Wetherby v. State

17 Citing cases

  1. Cassias v. State

    719 S.W.2d 585 (Tex. Crim. App. 1986)   Cited 175 times   1 Legal Analyses
    Holding affidavit insufficient to establish probable cause where affiant alleged, among other things, that suspects were seen “carrying brick type packages believed to be marihuana” as well as plastic tubs and tubing

    The former holding, however, seems to have originated in Pecina v. State, supra, wherein the Court ruled, in the face of a claim that the warrant affidavit contained no showing the informant could readily recognize contraband: "The affidavit presented here is substantially the same as that approved by this court in Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852. See also Cummins v. State, Tex.Cr.App., 478 S.W.2d 452.

  2. Phenix v. State

    488 S.W.2d 759 (Tex. Crim. App. 1973)   Cited 73 times
    Holding that where a search warrant incorporates the supporting affidavit and the affidavit describes the place to be searched with particularity, this is sufficient to make the description of the place to be searched part of the warrant

    In his ninth ground of error appellant alleges that the trial court erred in sustaining the State's objection to defense counsel's request for the names of the persons described in the affidavit supporting the search warrant as "users and sellers of narcotics' who were seen frequenting appellant's apartment. In Wetherby v. State, 482 S.W.2d 852 (1972), this court said, ". . . it is well settled "that a court will not look behind the allegations of an affidavit for the issuance of a search warrant." Brown v. State, 437 S.W.2d 828 (Tex.Cr.App. 1968)."

  3. Carvajal v. State

    529 S.W.2d 517 (Tex. Crim. App. 1975)   Cited 72 times
    Affirming a conviction for aggravated assault by threat when the defendant pulled a loaded gun on police officers but the gun was not cocked and could not be fired

    Caution should be exercised in comparing the details provided in one affidavit with those of another, lest judicial consideration of whether important, constitutionally protected interests have been violated becomes an arid and mechanistic exercise. Nevertheless, we have reviewed the cases in this area of the law, focusing upon Caldarera v. State, Tex.Cr.App., 504 S.W.2d 914; Cook v. State, Tex.Cr.App., 497 S.W.2d 295; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852; Adair v. State, Tex.Cr.App., 482 S.W.2d 247; and Yantis v. State, Tex.Cr.App., 476 S.W.2d 24. It is apparent that the affidavit in the instant case states fewer underlying circumstances than those stated in the affidavits found sufficient in Cook, Wetherby, and Yantis. On the other hand, it provides more information than the supporting affidavit held invalid in Caldarera.

  4. Wood v. State

    573 S.W.2d 207 (Tex. Crim. App. 1978)   Cited 52 times
    Holding that citizen informant's tip that he had been contacted by individual promoting prostitution was sufficient to establish probable cause

    "The averments that the informant (1) lacked a criminal record; (2) had a reputation in the neighborhood (ostensibly a good one); and (3) was well thought of by fellow associates was minimally adequate and comported with the requirements of Aguilar." In Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852, the averments found sufficient therein were that the informant was: "(1) Gainfully employed and (2) was well thought of by the people in the community in which he lived; and (3) that the informant had no criminal record with this department (Austin) or with the Department of Public Safety."

  5. Ramsey v. State

    579 S.W.2d 920 (Tex. Crim. App. 1979)   Cited 48 times
    Discussing Franks and concluding that the decision requires retroactive application

    This Court had long held that a challenge to the affidavit's statement of probable cause could not go behind the face of the affidavit. Oubre v. State, Tex.Cr.App., 542 S.W.2d 875; Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852. Most recently, in Jones v. State, Tex.Cr.App., 568 S.W.2d 847, this Court again followed this rule and stated that "Our determination of the sufficiency of an arrest or search warrant affidavit's statement of probable cause is limited to the four corners of the affidavit." 568 S.W.2d at 855.

  6. Abercrombie v. State

    528 S.W.2d 578 (Tex. Crim. App. 1975)   Cited 40 times
    Holding that the absence of an allegation of prior reliability is not ipso facto a fatal defect in the affidavit and other factors may be considered in determining reliability including a statement against penal interest

    The officer-affiant did not elaborate upon such conclusory statement or offer the magistrate in the affidavit other factors bearing on a first-time informer's reliability and credibility often found in affidavits involving first-time informers such as the presence or absence of a criminal record, reputation in the community, reputation with associates, position in community. See, i.e., Adair v. State, supra; Yantis v. State, 476 S.W.2d 24 (Tex.Cr.App. 1972); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App. 1972); Cook v. State, 497 S.W.2d 295 (Tex.Cr.App. 1973). Therefore, we must look elsewhere in the affidavit to determine if the conclusory statement is supported.

  7. Evans v. State

    530 S.W.2d 932 (Tex. Crim. App. 1976)   Cited 38 times
    In Evans, police officers had information that Marion Ray Lester, accused of the attempted murder of a law enforcement officer, could be located at a motorcycle shop.

    In determining the sufficiency of the affidavit we are bound by the four corners thereof. Art. I, Sec. 9, Texas Constitution; Art. 18.01, V.A.C.C.P.; Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App. 1970); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App. 1969) (concurring opinion), cert. denied sub nom. Gaston v. Texas, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App. 1973); Cook v. State, 497 S.W.2d 295 (Tex.Cr.App. 1973); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App. 1972); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App. 1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App. 1972); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App. 1972); Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App. 1971); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App. 1965). The charging instrument, the complaint, containing no allegations that the officer-affiant spoke with personal knowledge of the matters contained therein and not indicating any sources for the officer-affiant's belief and not setting forth any other sufficient basis upon which a finding of probable cause could be made did not provide that necessary basis upon which a finding of probable cause could be made. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970).

  8. Pecina v. State

    516 S.W.2d 401 (Tex. Crim. App. 1974)   Cited 37 times
    In Pecina v. State, 516 S.W.2d 401, we held that an affidavit need not state an informer's qualifications to identify heroin.

    The affidavit stated that the informer had been in the appellant's apartment within six hours and had observed her remove a brown paper bag, from a drawer of a chest in the bedroom, which contained approximately one hundred foil wrapped packets of heroin. The affidavit presented here is substantially the same as that approved by this Court in Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852. See also Cummins v. State, Tex.Cr.App., 478 S.W.2d 452.

  9. Oubre v. State

    542 S.W.2d 875 (Tex. Crim. App. 1976)   Cited 37 times
    Stating that "[i]t is well settled that the court will not look behind the allegations of an affidavit for the issuance of a search warrant"

    It is well settled that the court will not look behind the allegations of an affidavit for the issuance of a search warrant. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852; Brown v. State, Tex.Cr.App., 437 S.W.2d 828. Apparently appellant contends that on an occasion subsequent to the arrest of appellant the same informer gave information which proved to be inaccurate. This obviously could have had no bearing upon the magistrate's determination of probable cause when he issued the search warrant which was the basis of the search in this cause.

  10. Adkins v. State

    717 S.W.2d 363 (Tex. Crim. App. 1986)   Cited 19 times
    Holding that the actual procurement of a warrant does not preclude use of exigent circumstances to justify a search in the event a warrant fails

    791 (Tex.Cr.App. 1983); Winkles v. State, 634 S.W.2d 289 (Tex.Cr.App. 1981); Richardson v. State, 622 S.W.2d 852 (Tex.Cr.App. 1981); Juarez v. State, 586 S.W.2d 513 (Tex.Cr.App. 1979); Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App. 1979); Doescher v. State, 578 S.W.2d 385 (Tex.Cr.App. 1978); Jones v. State, 568 S.W.2d 847 (Tex.Cr.App. 1978); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App. 1976); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App. 1975); Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App. 1975); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App. 1975); Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App. 1974); Powell v. State, 505 S.W.2d 585 (Tex.Cr.App. 1974); Collins v. State, 502 S.W.2d 743 (Tex.Cr.App. 1973); McCrea v. State, 499 S.W.2d 151 (Tex.Cr.App. 1973); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App. 1973); Cook et al. v. State, 497 S.W.2d 295 (Tex.Cr.App. 1973); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App. 1973); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App. 1971); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App. 1972); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App. 1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App. 1972); Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App. 1971); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App. 1969), cert. den. 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969); Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App. 1970) (Concurring opinion by Presiding Judge Onion); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App. 1969); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App. 1965); Mc Lennan v. State, 109 Tex.Crim. 83, 3 S.W.2d 447 (1928). This Court's interpretation appears to be in accord with the majority viewpoint, that an otherwise insufficient warrant application may not be supplemented by unrecorded oral testimony.