Ceniceros v. State

551 S.W.2d 50

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 1977
• Docket: 52528
• Status: Published

Opinions

OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of possession of heroin. Punishment was assessed at five years.

In appellant’s sole ground of error he contends that the trial court erred in overruling his motion to suppress evidence “because there was not sufficient probable cause on the part of the arresting officer to stop and investigate the appellant.”

Prior to the introduction of evidence of the heroin, the court conducted a hearing in the absence of the jury on appellant’s motion to suppress such evidence. Officer Nunez of El Paso Police Department testified substantially as follows:

About 10:20 a.m. on June 19, 1975, while Nunez was on regular patrol duty in his police car in El Paso, he noticed four men standing together on the sidewalk at the intersection of Missouri and Randolf Streets, a residential area in El Paso. Due to a number of recent burglaries in the neighborhood, Nunez, after passing the men, turned his car around, stopped it, and approached the men. He started talking to them “to see if they had any business in the area.” Noting that one of the men, identified as appellant, appeared to be shaking and nervous, he asked for identification of each of them. The men “started to pull out their wallets to get some ID.” As appellant was “thumbing” through his wallet, a piece of tin foil and a pawn shop ticket fell from it to the sidewalk. Nunez knew from his experience as a policeman that heroin was frequently packaged in this manner. He picked up the foil, opened it, and found a brown powdery substance which appeared to him, based on his experience, to be heroin. He then arrested appellant and the other men. Examination by a chemist proved this powder to be heroin.

Testimony of one of the men with appellant conflicted with that of Nunez. Victor Rodriquez, who at the time was a resident of a “halfway” house on parole from a federal narcotic conviction, testified that when the officer approached them he immediately ordered them to place whatever was in their pockets on the top of the police car. He stated that he did not see anything fall from appellant’s wallet, and did not see Nunez reach down and get anything from the sidewalk.

The court, who at the hearing was the trier of facts, overruled the motion to suppress, and permitted the officer to testify before the jury of finding the heroin as above stated.

In Baity v. State, Tex.Cr.App., 455 S.W.2d 305, we quoted as follows from the majority opinion and Justice White’s concurring opinion in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889:

“The majority opinion stated:

“ ‘One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest, (emphasis supplied)’

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“ ‘And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’ “Mr. Justice Harlan, concurring, wrote:

“ ‘Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery.

His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so.’

“And Mr. Justice White in his concurrence said:

“ ‘There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for his arrest, although it may alert the officer to the need for continued observation.’ ”

In the instant case, Nunez, acting from his experience as a police officer and from his knowledge that a number of recent burglaries had occurred in the area, violated no constitutional rights of appellant in approaching and engaging in conversation. Appellant and his companions were not stopped by the officer; they were standing still when he first saw them, and when he approached them. When Nunez noticed that appellant appeared nervous as he approached, the evidence does not disclose that he placed appellant or his companions in any kind of restraint or detention. As Justice White stated in Terry v. Ohio, supra, appellant could “refuse to cooperate and go on his way.” However, when the wrapped foil paper fell from appellant’s wallet, and the officer recognized it as the type of wrapper often used to contain heroin, he was justified in securing it and making further investigation. See Art. 14.-03, V.A.C.C.P. It is a well recognized rule that when contraband is thrown, dropped, or placed away from the person of accused in a public place, the recovery thereof does not constitute a search and the evidence is admissible. Tatum v. State, Tex.Cr.App., 505 S.W.2d 548; Gomez v. State, Tex.Cr. App., 486 S.W.2d 338 and authorities there cited; Baity v. State, supra.

The court did not err in overruling the motion to suppress and admitting the evidence relative to the seizure of the heroin.

The judgment is affirmed.

Opinion approved by the Court.