Amores v. State

816 S.W.2d 407, 1991 Tex. Crim. App. LEXIS 183, 1991 WL 183121

• Court: Court of Criminal Appeals of Texas
• Decided: September 18, 1991
• Docket: 0795-89
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted by a jury of aggravated possession of more than four hundred grams of cocaine with intent to deliver. TEX.REV.CIV.STAT. Art. 4476-15 § 4.03.¹ The jury assessed punishment at thirty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division, and a $250,000 fine. The Dallas Court of Appeals affirmed appellant’s conviction in an unpublished opinion. Amores v. State, No. 05-88-0117-CR (Tex.App.—Dallas, March 16, 1989). We granted the appellant’s petition for discretionary review to determine whether the court of appeals erred in holding that evidence was legally seized from appellant within the proper scope of a search incident to a valid investigative detention.² We will reverse the judgment of the court of appeals.

I.

At 11:30 a.m. on June 16, 1986, Willetta Stellmacher, owner and manager of the Square Apartments in Dallas, observed an “unkept [sic] black male” drive a 1975 Chevrolet “junk car” into the parking lot of her apartment complex. The man, later identified as appellant, parked the car, got out and opened the trunk. Stellmacher, who noticed that appellant was not a tenant of the complex, immediately ran inside her apartment and called the police to report a “burglary in progress” by a “black man” at the Square Apartments. Stellmacher reported no further details at that time.

Stellmacher then retrieved a handgun from her apartment and watched appellant as he took a large brown box out of the trunk of the Chevrolet, walked the length of the parking lot, opened the trunk of a 1980 Oldsmobile with Florida license plates and placed the box inside the trunk. The Oldsmobile was the only other ear on the parking lot and was backed into a parking space at the far end of the lot. Stellmacher testified that the standard lease for her complex contained a provision prohibiting tenants from backing their cars into their parking spaces, as this method was commonly used by burglars. According to Stellmacher, she could not see the contents of the box and did not know if the box belonged to any of her tenants. She testified that, when she saw appellant get the box out of the car, she briefly considered that he might be making a delivery.

Officer Henry Jachna of the Dallas Police Department was patrolling a few blocks away when he received a radio call for a “burglary in progress” at the Square Apartments involving a “black male” putting something in the trunk of a car. Jach-na testified that no other details were provided in the police broadcast. Jachna arrived at the scene within one minute after receiving the call and observed appellant sitting in the driver’s seat of the Oldsmobile. Jachna testified that he knew no “blacks” lived at the Square Apartments at this time. Jachna pulled his patrol car into the parking lot, and appellant began to drive the Oldsmobile out of the parking space.

Jachna blocked the Oldsmobile with his patrol car, got out of the car, pulled out his revolver and ordered appellant out of his car. After hesitating a few seconds, appellant complied with Jachna’s orders and got out of the car slowly with his hands raised. Stellmacher testified that she was running towards that end of the parking lot at this point, gun in hand, yelling “Get him! ... That’s him!,” but Officer Jachna testified that he did not recall her making these statements and did not recall her presence on the scene at this point.

Once appellant was out of his car, Jachna ordered him to lie face down on the parking lot with his hands behind him. Jachna held his gun to appellant and told him, “If you don’t do what I tell you to do, I’m gonna shoot you.” Stellmacher testified that she added, “If he doesn’t, I will.” With his gun still out, Jachna gave appellant a quick “patdown.” He found no weapons on appellant. Jachna then made a visual inspection of the front seat of the Oldsmobile and found nothing. He testified that he saw no implements of a burglary inside of the ear. Jachna testified that at this point he was conducting an investigative detention only, and that appellant was not under arrest and would be free to leave if nothing more developed. Jachna then checked the front seat of the Oldsmobile again. He noticed a blue “gym type bag” under the front seat. Jachna put his hand on the bag under the seat and felt “some type of metal object that could have been a weapon.”

Officer Christy Carmell, the first “backup” to respond, arrived as Jachna was removing the blue bag from the Oldsmobile. Appellant had already been handcuffed by this time and was still lying face-down on the pavement, although the testimony differed as to precisely when the handcuffing occurred.³ Carmel held appellant at gunpoint while Jachna holstered his weapon, unzipped the blue bag and discovered a “Mack 10 gun,” an Intratec, 9mm Luger. Jachna testified that he considered appellant to be under arrest at this point.

Jachna then took the keys out of the Oldsmobile and opened the trunk. During a complete search of the trunk, Jachna seized a cardboard box containing several bags of cocaine of various purities and a scale. At this point, Jachna finally stopped to talk with Stellmacher, who had left the parking lot after Carmell arrived and returned after Jachna completed his search of the Oldsmobile. Stellmacher informed him that appellant arrived in the Chevrolet. Jachna obtained the keys from appellant’s pocket and proceeded to search the second car. He located and seized additional packets of cocaine from the Chevrolet. In all, Jachna seized approximately 1032 grams of cocaine (including adulterants), a scale, $668 in cash, and the gun.

At the pretrial suppression hearing, appellant moved to exclude the items seized at the time of his arrest on the basis that the evidence was seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Texas Constitution. Jach-na and Stellmacher were the only witnesses who testified at the hearing. The trial court denied appellant’s motion to suppress the evidence.

The court of appeals affirmed appellant’s conviction, holding that the initial stop by Jachna was a valid investigative detention. The court concluded that once appellant was stopped, Jachna was justified in believing that he was in danger and had “reasonable grounds to feel under the driver’s seat for weapons.” The court further found that a limited search of appellant’s car was within the permissible scope of a search incident to an investigative detention, and that once the search produced a prohibited weapon, appellant was subject to a war-rantless arrest for an offense committed in Jachna’s presence. The court concluded that the cocaine was seized in a legal inventory search of appellant’s impounded automobiles.⁴

Appellant contends that the search and seizure was premised on a warrantless arrest made without probable cause, and not an investigative detention. Alternatively, he argues that the scope of the search exceeded that permissible in the course of a valid investigative detention. The State does not argue that the search was incident to a legal arrest. Rather, the state has argued throughout, to the trial court, the court of appeals and this Court, that the search and seizure was premised on a valid investigative detention.

II.

The threshold issue is whether the court of appeals correctly characterized the detention of appellant as an investigative detention rather than an arrest, because the nature of the detention determines the constitutional parameters which apply to determine its legality. An investigative detention, to be constitutionally valid, may be founded upon a reasonable, articulable suspicion that the person detained is connected with criminal activity, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),⁵ but an arrest, to pass constitutional muster, must be supported by the greater conclusiveness of probable cause to believe that a particular person has committed or is committing an offense.⁶

We find that the initial detention in this case was in fact an arrest. An arrest occurs when a person’s liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Cr.App.1987) (citing Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980) and Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973)). Article 15.22, V.A.C.C.P., provides that “a person is arrested when he has been actually placed under restraint.” Here, the police officer blocked the appellant’s car in the parking lot, drew his service revolver, ordered the appellant from his car at gunpoint, ordered him to lie face-down on the pavement with his hands behind his back, and told him he would be shot if he did not obey these orders. These facts are sufficient to demonstrate that appellant had been restricted or restrained in his liberty to such a degree as to constitute an arrest.⁷

In Hoag v. State, 728 S.W.2d 375 (Tex.Cr.App.1987), a case involving similar facts, we held that the defendant’s detention constituted a warrantless arrest rather than an investigative detention where the police officers removed the defendant from his car at gunpoint, took him to the rear of the car and gave him Miranda⁸ warnings. Id. at 379. The court of appeals in the present case distinguished Hoag oh the basis that the police officer there testified that he believed the defendant was under arrest while the officer in the present case testified that the stop was only an investigative detention. The distinction is without consequence, however, as the officer’s opinion is not the controlling factor.

In deciding Hoag, we specifically “acknowledge[d] that the question of whether a person is under arrest is not to be determined solely by the opinion of the arresting officer. See Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979); Boone v. State, 629 S.W.2d 786 (Tex.App.—Houston [14th Dist.] 1981, no pet.). Rather, the officer’s opinion is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place.” Hoag, 728 S.W.2d at 378-379. The facts in the instant case establish that the initial detention of the appellant constituted an arrest even though the arresting officer characterized the stop as an investigative detention.

Furthermore, although the officer characterized the initial stop as an investigative detention, there was no investigation conducted. The record reflects that the officer did not ask the appellant any questions prior to or during the search and seizure conducted of appellant and his vehicles. Neither did the officer ask any questions of Stellmaeher, at least not until after he had already seized the blue bag from the car, found the weapon, and conducted an inventory search of the trunk of one of the cars, at which point he already considered the appellant to be under arrest in any event.

The investigative detention contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is one during which the police are allowed to briefly question a suspicious person respecting his identity, his reason for being in the area or location, and to make similar reasonable inquiries of a truly investigatory nature. Here, no such investigation was conducted and the detention can by no means be characterized as investigatory within the meaning of Terry v. Ohio, supra.

III.

The second issue is whether the warrantless arrest was supported by probable cause. We hold that the arrest was not supported by probable cause and that the items of evidence should have therefore been suppressed as fruit of the illegal arrest.

The court of appeals relied on the officer’s location of the weapon as the basis for probable cause to arrest the appellant for an offense committed in the officer’s presence. See Article 14.01(b), V.A.C.C.P. (authorizing warrantless arrest by peace officer for offense committed in his presence or within his view). However, given our finding that appellant was arrested before the officer found the weapon, the location of the weapon obviously cannot serve to support probable cause for the arrest. The only basis upon which the officer could have arrested appellant is on the available facts and circumstances respecting the alleged commission of a burglary.

As we stated in Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977), “it is state law and not federal law that governs the legality of a state arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures.” In Texas, warrantless arrests are authorized only in limited circumstances and are governed primarily by Chapter Fourteen of the Code of Criminal Procedure. See generally Lowery v. State, 499 S.W.2d 160, 164-165 (Tex.Cr.App.1973) (analyzing the provisions of Chapter Fourteen with respect to a war-rantless arrest).

The three most common provisions arising in the caselaw are: Article 14.01(b), V.A.C.C.P., which authorizes a warrantless arrest for an offense committed in the officer’s presence or within his view; Article 14.03(a)(1), V.A.C.C.P., which authorizes a warrantless arrest of “persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony”; and Article 14.04, V.A.C.C.P., which authorizes a warrantless arrest “where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape.” These statutory provisions require the legal equivalent of constitutional probable cause.⁹

The “totality of the circumstances” test applies in Texas for determining probable cause for a warrantless search and seizure. Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988); see also United States v. Mendoza, et al., 722 F.2d 96, at 100, n. 5 (5th Cir.1983). The burden is on the State to prove the existence of probable cause to justify a warrantless arrest or search. Brown v. State, 481 S.W.2d 106, 109 (Tex.Cr.App.1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense. See, e.g., Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1982) (opinion on rehearing), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); see also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1308, 93 L.Ed. 1879 (1949).

Jachna testified that the facts known to him at the time he initially detained the appellant were the following:¹⁰ (1) that the police received a telephone report of a burglary in progress involving a black male putting something in the trunk of a car; (2) that the location of the reported burglary was at an apartment complex whose manager he knew to have called in numerous reports of criminal activity; (8) that, upon arriving at the scene within one minute of the report, he observed a black male sitting at the wheel of a car; (4) that the car was backed into the parking space; (5) that the black male was about to drive away as the officer drove into the lot; and (6) that he knew no “blacks” lived at these apartments at that time.¹¹

Officer Jachna testified that, at the time he arrived on the scene, “no burglary was occurring from [his] viewpoint.” He also testified that, until the point at which he found the weapon in appellant’s car, he did not observe any violation of the law. Thus, Article 14.01, which authorizes a warrant-less arrest for an offense committed in the officer’s presence, is inapplicable.

Jachna further acknowledged that, until the point at which he found the weapon, none of the activity he observed upon arriving at the scene was inconsistent with innocent activity. He testified that the fact of a black male putting something in the trunk of a car backed into a parking space at the Square Apartments was consistent with innocent activity, and that the fact of a black male about to drive away as a police officer was pulling into the parking lot was likewise consistent with innocent activity. We have held that, where events are as consistent with innocent activity as with criminal activity, the detention of a suspect based on those events is unlawful under Article 14.03(a)(1). See Hoag v. State, 728 S.W.2d 375, 379 (Tex.Cr.App.1987) and cases cited therein. According to the officer’s testimony, then, there was no circumstance or event observed by him at the scene which, without more, would justify a warrantless arrest under Article 14.-03(a)(1).

The officer was also relying on the information he received in the dispatcher’s report of a “burglary in progress” call, however, and so we now consider whether the information in the report, together with the other information known to the officer, constituted “satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape,” as required by Article 14.04, V.A.C.C.P. We find that the available information did not rise to the level of probable cause required for a warrantless arrest.

To bring this case within the purview of Article 14.04, the burden is on the State to prove that the alleged fact that a burglary had been committed was “shown by satisfactory proof” to an officer “upon the representation of a credible person.” Article 14.04, V.A.C.C.P. The State failed to sustain this burden on the record before us. Specifically, the State failed to prove that either Jachna or the dispatcher knew the identity of the party who called in the report.

Although the record indicates that the identity of Stellmacher as the person who phoned in the report was revealed sometime after the fact of the arrest, the record never establishes that the identity of the caller was a fact known to Jachna or the dispatcher at the time of the arrest.12 In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest; subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest. See Colston v. State, 511 S.W.2d 10, 13 (Tex.Cr.App.1974).

Indeed, the testimony elicited from both Jachna and Stellmacher seems to indicate that the phone call by Stellmacher was made anonymously.¹³ Although Jachna did testify that he believed Stellmacher to be a sort of “Crime Watch for [the police] in that area” and that he believed she was credible, he never testified that he knew she was the person who phoned in this report. Jachna’s testimony that he considered Stellmacher a reliable source in general does not establish that he knew, at the time of the arrest, that she was the party who phoned in this particular report. Without this link, the past reliability of Stellmacher cannot factor in to the probable cause equation.

We will not engage in conjecture as to the existence of facts which are critical to a finding of probable cause and which the State bore the burden of proving. Rather, we require that the facts and circumstances upon which a detention is based must be specifically articulated as such in the record. As the Supreme Court explicated in Terry v. Ohio, supra, 392 U.S. 1 at 21, n. 18, 88 S.Ct. at 1880, n. 18, “[The] demand for specificity in the information upon which police action is predicated is the central teaching of ... Fourth Amendment jurisprudence.”

Further, even had the officer assumed that it was Stellmacher who called in the report at the time he responded to the police broadcast, we have held that it is the objective facts in existence at the time of the arrest and not the subjective conclusions of the officer which the reviewing court must scrutinize to determine the existence of probable cause. Johnson v. State, 722 S.W.2d 417, 419 (Tex.Cr.App.1986) (citing Townsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983) and cases cited therein). Here, the State failed to prove the objective fact, through any witness, that the identity of Stellmacher as the reporter of the “burglary in progress” was a fact within the knowledge of either the dispatcher or Jachna at the time of the arrest.

The only information which was provided in the police broadcast was that there was a burglary in progress involving a black male putting something in the trunk of a car at the address of the Square Apartments. There was no description of appellant provided in the broadcast, beyond his sex and race. There was no description or license plate of the vehicle purportedly involved. There was no indication of the source or credibility of the information. Given that the officer did not observe anything at the scene which can objectively be considered as criminal conduct, the bare facts transmitted in the police broadcast are the only facts which were available to Jachna to establish probable cause at the time of the arrest. These facts, in and of themselves, are insufficient to create probable cause to believe that appellant had committed a burglary.

It is well established that neither a police broadcast nor an anonymous phone call is sufficient, standing alone, to establish probable cause for an arrest. See Rojas v. State, 797 S.W.2d 41, 43 (Tex.Cr.App.1990); Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984); Ferguson v. State, 573 S.W.2d 516, 522 (Tex.Cr.App.1978); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There must be additional facts available to the officer, or the dispatcher, which would warrant a man of reasonable caution to conclude that a crime had been or was being committed. See, e.g., Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974); see also Rojas v. State, 797 S.W.2d 41 (Tex.Cr.App.1990) (additional facts are required to establish probable cause under the totality of. the circumstances test, where an anonymous tip is relied on for search and seizure). In this case, there were no additional corroborative facts within the officer’s knowledge, beyond the police broadcast, to give rise to probable cause for an arrest of appellant for the offense of burglary.

In Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974), we held that the warrantless arrest of the defendant was not justified where the arresting officer relied solely upon a police dispatch stating that the defendant was heavily armed and was believed to be carrying narcotics, and describing the defendant’s vehicle make and license number. The arresting officer in Colston was relying exclusively on the broadcast and “had no personal knowledge of any crime being committed when he arrived on the scene” and arrested the defendant. Colston, id. at 12. Also, there was no disclosure in the record of the source or credibility of the information communicated in the dispatch. Id.

As in the present case, the arresting officer in Colston did not learn any information, apart from that communicated in the police dispatch, which was “in any sense corroborative of the fact that appellant had committed a crime or was in [the] process of committing any crime.” Id. We therefore held that, “since the validity of the arrest is dependent upon the probable cause possessed by a [police dispatcher] who was not called to testify, this record does not reflect probable cause for the warrantless arrest.” Id. at 13. As we explained in Colston, id. at 12-13, although the arresting officer in a situation such as that presented here “[has] the right to act upon the basis of the teletype dispatch and [is] entitled to assume that the officer requesting the arrest had sufficient probable cause to justify the arrest,” where the record fails to establish that the issuing officer in fact had probable cause, the detention is not insulated from challenge.

The State never argues that the detention of appellant was a valid arrest based upon probable cause. The entirety of the State’s argument is that the detention was based upon reasonably suspicious circumstances sufficient to justify, not an arrest, but the lesser intrusion of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, as we held in part II of this opinion, the detention in this case was a full-blown arrest from its inception, not an investigative detention. Thus, the State bore the higher burden of proving probable cause to justify a warrantless arrest; the State’s undertaking on the record before us, of proving suspicious circumstances sufficient to justify an investigative detention, is insufficient to uphold the warrantless arrest.

Since there was no available fact or circumstance to support probable cause other than the police radio broadcast, the war-rantless arrest was not authorized under Chapter Fourteen of the Code of Criminal Procedure and contravened the constitutional protections of the Fourth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Texas Constitution. The evidence seized pursuant to the illegal arrest should have been suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Article 38.23, Y.A.C.C.P.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court.

1 . Repealed and recodified as TEX. HEALTH & SAFETY CODE § 481.112 (1989).

2 . TEX.R.APP.P. 200(c)(3).

3 . Stellmacher testified that Officer Jachna handcuffed the appellant immediately after ordering him out of the vehicle. Jachna testified that he could not remember exactly when he handcuffed the appellant, but acknowledged that he was handcuffed at or near the time the backup arrived. Jachna did not specify whether the handcuffing occurred before or after he actually found the weapon. Because of the discrepancy in the testimony, we note that our decision in this case is the same regardless of when the handcuffing occurred.

4 . In its opinion, the court of appeals did not specify whether its holding was based on state or federal grounds; cases relying on both state and federal law are cited by the court of appeals.

5 . Specifically, the information which officers must have in order to justify a Terry-type stop is "specific articulable facts which, in light of their experience and general knowledge, together with rational inferences from those facts, would reasonably warrant [the] intrusion” on the freedom of the citizen. Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984) and cases cited therein at 601. However, a mere suspicion or inarticulate hunch is insufficient to justify such a stop. Id.

6 . The Supreme Court, in Terry v. Ohio, supra, at 392 U.S. 11, n. 5, 88 S.Ct. 1874, n. 5, quotes the following language from People v. Rivera, 14 N.Y.2d 441, 201 N.E.2d 32, 252 N.Y.S.2d 458 (1964), cert. denied, 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568 (1965), as appropriately outlining the principle: "[T]he evidence needed to make [an investigative detention] is not of the same degree of conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed."

7 . For other cases where this Court has found that the detention of an individual rose to the level of an arrest, see the following: Hogan v. State, 631 S.W.2d 159 (Tex.Cr.App.1982) (defendant was arrested when officers grabbed his arm, "escorted him outside,” ordered him to raise his hands and told him he was under arrest); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973) (arrest occurred when reserve officer for Sheriffs Department “held” defendant for the police); Woods v. State, 466 S.W.2d 741 (Tex.Cr.App.1971) (defendant was arrested when taken outside and ordered to place his booted feet into boot tracks leading from the scene of the crime to vicinity of defendant's house, in spite of fact that officers told him he was only under investigation); White v. State, 601 S.W.2d 364 (Tex.Cr.App.1980) (defendant was under arrest when he was "subdued and spread-eagled [sic] against a stock trailer” while officer held pistol on him); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975) (defendant was arrested when taken from inside the courthouse to a room in Sheriffs office at the same courthouse, and subsequently questioned for three hours); Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974) (defendant was arrested when he was ordered at gunpoint to freeze and to place his hands on vehicle).

8 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

9 . See, e.g., Johnson v. State, 722 S.W.2d 417, 421 (Tex.Cr.App.1986) (Article 14.03(a)(1) requires "the functional equivalent of probable cause to believe that a particular person has committed a felony”); Earley v. State, 635 S.W.2d 528, 531 (Tex.Cr.App.1982) (the legislative prescription in Article 14.04 of what must be "shown by satisfactory proof’ is the legal equivalent of constitutional probable cause).

10 . In a case where, as here, a police radio broadcast is relied upon as the basis for a detention, the focus is usually on the information known to the dispatcher of the broadcast in considering the issue of probable cause. See, e.g., Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975); Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). In this case, however, the arresting officer, Jachna, was the only officer called by the State to testify; the dispatcher did not testify. Thus, only the arresting officer’s testimony is available for consideration in our review of the determination of probable cause to support the arrest and search.

11 . Although Stellmacher testified that she was yelling "that’s him” and “get him” as she ran to meet the officer while he was arresting the appellant, the officer did not testify to this fact at the suppression hearing when he delineated the specific facts he relied on in detaining the appellant. Further, when asked by defense counsel whether Stellmacher was outside at the scene when he arrived and whether she told him that appellant was the alleged burglar reported to the police, the officer testified that he "wasn't paying attention” and that he "[did not] know whether she was or not." Finally, at the trial on the merits, Jachna testified that he did not recall Stellmacher making the statements.

It seems apparent then, from the officer’s testimony, that he did not rely on the statements which Stellmacher said she made. Because the burden is on the State to prove the existence of probable cause to justify a warrantless arrest or search, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and Brown v. State, 481 S.W.2d 106, 109 (Tex.Ct. App.1972), a failure of proof on any fact essential to a finding of probable cause is construed against the State. This is not a question of credibility, the resolution of which is for the trier of fact, but simply a failure of proof.

As to the issue of credibility, we note that there were several points of conflict between the testimony of Stellmacher and Jachna: (1) Jach-na testified that he did not handcuff appellant right away, and Stellmacher said Jachna handcuffed appellant immediately after he ordered him to get out of his car; (2) Jachna testified that the Chevrolet car in which appellant arrived was parked correctly and only the Oldsmobile was backed into the parking space, while Stellmacher said both cars were backed into the parking spaces; (3) Jachna testified that appellant made eye contact with him when he blocked his car in and ordered him out of the vehicle, and Stellmacher said that appellant was leaning down in the seat while Jachna was approaching him; (4) Jachna testified that appellant got out of his vehicle within a few seconds after Jachna ordered him out, and Stell-macher said that Jachna had to reach in the car and pull the appellant out of it.

12 . The record establishes that Jachna did not talk to Stellmacher at all until after he had already arrested the appellant.

13 . Although the dispatcher was not called to testify, Stellmacher testified at both the pretrial hearing and at trial that the only information she gave to the dispatcher was the address of the apartments and the fact that there was a "burglary in progress involving a black male." She never testified, and the record never discloses, that she gave her name when she called in the purported "burglary.”

Likewise, Jachna testified repeatedly that the only information he received from the police broadcast was that there was a burglary in progress at the apartment address involving a black male putting something in the trunk of an automobile, as demonstrated by the following excerpt of his direct examination by the State:

[Prosecutor]: What was the nature of the call? [Officer]: It was a burglary in progress call with the description of a black male putting something into the trunk — the trunk of an automobile.

[Prosecutor]: All right. That’s all the information you had when you drove to the location?

[Officer]: Yes.

[Prosecutor]: And is that typically the kind of information you’ll get over the radio until you have time to talk to witnesses at the scene? [Officer]: Yes. It is.