dissenting.
“Texas is a free and independent State, subject only to the Constitution of the United States,” Article I, § 1, Bill of Rights, Constitution of The State of Texas. The Tenth Amendment specifically provides that “powers not delegated to the United States by the Constitution, nor prohibited *167by it to the States, are reserved to the States respectively, or to the people.” 1
Thus here today we are dealing with the very sovereignty of The State of Texas and the basic integrity of this Court as a repository and keeper of that sovereignty in criminal law matters. With Chief Justice Marshall, we must “never forget that it is a constitution we are expounding,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819), and “as to the true scope of the Texas Constitution, we must ultimately follow our own lights,” Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972) (Opinion on Rehearing).
The Fourth Amendment to the Constitution of the United States “sought to guard against an abuse that more than any one single factor gave rise to American independence,” Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) (Justice Frankfurter dissenting, at 159, 67 S.Ct., at 1105). Yet, it provides no more than minimum safeguards against unreasonable searches and seizures and for warrants upon probable cause. States may not infringe on federal constitutional guarantees, but they have full power and complete authority to provide greater protection to the citizenry. Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977); see Olson v. State, supra, at 762, and authorities cited in note 2, post.
Elsewhere I have chronicled “the separate life of Article I, § 9.” Brown v. State, 657 S.W.2d 797, 806 n. 27 (Tex.Cr.App.1983) (Clinton, J., concurring). Now, the majority merely reads § 9 along with the Fourth Amendment, and is content to say that because the language is “in all material respects, the same,” arguments for greater protections “must be addressed on the basis of interpretive caselaw or legislative pronouncements.” At 162. However, that simplistic notion would preclude consideration of enduring principles of “federalism,” as well as relevant policy considerations.2
*168Moreover, simply to compare language indicates that the majority has lost its sense of history.
Declarations of rights or bills of rights came first in constitutions of many states— before there was a Constitution of United States of America. The “most influential” was the Virginia Declarations of Rights framed by George Mason; it became “almost the copybook for other states[.]” B. Mitchell & L.P. Mitchell, A Biography of the Constitution of the United States (2nd Ed.) Oxford University Press, New York: 1975, at 196-197. But on the subject of protection from governmental intrusion, the model was laid in Article XIV of the 1780 Constitution of the Commonwealth of Massachusetts where in 1761 James Otis had made such moving argument against general warrants that John Adams was inspired to declaim, “American independence was then and there bom.” Harris v. United States, supra, (Frankfurter dissenting, 331 U.S. at 157, 159, 67 S.Ct., at 1104, 1105.)3
Among delegates to the constitutional convention of 1787 were Eldbridge Gerry of Massachusetts and James Madison of Virginia; both were also members of the First Congress. During the course of ratification of the proposed federal Constitution there was a clamor for inclusion of declarations of individual rights and liberties. In the First Congress Madison introduced a set of resolutions mostly taken from Virginia Declarations of Rights. However, with Gerry he drew on Article XIV of the Massachusetts Constitution to draft the one that would become the Fourth Amendment in 1791 when the Bill of Rights was formally made a part of the Constitution. Harris v. United States, supra, (Frankfurter dissenting, 331 U.S. at 158, 67 S.Ct. at 1105); for its legislative history, see The Constitution of the United States, U.S. Government Printing Office, Washington: 1973, at 1041-1043.4
In due course other states were formed from territories and admitted to the Union. Contrary to popular belief those states did not necessarily use the federal Constitution as a model for their own; rather,- they turned mainly to their territorial charters or to constitutions of other states. Comment, Individual Rights and State Constitutional Interpretations: Putting First Things First, 37 Baylor L.Rev. 493, at 497 (Spring 1985). By 1938 the constitution of every State contained “a clause like that of the Fourth Amendment and often in its precise wording.” Harris, supra, at 160, 67 S.Ct., at 1106.
Even then, of course, guarantees in the federal Bill of Rights were not intended to and did not protect against “state action.” Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 242, 8 L.Ed. 672 (1833): “These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Id., at 250. Accord: Spies v. Illinois, 123 U.S. 131, 166, 8 S.Ct. 21, 24, 31 *169L.Ed. 80 (1887).5 Thus over a span of one hundred years fundamental rights to privacy and protections against arbitrary intrusion by state and local government were secured only to the extent granted and provided by state constitutions. See, Comment, op cit., supra, at 497, citing Newman, The “Old Federalism”: Protection of Individual Rights by State Constitutions in an Era of Federal Court Passivity, 15 Conn.L.Rev. 21, at 22 (1983).
In 1832 early Texans, seeking separation from the State of Coahuila, convened in San Felipe de Austin and drew up a proposed constitution modeled on the Massachusetts Constitution of 1780. Comment, supra, at 497, n. 38; Interpretive Commentary following Preamble to Texas Constitution of 1876; 1 Vernon’s Texas Constitution 198 (Vernon 1955) (Interpretive Commentary). Stephen F. Austin undertook a mission to Mexico City to present the proposed constitution and related petitions, and was clapped into jail.
Along with others that development produced grievances aired at other conventions in October 1834. Introduction to Constitutions of Texas, 3 Vernon’s Texas Constitution (Vernon 1955) 507 (Introduction). Increased disaffection with the national government caused representatives of municipalities to convene again at San Felipe de Austin in November 1835; they declared a state of war and created a Provisional Government for Texas. Ibid. See id., at 509 and 511.6
Their grievances were more formally enumerated March 2, 1836, in the Declaration of Independence from Mexico.7 Within two weeks they had formulated and adopted the Constitution of the Republic of Texas. 3 Vernon’s Texas Constitution (Vernon 1955) 523 ff.
That Constitution mandated the Congress to introduce by statute the common law of England “with such modifications as our circumstances, in their judgment may require,” and provided that “in all criminal cases the common law shall be the rule of decision.” Article IV, § 13. In a schedule it was declared that “all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force, until declared void, repealed, altered, or expire by their own limitation.” Schedule, § l.8 The preamble to the Declaration of Rights makes the Declaration a part of the *170Constitution and declares it shall “never be violated on any pretence whatever,” and in order to guard against “the transgression of the high powers [delegated elsewhere],” declared that “everything in this bill of rights ... is reserved to the people.”
When thus examined in “our own lights,” the fact that provisions of § 9 and the Fourth Amendment “are, in material aspects, the same,” proves nothing. Justice Frankfurter remarked in Harris, supra, 67 S.Ct. at 1104, that “one’s views regarding [given circumstances in a case] ultimately depend upon one’s understanding of the history and the function of the Fourth Amendment.”9 So tyere is needed a similar understanding of §',9; correctly comprehended, that § 9 reads like the Fourth Amendment is merely a coincidence of historical facts.
There is no indication that Framers drew on the Fourth Amendment rather than a similar declaration from a state or territory. Texans had no reason to have more than a civil interest in the Fourth Amendment: It could not provide any protection whatever to citizens of The Republic of Texas; even after Texas joined the Union, the Fourth Amendment remained a restriction alone on the federal government until long after the present Constitution of 1876 was adopted. Therefore, the issue cannot be whether the Framers were seeking “greater protection” than provided by the Fourth Amendment against arbitrary invasions of privacy by government. Rather, the question must be what protection did the Framers contemplate was independently vouchsafed by their own Constitution. Comment, supra, at 509.
As we have seen, early Texans resisted just such invasions, demanded in strongest terms protection against abuse of power, fought for their rights and, winning their freedom, created and established their own form of government — a free, sovereign and independent republic. From many sources they framed a constitution; then, understanding and appreciating that “transgression of the high powers” being delegated to The Republic of Texas must be prevented, the Framers particularized in the Declaration of Rights every right then deemed worthy of protection, “never [to] be violated on any pretence whatever.” That is to say, not to be violated by governmental authorities of the Republic. There being no provider from any other source of protection against abridgement by officers of departments of government, they created a judicial department and charged it to enforce those rights in accordance with the common law of England, as well as all extant laws of Texas not inconsistent with the Constitution — not the Constitution of the United States.10
Nevertheless, disdaining its genesis because the language of § 9 and the. Fourth Amendment are substantially the same, in accepting wholesale the Supreme Court’s “totality of the circumstances” approach to evaluating the reliability of hearsay tendered to show probable cause under § 9, the majority proceeds on two bases. First, it reports that “a review of the procedures used by this Court in the past for determining probable cause provides little, if any guidance,” in that they only “tacitly applied” the federal test to state law. At *171162. Second, resorting to “legislative pronouncements,” it finds essentially that legislative action taken after Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), does not mean what Judges W.A. Morrison and John F. Onion, Jr., wrote in their respective commentaries, because they did not specify “the two prongs of Aguilar” or otherwise indicate that such analysis was “intended to be incorporated within the statute.” At 163. Hypercritical to an extreme, neither of these arguments is particularly persuasive.
There is guidance aplenty as to past “procedures” used first by the Supreme Court of Texas and this Court to determine nearly all aspects of the law, including probable cause, demonstrated in my concurring opinion in Brown v. State, supra, at 800-801: “if not delineated by their own precedents, out of necessity young Texas courts looked to the common law or took the law from any other respectable source.” Just in that fashion did the Supreme Court of Texas introduce into state law a definition of probable cause. Ibid. See note 4, ante.
Certainly the scope of the Fourth Amendment and of Art. I, § 9, — indeed, all state versions of the same — are similar, inasmuch as both would safeguard the security of the people against evidentiary searches absent “probable cause.” That all constitutional provisions require “probable cause,” however, does not facially mandate particular guidelines for implementation. This Court was free to, and in fact did, formulate its own working definition of “probable cause” to be applied in context of Art. I, § 9, in order to determine whether evidence must be excluded under now Art. 38.23, V.A.C.C.P., as having been “obtained ... in violation of any provisions of the Constitution ... of the State of Texas,” as opposed to the federal constitution. See Brown v. State, supra at 806. We are equally free now, if not duty bound, to fashion according to “our own lights” a standard under Art. I, § 9, by which to determine when information that is hearsay as to a search warrant affiant will be deemed sufficiently reliable to support a finding of “probable cause.” Unless we happen to agree that the standard adopted by the Supreme Court is the most efficacious also in guaranteeing rights vouchsafed by our state constitution, the Supreme Court does not demand and we need not parrot its opinions.
In Aguillar v. State, 172 Tex.Cr.R. 629, 362 S.W.2d 111 (1962), defendant challenged admission of fruits of a seizure pursuant to a search warrant, contending that the affidavit was not “a sufficient statement of probable cause to comply with the Constitution of the United States and of this State,” Id., 362 S.W.2d at 113. Writing for the Court on rehearing Judge Morrison expressed the notion “that if we have properly decided this case under our Constitution and statutes then it has been properly decided under the Constitution of the United States and the holding in Mapp v. Ohio, supra.” Ibid. Of a form commonly used before 1965, the affidavit recited:
that affiants “have reason to believe and do believe [that named party possesses narcotic drugs for purpose of unlawful sale in that on or about a given date]; _ Affiants have received reliable information from a credible person and do believe [that narcotics are there so possessed].” Ibid.
Because the Court had “often held” such an affidavit “constitutes a sufficient recitation of ‘probable cause’ ” [citing only Davis v. State, 165 Tex.Cr.R. 2, 302 S.W.2d 419 (1957) ], the Court was unable to conclude that “our exclusionary statute and the affidavit deprive an accused of due process under the Federal Constitution.” Id., 362 S.W.2d at 114-115.11
*172In Aguilar v. Texas, supra, straight from Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the Supreme Court formulated its “two prong test,” reversed the judgment of the Court and remanded the cause. On remand the *173Court summarily reversed the judgment of conviction. Aguillar v. State, 382 S.W.2d 480 (Tex.Cr.App.1964).12
The Aguilar experience taught Texas two major lessons: one, that what statutory provisions there were for authorizing issuance of an arrest or search warrant did not meet constitutional muster;13 two, that views recently prevailing on the Court in expounding sufficiency of an affidavit to show “probable cause” within the meaning of Article I, § 9, failed to produce even minimal federal protection. They will be discussed seriatim.
Before Aguilar the general statute dealing with a search warrant was former article 304 (C.C.P.1925); it is merely a definition, having little to do with sufficiency of an affidavit.14 See Historical Note to Article 18.01, the first paragraph of which is former article 304. It was retained in the 1965 revision, but in light of Aguilar the Legislature added the second paragraph: “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 its issuance.” It too was revised in 1973.
Both commentaries to Article 18.01, supra, make clear the addition was made by the Legislature on account of recent decisions by the Supreme Court, and each states the new provision is to meet their requirements; Presiding Judge Onion points out that Aguilar “voided a Texas search warrant based merely on ‘reliable information,’ and held there must be sufficient facts presented to satisfy the magistrate that probable cause does in fact exist for issuance of a search warrant;” he then states what is insufficient and again what the affidavit must show, identifying the other cases.
The majority blinks reality in dismissing those contemporaneous commentaries concerning new statutory dictates of Article 18.01(b), on the specious ground that they do not “mention the two prongs of Aguilar or make any statement to the effect that such analysis is intended to be incorporated in the statute.” At 163. Surely the majority would not contend with a straight face that § (b) was added to Article 18.01 for any other reason. The Special Committee for Revision of the Code of Criminal Procedure expressly identified consideration of Aguilar v. Texas among several recent decisions of the Supreme Court “which have adversely affected the long accepted practices in our Texas courts.” Erisman, Introduction to 1965 Revision Texas Code of Criminal Procedure, 1 Vernon’s *174Annotated Code of Criminal Procedure (Vernon 1977) xv, at xix-xx.15 To understand its “two-pronged test,” all any concerned reader has to do is consult Aguilar,16
Acknowledging, as it must, that to challenges under § 9 the Court “tacitly” applied “the Aguilar-Spinelli test,”17 the majority nevertheless does not find “judicial preference” for a broader interpretation of § 9 than the Fourth Amendment. But it is not a matter of “preference.” When “tacitly” or otherwise the Court put § 9 to “the Aguilar-Spinelli test” it certainly was incorporating into the meaning of probable cause in § 9 those requirements imposed by Aguilar-Spinelli, thus making them a part of the constitutional law of search and seizure for this State. That the Supreme Court of the United States modified its own views as to a requisite showing of probable cause within the meaning of the Fourth Amendment will not serve to withdraw a meaning of probable cause attributed by this Court to Article I, § 9 of the Constitution of Texas.
Opinions of a majority of the Court in Chapin v. State, supra, and its followings, required “that the grounds of belief, that is the facts or circumstances or information upon the belief is founded, must be exhibited in the affidavit,” id., 296 S.W. at 1097, and that is readily susceptible to an Aguilar analysis. But apparently because our general statutes setting out requisites of a complaint or application for search warrant were not that specific, articles 310-312, C.C.P. (1925), the Court came to believe, as in Aguilar v. Texas, supra, a statement merely that an affiant “received reliable information from a credible person” sufficed. Id., 378 U.S. at 113, 84 S.Ct. at 1513; Davis v. State, supra, 302 S.W.2d at 420. In the event, it is certainly true that before Aguilar v. Texas, supra, neither Article I, § 9 nor the statutes of the State had been construed by the Court to require a showing of probable cause such as particularized in Aguilar. But once Aguilar was made applicable to § 9 by this Court and caused the addition of § (b) to Article 18.01 by the Legislature, under our federalism the fact that a reconstituted Supreme Court changed a part of its collective mind as to minimal protections afforded countrywide by the Fourth Amendment will not ipso facto overrule decisions of this Court and repeal an enactment of our Legislature. That the Supreme Court “no longer demands it” is utterly irrelevant. The Supreme Court may not demand a State undo that which the State has already validly done in exercise of its own constitutional power. The Tenth Amendment reserves that power to the State of Texas — to this Court and to the Legislature, respectively.18
*175Unless otherwise prohibited, this Court is, of course, always “free to follow the lead” of the Supreme Court, but not mindlessly, wildly abandoning years of jurisprudence and statutory law of this State, as the majority would have this Court do today.
The majority does not even take time to consider the soundness of Illinois v. Gates, nor did the Hennessy panel. Instead, the majority silently defers to much of the rhetoric in Gates. Yet bases for rejecting the two-prong test, both in precedent and in logic, have been thoroughly undermined by state court justices and noted commentators on Fourth Amendment jurisprudence. E.g., Commonwealth v. Upton, supra; State v. Jackson, 102 Wash.2d 432, 688 P.2d 136, 141-43 (1984); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.3(a) at 620-25; (2nd ed. 1987) Y. Kamisar, Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa Law Review 551, 571-77, 583-84 (1984).
The question here, as in Gates, is whether hearsay information may be credited. Once that information is deemed creditable, then we should apply “a common sense, non-technical analysis” to decide whether it adds up to probable cause. As Justice Brennan observed in his dissenting opinion:
“Neither the [Aguilar/Spinelli ] standards nor their effects are inconsistent with a ‘practical, nontechnical’ conception of probable cause. Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a creditable person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause.”
462 U.S. at 287, 103 S.Ct. at 2358, 76 L.Ed.2d at 580. In short, the “two-prong” test derived from Aguilar and Spinelli was never an impediment to practical, common sense evaluation of information for its tendency to establish probable cause. Rather, it was a guide to the threshold inquiry of whether information that is hearsay as to the warrant affiant should be considered sufficiently reliable in the first place even to be measured for its probable cause value.
Because the majority in Gates failed to recognize this distinction, it was able to conclude that the two prongs of the Aguilar/Spinelli test “are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations[.]” 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed.2d at 545. Accordingly it was concluded that a deficiency in the “basis of knowledge” prong might be compensated for by an ample showing of “veracity,” and vice versa. However, as Professor LaFave has pointed out, even:
*176“[t]he preferred method of satisfying the basis of knowledge requirement, a direct statement from the informant himself as to how he came by the information, is virtually worthless when it comes from an individual from the criminal milieu about whom no veracity judgment is possible. And information tendered by a person of unquestioned credibility is worth very little when no judgment is possible as to the basis of his conclusions —whether or not, to use the Court’s oft-quoted language, he is merely reporting ‘an offhand remark heard at a neighborhood bar.’ ”
LaFave, supra at 622-23. In fact, as Justice White pointed out in his concurring opinion in Gates, information even from a proven informant which provides little or no indication of the source of his knowledge would be tantamount to a conclusory affidavit from a peace officer simply stating “that he has cause to suspect and does believe” his information to be true — patently insufficient data, under Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), to support a magistrate’s independent conclusion that probable cause inheres. See also Stanley v. State, 19 Md.App. 507, 313 A.2d 847, 861 (1974). Yet the majority in Gates ratified the holding of Nathanson.
I would adhere to the “two-pronged test” of Aguilar-Spinelli for purposes of Art. I, § 9 of our Constitution because of its utility in guiding all concerned to a complete assessment of informant creditability. Such a guide is useful both to the police, who must prepare affidavits on the basis of hearsay, and to magistrates who must evaluate them in order independently to determine whether the hearsay declarant’s story is trustworthy. Trustworthiness is a function, not only of the honesty or reliability of the informant, but of the source in fact for his information. I agree with the observation that “[pjolice, magistrates, and trial courts confront the question of probable cause every hour of every day, often with little time to reflect. They are best served by rules that mark off the forbidden territory as conspicuously as possible.” Wald, The Unreasonable Reasonableness Test for Fourth Amendment Searches, 4 Crim.J.Ethics 2, 88 (Spring 1985). The Aguilar-Spinelli test is just such a rule.
The Legislature incorporated Aguilar into its search and seizure law in 1965. The Court has followed Aguilar-Spinelli for more than twenty years. The test is consistent with early decisions of the Court and intent of Framers of the Fifth Declaration. We preserve the sovereignity of this State and maintain the integrity of this Court by adhering to precedent that has served well our criminal justice system.
The notion that this Court must “stay in step” with the Supreme Court of the United States is the antithesis of our sworn duty to preserve, protect and defend the Constitution and laws of the State of Texas. To such a gratuitous abdication of authority and responsibility of this Court, I dissent.
. All emphasis is mine throughout unless otherwise noted.
. The Constitution, the laws of the United States and all treaties made under authority of the United States are "the supreme Law of the Land; and the Judges in every State shall be bound by them, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, 2d para. Yet, that certain rights are identified in the Constitution “shall not be construed to deny or disparage others retained by the people," Ninth Amendment, and "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” Tenth Amendment. In ordaining and establishing the Constitution in the name of the People of the United States, the genius of the Framers was in maintaining sovereignty of the government of the United States of America while preserving integrity of each constituent State. See Fry v. United States, 421 U.S. 542, 547, n. 7, 95 S.Ct. 1792, 44 L.Ed.2d 363 (1975).
That "constitutional policy" has come to be called "federalism.” In its criminal law aspect States may not abridge federal constitutional rights, guarantees and protections, but they are free to enlarge them. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Michigan v. Mosley, 423 U.S. 96, 120-121, 96 S.Ct. 321, 334, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting). Thus, as the President of Texas Young Lawyers Association has incisively discerned, "It takes both the United States Constitution and the 50 state constitutions to determine the extent to which the federal system protects individual rights.” Raney, “The Federal System, Part One: A Salute to the Texas Bill of Rights," Vol. 50 No. 3 Texas Bar Journal (March 1987) 309 (emphasis in original).
Texan Forefathers inserted toward the end of their first constitution a “Declaration of Rights,” and declared it to be "a part of this Constitution, and shall never be violated.” The last Bill of Rights adopted in 1876 declared that everything therein “is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto ... shall be void.” Article I, § 29.
If for no other reason than the people of The Republic of Texas and then of The State of Texas so dearly valued their rights that they insisted upon protection against intrusion by authorities of the very government they had established and were maintaining, members of the Judicial Department tire constitutionally bound by their oath to “preserve, protect and defend” those rights, guarantees and protections. Article XVI, § 1.
While there are many other reasons, a few will suffice. Since citizens of Texas have more contact with state law, their own Bill of Rights should be "closely scrutinized" by their courts. Raney, op cit., supra, at 310. And a state constitutional claim should be considered ahead of a federal claim because, Dean W. Frank Newton points out in an unpublished paper presented to Appellate Judges Session, Texas Judicial Conference, September 25, 1986, if the issue may be *168disposed of on that basis there is no need to reach the federal question, unnecessary appellate review problems are avoided and, most importantly, state sovereignly is preserved. Moreover, Dean Newton concludes, "This ‘states first’ approach grants double protection to Texans, as contemplated by our two-constitution federal system."
Finally, as Oregon Supreme Court Justice Hans A. Linde has commented, emphasizing use of states' bills of rights "will lead all of us to face closer to home some fundamental values that the public has become accustomed to have decided for them by faraway oracles in the marble temple.” Linde, "First Things First: Rediscovering the States’ Bills of Rights,” 9 U. Baltimore L.Rev. 379 (1980), quoted approvingly by Raney, op cit., supra, at 310.
. The rich history of compelling events has been retold many times: e.g., Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Harris v. United State, supra, 331 U.S., at 157-159, 67 S.Ct., at 1104-1105.
. Therefore, Justice Frankfurter found it entirely appropriate to “look to the construction which the early Massachusetts Court placed on the progenitor of the Fourth Amendment.” Id., 331 U.S., at 161, 67 S.Ct. at 1106. Early on Texas Courts did just that. See, e.g., Dupree v. State, 102 Tex. 455, 119 S.W. 301, 303, 306, 307 (1909), citing and discussing Fisher v. McGirr, 67 Mass (1 Gray) 1, and Commonwealth v. Certain Lottery Tickets, 59 Mass (5 Cush.) 369.
. Although adoption of the Fourteenth Amendment was proclaimed in 1868, not until Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138 (1925), did the Supreme Court suggest states may be bound through its Due Process Clause by rights and liberties guaranteed in the Bill of Rights. See also Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). In Wolf v. People of the State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Supreme Court held security of privacy against arbitrary intrusion by police is enforceable against the States through the Due Process Clause. The federal exclusionary rule trader the Fourth Amendment was not applied to the states until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
. In the latter, the Provisional Judiciary was granted jurisdiction over "all crimes and misdemeanors recognized and known to the common law of England;" judges were empowered to grant writs of arrest "established by the ‘Civil Code’ and 'Code of Practice’ of the State of Louisiana, to be regulated in the forms thereof,” Article VI, and "in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England," Article VII.
. At least three are relevant here, viz'
“It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our Constitution, and the establishment of a state government.”
‘It has suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyranny, thus trampling upon the most sacred rights of the citizen!.]”
‘It has demanded the surrender of a number of our citizens, and ordered military detachments to seize and carry them into the interior for trial[J”
Accordingly, the people of Texas constituted “a FREE, SOVEREIGN, AND INDEPENDENT REPUBLIC,” “fully invested with all the rights and attributes which properly belong to independent nations!.]” Declaration of Independence, 3 Vernon’s .Texas Constitution (Vernon 1955) 521-522.
.An Act of January 20,1840, made the common law of England, so far as not inconsistent with the Constitution and Acts of Congress then in force, the rule of decision; it also repealed all laws in force prior to September 1, 1836 — “except the laws of the Consultation and Provisional Government!.]” Introduction, supra, at 507.
. Justice Frankfurter added that a decision may turn on "whether one gives that Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime." Ibid.
. The people of Texas never voluntarily relinquished the right to claim protections granted by the original Fifth Declaration. The Constitution of 1845 was drawn on a new constitution of Louisiana and the proposed constitution of 1833, but the general plan of government and the bill of rights seem to be patterned on the Constitution of the Republic. Interpretive Commentary, supra, at 199. Then came the "late unpleasantness" and Reconstruction, during which government was equally hostile and oppressive. To guard against continuation or repetition of those evils, delegates met again to form another constitution. Using the former 1845 constitution "as a working model," drafters of the present Constitution included ideas taken from, e.g., constitutions of Louisiana and Pennsylvania. Id., at 201; Comment, supra, at 497, n. 38 and accompanying text. Through it all substance of the Fifth Declaration remained intact as a statement of right to security against unreasonable searches and seizures, as well as prohibitions against state and local government.
. Davis v. State, supra, does not indicate whether it held the affidavit sufficient under Fourth Amendment or § 9, but cites an important decision by the Court — Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095 (1927), which shows again the "methodology" utilized by the Court early on. See Brown v. State, supra, at 801, 806. It also involved the search of a private dwelling, this time under a particular statute requiring that affidavits of two persons “show that such residence is a place where intoxicating liquor is sold [et cetera].” The affidavits recited only that "affiants have reason to believe, and do believe, [et cetera].” The con*172tention was that fruits of a search were obtained in violation of both Article I, § 9, and the Fourth Amendment in that warrant was issued "without probable cause, supported by oath or affirmation." Id., 296 S.W. at 1096-1097.
Writing the lead opinion, Presiding Judge Morrow pointed out that to authorize search of a private dwelling for contraband a warrant must be issued in accord with probable cause requirement of Article I, § 9, and noted that "[bjefore our Constitution [of 1876] was adopted," the Supreme Court of Texas had defined probable cause in Landa v. Obert, 45 Tex. 539 (1875). See Brown v. State, supra, at 801. Reviewing works of learned scholars and decisions of state and federal courts, including the Supreme Court of the United States, Presiding Judge Morrow found many precedents declaring invalid a search warrant issued upon an affidavit that "affiants had reason to believe and did believe," and that the great weight of authority is "that the grounds for belief, that is, the facts and circumstances or information upon which the belief is founded, must be exhibited in the affidavit.” Id., 296 S.W. at 1097. The question of validity of the warrant and supporting affidavits "must be determined by the construction of [the statute], in connection with article 1, § 9, Bill of Rights, and the previous interpretation of the term ‘probable cause’ as used in the Bill of Rights." Id., at 1098-1099.
First he found that the terms of the statute indicated "a legislative intent to adhere to the interpretation of the constitutional requirement of ‘probable cause’ that the affidavit state the facts and circumstances upon which the belief is founded," because it required the affidavit to "show” that the residence was a place where the law was violated, and "show” means "to make clear or apparent; to prove, [citations omitted].” Id., at 1099.
Turning then to the Texas exclusionary rule in former article 727a (now Article 38.23, V.A.C.C. P.), Presiding Judge Morrow, having examined other authorities from like sources, pointed out:
“Belief on undisclosed information does not show ‘probable cause’ for search, as that term is used in the state and federal constitutions. Such is the expressed view of the United States courts and of nearly all the state courts.... The definition of ‘probable cause’ announced by the Supreme Court of this state before the present Constitution was adopted is like that in the federal courts, and, the state courts holding the belief insufficient, and in adopting the Constitution, the definition was approved."
Id., at 1099.
Comparing the statute involved in an earlier decision of the Supreme Court in Dupree v. State, 102 Tex. 455, 119 S.W. 301 (1909), Presiding Judge Morrow believed the Legislature did not intend to give a meaning to the term probable cause different from that "prevailing in the Supreme Court of the United States, announced in the statutes of the United States, and adopted by practically all of the states of the Union," and did not intend to provide that a warrant to search a private dwelling might issue upon an affidavit giving "no fact, circumstance, or detailed information showing, or tending to show, that the dwelling was used for the purpose denounced by the statutes which conveyed to the magistrate ... no information from which to determine whether the facts justified issuance of the warrant.” Id., at 1100.
Accordingly, he concluded:
‘If the affiants seeking a search warrant have reason to believe that a private dwelling is used for the storage of liquor, no sound reason is perceived for failing to disclose the grounds of belief in the affidavit presented to the magistrate.... The rule is intended to ‘give a guaranty to the citizen against searches and seizures dependent upon such uncertainties by interposing between him and the rash or unscrupulous accusers the judgment of a magistrate chosen by the state.’ ”
“Because the criminating evidence was obtained through a search upon a warrant without legal authority, it was improperly received over the objections of the appellant." Judgment was reversed and the cause remanded. Ibid.
Judge Hawkins concurred with an opinion in much the same vein. At one point he reasoned that an affidavit which simply states affiant "believes and has good reason to believe" that probable cause exists "seeks to substitute the opinion of the affaint for the judgment of the magistrate who in such case is called upon to act judicially without any knowledge of the facts upon which the affiant predicated his belief.” Id., at 1101. He discovered "nothing in our present statutes which indicates any purpose of the Legislature to attempt a departure from the well-established holding of the United States Courts and those of a majority of the other states to the effect that an affidavit for a search warrant which furnishes no facts or information to the issuing magistrate ... does not comply with the provisions of our own and the federal Constitution requiring ‘probable cause’ to be shown." Id., at 1102.
Judge Lattimore dissented, expressing his adherence to language of statutes then extant, and refusal "to follow federal courts in their procedure or rulings." Id., at 1102-1108.
The opinions of the Court in Chapin, supra, note 12, preceded by thirty years the opinion of the Supreme Court of the United States in Gior-denello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and its holding that mere conclusions in an affidavit are not sufficient.
. The holding of Giordenello that mere conclusions are insufficient presaged all contemporaneous decisions in similar search warrant litigation, viz: Etchieson v. State, 372 S.W.2d 690 (Tex.Cr.App.1963), judgment vacated and cause remanded, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041 (1964), on remand, 382 S.W.2d 478 (Tex.Cr.App.1964); see also arrest warrant litigation in Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1964), reversed and remanded, Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), on remand, 390 S.W.2d 270 (Tex.Cr.App.1965).
. Prior to 1965, the statutory provision for a "complaint" sufficient to authorize a magistrate to issue an arrest warrant was article 222, now Article 15.05, V.A.C.C.P. That both are constitutionally inadequate to the task is demonstrated by Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), summarily reversing judgment in Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1964), in light of Giordenello v. United States, supra, and Aguilar v. Texas, supra. Presumably the reversal came too late to raise prescriptions in Article 15.05, supra, to minimal federal constitutional requirements, but both the late Judge Morrison in his Interpretative Commentary and Presiding Judge Onion in his Special Commentary following article 15.05 indicate that the Barnes opinion of the Supreme Court supersedes the statute.
.The 1925 code of criminal procedure, as in all codes since the Old Code, provided authority to issue search warrants for limited specific purposes, e.g., “property acquired by theft” etc. See former article 305, reproduced in Historical Note following Article 18.02, V.A.C.C.P. Concomitantly, statutory requisites for a "written sworn complaint” before a magistrate were likewise related to the particular purpose. See former articles 310, 311 and 312, C.C.P. 1925, carried forward substantially into the 1965 C.C.P. See Historical Notes to Articles 18.07, 18.08 and 18.09, respectively. They were all deleted by substitution of conforming amendments to the Penal Code, by Acts 1973, 63rd Leg., ch. 399, p. 982, § 2(E), leaving only Article 18.01(b) to prescribe requisites.
. After citing the Aguilar litigation, Judge Eris-man wrote:
“The filing of sufficient facts to satisfy the Magistrate that probable cause does in fact exist for the issuance of a search warrant, is a requirement of Articles 18.01, 18.08, and 18.-09, supplementing CCP 304, 311, 312.”
(Emphasis supplied by Judge Erisman.)
. Almost twenty years after Aguilar was decided and § (b) had been added to Article 18.01, Illinois v. Gates was issued, and a Court Panel composed of two judges delivered an opinion in Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App. 1983). The majority says Hennessy presented an “opportunity to interpret Article 18.01(b), supra, in light of Aguilar." However, except for indicating Article 18.01(b) was cited to support her contention, the two judge opinion never again so much as alluded to it. In short, they failed to seize the opportunity. To find now "the reasoning of Hennessy sound” vis a vis the statute when there is none is to make the wish father to the thought. Moreover, to apply “Gates’ standards and principles” retroactively twenty years to a state statute defies every reasonable canon of statutory construction.
. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969): Affidavit must not only state conclusion of affiant and informer but also include facts from which magistrate can find conclusions are warranted; facts must allow magistrate to conclude his information is reliable and informer is credible.
. Recently, among other states, Massachusetts illuminatingly proved the point in the Upton case. Commonwealth v. Upton, 390 Mass. 562, 458 N.E.2d 717 (1983); reversed and remanded, Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1985); on remand, Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985).
Notwithstanding Illinois v. Gates, the Supreme Judicial Court of Massachusetts continued to *175rely on Aguilar-Spinelli in applying the probable cause requirement of the Fourth Amendment. The Supreme Court of the United States said the Supreme Judicial Court "misunderstood our decision in Gates," and thereby fell into error. Massachusetts v. Upton, supra, 466 U.S. at 732, 104 S.Ct. at 2087-2088. In his separate concurring opinion, Justice Stevens took the Supreme Judicial Court to task.
‘In my opinion the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment without telling us whether the warrant was valid as a matter of Massachusetts law. [Notes omitted throughout]. It has thereby increased its burdens as well as ours. For when the case returns to that court, it must then review the probable-cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court’s first opinion and all of this Court’s opinion are for naught."
Id., at 735, 104 S.Ct. at 2089.
On remand the Supreme Judicial Court heeded that admonition, and in effect rendered its first opinion and that of the Supreme Court "for naught.” For its own reasons and others given by commentators and courts, it rejected "totality circumstance test" as a standard for determining probable cause under Article'XIV of its own Declaration of Rights. Commonwealth v. Upton, supra, 476 N.E.2d at 556, and n. 10. Instead, it adopted “stricter" Aguilar-Spinelli tests as the state standard for several reasons including that it provides more substantive protection than does the Fourth Amendment according to Gates. Id., at 556-558.
In Commonwealth v. Bottari, 395 Mass. 777, 482 N.E.2d 321, (1985) the Supreme Judicial Court applied Aguilar-Spinelli to a warrantless arrest. Id., 482 N.E.2d at 325.