Eisenhauer v. State

TEAGUE, Judge,

dissenting.

I join the dissenting opinion filed by Judge Clinton in this cause. However, given what the majority opinion that is authored by Judge McCormick states and holds, I am strongly compelled to also file this dissenting opinion.

I find that Hon. Alfred Walker, First Assistant State’s Attorney, in the petition for discretionary review that he has filed in this cause on behalf of the State, has succinctly, and perhaps correctly, formulated the issue that is before this Court for resolution when he states: “The basic question in this case is whether [, given what the Legislature of Texas enacted after the Supreme Court of the United States decided Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), which, for Federal Fourth Amendment Constitutional purposes, adopted a two prong test in making the determination whether an affidavit for a search warrant should issue], the rules and principles of Illinois v. Gates, [ 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), which abandoned the two prong Aguilar test], should be followed in Texas in preference to the older rule and principles of Aguilar and Spinelli [v. U.S., 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 *177 (1969) ].” (Page 3, State’s Petition for Discretionary Review.) Given the fact that what the Supreme Court stated and held in Illinois v. Gates, supra, in lessening the State’s burden in search warrant cases, if adopted, will make it extremely easy for the State to now obtain a search warrant, or to make a warrantless arrest, it is understandable why Walker advocates that this Court should adhere to what the Supreme Court stated and held in Illinois v. Gates, supra.

The real issue, however, that is before this Court is whether this Court should exist merely to mimic and parrot the decisions of the Supreme Court of the United States Supreme Court, or should exist as an independent member of the Judicial Branch of our State Government. To appreciate the present internal struggle that presently exists, over what standard should be adopted, 1 it is first necessary for the reader to go and read what was stated and held by this Court in its opinion of Aguil *178 lar v. State, 172 Tex.Cr.R. 629 , 362 S.W.2d 111 (1962); go and read what the Supreme Court of the United States thereafter stated and held in its decision of Aguilar v. Texas, supra, which was a review of this Court’s decision of Aguillar v. State, supra; go and read what the Legislature of this State enacted after Aguilar v. Texas, supra, became the federal law of the land; and go and read what some of the spokespersons of this State in the field of criminal law, such as now Presiding Judge Onion, former Presiding Judge Morrison, former District Judge Erisman, and a host of other *179 spokespersons, some still alive, thereafter wrote about what the Supreme Court had held in Aguilar v. Texas, supra, and Spinelli v. United States, supra. I find that only then can one appreciate and understand why I am so concerned about what and why the majority adopts to be the law of this State on this subject.

Given what this Court has unequivocally and unambiguously stated for over the past 20 years, in subscribing to the two pronged “Aguilar-Spinelli” test, before that test is replaced by an experimental amorphous test, the majority opinion by Judge McCormick should at least direct our attention to articles written by leading spokespersons of the criminal law of this State which give justifiable reasons why the two pronged “Aguilar-Spinelli” test, which has now been time tested, which members of the law enforcement establishment have certainly more than adequately learned to cope with, to the point where some police agencies have in the past prepared and used pre-printed “fill-in-the-blank” type forms, see Brown v. State, 437 S.W.2d 828 (Tex.Cr.App.1968), should no longer be “the test”, and not just inform the reader what he and those members of this Court who join his opinion might personally prefer.

In Aguillar v. State, supra, the defendant in that cause objected in the trial court to the admission of evidence that was obtained pursuant to the execution of a search warrant, on the ground that the affidavit for the search warrant was “based on hearsay, did not set forth a statement of the offense in clear, plain and intelligible language, and was insufficient to authorize the issuance of the search warrant.” ( 362 S.W.2d at 112 ). His objection was overruled. In an opinion by one of its then Commissioners, which opinion was approved by the Court, the trial court’s decision was affirmed, the opinion holding the following: “An examination of the affidavit [which merely stated the basis for obtaining the search warrant was the following: ‘that on or about the 8 day of January, A.D. 1960, 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 premises of the purpose of sale and use contrary to the provisions of the law’] shows that it recites sufficient facts and information to constitute probable cause for the issuance of the warrant.” (at 112). On rehearing, in an opinion by Judge Morrison, this Court stated that the defendant questioned the soundness of the original opinion. The opinion on rehearing stated that the defendant had contended on appeal that the affidavit for the search warrant, as a matter of both Federal and State Constitutional law, was deficient because it did not set out a sufficient statement of probable cause. This Court rejected that contention, holding that in the past this Court “has often held that an affidavit identical to the one above constitutes a sufficient recitation of ‘probable cause.’ Davis v. State, 165 Tex.Cr.R. 2 , 302 S.W.2d 419 (1957).” It further stated: “We are aware of no decision of the Supreme Court holding that such an affidavit is insufficient ... We are unable to bring ourselves to the conclusion that our exclusionary statute [now Art. 38.23, V.A.C.C.P.] and the affidavit before us here deprives an accused of due process under the Federal Constitution.” (at 113-114).

In Aguilar v. Texas, supra, the Supreme Court of the United States, which was then a moderate court, granted certiorari, apparently because it was concerned about the different standards that then existed in the federal system and the state systems. It first pointed out in its opinion that “the Fourth ‘Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment,’ and that ‘the standards of reasonableness are the same under the Fourth and Fourteenth Amendments.’ ” 84 S.Ct. at 1512 . Relying upon its decisions of Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963), Nathanson v. United States, 290 U.S. 41 , 54 S.Ct. 11 , 78 L.Ed. 159 (1933), and Giordenello v. United States, 357 & .S. 480, 78 S.Ct. 1245 , 2 L.Ed.2d 1503 (1958), it ultimately held that for Fourth and Fourteenth Amendment purposes, to establish probable *180 cause in an affidavit for a search warrant, real facts, and not simply personal belief facts or conclusions, had to be stated in the affidavit for the search warrant before a valid search warrant could issue. Thus, the same standard for obtaining a search warrant in a federal cause, which was based upon hearsay information, that the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was, and some of the underlying circumstances from which the affiant concluded that the informant, whose identity need not be disclosed, was “credible” or his information “reliable”, would thereafter be applicable to obtaining a search warrant in a state case. The affidavit in Aguilar, supra, was found to be deficient because it failed to provide the magistrate a sufficient basis for a finding of probable cause.

After Aguilar v. Texas, supra, was returned to this Court, this Court did not choose to elaborate on or discuss what the Supreme Court had stated and held, opting instead to merely write an opinion that consists of only 20 lines, in which the following, which took up 4 lines of the opinion, was stated: “The holding of the Supreme Court requires that the conviction be set aside. The judgment is reversed and the cause is remanded.” Aguillar v. State, 382 S.W.2d 480 (Tex.Cr.App.1964).

I pause to point out that a State court may not set standards below the minimum standards that are set by the Supreme Court of the United States in a particular area of the law, and by "virtue of Article III of the Federal Constitution it is bound to enforce those minimum standards. However, State appellate courts are now and have always been free to interpret their respective constitutions and laws in a more liberal fashion than the way that the Supreme Court might interpret them under the federal constitution. See Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975). It is necessary, however, in making such an interpretation, for the State court to make a plain statement indicating that the federal law did not compel the result, so that its decision will be immunized from federal review. See Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983).

When the Supreme Court held in Aguilar v. Texas, supra, that the reasonableness requirement of the Fourth Amendment had not been satisfied by the affidavit in that cause, thus causing it to be constitutionally deficient, Article III of the Federal Constitution required this Court’s members to adhere to that holding.

Spinelli v. United States, supra, decided several years later, did not detract from what had been stated in Aguilar v. Texas, supra; it merely refined that decision, which, for purposes of federal constitutional law, became the law of the land as to the minimum standard that would govern in obtaining a search warrant.

The two pronged Aguilar-Spinelli test, as reflected by the many decisions of this and other courts that rejected claims that an affidavit was deficient, and lack of any real criticism by law enforcement authorities, is actually a quite simple test to pass. In order for a search warrant based on hearsay to issue under the test, “The magistrate must simply (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) simply 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 sufficient basis for a neutral magistrate to make an initial determination that probable cause exists.” Winkles v. State, 634 S.W.2d 289, 291 (Tex.Cr.App.1982) (On original submission).

For over twenty years, this Court religiously subscribed to what the Supreme Court had stated and held in Aguilar v. Texas, supra, and Spinelli v. United States, supra, which merely refined Aguilar v. Texas, supra.

In Marquez v. State, 725 S.W.2d 217, 233 (Tex.Cr.App.1987), in his almost unanimous opinion for the Court, which Judge Me Cor-mick himself joined without any reserva *181 tions or qualifications whatsoever, Judge W.C. Davis, the author of that opinion, correctly pointed out the following: “Since this State has always used the stricter Aguilar-Spinelli test for analyzing probable cause under Article I, Section 9 of the Texas Constitution we will review the instant affidavit using this approach.” Judge McCormick, however, implicitly states in footnote 4 in his opinion, without acknowledging that most of what he states in his opinion is without authority and should be considered dicta, has the audacity to state that that holding “was unsupported by authority and is to be considered dicta.” As easily seen, however, Judge Davis, in making the above statement, was merely recognizing on behalf of this Court what all but a few persons, which apparently did not then exclude Judge McCormick, were then fully aware of, that the “two pronged Aguilar-Spinelli test” had become written in stone as far as this Court was concerned.

History, but not Judge McCormick’s opinion, teaches us that soon after Aguilar v. Texas, supra, was decided by the Supreme Court of the United States, the 59th Legislature of this State enacted a new Code of Criminal Procedure, which final product was primarily the effort of the State Bar of Texas’ Special Committee for the Revision of the Code of Criminal Procedure. The Committee and the Legislature, obviously then aware of Aguilar v. Texas, supra, incorporated it into the Code of Criminal Procedure, which became effective January 1,1966. Judge Fred Erisman, the chairman of the State Bar of Texas— Special Committee for the Revision of the Code of Criminal Procedure (Nov. 11,1958-June 18, 1965), clearly pointed this out in his “Introduction to 1965 Revision Texas Code of Criminal Procedure”. Former Presiding Judge, then Judge Morrison, in his “Interpretive Commentary”, further pointed this out when he stated the following: “The Committee merely incorporated the effect of [‘the holdings by the Supreme Court which had invalidated two convictions from Texas because the affidavits for the search warrants did not contain sufficient facts to satisfy the magistrate that probable cause did in fact exist for the issuance of the warrant’] 2 into the code so that such requirements would be made known and available to the local magistrates.” Presiding Judge Onion, in his “Special Commentary”, after expressly discussing Aguilar v. Texas, supra, stated the following: “The new Code has been reworded to meet these requirements.” Presiding Judge Onion then gave suggestions as to how these requirements might be satisfied. Judge McCormick, implicitly if not expressly, states on page 168 of his opinion that because neither Judge Morrison nor Presiding Judge Onion quoted Aguilar v. Texas, supra, in its entirety, that this omission should permit the reader to conclude or infer that what they expressly stated in print was not what they actually meant to state in print. Judge McCormick states: “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.” I suppose this means that if one actually sees a rattler bite into his body, but fails to tell anyone that a rattler in fact bit him, that he was not really bitten by the rattler, notwithstanding that he almost died from thé rattler’s bite. Of course, if one takes the approach that Judge McCormick does, *182 then anything that was printed in the intervening 20 some odd years since Aguilar v. Texas, supra, was decided, was really not printed; such represents a mere illusion in the eyes of the reader, and should be ignored.

If that is the case, I suppose that we must disregard the law review article that then briefing attorney, now Judge McCormick wrote in 3 St. Mary’s Law Review (1971), entitled “Search Warrants: The Requisites of Validity”, in which he made the following suggestions in obtaining a search warrant: “2. Determine, whether, from reading the affidavit itself, an informant was involved. If an informant was involved, then apply the rules announced in Aguilar and Spinelli 3. If no informant was involved then determine the sufficiency of the evidence in light of Giordenello and Nathanson [see my discussion of Aguilar v. Texas, ante].” (64).

I also suppose the same is applicable to the article written by Paul J. McClung in 28 Texas Bar Journal (1965), entitled “Recent Developments in Search and Seizure”; the article written by Clyde W. Woody and Marian S. Rosen in 11 South Texas Law Journal (1969-1970), entitled “Fourth Amendment, Viewed and Reviewed”; the article written by Saul W. Bernstein in 21 Southwestern Law Journal (1967), entitled “Criminal Law and Procedure”; the article written by Carol S. Vance in 10 South Texas Law Journal (1967-1968), entitled “The 1967 Amendments to the Texas Code of Criminal Procedure; A Prosecutor’s Reflections”; and, of course, the article written by Presiding Judge Onion and his then briefing attorney Warren E. “Whizzer” White, that appeared in 10 South Texas Law Journal (1967-1968), entitled “Texas Code of Criminal Procedure-Its 1965 & 1967 Changes Affecting Corporation Courts & Police Practices”, in which the following was stated: “As a direct result of Aguilar , a number of important changes were made in the 1965 Code of Criminal Procedure. Article 18.01 (1965), which defines a search warrant, added a new paragraph (now Article 18.01(b)) ... In order for the ‘underlying circumstances’ presented to the magistrate to be sufficient to support probable cause, they must be based on either (1) the personal observations of the officer making the affidavit, or (2) the personal observations of a proven reliable informant, or (3) the personal observations of an informer whose reliability is unproven, plus corroborating observations made by the officer making the affidavit (i.e., underlying circumstances from which the officer concluded that the informant was credible and his information reliable).” (107).

In attempting to resolve the issue, I personally have found each of the above articles extremely helpful, and do not view them as either an illusion or something that can be ignored.

In 1983, in Illinois v. Gates, supra, the Supreme Court decided to abandon the “Aguilar-Spinelli two pronged test” in favor of an amorphous “totality of the circumstances” approach, under which nebulous and amorphous standard the issuing magistrate is now to make only a “practical, common-sense decision whether there is a fair probability” that the evidence sought will be found in the place to be searched. Thus, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, supra, 103 S.Ct. at 2332 . This is the test that Judge McCormick, and those who join his opinion, vote for, which replaces the time-honored and time-tested two pronged test that Aguilar-Spinelli gave us, which this Court and law enforcement personnel have for over 20 years religiously subscribed to.

Thus, under Gates, supra, the rule today, for federal constitutional law purposes, whether probable cause to arrest or to obtain a warrant, which is based upon hearsay information, is found to exist is made by considering the totality of the circumstances set forth to arrive at a practical, common-sense decision as to whether there *183 is a fair probability that contraband or evidence will be found in a particular place. This, unquestionably, is a lesser standard of proof than that stated in the two pronged Aguilar-Spinelli test, and, because the States have the right to adopt a more liberal standard than the Supreme Court has adopted for federal constitutional law purposes, the main issue to be decided by this Court is whether it will continue to subscribe to the two pronged Aguilar-Spinelli test or will opt for the above amorphous “Gates test”.

Judge McCormick states on page 163 of his opinion that “This Court had the opportunity to interpret Article 18.01(b), supra, in light of Aguilar in Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983).” (My emphasis.) However, if one will take the time to peruse Hennessy, supra, he will easily see that Judge McCormick’s statement, if it means or implies that that opinion was an En Banc opinion, is totally erroneous because that opinion was only a two judge panel opinion and was not an En Banc opinion of this Court.

Why is the rule now extant as a result of Gates, supra, so terribly wrong? Well, in the first place, it throws predictability and precision in judicial review of search and seizure cases, both warrantless and with warrant, to the winds, and fails to give law enforcement personnel any “bright line” guidance in performing their duties. E.g., People v. Johnson, supra. Thirdly, and just as important, a sought after change of our public policy to adopt the amorphous standard of Gates, supra, has not surfaced. To the contrary, although the Legislature has met in both regular and special session several times since Gates, supra, was decided, at no time has it enacted any legislation that might expressly repeal what it enacted after Aguilar v. Texas, supra, was decided, namely Art. 18.01(b), supra, which provision was not part of former Art. 304, 1925 Code of Criminal Procedure, the predecessor to Art. 18.01, supra, but was placed within Article 18.01, supra, solely as a result of Aguilar v. Texas, supra, being decided. As previously mentioned, Presiding Judge Onion and his then briefing attorney White many, many years ago wrote the following: “Article 18.01 (1965), which defines a search warrant, added a new paragraph which provides 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 the issuance.’ ” Also see then briefing attorney, but now Judge McCormick’s article, supra. Thus, the statutory provision of Article 18.01(b), supra, although expressly enacted as part of a comprehensive codification of search warrant practice and procedure, was actually a codification and adoption of the test enunciated in Aguilar-Spinelli, supra.

Because the two pronged Aguilar-Spinelli test has been written into our statutory law, albeit such only implicitly applies to warrantless arrests and searches, the issue here is whether the hearsay information that the arresting officer had when he arrested appellant was sufficient under the statute to establish probable cause. E.g., People v. Sherbine, 421 Mich. 502 , 364 N.W.2d 658 (1985).

In Eisenhauer IV, supra, the case at bar, the court of appeals on remand first pointed out what was thought by many to be sacrosanct: “Under Texas law, an affidavit for a search warrant based upon hearsay must satisfy the two-prong test that the magistrate be informed of the underlying circumstances which render the information reliable and that he be informed of specific factual allegations which render the source of the information reliable. Tex.Crim.P. art. 18.01 (Vernon 1977); Winkles v. State, 634 S.W.2d 289 (Tex.Cr.App.1982). Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984).” (785). The court of appeals, in sustaining appellant’s first and second grounds of error, which asserted “that appellant’s arrest was without probable cause” and “there was insufficient evidence to establish the credibility of the informant”, stated the following: “In the present matter, the officer testified that he had never received any information from the informant previous to the phone conversation of February 16,1982. He had no *184 idea whether the information was accurate when he acted upon it, and he testified that the informant himself had never seen the cocaine the appellant was to obtain. According to the officer, all the informant knew was that ‘a person was supposed to go to Miami and obtain some cocaine.’ There was no testimony as to the credibility of the informant or even an affirmative showing that the officer had previously received information from the informant.” (785).

Judge McCormick’s opinion denigrates this Court’s opinion of Winkles, supra, because it “contains no mention of any independent state grounds of review.” I find that it is only if one has slept for over the past 20 years, or has not had a chance to read this Court’s many opinions on the subject that have been handed down during the past 20 years, can one actually make this statement. Judge McCormick says that the court of appeals’ citation to Glass, 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.” (Page 163.) I find that it is only in the instance where one has not yet read that part of Glass, supra, which mentions Illinois v. Gates, supra, which is only mentioned once in the entire opinion, can one make the statement that Judge McCormick makes. In discussing why an anonymous telephone call, standing alone, will never provide sufficient facts that would authorize a warrantless arrest or search, which is per se unreasonable, and that “Something more is required before probable cause to make a warrantless arrest or search is shown to exist,” I, as the author of that opinion for the Court, did state the following: “E.G., Illinois v. Gates, 462 U.S. 213 [227], 103 S.Ct. 2317 [2326], 76 L.Ed.2d 527, 541 (1983)”. I did so only to point out and emphasize to the reader that an anonymous telephone call was much like the anonymous letter that existed in Illinois v. Gates, supra, which the Supreme Court itself expressly held would never be sufficient to establish probable cause. Thus, contrary to Judge McCormick’s view, Illinois v. Gates, supra, was not cited as an example of what is necessary to establish probable cause, but was cited, in the context of using information obtained from an anonymous source, such as from an anonymous telephone call or an anonymous letter, what would not be sufficient to establish probable cause. The court of appeals thus correctly cited Glass, supra, as authority in support of its statement.

Given what I have stated, because of what the Legislature enacted after Aguilar v. Texas, supra, was decided, and the authoritative comments pertaining thereto, it is unecessary to decide whether the Texas Constitution incorporates the concepts of the Aguilar-Spinelli test. E.g., People v. Sherbine, supra.

What really shocks me about Judge McCormick’s opinion, in addition to what I have already stated, is the fact that he has long been the paradigmatic judge of this Court in dogmatically subscribing to the view that this Court should never be or act as a “Super Legislature”, as seen by the dissenting opinions that he filed in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), “This Court has the obligation not to act as a super-legislature, substituting our opinion for that of the second branch of government. We have, instead, the responsibility to construe statutes in a constitutional manner where possible.” (Citations omitted), and Jackson v. State, 718 S.W.2d 724, 728 (Tex.Cr.App.1986), “The majority today puts on its legislative caps and overrules precedent and in contravention of specific legislative intent ...” Today, however, it appears that Judge McCormick no longer subscribes to those views; otherwise it stands to reason, given what the Legislature has enacted in this area of the law, see Art. 18.01(b), supra, he would be writing a dissenting opinion to his own opinion.

Judge McCormick’s opinion concludes that all his opinion is doing is keeping this Court “in [lock?] step with the federal constitutional model for probable cause determination.” (Page 164.) However, if Gates, supra, and Judge McCormick’s opinion are actually intended to be “role models for probable cause determination”, then I find that the term “role model” *185 should be stricken from our dictionaries and our vocabularies.

To-the tortured route that Judge McCormick takes to reach the conclusion that “The judgment of the Court of Appeals is reversed and the judgment of the trial court affirmed”, I respectfully dissent with all of the vigor at my command. Also see Washington Irving, The Sketch Book of Geoffrey Crayon, Gent. (London, 1920), which concerns the story of what happened to the character Rip Van Winkle after he slept for twenty years.

. The kind of struggle, that was caused by the Supreme Court decision of Illinois v. Gates, supra, that exists within this Court today, is not limited to just this Court. It is a struggle that exists among the appellate courts of our Nation, from the Atlantic to the Pacific. Recently, Latzer, tm Associate Professor of Government at John Jay College of Criminal Justice, in his article entitled “Limits of the New Federalism” that appeared in the January, 1987 issue of Search and Seizure Law Report, made a study of, among other things, which States had accepted and which States had rejected the Supreme Court’s decision of Illinois v. Gates, supra. Latzer’s research reflects that those States of the Union whose high courts have maintained their judicial independence are the following: Alaska: State v. Jones, 706 P.2d 317 (Alas.1985); Connecticut: State v. Kimbro, 197 Conn. 219 , 496 A.2d 498 (1985); Massachusetts: Commonwealth v. Upton, 394 Mass. 363 , 476 N.E.2d 548 (1985); New York: People v. Johnson, 497 N.Y.S.2d 618 , 488 N.E.2d 439 (1985); and Washington: State v. Jackson, 102 Wash.2d 432 , 688 P.2d 136 (1984). At legist sixteen high State courts have, unfortunately, opted, much like the aggressive and Etssertive majority of this Court opts, to also become nothing more than mimics or court jesters for the Supreme Court of the United States. They are the following: Arizona: State v. Bolt, 142 Ariz. 260 , 689 P.2d 519 (1984); Colorado: People v. Pannebaker, 714 P.2d 904 (Colo.1986); Idaho: State v. Lang, 672 P.2d 561 (Idaho 1983); Illinois: People v. Tisler, 103 Ill.2d 226 , 82 Ill.Dec. 613 , 469 N.E.2d 147 (1984); Iowa: State v. Bousman, 387 N.W.2d 605 (Iowa 1986); Kansas: State v. Walter, 234 Kan. 78 , 670 P.2d 1354 (1983); Maryland: Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984), and Malcolm v. Maryland, 70 Md.App. 426 , 521 A.2d 796 (1987); Michigan: People v. Chapman, 425 Mich. 245 , 387 N.W.2d 835 (1986); Mississippi: Lee v. State, 435 So.2d 674 (Miss.1983); New Hampshire: New Hampshire v. Bradberry, 129 N.H. 68 , 522 A.2d 1380 (1986); North Carolina: State v. Arrington, 311 N.C. 633 , 319 S.E.2d 254 (1984); Pennsylvania: Commonwealth v. Gray, 509 Pa. 476 , 503 A.2d 921 (1985); West Virginia: State v. Adkins, 346 S.E.2d 762 (W.Va.1986); Wisconsin: State v. Boggess, 115 Wis.2d 443 , 340 N.W.2d 516 (1983); and Wyoming: Bonsness v. State, 672 P.2d 1291 (Wyo.1983).

With the score only 16-5 at this time, with at least 29 States at this time not having gone on record, it is appEirent to me that if we are counting the number of States that have accepted Gates, supra, against the number of States that have rejected Gates , we are a long way off from hearing the ‘Tat Lady" sing in this area of the law.

It appears to me that, regardless of what the count may now be, or what it might ultimately be, if this Court is going to adhere to the doctrine of stare decisis, which in recent times is highly questionable for reasons I pointed out in the dissenting opinion that I filed in Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983), it should at least continue .to subscribe to what this Court has stated and held in, for example, the following cases:

Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970), opinion by Judge Dougltts, (Held, "In the present case, if the affidavit is construed to show that the information was furnished by Hewett by an informtuit (footnote omitted), then the following statement by the Supreme Court of the United States is applicable: ‘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 circumstEinces from which the informant concluded that the narcotics were where he claimed they were, ...’ Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 . See Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 .” (895); Powers v. State, 456 S.W.2d 97 (Tex.Cr.App.1970) opinion apparently by Judge Douglas, held, "The recitations in the affidavit that the affiant had been informed by reliable, credible and trustworthy citizens that appellants possessed marihuana Eire not sufficient. There are no underlying circumstances shown in the affidavit in the present case to inform the magistrate 'from which the informant concluded that the narcotics were where he claimed they were,’ as required by the Supreme Court in Aguilar. For this reason, the marihuana seized by virtue of the search warrant bttsed upon the affidavit should not have been admitted into evidence.” (98); Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971), opin *178 ion authored by Judge Odom, held, "We note the recitations in the said affidavit that information 'from a reliable and credible informer who has furnished truthful and reliable information in the past’ and This informer further stated he had actually been inside this room’ and had purchased heroin. Thus, the two pronged test of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 , has been met. (834). So, in order for the affidavit to show adequate probable cause it must set forth underlying circumstances necessary to enable the magistrate independently to judge the validity of the affidant's belief that heroin was being used and sold in motel room number 17 at the Frontier Motel. Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 ; Aguilar v. Texas, supra.” (835). Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App.1971), opinion authored by Judge Odom, in which "Appellant attacks the sufficiency of the search warrant on the ground that the affidavit does not reflect adequate probable cause and sufficient 'underlying circumstances’ to satisfy the requirements of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 .” Held, "In determining the sufficiency of the aforementioned affidavit, we are bound by the four corners of that document.” (894). After examining the affidavit, this Court also held: 'The information reflects no probable cause. It is conclusionary and unsupported by sufficient facts to satisfy the test of Aguilar, supra.” (894). ‘The test in Aguilar, supra, requires more. It requires that if the informer came by his information indirectly, the affidavit should explain why his sources were reliance. Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 . (895). The affidavit in the instant case supplies neither sufficient information as to the reliability of the informer’s source nor sufficient description of the appellant’s activities to satisfy these requirements. We conclude the affidavit to be insufficient. Spinelli v. United States, supra; Aguilar v. Texas, supra.” For other cases in which very similar, if not identical statements can be found therein, see Kemp v. State, 464 S.W.2d 141 (Tex.Cr.App.); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1971); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Ashmore v. State, 507 S.W.2d 221 (Tex.Cr.App.1974); Abercrombie and Dean v. State, 528 S.W.2d 578 (Tex.Cr.App.1974); Bridget v. State, 503 S.W.2d 801 (Tex.Cr.App.1974); Calderera and Walker v. State, 504 S.W.2d 914 (Tex.Cr.App.1974); Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.1977); Poindexter v. State, 545 S.W.2d 798 (Tex.Cr.App.1977); Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1977); Gonzales v. State, 577 S.W.2d 226 , (Tex.Cr.App.1979); Tolentino v. State, 638 S.W.2d 499 (Tex.Cr.App.1982); Peltier v. State, 626 S.W.2d 30 (Tex.Cr.App.1981); and Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App. 1983). It was in 1983, in Illinois v. Gates, supra, that the Supreme Court, for Fourth Amendment purposes, abandoned the “Aguilar-Spinelli two pronged test” in favor of a "totality of the circumstances” approach, under which nebulous and amorphous standard the issuing magistrate is now to make only a "practical, common-sense decision whether there is a fair probability” that the evidence sought will be found in the place to be searched. Thus, “[t]he task of the issuing magistrate [now] is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘"veracity” and ‘"basis of knowledge’” of persons supplying hearsay information, there is a fair probability that con-trabland or evidence of a crime will be found in a particular place.” Gates, supra, 103 S.Ct. at 2332 . I made my cut-off with the last case that I find that this Court decided before Illinois v. Gates, supra, was decided. Given what the above decisions of this Court have stated, I find it rather alarming for Judge McCormick to make the following statements: "Moreover, research indicates that this Court has never stepped forward to adopt affirmatively the two-pronged Aguila-Spinelli test as THE method of assessing probable cause under the constitution and laws of the State of Texas. Finding valid precedent lacking, it is up to this Court to make a pronouncement as to the proper State model for assessing probable cause.” (Page 161.) To characterize the above decisions as "unsupported by authority and to be considered dicta” is, at a minimum, not only to carelessly, but to erroneously, belittle the authors of those opinions who in writing those opinions had no choice about the matter in that they were required by the provisions of Article III of the Federal Constitution to accept and apply, notwithstanding whatever their personal views might have been on the subject, the Supreme Court’s decisions of Aguilar, supra, and Spinelli, supra. It is true, of course, that had the author had a choice, he might have rejected that test. The point is that none of them had any choice about the matter because of the provisions of Article III of the Federal Constitution. Today, however, this Court has a choice to be the leader of an independent judiciary of this State, or to simply become a mimic or court jester for the Supreme Court of the United States.

. The Supreme Court also reversed this Court's decision of Etchieson v. State, 372 S.W.2d 690 (Tex.Cr.App.1963), which had held that an affidavit which only stated that the belief of the affiant was based on the following was sufficient: '1 have been informed of the existence of the foregoing set out facts by a reliable, credible, and trustworthy citizen of Dallas, Dallas County, Texas." See Etchieson v. Texas, 378 U.S. 589 , 84 S.Ct. 1932 , 12 L.Ed.2d 1041 (1964), which merely cited Aguilar v. Texas, supra. The Supreme Court also reversed this Court's decision of Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1964), which had approved an affidavit for a search warrant which did not set out any basis for the affiant’s belief and simply stated that the affiant believed that inside of the premises sought to be searched was unlawfully obtained money. The Supreme Court reversed, see Barnes v. Texas, 380 U.S. 253 , 85 S.Ct. 942 , 13 L.Ed.2d 818 (1965), merely citing Giordenello v. United States, supra, and Aguilar v. Texas, supra, as its authority.