Hicks v. State

753 S.W.2d 419, 1988 Tex. App. LEXIS 1837, 1988 WL 79848
CourtCourt of Appeals of Texas
DecidedMay 25, 1988
Docket09-87-115 CR
StatusPublished
Cited by4 cases

This text of 753 S.W.2d 419 (Hicks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. State, 753 S.W.2d 419, 1988 Tex. App. LEXIS 1837, 1988 WL 79848 (Tex. Ct. App. 1988).

Opinion

OPINION

BROOKSHIRE, Justice.

Appellant was indicted for burglary of a habitation, and he filed a motion to suppress evidence seized by police officers. The trial court overruled the motion to suppress after a pre-trial hearing. Pursuant to a plea bargain agreement he pleaded nolo contendere to the indictment and was found guilty by the trial court. Appellant pleaded true to two enhancement allegations, and the trial court assessed punishment of twenty-five years confinement in the Texas Department of Corrections.

On September 30, 1986, Detective Charles Myers of the Nederland Police Department received a phone call from Police Chief Lattimer of Hemphill, Texas. Lat-timer told Myers that he had an arrest warrant for Robert Hicks whom he believed to be residing in trailer number eight in a trailer park on Avenue H at 27th Street in Nederland. Myers asked for and received the warrant number and then proceeded with other Nederland police officers to the trailer where Hicks was expected to be. When Myers knocked on the trailer, appellant came outside, followed by Faye Inge, the owner of the trailer.

When appellant identified himself, Detective Myers informed him that he was under arrest for armed robbery (the offense for which the warrant had issued). Appellant was then informed of his “Miranda” rights and handcuffed. Faye Inge then advised the officers that there was some merchandise on the other side of her car which had been stolen. She also stated that she had made “Robert” remove these items from her house. Myers then went to the other side of the car where he found some stereo equipment partially covered by a blanket or a tarpaulin. Myers testified that much of the stolen property was uncovered and that passersby on the street could easily see it.

Detective Myers then asked appellant whether the items belonged to him. Appellant stated that the items were not his and that the owners of the property were “coming after it in a green van.” The police officers then seized the items and took them to the Nederland police station^

Under cross-examination by defense counsel, Myers stated that he did not know whether there was probable cause for the issuance of the warrant from Hemphill. He stated he did not know whether the warrant was supported by the required documentation. Myers also stated that he was relying completely upon the validity of the warrant when he went to look for appellant at the trailer park. At the motion to suppress hearing, the State stipulated that the arrest warrant executed by Detective Myers was not supported by an affidavit.

By his sole point of error, appellant argues that the trial court erred in denying his motion to suppress. The motion to suppress stated that the search was illegal because it violated the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution. At the hearing on the motion, appellant argued that the search violated state and federal constitutional provisions against unreasonable searches and seizures. Appellant’s brief on appeal, however, does not specify what law the search or seizure violated.

It is well settled that what a person knowingly exposes to public view is not subject to Fourth Amendment protection. McCall v. State, 540 S.W.2d 717, 720 (Tex. Crim.App.1976); Wilkerson v. State, 644 S.W.2d 911, 912 (Tex.App.—Fort Worth *421 1983, pet. ref’d). Officer Myers testified that many of the items seized were open to public view from the street. The trial court apparently credited Myer’s testimony, and the court also heard evidence that Ms. Inge had told Myers that she had made “Robert” remove the items from her house. Appellant disclaimed any interest in the items seized. We therefore hold that, under these circumstances, the trial court could have reasonably concluded that the seizure of the items did not violate appellant’s rights under the Fourth Amendment or the Texas Constitution because appellant had exposed the items to public view.

The arrest warrant executed by Detective Myers was invalid because it was not based on a valid complaint or affidavit showing probable cause to believe that appellant had committed an offense. See TEX. CODE CR1M.PROC.ANN. art. 15.-03(a)(2) (Vernon 1977); see also Kosanda v. State, 727 S.W.2d 783 (Tex.App.—Dallas 1987, no pet.). The exclusionary rule bars the State from using the indirect as well as the direct product of unconstitutional conduct. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974); Nicholas v. State, 502 S.W.2d 169, 172-173 (Tex.Crim.App.1973).

At the trial on the merits, Tyrrell Wayne Aldrich’s testimony was admitted by stipulation of the parties. The record from the trial on the merits reveals that during a phone conversation, on September 30,1986, appellant admitted to Aldrich that he was in possession of the property Aldrich had discovered missing from his home that morning. Aldrich had discovered that someone entered his home without his permission early in the morning hours of September 30,1986. Appellant told Aldrich to come get the property. When Aldrich arrived at appellant’s residence in Nederland at approximately 4:30 p.m., Nederland police officers informed him that he could identify and collect his property at the Ned-erland police station. Aldrich went to the police station and recovered most of the property taken from his home.

The record seems to reflect that the Ned-erland police discovered that Mr. Aldrich was the owner of the property found near appellant’s residence as a result of executing the invalid arrest warrant. Therefore, we would ordinarily be obliged to decide next whether Mr. Aldrich’s testimony was obtained by means which are sufficiently distinguishable from the primary taint caused by the arrest of the appellant under an invalid warrant. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, in the present case, we find that the Nederland police officers acted in good faith and in reasonable reliance upon a warrant in executing appellant’s arrest. Therefore, we believe it is proper to evaluate the degree by which police misconduct tainted the testimony of Aldrich from the vantage point of the officers who executed the warrant. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We take this view because the purpose of the exclusionary rule is “to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694.

In deciding whether to exclude a witness’s testimony under the “fruit of the poisonous tree doctrine,” the court must consider:

(1) the likelihood that the witness would have freely come forward to testify;

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Related

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764 S.W.2d 353 (Court of Appeals of Texas, 1989)
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761 S.W.2d 26 (Court of Appeals of Texas, 1988)

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753 S.W.2d 419, 1988 Tex. App. LEXIS 1837, 1988 WL 79848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-state-texapp-1988.