Hoag v. State

693 S.W.2d 718, 1985 Tex. App. LEXIS 6804
CourtCourt of Appeals of Texas
DecidedJune 5, 1985
DocketNo. 04-84-00104-CR
StatusPublished
Cited by2 cases

This text of 693 S.W.2d 718 (Hoag 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
Hoag v. State, 693 S.W.2d 718, 1985 Tex. App. LEXIS 6804 (Tex. Ct. App. 1985).

Opinions

OPINION

DIAL, Justice.

This is an appeal from a conviction of burglary of a habitation with intent to commit theft, repeater. TEX.PENAL CODE ANN. § 30.02(a)(1) (Vernon 1974). Trial was before the court, and punishment was assessed at 30 years’ confinement.

The defendant does not challenge the sufficiency of the evidence. By four grounds of error he complains of the admission into evidence of the fruits of an alleged illegal search and seizure.

A San Antonio detective had received information implicating the defendant in a recent burglary. The detective requested a team of “task force” officers to place the defendant under surveillance. The officers followed and observed the defendant for two days. They saw him enter an apartment complex, return to his car, and drive away. The decision was then made to stop the defendant resulting in the complained of search and seizure.

At the time the officers stopped the defendant, they possessed the following collective knowledge:1

1. The defendant’s car was recently seen at the scene of a burglary.

2. Witnesses to that burglary picked defendant’s picture as being that of a person who “looked like the one that was involved in the burglary,” but were unable to make a positive identification.

[720]*7203. The defendant had previously been convicted of a burglary and was on parole at the time.

4. The day before the defendant had left his home at approximately 10:30 a.m. and driven slowly around in residential areas far away from his home.

5. On the day in question the defendant left his home at approximately the same time and drove slowly around in residential areas in a part of town away from his home.

6. The defendant did not have regular employment anywhere in the area where he was driving.

7. The defendant approached one residence and looked in; he looked at the garage door to see if it would open.

8. The defendant knocked on the door of another residence several times and while doing this looked around “very suspiciously.” When he received no response at the door he walked around the side of the house and into the backyard.

9. The defendant drove to an apartment complex, exited his car with nothing in his hands, and went into the complex out of the view of the officers.

10. He returned in about twenty-five to thirty minutes with something in his hands about the size of a newspaper and took something else out of his trousers and put it on the floorboard of the ear by the driver’s seat. He then drove away in his car.

The defendant was then stopped by a uniformed officer and asked to exit the car. An officer then looked into the open passenger area of the vehicle. He saw an orange-handled diving knife sticking out from under the driver’s seat. He also saw a fairly large size lump under the rubber floormat. The officer then entered the vehicle, picked up the knife, and flipped back the floormat. Coins and jewelry were there revealed, which were ultimately admitted into evidence.

The seizure of these items of evidence can be justified on two grounds.

First, the officers had the right to temporarily detain the defendant while verifying if a burglary had actually taken place and ascertaining its location. It is well-settled that a brief detention of a suspicious individual in order to maintain the status quo momentarily while obtaining more information may be most reasonable in light of all the facts known to the officers at the time. Armstrong v. State, 550 S.W.2d 25, 30 (Tex.Crim.App.1977). The totality of the circumstances are looked to. An occupant of an automobile is just as subject to brief detention as is a pedestrian. Id. Detention based on a mere hunch is illegal. There must be a reasonable suspicion by the officers that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978).

It is permissible to inquire of the person detained to explain his suspicious activity. United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 45 L.Ed.2d 607, 617 (1975). Any further detention or search must be based on consent or probable cause.

Here the detention took place while other officers were seeking to locate evidence of a burglarious entry in the apartment complex. After the defendant was stopped, one of the officers saw the knife and the bulging floormat in plain view. This was followed by an actual search of the vehicle and an agreement by the defendant to show the officers where the burglary had occurred. Probable cause then existed for full arrest.

In order to justify the intrusion under these circumstances the officer must have specific articulable facts, which in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion of the freedom of the citizen detained for further investigation. Baldwin v. State, 606 S.W.2d 872, 874 (Tex.Crim.[721]*721App.1980). Here the experienced task force officers concluded “He did things that would point to an experienced police officer that he was looking to burglarize.” “It just didn’t appear that he was looking for a friend or a place to live.” “There’s a difference between somebody looking at apartments and somebody looking to get in an apartment.” The detention must be based on objective perception of events rather than the subjective feelings of the detaining officers. Armstrong, 550 S.W.2d at 30. The events here warranted the officers’ action.

Similar temporary detentions have been upheld on fewer articulable facts. In Johnson v. State, 629 S.W.2d 99 (Tex.App.—El Paso 1982, no pet.) an officer on patrol noticed a car backed into the driveway of a residence. He saw the defendant and a third person exit the house with an unidentified object which they placed in the trunk of the car. The officer blocked the driveway and asked the defendant if he lived there, which he replied in the negative. The officer ascertained that the door of the house had been broken into and items were scattered about. The court held that the officer was justified in detaining the accused while he checked and found the house had been broken into.

In Ablon v. State, 537 S.W.2d 267 (Tex.Crim.App.1976) an officer saw the accused in a fenced backyard of a residence at 10:45 a.m. No one was at home; the defendant lived several miles away, and this was a high burglary area. The court upheld a temporary detention for purposes of investigation and a pat-down search that produced a bottle containing a controlled substance. Id. at 268.

In Brem v. State, 571 S.W.2d 314

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Related

Miles v. State
802 S.W.2d 729 (Court of Appeals of Texas, 1990)
Hoag v. State
728 S.W.2d 375 (Court of Criminal Appeals of Texas, 1987)

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693 S.W.2d 718, 1985 Tex. App. LEXIS 6804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoag-v-state-texapp-1985.