Step-By-Step Commentary
accompanying Probable Cause to Search Flowchart
Box 1. Search warrant request received.
A magistrate receives a request from a peace officer for a warrant to search a
particular person, place, or thing.
Go to Box 2.
Box 2. Request accompanied by written affidavit?
A request for a warrant to search must be accompanied by a written affidavit.
Article 18.01(b) of the Texas Code of Criminal Procedure provides:
A sworn affidavit setting forth substantial facts establishing probable cause shall
be filed in every instance in which a search warrant is requested. The affidavit is
public information if executed, and the magistrate's clerk shall make a copy of
the affidavit available for public inspection in the clerk's office during normal
business hours.
If yes, go to Box 3.
If no, go to Box 10
Box 3. Object of search has special affidavit demands?
Searches for items that are not defined under Tex. Code Crim. Proc. art. 18.02
(1-9, 11) may have special affidavit requirements.
Article 18.02 reads as follows:
GROUNDS FOR ISSUANCE. A search warrant may be issued to search for
and seize:
(1) property acquired by theft or in any other manner which makes its
acquisition a penal offense;
(2) property specially designed, made, or adapted for or commonly used in the
commission of an offense;
(3) arms and munitions kept or prepared for the purposes of insurrection or
riot;
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(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling equipment, or gambling
paraphernalia;
(6) obscene materials kept or prepared for commercial distribution or
exhibition, subject to the additional rules set forth by law;
(7) a drug, controlled substance, immediate precursor, chemical precursor, or
other controlled substance property, including an apparatus or paraphernalia
kept, prepared, or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited by law;
(9) implements or instruments used in the commission of a crime;
(10) property or items, except the personal writings by the accused,
constituting evidence of an offense or constituting evidence tending to show
that a particular person committed an offense;
(11) persons; or
(12) contraband subject to forfeiture under Chapter 59 of this code.
Thus, the task for the magistrate at this point is to determine if the items for which
a search warrant is requested fall under categories 1 through 9 or 11 of Article 18.02. If
the items do fall within one of those categories, then there are no special affidavit
requirements and you should proceed to Box 11.
If, however, the items for which a search warrant is requested do not fall under
categories 1 through 9 or 11, then there are special affidavit requirements and you
should move to Box 4.
Box 4. Affidavit must contain special language.
Searches for items defined under Tex. Code Crim. Proc. art. 18.02 (10) and
(12) may have special affidavit requirements. Subsection 10 is “property or items,
except the personal writings by the accused, constituting evidence of an offense or
constituting evidence tending to show that a particular person committed an offense.”
This is the provision that allows for search warrants to obtain blood evidence in DWI
cases. These types of warrants are known as evidentiary search warrants. Article
18.01(c) reads, in pertinent part, as follows:
A search warrant may not be issued under Article 18.02(10) of this code unless
the sworn affidavit required by Subsection (b) sets forth sufficient facts to
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establish probable cause: (1) that a specific offense has been committed, (2)
that the specifically described property or items that are to be searched for or
seized constitute evidence of that offense or evidence that a particular person
committed that offense, and (3) that the property or items constituting evidence to
be searched for or seized are located at or on the particular person, place, or
thing to be searched.
This is the special language that a warrant to search for items under Article 18.02(10)
must contain.
Similarly, Article 18.01(g) instructs us that a search warrant may not be issued
under article 18.02(12) unless the affidavit:
sets forth sufficient facts to establish probable cause that a specific felony
offense has been committed and that the specifically described property or items
that are to be searched for or seized constitute contraband as defined in Article
59.01 of this code and are located at or on the particular person, place, or thing
to be searched.
This is the special language that a warrant to search for items uner Article 18.02(12)
must contain.
Please note that only certain justices of the peace may issue search warrants
for items under Article 18.02(10) and (12). See Article 18.01 (c), (d), (h), (i), and (j).
Go to Box 5.
Box 5. Does affidavit contain the special language?
If the affidavit does contain the special language described in the Box 4
explanation above, then go to Box 11.
Otherwise, go to Box 10.
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Box 6. Is affidavit based solely on police observation?
If yes, go to Box 7.
If no, go to Box 14.
Occasionally, a magistrate may receive an affidavit containing only direct
observation of criminal activity from the affiant. The affiant will almost always (if not
always) be a peace officer. Police observation is considered to be the most reliable
information and may in many cases stand alone in establishing probable cause. 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.). A perfect example of direct
observation 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. See Accaria v. State, 661 S.W.2d 249, 251 (Tex. App.
Houston [1st Dist] 1983, no pet.). Another example would be a case in which a “trained
and experienced narcotics officer” smells the odor of a narcotic. See Conner, 757
S.W.2d at 807. Typically, an affidavit will contain a combination of police observation
and hearsay information. Winkles v. State, 634 S.W.2d 289, 292 (Tex. Crim. App.
1981).
Box 7. Given all the circumstances set forth in the affidavit, is there a
fair probability that contraband or evidence of a crime will be found in
a particular place?
If yes, go to Box 8.
If no, go to Box 10.
The United States Supreme Court has adopted a “totality-of-the-circumstances
analysis” as the test to follow in making probable cause determinations. Illinois v.
Gates, 462 U.S. 213, 238 (1983). “The task of the issuing magistrate is simply to make
a practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before him … there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Id.
Case in which probable cause was found:
Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007)(finding probable cause to
search a garage where it was found that a magistrate could reasonably infer that drugs
might be stored there when police previously observed a package taken from the
garage that was found to contain drugs.).
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Cases in which probable cause was not found:
State v. Hill, 299 S.W.3d 240 (Tex. App.-Texarkana 2009, no pet.)(no probable cause
where three hours of police surveillance revealing a high amount of traffic at a residence
did not provide sufficient corroboration to a series of accusations made by unnamed
informants reporting drug trafficking.); State v. Barnett, 788 S.W.2d 572, 576 (Tex. Crim.
App. 1990)(finding no probable cause where officers searched all vehicles located on
the premises when the affidavit failed to show that all cars located on the premises
might contain contraband.); Texas v. Dickson, 2008 Tex. App. LEXIS 6333 (Tex. App.Dallas Aug. 21, 2008, no pet.)(finding no probable cause where a series of unnamed
informant statements were mostly conclusory in nature and where the substance of one
informant “tip provided little factual basis to conclude drugs would remain on the
premises days later.”); State v. Davila, 169 S.W.3d 735, 740 (Tex. App.-Austin 2005, no
pet.)(no probable cause where “(1) a conclusory statement by an informer of unknown
credibility that drugs were being possessed at 710 Sabine Street at some unstated time;
(2) the affiant's unsupported assertion that narcotics transactions occurred frequently at
that address; and (3) the one-time discovery of a plastic bag containing marihuana
residue in a garbage can sitting in the street in front of the house.”); Taylor v. State, 54
S.W.3d 21, 27 (Tex. App.-Amarillo 2001, no pet.)(no probable cause where
“governmental authorities 1) received contraband sent from somewhere by someone
using an alias, 2) obtained information that Taylor used the alias at some time or
another, and 3) knew where Taylor lived.”).
Box 8. Are the facts in the affidavit current enough to allow for
presumption that objects of the search are still present at/on the
person/place/thing to be searched?
If yes, go to Box 9.
If no, go to Box 10.
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.” Gonzales v.
State, 761 S.W.2d 809, 813 (Tex. App.-Austin 1988, pet. ref’d). Thus, the question for
the magistrate becomes: Is it reasonable to presume that the items to be searched for
are still present in the place to be searched?
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Box 9. Judge has affiant swear to and sign affidavit.
The requirement that the affiant swear to the affidavit stems directly from the
Fourth Amendment requirement that probable cause be “supported by Oath or
affirmation.”
Additionally, Article 18.01(b) of the Texas Code of Criminal Procedure provides:
A sworn affidavit setting forth substantial facts establishing probable cause shall
be filed in every instance in which a search warrant is requested. The affidavit is
public information if executed, and the magistrate's clerk shall make a copy of
the affidavit available for public inspection in the clerk's office during normal
business hours.
The best practice is to have the affiant swear to the affidavit and sign it in front of the
magistrate. However, “failure to sign the warrant affidavit does not invalidate the
warrant if other evidence proves that the affiant personally swore to the truth of the facts
in the affidavit before the issuing magistrate.” Smith v. State, 207 S.W.3d 787, 792
(Tex. Crim. App. 2006).
Go to Box 15.
Box 10. Deny request.
Deny the request and stop. End of analysis.
Box 11. Affidavit specifically lists objects of search?
If yes, go to Box 12.
If no, go to Box 10.
The Fourth Amendment requires that the affidavit describe the “persons or things
to be seized” with particularity.
See Massachusetts v. Sheppard, 468 U.S. 981, 988 (1984) ("[A] warrant that fails
to conform to the particularity requirement of the Fourth Amendment is
unconstitutional").
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Box 12. Affidavit says objects of search are located at/on
person/place/thing to be searched?
If yes, go to Box 13.
If no, go to Box 10.
The Fourth Amendment requires that the affidavit describe the “place to be
searched” with particularity.
“A search warrant is … facially invalid when the warrant fails to identify, with
reasonable specificity, the place to be searched or the thing to be seized. United States
v. Chambers, 132 Fed. Appx. 25, 29 (5th Cir. 2005) (citing United States v. Leon, 468
U.S. 897, 923 (1984)).
Box 13. Affidavit contains more than conclusory statements.
If yes, go to Box 6.
If no, go to Box 10.
Merriam-Webster defines the term conclusory as an “assertion for which no
supporting evidence is offered.” Merriam-Webster Online Dictionary. 2010.
http://www.merriam-webster.com (28 Jan. 2010).
A “mere conclusory statement” gives a “magistrate virtually no basis at all for
making a judgment regarding probable cause.” Illinois v. Gates, 462 U.S. 213, 239
(1983) (noting statements like “’he has cause to suspect and does believe’ that liquor
illegally brought into the United States is located on certain premises will not do”; and
similarly that “[a]n officer's statement that ‘[affiants] have received reliable information
from a credible person and do believe’ that heroin is stored in a home, is likewise
inadequate.”).
Box 14. Affidavit contains informant information. Determine whether
either, neither, or both of the two Aguilar-Spinelli “prongs” exist. The
two prongs are adequate basis of knowledge and adequate veracity.
Prongs are only a guide.
The inherent reliability issues associated with informant information, or “hearsay
information” require a special analysis. Winkles v. State, 634 S.W.2d 289, 292 (Tex.
Crim. App. 1981). Where hearsay information is involved, we must use the Aguilar test
as a guide for determining the reliability of hearsay information. Illinois v. Gates, 462
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U.S. 213, 232 (1983); see also Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.
Texas, 378 U.S. 108 (1964). This “two-pronged” test of an informant’s “veracity” and
“basis of knowledge” is also referred to as the Aguilar-Spinelli test named after the
cases in which the test was developed. Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim.
App. 1986).
In Illinois v. Gates, the Court settled on a “totality of the circumstances” analysis
for determining probable cause. In so doing, the Court effectively overruled its previous
decisions in Aguilar and Spinelli. Gates, 462 U.S. at 232; see also Massachusetts v.
Upton, 466 U.S. 727, 732 (U.S. 1984). However, the test developed by the Court in
Aguilar and Spinelli was not abandoned. Gates, 462 U.S. at 232. Instead, the Court
held that the Aguilar-Spinelli test should be used as a guide for determining the
reliability of hearsay information. Gates, 462 U.S. at 232. The Aguilar-Spinelli 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.” Ware,
724 S.W.2d at 40; see also Jones v. State, 522 S.W.2d 930, 931 (Tex. Crim. App.
1975). The Court, however, was clear that the determinative test in a probable cause
analysis is the “totality of the circumstances” analysis. Gates, 462 U.S. at 232.
Go to Box 16.
Box 15. Judge signs and dates affidavit.
A Judge, through the application of his/her signature, validates an affidavit
requesting a warrant to search.
Go to Box 21.
Box 16. Determine if informant has adequate “basis of knowledge.”
This is one of the two prongs of the Aguilar-Spinelli test.
For the “basis of knowledge” requirement of Aguilar, a judge must attempt to
determine whether the information is itself reliable absent a conclusion as to the
credibility of the informant. Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986).
This means that where the information provided by the informant is not based on
personal knowledge, there must be evidence that the informant gathered the
information in a reliable manner. Spinelli v. United States, 393 U.S. 410, 416 (1969).
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
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relying on something more substantial than a casual rumor circulating in the underworld
or an accusation based merely on an individual's general reputation.” Id.
Go to Box 17.
Box 17. Is info based on informant’s personal knowledge?
Informant information based on personal knowledge may serve as an adequate
basis of knowledge under an Aguilar analysis. Spinelli v. United States, 393 U.S. 410,
416 (1969).
If yes, go to Box 28.
If no, go to Box 23.
Box 18. Informant has history of being truthful or standing in
community.
If yes, go to Box 30.
If no, go to Box 24.
If the informant is unnamed, the credibility factor may be met by the fact that the
informant has given reliable information in the past. Jones v. State, 522 S.W.2d 930,
932-33 (Tex. Crim. App. 1975). But, does an affidavit meet the “basis of knowledge”
prong where the affidavit simply states that the informant has provided information on
“numerous occasions in the past?” Avery v. State, 545 S.W.2d 803, 805 (Tex. Crim.
App. 1977). No, the affidavit must also contain a statement indicating some “indicia” of
reliability. Id. For example, the affidavit might state that the informant has provided
information in the past that has proven to be reliable on each occasion. Id.
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.” Avery, 545
S.W.2d at 804, See also Caldarera v. State, 504 S.W.2d 914, 915-916 (Tex. Crim. App.
1974).
Finally, If “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.” Ware v. State, 724 S.W.2d 38, 40 (Tex.
Crim. App. 1986). 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.” Ware, 724 S.W.2d at 40
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citing Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1982). Here again,
common sense should be employed where the unnamed informant is not a “detached
citizen.” Ware, 724 S.W.2d at 40.
Box 19. Informant has both adequate basis of knowledge and
adequate veracity.
This still does not conclusively mean that probable cause exists to support the
issuance of the search warrant. To decide that ultimate question, we must go to Box
20.
Box 20. Given all the circumstances set forth in the affidavit,
including the “veracity” and “basis of knowledge” of persons
supplying hearsay information, is there a fair probability that
contraband or evidence of a crime will be found in a particular place?
If yes, go to Box 8.
If no, go to Box 10.
The United States Supreme Court has adopted a “totality-of-the-circumstances
analysis” as the test to follow in making probable cause determinations. Illinois v.
Gates, 462 U.S. 213, 238 (1983). “The task of the issuing magistrate is simply to make
a practical, common-sense 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.” Id.
If Box 20 has been reached, then necessarily the informant mentioned in the
affidavit possesses adequate veracity and adequate basis of knowledge. The chances
that probable cause exists will be very high.
Cases in which probable cause was found:
Hall v. State, 2001 Tex. App. LEXIS 6392 (Tex. App.-Amarillo Sept. 18, 2001, no
pet.)(finding probable cause where an unnamed informant who had provided reliable
information in the past made a “controlled purchase of a substance that tested positive
for cocaine using a scott field test kit.”); Massachusetts v. Upton, 466 U.S. 727, 734
(1984)(finding probable cause where the “informant's story and the surrounding facts
possessed an internal coherence that gave weight to the whole.”).
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Box 21. Does information in warrant match information in affidavit?
If yes, go to Box 22.
If no, go to Box 26.
The Fourth Amendment provides:
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.
The purpose for this “check” is to make sure that while we have determined there
is, for example, probable cause to search the house at 123 Main Street, the warrant is
not issued to search the house at 321 Main Street. Thus, this is a very important step in
the process of issuing any warrant.
Box 22. Judge signs and dates search warrant and gives to peace
officer.
Tex. Code Crim. Proc. art. 18.01(a) provides:
A "search warrant" is a written order, issued by a magistrate and directed to a
peace officer, commanding him to search for any property or thing and to seize
the same and bring it before such magistrate or commanding him to search for
and photograph a child and to deliver to the magistrate any of the film exposed
pursuant to the order.
Stop. End of analysis.
Box 23. Was the information gathered in a reliable manner?
Where the information provided by the informant is not based on personal
knowledge, there must be evidence that the informant gathered the information in a
reliable manner. Spinelli v. United States, 393 U.S. 410, 416 (1969).
For example, the Supreme Court has noted that the amount of income that a
person has may not be “physically observed.” Jaben v. United States, 381 U.S. 214,
225 (U.S. 1965). In this instance, the Court noted that the Petioner’s income “could only
20
be determined by examining records and interviewing third persons familiar with
petitioner's financial condition.” Id. Finally, the Court held that “[i]n such circumstances,
the magistrate would be justified in accepting the agent's judgment of what he ‘saw.’”
Id. In contrast, in Morin v. State, 800 S.W.2d 328, 330 (Tex. App.-Corpus Christi 1990,
no pet.), the court found no probable cause where an “affidavit informed the magistrate
that the officer had received his information from an informant, but it did not attempt to
inform the magistrate how the informant gained his information.“
If yes, go to Box 28.
If no, go to Box 27.
Box 24. Information provided is sufficiently corroborated by police
investigation?
In Illinois v. Gates, the United States Supreme Court noted that an informant’s tip
may be corroborated by “independent police work.” Illinois v. Gates, 462 U.S. 213, 241
(1983). In 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.” Id. at 213. 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. Id. 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.” Id. A warrant was obtained and the car and house searched. Id.
Note that in the Gates case, the police conducted an investigation that effectively
verified most of the details contained within the letter.
If yes, go to Box 30.
If no, go to Box 29.
Box 25. Informant has history of being truthful or standing in
community.
If yes, go to Box 36.
If no, go to Box 31.
If the informant is unnamed, the credibility factor may be met by the fact that the
informant has given reliable information in the past. Jones v. State, 522 S.W.2d 930,
932-33 (Tex. Crim. App. 1975). But, does an affidavit meet the “basis of knowledge”
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prong where the affidavit simply states that the informant has provided information on
“numerous occasions in the past?” Avery v. State, 545 S.W.2d 803, 805 (Tex. Crim.
App. 1977). No, the affidavit must also contain a statement indicating some “indicia” of
reliability. Id. For example, the affidavit might state that the informant has provided
information in the past that has proven to be reliable on each occasion. Id.
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.” Avery, 545
S.W.2d at 804, See also Caldarera v. State, 504 S.W.2d 914, 915-916 (Tex. Crim. App.
1974).
Finally, If “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.” Ware v. State, 724 S.W.2d 38, 40 (Tex.
Crim. App. 1986). 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.” Ware, 724 S.W.2d at 40
citing Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1982). Here again,
common sense should be employed where the unnamed informant is not a “detached
citizen.” Ware, 724 S.W.2d at 40.
Box 26. Deny Request.
Deny request and stop. End of analysis.
Box 27. Is info sufficiently detailed; not just casual rumor?
If yes, go to Box 28.
If no, go to Box 37.
Where the information provided by the informant is not based on personal
knowledge, the tip should “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.” Spinelli v. United States, 393 U.S. 410, 416 (1969).
Box 28. Informant has adequate basis of knowledge.
One of the two Aguilar-Spinelli prongs has been satisfied. Now, we move on to
analyze the other Aguilar-Spinelli prong. Go to Box 33.
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Box 29. Is statement against informant’s penal interest?
If yes, go to Box 30.
If no, go to Box 34.
A judge should consider the informant’s motive. United States v. Phillips, 727
F.2d 392, 397 (5th Cir. 1984). One example indicating reliability of an informant is a
“declaration against penal interest.” Abercrombie v. State, 528 S.W.2d 578, 584 (Tex.
Crim. App. 1974). A “declaration against penal interest” occurs where an informant
supplies “information which would enhance the chances of his own conviction of
criminal participation.” United States v. Barfield, 507 F.2d 53, 58 (5th Cir. 1975).
However, a tip becomes “less reliable” when given to “curry favor with the police.”
United States v. Kolodziej, 712 F.2d 975, 978 (5th Cir. 1983).
In Barfield, the informant supplied information that indicated his own participation
in the burglary. The court held that the informant’s admission supplied “its own indicia
of reliability.” Barfield, 507 F.2d at 58.
Box 30. Informant has adequate veracity.
The informant has been determined to have adequate veracity. This is one of
the two Aguilar-Spinelli prongs.
Go to Box 19.
Box 31. Information provided is sufficiently corroborated by police
investigation?
In Illinois v. Gates, the United States Supreme Court noted that an informant’s tip
may be corroborated by “independent police work.” Illinois v. Gates, 462 U.S. 213, 241
(1983). In 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.” Id. at 213. 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. Id. 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.” Id. A warrant was obtained and the car and house searched. Id.
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Note that in the Gates case, the police conducted an investigation that effectively
verified most of the details contained within the letter.
If yes, go to Box 36.
If no, go to Box 35.
Box 32. Given all the circumstances set forth in the affidavit,
including the “veracity” and “basis of knowledge” of persons
supplying hearsay information, is there a fair probability that
contraband or evidence of a crime will be found in a particular place?
The United States Supreme Court has adopted a “totality-of-the-circumstances
analysis” as the test to follow in making probable cause determinations. Illinois v.
Gates, 462 U.S. 213, 238 (1983). “The task of the issuing magistrate is simply to make
a practical, common-sense 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.” Id.
By arriving at box 32, we know that only one of the two Aguilar Spinelli prongs
(veracity or basis of knowledge) has been satisfied. This does not necessarily mean
that probable cause does not exist. Veracity and basis of knowledge may simply serve
to illuminate the question of whether probable cause exists. The two prongs of the
Aguilar test “were intended simply as guides to a magistrate’s determination of
probable cause, not as inflexible, independent requirements applicable in every case.
Illinois v. Gates, 462 U.S. 213, 232 (1983).
Courts have consistently held that “corroborating facts from police observation
can make an affidavit valid even if the hearsay contained therein was not sufficient to
meet both prongs of Aguilar.” Polanco v. State, 475 S.W.2d 763, 766 (Tex. Crim. App.
1971); see also Illinois v. Gates, 462 U.S. 213, 233 (1983) (“deficiency in one [prong]
may be compensated for, in determining the overall reliability of a tip, by a strong
showing as to the other [prong,] or by some other indicia of reliability.”); Accord United
States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (stating that “[w]hether subsequent
corroboration is necessary must be determined in the light of the totality of the
circumstances.”).
Cases in which probable cause was found:
United States v. Fisher, 22 F.3d 574, 579 (5th Cir. 1994)(finding probable cause where
the affidavit did not “vouch for the informant's veracity,” but “reflected first-hand basis of
24
knowledge with respect to the reported drug purchases” in addition to “[o]ther aspects of
the informant's report” being “corroborated.”); Hennessy v. State, 660 S.W.2d 87, 91
(Tex. Crim. App. 1983)(finding probable cause where the affidavit contained multiple
hearsay statements which tended to corroborate one another, and where a named
informant made a declaration against penal interest to an officer providing a “substantial
basis for believing” the statements were true.).
If yes, go to Box 8.
If no, go to Box 40.
Box 33. Determine if the informant has adequate “veracity.”
The second prong of the Aguilar test requires an analysis of whether the
informant has adequate veracity (i.e., whether the informant is credible). Ware v. State,
724 S.W.2d 38, 40 (Tex. Crim. App. 1986). 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.
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." Ware v. State, 724
S.W.2d at 40. 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.” Ware, 724
S.W.2d at 40 (citing Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App.
1982)). Here again, common sense should be employed where the unnamed
informant is not a “detached citizen.” Ware, 724 S.W.2d at 40.
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. Jones v. State, 522
S.W.2d 930, 932-33 (Tex. Crim. App. 1975). But, does an affidavit meet the
“veracity” prong where the affidavit simply states that the informant has provided
information on “numerous occasions in the past?” Avery v. State, 545 S.W.2d
803, 805 (Tex. Crim. App. 1977). No, the affidavit must also contain a statement
indicating some “indicia” of reliability. Id. For example, the affidavit might state
that the informant has provided information in the past that has proven to be
reliable on each occasion. Id.
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
25
community.” Avery, 545 S.W.2d at 804; see also Caldarera v. State, 504 S.W.2d
914, 915-16 (Tex. Crim. App. 1974).
4. Finally, a judge should consider the informant’s motive. United States v. Phillips,
727 F.2d 392, 397 (5th Cir. 1984). One example indicating reliability of an
informant is a “declaration against penal interest.” Abercrombie v. State, 528
S.W.2d 578, 584 (Tex. Crim. App. 1974). A “declaration against penal interest” is
where an informant supplies “information which would enhance the chances of
his own conviction of criminal participation.” United States v. Barfield, 507 F.2d
53, 58 (5th Cir. 1975). However, a tip becomes “less reliable” when given to
“curry favor with the police.” United States v. Kolodziej, 712 F.2d 975, 978 (5th
Cir. 1983).
Go to Box 18.
Box 34. Informant has adequate basis of knowledge, but does not
have adequate veracity.
Only one of the two Aguilar-Spinelli prongs have been satisfied. But, this does
not necessarily mean that there is no probable cause. We must still engage in a “totality
of the circumstances” analysis. Go to Box 32.
Box 35. Is statement against informant’s penal interest?
A judge should consider the informant’s motive. United States v. Phillips, 727
F.2d 392, 397 (5th Cir. 1984). One example indicating reliability of an informant is a
“declaration against penal interest.” Abercrombie v. State, 528 S.W.2d 578, 584 (Tex.
Crim. App. 1974). A “declaration against penal interest” occurs where an informant
supplies “information which would enhance the chances of his own conviction of
criminal participation.” United States v. Barfield, 507 F.2d 53, 58 (5th Cir. 1975).
However, a tip becomes “less reliable” when given to “curry favor with the police.”
United States v. Kolodziej, 712 F.2d 975, 978 (5th Cir. 1983).
In Barfield, the informant supplied information that indicated his own participation
in the burglary. The court held that the informant’s admission supplied “its own indicia
of reliability.” Barfield, 507 F.2d at 58.
If yes, go to Box 36.
If no, go to Box 39.
26
Box 36. Informant has adequate veracity, but does not have adequate
basis of knowledge.
Only one of the two Aguilar-Spinelli prongs have been satisfied. But, this does
not necessarily mean that there is no probable cause. We must still engage in a “totality
of the circumstances” analysis.
Go to Box 32.
Box 37. Informant does not have adequate “basis of knowledge.”
One of the Aguilar-Spinelli prongs has not been satisfied. The informant does
not have an adequate basis of knowledge, but we must move on and determine
whether the informant has adequate veracity.
Go to Box 38.
Box 38. Determine if the informant has adequate “veracity.”
The second prong of the Aguilar test requires an analysis of whether the
informant has adequate veracity (i.e., whether the informant is credible). Ware v. State,
724 S.W.2d 38, 40 (Tex. Crim. App. 1986). 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.
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." Ware v. State, 724
S.W.2d at 40. 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.” Ware, 724
S.W.2d at 40 (citing Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App.
1982)). Here again, common sense should be employed where the unnamed
informant is not a “detached citizen.” Ware, 724 S.W.2d at 40.
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. Jones v. State, 522
S.W.2d 930, 932-33 (Tex. Crim. App. 1975). But, does an affidavit meet the
“veracity” prong where the affidavit simply states that the informant has provided
information on “numerous occasions in the past?” Avery v. State, 545 S.W.2d
27
803, 805 (Tex. Crim. App. 1977). No, the affidavit must also contain a statement
indicating some “indicia” of reliability. Id. For example, the affidavit might state
that the informant has provided information in the past that has proven to be
reliable on each occasion. Id.
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.” Avery, 545 S.W.2d at 804; see also Caldarera v. State, 504 S.W.2d
914, 915-16 (Tex. Crim. App. 1974).
4. Finally, a judge should consider the informant’s motive. United States v. Phillips,
727 F.2d 392, 397 (5th Cir. 1984). One example indicating reliability of an
informant is a “declaration against penal interest.” Abercrombie v. State, 528
S.W.2d 578, 584 (Tex. Crim. App. 1974). A “declaration against penal interest” is
where an informant supplies “information which would enhance the chances of
his own conviction of criminal participation.” United States v. Barfield, 507 F.2d
53, 58 (5th Cir. 1975). However, a tip becomes “less reliable” when given to
“curry favor with the police.” United States v. Kolodziej, 712 F.2d 975, 978 (5th
Cir. 1983).
Go to Box 25.
Box 39. Informant has neither adequate basis of knowledge, nor
adequate veracity.
If you have reached this step, then you have determined that given all the
circumstances set forth in the affidavit, there is not a fair probability that contraband or
evidence of a crime will be found in a particular place. You have determined that the
hearsay information is unreliable, and that that the affiant has failed to adequately
support his request with police work.
Go to Box 40.
Box 40. Deny Request.
Deny request and stop. End of analysis.
28