant gathered the information in a reliable manner.16 Or, in the alternative, there must be evidence “that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he [or she] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.”17

Example:

The pertinent parts of the affidavit as cited in Nicol v. State reads:

"I, CARL BELLIS, do solemnly swear that heretofore, on or about the 12th, day of MARCH, 1970, in Victoria County, Texas, that at apt. B, located on the ground floor of 1704 N. Azalea Street, being a light yellow four apartment building, being rented by BRUCE LEGER is being used for the unlawful possession and use of narcotics and dangerous drugs: to wit-marijuana. That between 5:00 PM March 12, 1970, and 5:30 PM, March 12, 1970, these drugs and narcotics are to be picked up and dispersed. Also that known narcotic users will be present in the apartment (Apt. B) for the purpose of packaging the said narcotics and drugs which are concealed in Apt. B.

My belief of the foregoing is based upon the following facts:

That I, Carl Bellis, having received reliable information from a confidential informant whose information has aided in the arrest of narcotic users in the past, received information at 3:45 PM, March 12, 1970, that the informant had seen BRUCE LEGER, tenant of Apartment B, 1704 N. Azalea Street, and CHARLES NICOL, possess what he was told marijuana. Informant stated that the marijuana is wrapped in red cellophane packages, the approximate size of a brick.

During the hours of 5:00 PM and 5:30 PM, March 12, 1970, BRUCE LEGER and CHARLES NICOL are to take these packages of marijuana and package them in smaller amounts and disperse them."18

In Nicol v. State, the affidavit revealed that the informant indicated to affiant that he observed the defendant with certain packages that he (the informant) was told contained

16 Spinelli v. United States, 393 U.S. 410, 416 (1969).

17 Id.

18 Nicol v. State, 470 S.W.2d 893, 894 (Tex. Crim. App. 1971).

4 marijuana.19 Note that the informant was told the bag contained marijuana, and described the bag as wrapped in “red cellophane.”20 Thus, the only indication we have that the bag contained marijuana is that an unknown person told our informant that the bag contained marijuana.21 Upon appeal, the Texas Court of Criminal Appeals ruled that the affidavit provided “neither sufficient information as to the reliability of the informer's source nor sufficient description of the appellant's activities to satisfy” Aguilar’s requirements.22 Then, in reversing the lower court decision, the court in Nicol noted that the affidavit showed “neither that the informant possessed personal knowledge of the contents of these packages nor that the informant's source was reliable.”23

ii. Veracity or Credibility Prong

The second prong of the Aguilar test requires an analysis of whether the informant is credible.24 As might be expected, many factors must be considered in making this determination, and the Texas Court of Criminal Appeals and other courts have laid out a number of these factors to guide judges. The court has said:

1. “[W]here a named informant is a private citizen whose only contact with the police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the information is inherent."25 However, while a “detached citizen,” is considered naturally credible, in Ware v. State an ex-girlfriend of the defendant was found to require “special considerations” concerning her “credibility and reliability.”26 Here again, common sense should be employed where the unnamed informant is not a “detached citizen.”27

2. If the informant is unnamed, the credibility factor may be met by the fact that the informant has given reliable information in the past.28 For example, does an affidavit

19 Id.

20 Id.

23 Nicol, 470 S.W.2d at 895.

24 Ware, 724 S.W.2d at 40.

25 Id.

26 Ware, 724 S.W.2d at 40 citing Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1982).

27 Ware, 724 S.W.2d at 40.

28 Jones, 522 S.W.2d at 932-33.

5 meet the veracity prong where the affidavit states: This informant has provided information on “numerous occasions in the past?”29 The affidavit must contain a statement indicating some “indicia” of reliability.30 For example, the affidavit might state that the informant has provided information in the past that has proven to be reliable on each occasion.31

3. If the informant is unnamed and has not proven trustworthy in the past, “the minimal requirement is that the affidavit recite that the informant has no criminal record, and enjoys a good reputation among his associates and in the community.”32

Examples:

In each of the cases below, the court found that the affidavit met the minimum requirement of the second prong in Aguilar.33

In Yantis v. State … the recitation of the affidavit held to be sufficient was: “Though the informant has not given information in the past, the credibility and reliability has been established by his excellent reputation in the neighborhood in which he resides, the lack of a criminal record and his continuous gainful employment.”

In Adair v. State … the affidavit alleged that: “[Although] the informant has not given information in the past, their [sic] reliability, and credibility has been established by the fact of their [sic] lack of criminal record, the reputation in the

29 Avery v. State, 545 S.W.2d 803, 805 (Tex. Crim. App. 1977).

30 Id.

31 Id.

32 Avery, 545 S.W.2d at 804; see also Caldarera v. State, 504 S.W.2d 914, 915-916 (Tex. Crim. App. 1974).

33 Caldarera, 504 S.W.2d at 916.

6 neighborhood, and are [sic] well thought of by their [sic] fellow associates.”

In Wetherby v. State … the statement was: “[Although] I do not desire to name my informant and he has not given information in the past, his reliability and creditability [sic] have been established by the fact that he is gainfully employed and is well thought of by the people in the community in which he lives. Further, he has no criminal record with this department or with the Department of Public Safety. Members of this detail have maintained surveillance at above location and have seen numerous hippy type subjects go to front door, enter and stay from 3 to 5 minutes and leave.”

In Cook v. State … the relevant portion of the affidavit read: “My source does not have a criminal record and is highly thought of by those associates contacted. My source is gainfully employed in a lawful law-abiding occupation and for these reasons I do not desire to name my source. My source has not given information in the past, however my source has passed all requirements of reliability in this officer's estimation.”34

4. Finally, a judge should also consider the informant’s motive.35 One example indicating reliability of an informant is a “declaration against penal interest.”36 A “declaration against penal interest” is where an informant supplies “information which would enhance the chances of his own conviction of criminal participation.”37 However, a tip becomes “less reliable” when given to “curry favor with the police.”38

The final consideration of the Aguilar test involves compensating for one prong’s shortcomings by the strength of the other. Courts have consistently held that “corroborating facts from police observation could make an affidavit valid even if the hearsay contained therein was not sufficient to meet both prongs of Aguilar.”39

Lastly, recall that whether an affidavit survives the Aguilar test depends on the totality of the circumstances. This means that ultimately, the affidavit must be looked at as a whole in order to

34Caldarera, 504 S.W.2d at 916.

35 United States v. Phillips, 727 F.2d 392, 397 (5th Cir. 1984).

36 Abercrombie v. State, 528 S.W.2d 578, 584 (Tex. Crim. App. 1974).

37 United States v. Barfield, 507 F.2d 53, 58 (5th Cir. 1975).

38 United States v. Kolodziej, 712 F.2d 975, 978 (5th Cir. 1983).

39 Polanco v. State, 475 S.W.2d 763, 766 (Tex. Crim. App. 1971); see also Gates, 462 U.S. at 233 (stating that “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 other indicia of reliability.”).

7 determine probable cause.40 Where common sense dictates that sufficient corroboration exists to overcome either the “veracity” or “basis of knowledge” requirement, probable cause may be found if the totality of the circumstances would lead a reasonably prudent person to conclude that criminal activity occurred.41

In Illinois v. Gates, police received an anonymous letter indicating that a husband and wife were selling drugs and presently “had over $100,000 worth of drugs in their basement.”42 The letter further detailed that on May 3, the wife would drive her car to Florida to be loaded with drugs; and that her husband would fly to Florida on May 5 to drive the car back.43 Through surveillance, police observed that the husband took the flight to Florida, stayed overnight in a motel registered in his wife’s name, and left “with a woman in a car bearing an Illinois license plate issued to the husband.”44 A warrant was obtained and the car and house searched.45

The trial court suppressed the evidence and the Illinois Supreme Court affirmed. The Court found that the affidavit failed to meet the requirements for probable cause under Aguilar.46 Despite numerous and possibly innocent explanations for the trip, the United States Supreme Court held that under the totality of the circumstances, “the facts obtained through the independent investigation” alone “at least suggested drug trafficking.”47 The Court then reversed the decisions below finding that given the totality of the circumstances, probable cause existed to search.48

B. Direct Observation

Occasionally, a magistrate may receive an affidavit containing direct observation of criminal activity from the affiant. This is of course considered the most reliable information and may in many cases stand alone in establishing probable cause.49 A perfect example of direct observation

40 Gates, 462 U.S. at 231-33.

41 Id.

42 Id. at 213.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Rangel v. State, 435 S.W.2d 143, 144 (Tex. Crim. App. 1968); see also Conner v. State, 757 S.W.2d 806, 807 (Tex. App.-Tyler 1988, no pet.).

8 that would supply sufficient facts to establish probable cause to search would be where a “drug sniffing” dog identifies luggage containing drugs and the owner refuses to allow a search.50 Another example would be a case in which a “trained and experienced narcotics officer” smells the odor of a narcotic.51 However, typically an affidavit will contain a combination of police observation and hearsay information.52

C. Staleness

Perhaps the final consideration in determining probable cause to search would be staleness. How old is the information and does probable cause still exist? The answer here is that “[p]robable cause ceases to exist when it is no longer reasonable to presume that items, once located in a specified place, are still there.”53 Thus, the question for the magistrate becomes: Is it reasonable to presume that the items alleged to be searched for are still present in the place to be searched? The test here is again “one of common sense.”54

D. Statutory Requirements of a Warrant in Texas

In addition to the constitutional requirement for probable cause, the state of Texas maintains certain statutory requirements for affidavits and warrants. While the “standard used to judge the showing of probable cause are the same for both arrest and search warrants,” the state of Texas defines the requirements separately in the Texas Code of Criminal Procedure.55 However, both a warrant to search and a warrant for arrest require a written, sworn affidavit showing probable cause.56

III The Flowchart: An Aid in Analysis

50 Accaria v. State, 661 S.W.2d 249, 251 (Tex. App. Houston [1st Dist] 1983, no pet.).

51 Conner, 757 S.W.2d at 807.

52 Winkles v. State, 634 S.W.2d 289, 292 (Tex. Crim. App. 1981).

53 Gonzales v. State, 761 S.W.2d 809, 813 (Tex. App. Austin 1988, pet. ref’d).

54 Gonzales, 761 S.W.2d at 813 quoting United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977).

55 Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975).

56 Tex. Code Crim. Proc. art. 18.01, see also Tex. Code Crim. Proc. art. 15.05.

9 Determining probable cause can be complex. The accompanying flowchart attempts to simplify the process of analysis by listing a step-by-step chronological procedure that can be used when considering a request for a warrant to search. Additionally, a commentary containing citations of authority and two exercises taken from actual cases decided by the Texas Court of Criminal Appeals accompanies the flowchart.

Good luck in making your probable cause determinations in your role as a magistrate.