Knox v. State , 1979 Tex. Crim. App. LEXIS 1650 ( 1979 )

OPINION

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin, where the punishment was assessed by the jury at five (5) years, probated.

Appellant’s sole contention is that the heroin in question was seized incident to an unlawful arrest and hence was inadmissible in evidence. Appellant argues that the court erred in overruling his supplemental motion to suppress because the affidavit or complaint on which the capias ordering the arrest of the appellant was not based on probable cause.

On May 5, 1976 a complaint and information were filed in County Court at Law No. 5 of Nueces County charging appellant with the offense of theft. Omitting the formal parts, the complaint reads:

“Before me, the undersigned authority, on this day personally appeared David L. Castillo who, after being duly sworn, on oath deposes and says that he has good reasons to believe and does believe that heretofore, to-wit on or about the 2nd day of May, A. D. 1976, and anterior to the filing of this complaint, in the County of Nueces and State of Texas, one Herbert Lee Knox did then and there unlawfully appropriate property, other than real property, to wit: a tire and rim of the value of $20.00 or more but less than $200.00 without the effective consent of Tradewinds Ford, the owner thereof, and with the intent to deprive Tradewinds Ford of said property . . . .”

On the same date the complaint and information were filed the clerk issued a capi-as ordering the arrest of the appellant. On May 6,1976 Detective David L. Castillo and Officer Flores of the Corpus Christi Police Department executed the capias. They observed the appellant outside a drive-in grocery. They identified themselves and told appellant he was under arrest. He was removed from his car and frisked, which frisk revealed a needle and syringe. Detective Castillo then entered appellant’s vehicle, and as he did, he observed a cup covered with tinfoil on the console. He examined the cup, removing the tinfoil, and found it to contain a white powdery substance which was later shown to contain heroin.

In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court wrote:

“The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a' warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).” (Emphasis supplied.) See also Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1965) (on remand).

Further, the Supreme Court has held that the exclusionary rule was applicable to state prosecutions, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and that the same probable cause standards were applicable to federal and state warrants under the Fourth and Fourteenth Amendments.- Still further, see Article I, § 9, Texas Constitution; cf. Article 38.23, V.A.C.C.P.

In Evans v. State , 530 S.W.2d 932 (Tex.Cr.App.1975), and Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), this court applied the rule of Whiteley to felony arrest warrants issued by justices of the peace pursuant to sworn complaints. In those cases it was held that the complaints upon which the arrest warrants were issued did not contain sufficient information to show probable cause. The rule, however, is not limited to felony arrest warrants but applies to misdemeanor arrest warrants as well.

Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), held that municipal court clerks who were authorized by city charter to issue warrants for arrest of persons charged with breach of municipal ordinances qualified as “neutral and detached magistrates” for purposes of the Fourth Amendment, where they were removed in their work and were subject to supervision of municipal court judges. Thus, it is clear that the Supreme Court has drawn no distinction between felony and misdemeanor cases with regard to the rule discussed in Whiteley.

An examination of the complaint in the instant case reveals that it consists of nothing more than a conclusion that the appellant perpetrated the theft offense described in the complaint. The actual basis for the complainant’s conclusion is omitted from the complaint. The complaint contains no allegations that the complainant spoke with personal knowledge of the matters contained herein and did not indicate any source for the complainant’s belief, nor set up sufficient information to support an independent judgment that probable cause existed.

There being no probable cause set forth in the complaint, the arrest of appellant by capias was illegal and the search of appellant and his car was also illegal and tainted thereby. The admission into evidence of the fruits of the search was reversible error.¹

The judgment is reversed and the cause remanded.

1 . The holding today should not be confused with those cases which hold that the requisites of an affidavit or complaint or a complaint and information to support a prosecution are not as stringent as the requirements of a complaint or affidavit for a search warrant or an arrest warrant by which there might be a search incident to arrest. See Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974); Cisco v. State, 411 S.W.2d 547 (Tex.Cr.App.1967); Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967). In Chapa, this court wrote: “The purpose of the complaint is to apprise the accused of the facts surrounding the offense with which he is charged in order to permit him to prepare a defense to such charge.”