# 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/9772944

## 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 Teague
- **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/9772944

## 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

TEAGUE, Judge,
dissenting.
It appears to me that sometimes some members of this Court respond to recent decisions of the Supreme Court of the United States much like the German boatsmen of old did when they heard Lorelei, the siren of German legend. And, Cappy, we all know what happened to the boatsmen, don’t we?
After carefully reading the majority opinion, .it is apparent to me that Presiding Judge Onion, its author, and those members of this Court who join in the opinion, have ignored what the Legislature of this State enacted after Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), was decided by the Supreme Court of the United States. See Chapter 18, V.A.C.C.P., which was enacted by the Legislature after Aguilar v. Texas, supra, was decided.
I find that the Supreme Court decision of Aguilar v. Texas, supra, was conceived by this Court’s decision of Nick Alfred Aguilar v. State, 172 Tex.Cr.R. 629 , 362 S.W.2d 111 (1962).
In Nick Alfred Aguilar v. State, supra, the defendant, Nick Alfred Aguilar, hereinafter referred to as Nick, challenged on appeal the sufficiency of an affidavit for a search warrant that had been issued by a justice of the peace of Harris County to search his residence for narcotics. The opinion on original submission by Judge Morrison reflects that incident to the search that was thereafter conducted, the police found narcotics inside of Nick’s residence, for which Nick was subsequently prosecuted and convicted. Nick appealed his conviction to this Court, but this Court affirmed his conviction. See Aguilar v. State, supra.
On original submission, this Court, in an opinion by Judge Morrison, upheld the affidavit for the search warrant that had issued, even though it only stated the following: “Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described *957 premises for the purpose of sale and use contrary to the provisions of the law.” Nevertheless, this Court concluded: “[An] [examination of the affidavit shows that it recites sufficient facts and information to constitute probable cause for the issuance of the warrant.”
Nick filed a motion for' rehearing, in which he appears to have forcefully asserted that the affidavit for the search warrant was insufficient, “under the Federal Constitution.” He relied upon Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), as authority for his contention.
On rehearing, this Court rejected Nick’s assertion, reaching a two-fold conclusion, namely, “[w]e are unable to bring ourselves to the conclusion that our exclusionary statute, (Art. 727a, V.A.C.C.P., now Art. 38.23, V.A.C.C.P.), and the affidavit before us here deprive an accused of due process under the Federal Constitution.” (114).
The opinion on rehearing reflects that before Judge Morrison, its author, reached the above conclusions, he had made a passing reference to the Texas Constitution, without citing or discussing any provision thereof. He also stated the following: “Our statute (Article 4, V.A.C.C.P., now Art. 1.06, V.A.C.C.P.), makes no such specific requirement, (that in addition to the grounds for probable cause for its issuance, the names of the persons whose affidavits had been taken in support thereof must be stated in the affidavit), but does provide that no warrant shall issue without probable cause supported by oath or affirmation.” No reference was made in the opinion to the provisions of Articles 304, 311, and 312 (1925 Code of Criminal Procedure, now Articles 18.01, 18.08, and 18.09, Y.A.C.C.P.), which then controlled the issuance of a search warrant in this State.
I pause to point out that a State, through its Legislature or its judiciary, is free, as a matter of its own law, to impose greater restrictions upon police activity than those the Supreme Court of the United States holds to be necessary upon federal constitutional standards. See Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975). Obviously, now as then, see the majority opinion and Aguilar v. State, supra, this Court has seen fit to limit the rights of the citizens of this State.
After this Court affirmed Nick’s conviction, and overruled his motion for rehearing, Nick went on to Washington, D.C., where, when it came to what requirements must first be satisfied before a search warrant could issue in this State, history was about to be made. At that time, contrary to now, the Supreme Court was very concerned about the rights of citizens of these United States.
In Aguilar v. Texas, supra, the Supreme Court of the United States implicitly nullified virtually all of what this Court had stated in Aguilar v. State, supra. The Supreme Court held that, as a matter of Federal Constitutional law, if an affidavit for a search warrant was based upon hearsay, it must satisfy a two-prong test, namely, “The magistrate must (1) be informed of the underlying circumstances from which it can be determined that the affiant received his information in a ‘reliable’ way, and the magistrate must also (2) be informed of specific factual allegations from which the affiant concluded that the source was ‘credible’ or his information ‘reliable.’ Absent such factual allegations, there is not a sufficient basis for a neutral magistrate to make an impartial determination that probable cause exists.” Winkles v. State, 634 S.W.2d 289, 291 (Tex.Cr.App.1982) (On Original Submission). This came to be known as the “Aguilar two-prong test.”
After the Supreme Court of the United States decided Aguilar v. Texas, supra, the 59th Legislature of this State, in 1964, enacted a new code of criminal procedure for this State. Judge Fred Erisman, who was then one of the leading legal scholars of this State, but who is now deceased, in his “Introduction to the 1965 Revision Texas Code of Criminal Procedure,” and under the statement, “Consideration of recent decisions of the Supreme Court of the United States which have adversely affected the long accepted practices in our Texas *958 Courts," pointed out the following: "The filing of sufficient facts to satisfy the Magistrate that probable cause does in fact exist for the issuance of a search warrant, is a requirement of Articles 18.01, 18.08, and 18.09, supplementing CCP 304, 311, 312.”
Presiding Judge Onion, the author of the majority opinion in this cause, wrote a “Special Commentary” to the change in the law. After interpreting the provisions of Art. 18.01, supra, he had this to say in his special commentary about the new statutory provisions: “Therefore the affiant ... on affidavit for search warrant can no longer merely state he has received reliable information from a credible person ... that an offense has been committed, etc. The affidavit must show the magistrate ... additional facts to form a sufficient basis in fact for a determination by the magistrate that probable cause exists for the issuance of a search warrant.”
Thus, it should be obvious to anyone that when the Legislature of this State enacted Chapter 18, supra, and, in particular, Art. 18.01(b), V.A.C.C.P., which it subsequently amended so that it now 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,” and “A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested,” the Legislature of this State intended and meant for the two-prong test announced in Aguilar v. Texas, supra, to become the law of this State. “The new code has been reworded to meet the requirements of Aguilar v. Texas, supra." Special commentary by Presiding Judge Onion.
The fact that in this instance the arrest and search were made without warrant is insignificant because it is now axiomatic that the standards applicable to the factual basis supporting probable cause for a war-rantless arrest and search are at least as stringent as those applied to obtaining a search warrant, Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 566 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971), and may even be more stringent, see United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir.1971). Also see United States v. Anderson, 500 F.2d 1311 , rehearing denied, 504 F.2d 760 (5th Cir.1974), and Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974).
Unfortunately, the rights of the citizens of these United States, when it came to searches and seizures, were set back on June 18, 1983, when the Supreme Court of the United States held in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), that, for fourth amendment purposes, the two-prong test of Aguilar v. Texas, supra, was no longer acceptable. It adopted, in the place of the “Aguilar two-prong test,” see supra, a “totality of the circumstances” test.
Notwithstanding the action of the Supreme Court, but because of the adoption of Chapter 18, supra, the Legislature of this State has seen fit, as a matter of Texas law, to impose a greater burden upon the police before they might obtain a search warrant from a magistrate or to arrest and search a person without a warrant; thus, Illinois v. Gates, supra, should have no effect upon Texas law.
Because the Legislature of this State has spoken, and though given the opportunity since Illinois v. Gates, supra, was decided to adopt the “totality of the circumstances” test announced by the Supreme Court in Illinois v. Gates, supra, it has not chosen to do so, this Court should continue to apply the holding of Aguilar v. Texas, supra, which has been incorporated into Chapter 18, supra, in making the determination whether an affidavit for a search warrant is valid or in making the determination whether there is probable cause to make a warrantless arrest and search.
I pause to ask: Have the members of this Court who join in the majority opinion forgotten so soon what a plurality of this Court stated in Brown v. State, 657 S.W.2d 797, 799 (Tex.Cr.App.1983), as to this Court *959 adhering to what our Legislature has enacted into law?
The Legislature has mandated by statute, see Chapter 18, supra, a different State law test from the federal law test the Supreme Court announced in Illinois v. Gates, supra. We should apply what the Legislature of this State has enacted and not head for the reefs.
The law in Texas is quite simple: Before an affidavit for a search warrant should issue, or before a warrantless arrest and search should take place, the two-prong test of Aguilar v. Texas, supra, must first be satisfied. Tolentino v. State, 638 S.W.2d 499, 501 (Tex.Cr.App.1982).
I find that Justice Bass, the author of the opinion for the court of appeals, which is before this Court for review purposes, has sufficiently stated all that is necessary to be stated why the warrantless arrest and search that occurred in this cause are insufficient under Texas law, and why such were invalid under the “Aguilar two-prong test.” Therefore, Justice Bass’ opinion should be adopted as this Court’s opinion.
For reasons stated by Justice Bass, in the opinion he authored, the warrantless arrest and search that occurred in this cause were invalid under the two-prong test of Aguilar v. Texas, supra, which has been implicitly, by judicial edict, made a part of Art. 1, Section 9, of the Texas Constitution, and has been expressly, by legislative edict, incorporated into the provisions of Chapter 18, supra. Also see Tolentino v. State, supra, at 501; Wilson v. State, 621 S.W.2d 799, 803 (Tex.Cr.App.1981); Green v. State, 615 S.W.2d 700, 706-707 (Tex.Cr.App.1981); Kleasen v. State, 560 S.W.2d 938, 942-944 (Tex.Cr.App.1978); Knox v. State, 586 S.W.2d 504 (Tex.Cr.App.1979); Doescher v. State, 578 S.W.2d 385 (Tex.Cr.App.1979); Smith v. State, 496 S.W.2d 90 (Tex.Cr.App.1973); Gatson v. State, 440 S.W.2d 297 (Tex.Cr.App.1969).
In all due respect to the majority of the members of this Court who join in the opinion authored by Presiding Judge Onion, as well as Presiding Judge Onion, Aguilar v. Texas, supra, was, before today, alive, well and breathing in this great State of Texas.
I respectfully dissent to the majority’s failure to adhere to the law as enacted by the Legislature of this State. By its decision, the Court today acts legislatively, not judicially. This it should not do because it poaches upon territory that is constitutionally reserved to another body of our government — the Legislature of this State.
*960 I

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772944. Public record. Not legal advice.