# Eisenhauer v. State

> Court of Criminal Appeals of Texas · October 17, 1984 · 678 S.W.2d 947

URL: https://www.frixlaw.com/law-library/cases/9772943

## Case

- **Full name:** Lee Warren EISENHAUER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 17, 1984
- **Citations:** 678 S.W.2d 947; 1984 Tex. Crim. App. LEXIS 778
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Onion, Clinton, Teague
- **Cited by:** 91 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Heitman v. State, 1991 Tex. Crim. App. LEXIS 160 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772943

## How later opinions describe it (automated extraction)

- noting that "[a]t the time of the [defendant's] interception, the arresting officer had personally verified every facet of the information given him by the informer except whether appellant had accomplished his mission and the cocaine was on his person or in his bag"
- applying the Gates standard to a warrantless arrest

## Opinion text

CLINTON, Judge,
dissenting.
The opinion of the Court does not make “clear” to me that “the ‘totality of the circumstances’ standard of Gates is applicable to warrantless arrests and searches,” (P. 952), and neither does the excerpt from a footnote in an opinion by the United States Court of Appeals for the Fifth Cir *956 cuit. Indeed, so long as Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959) is extant, for the very reasons given by the Court (P. 953) the informant in the instant case will not pass muster under Draper . Thus, what the Court really finds is that the measure of probable cause under Draper has been replaced by the “totality” test of Gates. With deference, such a momentous decision as that should first be made by the Supreme Court of the United States. It is on that point that I respectfully dissent. 1
That done, given the views so vigorously expressed in the dissenting opinion, it is important to understand just what is, as well as what is not, before this Court for review.
In its petition for discretionary review the State presents but one ground for review, viz:
“The panel opinion of the First Court of Appeals erred in its failure to apply Illinois v. Gates ... to this case on the basis that Texas has not yet elected to abandon the two-prong standard set forth in Aguilar v. Texas...”
Our grant of review was no broader than the ground presented, and the opinion of the Court must be read with that understanding. That is to say, all that this Court is deciding is “a matter of federal constitutional law." (P. 955). Whether the arrest and search of appellant were authorized by state law remains to be determined by the court of appeals on remand.
Similarly, we have no occasion today to retain or abandon the two prong standard of Aguilar as a matter of state law. Though the majority opinion comments on that matter, the Court does not foreclose the court of appeals from considering it as well on remand.
. Also I do not agree with observations in note 7, for the case quoted involved occupants of a pickup truck and perforce the search was permissible under the "automobile exception" to the requirement of a warrant under the Fourth Amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772943. Public record. Not legal advice.