Esco v. State

668 S.W.2d 358, 1982 Tex. Crim. App. LEXIS 1148

• Court: Court of Criminal Appeals of Texas
• Decided: December 15, 1982
• Docket: 61501
• Status: Published

Opinions

OPINION.

CLINTON, Judge.

These are appeals from a judgment of conviction for aggravated robbery upon a jury finding of guilty. Sentence was assessed for each defendant at 65 years.

Appellants present three grounds of error. The sufficiency of the evidence is not challenged.

On May 7, 1978, at 2:35 a.m. a 1972 Oldsmobile Cutlass was stopped by a Department of Public Safety Trooper for a routine traffic violation at a point off Interstate 10 approximately nine miles east of Junction.¹ While Trooper Overstreet was writing up a traffic ticket, Deputy Chapman ran a “wanted check” on the vehicle’s Texas license plate number BGZ 610. The local dispatcher responded that a request for a statewide broadcast had been issued by recent teletype, as follows:

“REQUEST FOR STATEWIDE BROADCAST

PD AUSTIN 5-7-78

ATTN. PD EL PASO

ARMED ROBBERY OCCURRED THIS CITY INVOLVING OFF-WHITE 1970 CHEV 78TX LIC/BGZ610 OCCUPIED BY 2 W/M.S. 6.00, SLENDER BUILD, FALSE BEARDS AND MAKE-UP, ARMED WITH SHOT GUN AND PISTOL. VEHICLE REGISTERED TO RUBY WILLIAMS 2500 MORELAND 6, EL PASO, TX. SHOTS WERE FIRED IN ROBBERY... NO INJURIES. PLEASE CHECK ADDRESS AND NAME YOUR FILES FOR POSSIBLE INVOLVEMENT OR STOLEN VEHICLE.

SGT D GAMBRELL/ROBBERY DETAIL

PD. AUSTIN RJC 070056 CDT”

Upon receiving this report from the dispatcher, appellants were removed from the automobile, handcuffed and read their rights.

Having thus arrested and secured appellants, the deputies searched the passenger compartment and then the trunk of the automobile. In the glove box were found a pistol, some shells for it and also shotgun shells; on the back seat were a duffel bag containing numerous rolls of quarters and a box of, among other items, fake beards and mustaches. A search of the trunk produced a briefcase inside which was a “large” amount of currency. Those tangible materials as well as the other items were seized and later released to the Austin Police Department.

Both appellants were charged and indicted for aggravated robbery in a Safeway Store on West 35th Street in Austin.

Prior to trial a hearing was held on appellants’ motion to suppress, presenting their theory that the searches they saw as incident to arrest were wrongful in that the initial warrantless arrest was unlawful. The hearing ended when, without pronouncing a ruling, the judge assented to appellants’ request for leave to file a written brief. Inter alia, the brief contends the State had failed to show probable cause for arrest and search.²

Appellants were tried jointly and represented by the same counsel. During the presentation of the State’s case, appellants renewed their objections to the admissibility of the seized evidence. Their objections were once again overruled. During the defense’s case, appellant Williams testified in his own behalf and admitted his involvement in the aggravated robbery in the Safeway Store.³ By so doing, appellant Williams waived his right to complain on appeal of the illegality of the arrest and subsequent search and seizure. Daniels v. State, 573 S.W.2d 21 (Tex.Cr.App.1978). Consequently, these issues are preserved for appeal only with regard to appellant Esco since he did not testify. We will now address the merits of those grounds of error.

In appellant’s first ground of error he contends that the warrantless arrest was illegal. It is appellant’s position that the deputies lacked probable cause to effectuate the arrest because the police teletype contained no indication as to reliability and credibility of the information it communicated.

Facts similar to those in the instant case have been presented to the Court before in Law v. State, 574 S.W.2d 82 (Tex.Cr.App.1978); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975); Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). Therein we have held that radioed police broadcasts and teletypes, based on probable cause, reporting a felony and a description of the suspect and the vehicle are sufficient to satisfy the requirement of probable cause, and of Article 14.04, V.A.C.C.P.

The underlying probable cause for the police teletype in this case comes from the witnesses at the scene giving their names to Officer Kenneth Williams of the Austin Police Department. Officer Williams and his partner, Sgt. Raines were the first to arrive at the scene. Upon arrival at the Safeway, Officer Williams checked to see if anyone had been injured. Upon learning that no one had been hurt, Williams had the manager lock all the doors except one. Officer Williams and Sgt. Raines began interviewing all the persons remaining in the store. After all the witnesses had been interviewed, Officer Williams and Sgt. Raines compiled all the descriptions of the two suspects and the vehicle. Then, Officer Williams went to his car radio and broadcast the description to the dispatcher. As the Court has consistently stated, where a named informant is a private citizen whose only contact with the police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the information is inherent. Wood v. State, 573 S.W.2d 207, n. 2 (Tex.Cr.App.1978); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972). Under the circumstances described, the officers were authorized to arrest appellants solely on the basis of the teletype.⁴ Ground of error number one is overruled.

Appellants’ second and related ground of error contends that the trial court erred in admitting evidence seized as a result of the warrantless arrest.

We note at the outset that appellant Esco lacks “standing” to complain of the search of the interior of the automobile. The record reveals that the car was owned by appellant Williams. Appellant Esco failed to establish any prejudice to his own constitutional rights because he was not a person aggrieved by the unlawful search and seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981). Since appellant Williams waived his right to complain of the search by admitting his complicity in the offense, it is unnecessary for us to decide whether the intrusion into the interior of the automobile violated rights secured to appellant Esco by the Fourth and Fourteenth Amendments.⁵

However, we quickly observe that the search of the interior of the Williams automobile upon probable cause to believe there were fruits or instrumentalities of the robbery therein is not barred by constitutional protections against unreasonable searches and seizures. Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-1981, 26 L.Ed.2d 419 (1970).

The only problem that remains is the conduct of the officers in opening on the spot the latched briefcase belonging to appellant Esco found in the trunk. This Court has held that one similarly situated has a legitimate expectation of privacy in the contents of such a case.⁶ Araj v. State, 592 S.W.2d 603, 604 (Tex.Cr.App.1979); see Nastu v. State, 589 S.W.2d 434, 440 n. 1 (Tex.Cr.App.1979), recognizing the rulings of the Supreme Court, first in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and then in Arkansas v. Sanders, 442 U.S. 753, 99 5.Ct. 2586, 61 L.Ed.2d 235 (1979). We find that Esco did have a legitimate expectation of privacy in contents of his latched brief-ease located in the trunk of the car. That finding, though, does not solve all of the problem.

Trooper Overstreet testified that he and Deputy Chapman were “looking for any and all evidence of armed robbery” that might be found. Before they got to the trunk of the car the officers had systematically found and taken from the glove compartment and the interior of the car every item described in the teletyped bulletin, except a shotgun; they had also removed items not so described, viz: at some point not clearly specified taken from the person of Williams was $497 and from Esco $204, and from a pillowcase inside a duffle bag found on the back seat of the car many ten dollar bankrolls of quarters.⁷ Not yet finding a shotgun, the officers reasonably could look for it in the trunk.

However, there was not a shotgun in the trunk—only a “sack” with a CB radio in it and Esco’s attache case. When the Supreme Court ultimately rejected its “mere evidence” formulation in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), it still insisted that “the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment...” id., at 309, 87 S.Ct. at 1651.

We are unable to find any cause to believe that the case might contain a shotgun or any other fruit or instrumentality of the robbery committed hours earlier in Austin that the officers had not already seized. We find that appellant Esco did not forfeit his expectation of privacy in contents of the attache case merely because it was found in the trunk.

Relying on a recent opinion of the Supreme Court, our dissenting Brother would have it that “the officers had developed probable cause to believe the contraband taken during the course of the robbery would be located in the automobile.” But in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), as we understand it, the Supreme Court did not undertake to authorize a general exploratory search of an automobile for whatever might turn up. Indeed, explicating the new rule adopted by a majority of the Supreme Court, Justice Stevens wrote for it:

“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.”⁸

Ross, supra, 102 S.Ct. at 2172.

The officers conceded that when they got to the trunk of the car, their quest was still evidentiary in nature with no indication of what they reasonably believe remained. They had found everything mentioned in Austin’s teletype but a shotgun. There was no pretension of probable cause to believe that appellant Esco’s attache case contained a shotgun—indeed, to believe given its small size that the case was capable of containing one.⁹ The State has not shown the case was one of “the places in which there is probable cause to believe that [the object of the search] may be found,” Ross, ibid.

To the extent found above the motion to suppress should have been granted and evidence of contents of the attache case ruled out by the trial court, and ground of error two in that respect is sustained.

The judgment of conviction as to appellant Williams is affirmed, but as to appellant Esco is reversed and the cause remanded.

1 . Kimble County Deputy Sheriff Gary Chapman, who was riding with DPS Trooper Douglas Ov-erstreet, stated that radar clocked Williams’ vehicle traveling at a speed of 90 m.p.h. in a 55 m.p.h. zone.

2 . Over his signature denying the motion was written:

"8/10/78

Motion Denied"

Yet, the time stamp of the district clerk shows a filing "9/11/78 at 10:00 A.M.” (All emphasis is supplied throughout by the writer of this-opinion unless otherwise indicated.) The latter date coincides with the trial setting indicated at the close of the pretrial hearing. In view of our disposition we need not consider appellants’ third ground of error complaining of a denial of due process because, as they see it, the trial court acted adversely before receipt of the written brief.

3 . Appellant Williams took the stand against the advice of trial counsel. The record reveals that trial counsel was not even aware of his client’s desire to testify in his own behalf until just moments before he took the stand. As his confederate Williams implicated one Michael Davis, whose whereabouts were unknown. If Williams is to be believed appellant Esco was not involved in the robbery.

4 . The officers near Junction were entitled to rely on the teletype in making their arrest subject, however, to a "condition subsequent” that it "turns out to be true” the Austin officers who initiated the communication were acting with probable cause. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971).

5 . The matters at issue were ruled in the trial court before the Supreme Court of the United States decided to modify the "standing" rule enunciated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), in favor of “a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect,” Rakas v. Illinois, supra, 439 U.S. at 140, 99 S.Ct. at 428. The Supreme Court reasoned that since a glove compartment and the area under the seat of an automobile in which one is a mere passenger are “areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy," such a complaining passenger must make a showing that he had some legitimate expectation of privacy in those areas. Id., at 148-149, 99 S.Ct. at 432-433.

Whatever reconciliation was indicated in Ra-kas, Jones was expressly abandoned by the Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Although some have not done so, that a majority of this Court seems to have accepted that development was noticed in Goehring v. State, 627 S.W.2d 159, 164 n. 9 (Tex.Cr.App.1982). However, no doubt the bench and the bar would welcome consideration by the Court En Banc, particularly in light of continued adherence to the principles of Jones by some other jurisdictions.

6 . The contents of the briefcase vindicate the general proposition that legitimate expectation of privacy attaches to that kind of container: combs, brushes, a jar of cocoa butter, women’s underclothing, shaving gear, a hunting knife and miscellaneous papers belonging to appellant Esco, as well as the paper sack of currency—which currency, however, appellant Williams claimed as his own.

7 . An inventory later compiled lumped together the dollar amount of quarters and currency not attributed specifically to either appellant as approximately $1299.

8 . All emphasis is mine unless otherwise indicated.

9 . In the record is State’s Exhibit No. 52, admitted over objection consistent with reasons stated in appellants’ motion to suppress under discussion. It is a photograph portraying in color all material evidentiary items taken from the car, including an open attache case, along with a shotgun that was not but was found along the roadway nearby. The shotgun is more than twice as long as the case is wide.