McVea v. State

635 S.W.2d 429

• Court: Court of Appeals of Texas
• Decided: July 7, 1982
• Docket: 04-81-00045-CR
• Status: Published

Opinions

CANTU, Justice.

Appeal is taken from a "jury conviction for burglary of a building. The court assessed punishment, enhanced by two prior convictions, at life imprisonment.

Appellant asserts in his first ground of error that the trial court erred in failing to suppress evidence discovered as a result of an allegedly illegal search which resulted in his arrest. It thus becomes necessary to evaluate the testimony adduced at the hearing on the motion to suppress the evidence.

The two arresting officers, Arthur Trevino and Richard Asher, both of the San Antonio Police Department’s Crime Task Force, were the only witnesses called to testify at the hearing. Their testimony reveals that on October 31, 1977, at approximately 11:00 a. m., they were working undercover, driving an unmarked police car westbound on Waverly Street when they spotted appellant in a car being driven eastbound. Only officer Trevino recognized appellant. He stated:

I had seen him on the street before; also had mug shots of him in the car; also had knowledge from my partner that I used to work with. Officer Black told me who he was.

‡ $ % * ‡ $

I had been told by my partner, Bob Glenn, that the subject had been arrested for burglary several times, on narcotics violations.

Officer Asher testified that he was not familiar with appellant’s past history and that he did not recognize the man. They decided to follow the car in which appellant was a passenger. The car proceeded eastbound on Waverly Street and turned onto a street which intersects Culebra Street. The officers observed the car back up into the parking area of “Pete’s Air Conditioning Service.” The officers pulled into a car wash across the street and continued to observe appellant’s activities.

The location had previously been placed under surveillance as a result of a “tip” received by Officer Trevino from an unidentified informant.¹ The informant had told Trevino “that the person that operates Pete’s Car Air Conditioning Service buys stolen property from just about anybody who wants to sell it.” On cross-examination he again stated that this unidentified informant told him “that this guy here at the shop there [sic] would buy anything from anybody.” Trevino received this information the week before the arrest in the instant case. Officer Asher, in response to a question by appellant’s attorney as to how long this location had been under surveillance, stated that “[m]y partner had gotten the information that day, or the day before, something [sic] that there were people in this air conditioning place that were buying stolen property.” Asher testified that he did not know the informant.

During their surveillance of this location, which Trevino estimated occurred three hours daily after receiving the tip, “questionable characters” were observed on different occasions entering and leaving the premises. When asked what he meant by “questionable characters,” Trevino stated that “[m]ostly the persons we saw arrive at the location known to us to be drug addicts, didn’t have any occupation, just generally run the streets all day.” However, Trevino testified both on direct and cross-examination that he never saw any property being exchanged. Based upon his observations and what informants had told him, Trevino stated that he “surmised” that these people were going first to the “fence” to make arrangements for the price and then would later bring in the property. Officer Asher did not testify as to what he observed during the time that this location was placed under surveillance prior to October 31.

During the officers’ observation from the car wash, appellant was seen getting out of the passenger side of the vehicle, the driver remaining in the car. Appellant walked around to the back porch of the building and approached a man whom Officer Trevino “believed” was the person who runs the business.² Appellant and this man, whom Trevino thereafter referred to as “Pete,” walked to the back of the car, appellant opened the trunk and pulled out “what appeared to be a green laundry bag” with a drawstring at the top. He placed the bag on the ground, opened it, and allowed Pete to look into it. After looking, Pete nodded his head affirmatively. It was at this point that Trevino told his partner, “It’s time to move.”

The unmarked police car was backed up into the driveway, blocking the exit of the car in which appellant had been. The officers got out of the car “with badge in hand,” advised the driver to remain where she was, and proceeded to the back of the car. As they approached appellant and Pete, Pete grabbed the bag, walked to an abandoned orange truck, placed the bag in the truck, slammed the door and began to walk away. Officer Trevino stopped him and ordered him to come back and get the bag out of the truck. The officer opened the bag and found an assortment of radio equipment which appeared to him to be new, because some of the items still had tags on them from a communication company. Appellant made no furtive gestures during this whole time but remained frozen in the position he had been in when first approached by the officer.

While Trevino was attending to the bag, Officer Asher was holding the trunk of the car open to prevent the appellant from possibly closing it. A fairly nice, new telephone answering machine was observed in the trunk. When asked about this property, appellant told the officer he had come “to leave it with Pete for some money that he needed.” Trevino believed that appellant had said he was to receive $40.00.

Based upon his training and past experience, Trevino testified that he felt that this was a “transaction where properties were being sold to a known fence, and decided to place the [appellant] under arrest for having the property in his possession.” The officers had never procured a warrant. After placing appellant and the driver of the car under arrest³ and reading them their Miranda⁴ rights, the property was seized and transported to the police department where it was turned over to the Task Force Office.

We begin with the well established proposition that a warrantless search or arrest is per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971); Honeycutt v. State, 499 S.W.2d 662, 664 (Tex.Crim.App.1973). It is the State’s burden to prove the legality of a warrantless arrest or search. Coolidge v. New Hampshire, supra; Hooper v. State, 533 S.W.2d 762, 767 (Tex.Crim.App.1975). Since in the instant case, no warrants had issued, the State was required to show the existence of probable cause at the time the arrest or search was made, as well as the existence of circumstances which made the procuring of a warrant impracticable. Reed v. State, 522 S.W.2d 916, 917 (Tex.Crim.App.1975); Brown v. State, 481 S.W.2d 106, 109 (Tex.Crim.App.1972).

The standard applicable for determining whether the facts of the case support an officer’s probable cause assessment at the time of the challenged arrest and search is no less stringent than that required to be shown a magistrate for the issuance of a warrant. Barber v. State, 611 S.W.2d 67, 68 (Tex.Crim.App.1981); Ochs v. State, 543 S.W.2d 355, 357 (Tex.Crim.App.1976) cert. denied 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977). It has been held that probable cause to search or arrest exists where the facts and circumstances which are within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime, or that the person to be arrested has committed or is committing a crime. Brown v. State, supra, at 110; see also Lewis v. State, 598 S.W.2d 280, 284 (Tex.Crim.App.1980); Jones v. State, 565 S.W.2d 934, 935 (Tex.Crim.App.1978). However, the mere inarticulable hunch, suspicion or good faith of the officer is insufficient to constitute probable cause. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Barber v. State, supra, at 68.

The State argues in its brief that the officers were justified in entering the premises and detaining the appellant because this was part of an investigation into suspected criminal behavior. The officers, the State asserts, had sufficient specific and articulable facts to justify a temporary detention of appellant. Terry v. Ohio, supra; Hernandez v. State, 523 S.W.2d 410 (Tex.Crim.App.1975). We do not believe, under the circumstances of this case, that the arresting officers had an “articulable suspicion” ⁵ or a “particularized and objective basis” which entitled them to interfere with appellant’s activities or detain him in order to investigate the suspected “fencing” operation, much less to conduct a search of this magnitude. Compare United States v. Cortez, 499 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The evidence discloses that the officers had no reasonable and articulable facts implicating appellant, or any of the other persons present at the scene, to a crime. According to Officer Trevino, the person who operated Pete’s Air Conditioning Service was allegedly buying stolen property from anybody who wanted to sell. In fact, from an examination of his testimony, it is revealed that he only “believed” the man who spoke with appellant to be Pete because of information received from an undisclosed informant a week prior to the arrest in the instant case. It is true that the officer set up a surveillance of this location; however, we fail to see how it ever produced any corroborative evidence. No property was ever seen being exchanged at this location. The fact that “suspicious persons” were seen on a few occasions coming and going and that appellant had a criminal record are not the kind of sufficiently specific reasonable and articulable facts to warrant the officers’ actions in this case. Further, the search of the bag and car trunk cannot be justified under Terry v. Ohio, supra. See also Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Terry v. Ohio, supra, authorized only a limited search of the outer clothing of a lawfully detained suspect, based upon the officer’s reasonable and articulable belief that the suspect was armed and presently dangerous. The record indicates that no search of appellant’s person was made until after he was placed under arrest, nor did the officers ever testify that they were in fear of violence by appellant or Pete.

Moreover, we do not agree with the State that this was a mere detention to investigate. The officers entered and conducted a full-blown search. It is elementary that there must be probable cause⁶ to conduct such a search and it is apparent from the record that the officers did not have sufficient information to satisfy the quantum of probable cause necessary to procure the issuance of a warrant under the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Therefore, since the standard is “at least as stringent” in a warrantless search situation, the State has failed to sustain its burden of proving the legality of the search.⁷

We also reject the State’s contention that the appellant lacked standing to complain of the search. No question of standing was raised at the trial.⁸ The State raises this issue for the first time on appeal. In Goehring v. State, 627 S.W.2d 159, 164 (Tex.Crim.App.1982), the court noted, “The concept of having a Fourth Amendment claim has actually been replaced by the concept that a defendant must be able to show a reasonable expectation of privacy prior to asserting a Fourth Amendment claim. Matthew-Bender’s Texas Criminal Practice Guide, (Vol. I, p. 30-6).” Therefore, in order to be entitled to seek suppression of evidence of a crime, a defendant must establish that some personal Fourth Amendment privacy interest of his was violated by police actions involving the premises searched or the property seized. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Lewis v. State, 598 S.W.2d 280 (Tex.Crim.App.1980). The “automatic standing” rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was overruled for possessory offenses in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).⁹ While we admit that the evidence adduced at the hearing on the motion to suppress evidence could have been better developed,¹⁰ we hold that the testimony of the officers, which was the only evidence offered at the suppression hearing, was sufficient to show that appellant had a reasonable expectation of privacy in the areas searched by the officers. It is true that appellant was on business premises open to the public, where privacy expectations normally existing are of somewhat different dimensions, see Manry v. State, 621 S.W.2d 619 (Tex.Crim.App.1981), however, appellant does not complain of a general search of the premises but of the specific search conducted of the bag and the car trunk. Thus the issue is whether appellant had a protected expectation of privacy in these areas.

The testimony revealed that appellant exerted control over the trunk of the car and it was apparent to the officers that he had stored in the trunk a laundry bag over which he also exerted control or manifested a possessory interest. See United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed.2d 59 (1951). The subsequent action by Pete in grabbing the bag and throwing it into the abandoned truck did not amount to a negation or relinquishment of appellant’s privacy interest in the bag. See and compare United States v. Colbert, 474 F.2d 174 (5th Cir.1973) and United States v. Canada, 527 F.2d 1374 (9th Cir.1975). Appellant never denied ownership,¹¹ see United States v. Anderson, 500 F.2d 1311 (5th Cir.1974), nor was there evidence that the bag had been unequivocally transferred to Pete, see United States v. Canada, supra. There was no evidence of an abandonment. See United States v. Colbert, supra. From the testimony of the officers, it was reasonably apparent that appellant maintained control of the trunk¹² and bag¹³ to the exclusion of others and that he took normal precautions to maintain his privacy interest in them.¹⁴ Contrast Rawlings v. Commonwealth of Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). We hold that the record affirmatively discloses a sufficient showing of appellant’s personal Fourth Amendment interest in the property sought to be suppressed. Cf. Lewis v. State, supra: where the court stated, “There was no motion to suppress the evidence complained of, and thus no attempt to offer evidence from appellant or any other competent source as to what relationship existed between appellant and the premises at the time the officers entered.” 598 S.W.2d, at 283, 284 (emphasis added).

Appellant also complains that the written statement made by him after his arrest should be considered a product of the unlawful search and arrest, and that the trial court erred in overruling his motion to suppress the confession. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) the court stated that the test for determining if evidence of this sort should be suppressed is not whether it would have come to light but for illegal actions of the police, but rather whether it has been “come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S., at 488, 83 S.Ct., at 417, 9 L.Ed.2d, at 455. We think it is clear in the instant case that the confession was “come at by the exploitation of that illegality” and hence may not be used against appellant. See Green v. State, 615 S.W.2d 700 (Tex.Crim.App.1980).

Appellant, after being arrested without probable cause and without a warrant, made a confession after receiving the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In order for the causal chain to be broken between illegal search or arrest and statements made subsequent thereto, it must be shown that the confession was a sufficient act of free will to purge the primary taint; thus, a consideration of the statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment is mandated. Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 426 (1975).

The giving of Miranda warnings is an important factor in determining whether the confession has been obtained by exploitation of an illegal arrest, but it is not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly the purpose and flagrancy of the official misconduct are all relevant. The burden of showing admissibility rests on the State. Brown v. Illinois, 442 U.S., at 604, 95 S.Ct., at 2262, 45 L.Ed.2d, at 427; see also Green v. State, supra, and In the Matter of L. R. S., 573 S.W.2d 888 (Tex.Crim.App.1978).

The evidence reveals that appellant was arrested and immediately transferred to the police station. Within an hour after the arrest, Detective Perez began interrogating appellant. This interrogation lasted approximately forty-five minutes, and culminated in the appellant signing a written statement. There were no intervening events of any significance.¹⁵ Concerning the purpose and flagrancy of the official misconduct, the State concedes that the purpose of the initial action of officers Trevino and Asher was investigation. This amounts to an admission that, prior to arriving on the scene, they had no probable cause to search or arrest appellant. There was no evidence that the detectives knew, prior to the time of appellant’s interrogation, that the confiscated property had been taken in a burglary of S & P Communications Company. It appears that the officers and detectives embarked upon this whole expedition in the hope that evidence of some unspecified crime would be revealed. Thus, after considering the relevant factors in this case, we hold that the statement was the fruit of the unlawful search and arrest and that the State has failed to meet its burden of showing admissibility. See Green v. State, supra.

Grounds of error number one and two are sustained and the judgment is reversed and the cause remanded.

1 . Pertaining to the informant, Trevino testified on direct examination that he had received the information from talking to a “few people”. It was only on cross-examination by appellant that he attempted to narrow it down to one informant. The following colloquy took place:

Q: O.K., is this informant somebody known to you to be reliable?

A: He has been reliable in the past, yes, sir.

Q: How many times have you used him in the past?

A: You would have to consider him reliable about two or three times.

Q: You used him twice, or once before you—

A: Yes.

Q: You don’t really know?

A: I have established his credibility in order to tell me something. I would believe what he would say.

Q: Can you tell me what he told you about this Pete and his place of business?

A: Yes, sir. He told me that this guy here at the shop there would buy anything from anybody. I don’t care what it was, weapons, TVs, car stereos, tires. Whatever you had, he would buy.

While it is true that Trevino attempted to establish credibility by stating that he had received information from this informant in the past, we do not feel that the State met its burden of proving credibility. We interpret Trevino’s testimony to be a mere assertion or conclusion that he considered the informant to be reliable. See Cole v. State, 484 S.W.2d 779 (Tex.Crim.App.1972). The State did not attempt to put on testimony as to this issue. There was no testimony as to some of the underlying circumstances upon which the informant based his conclusions. We feel that the informant’s tip, standing alone, was insufficient to constitute probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

2 .It appears as though Trevino did not even know who the person standing on the back porch was, much less whether he was the person who ran the business. A further reading of the record, outside the hearing on the motion to suppress, reveals that the officers did not learn the identity of this person until the arrest was made.

3 . Pete’s fate was not disclosed from the record.

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

5 . In Reid v. Georgia, 448 U.S. 438, 444, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) the court characterized the suspicion necessary to curtail a person’s liberty, in the absence of probable cause to arrest, as being reasonable and articulable. An “inchoate and unparticu-larized suspicion or hunch” will not suffice.

6 . Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. Ybarra v. Illinois, supra, 444 U.S., at 91, 100 S.Ct., at 342, 62 L.Ed.2d, at 245.

7 . The dissenting opinion mistakenly states that we are requiring probable cause to justify an investigative detention. We are not characterizing this as a simple investigatory detention, but rather a full-blown search conducted without the necessary probable cause. The right to stop for investigation does not confer upon the police officers the general power to search and seize.

8 . Presumably the State recognized that Brown v. U. S., 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) conferred upon appellant standing under the four prong test in possessory crimes. This test was still in effect at the time of trial.

9 . This did not occur until after the date of the trial in the instant case.

10 . The appellant did not testify at the suppression hearing. This might have been the better course to follow since there is no self-incrimination risk incurred by a defendant by testifying at the suppression hearing. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

11 . In fact, Officer Trevino testified that when asked what he was doing with the property, appellant stated that he had come to leave it with Pete for some money that he needed.

12 . Appellant was the one who opened the trunk, and the officers testified that they held the trunk open in order to keep appellant from closing it.

13 . Appellant was the one who opened the drawstring to the bag and allowed another to look into it, thereafter drawing it shut.

14 .The dissenting opinion’s application of the open view doctrine to justify the seizure of the property in the trunk fails to recognize that there was nothing “inadvertent” about the viewing of the property; nor did the property constitute “contraband” in the absence of some showing that the officer knew that the property was the fruit of a crime. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

15 . The only intervening event of significance reflected by the record militates against the State: after appellant was arrested, but before his arrival at the county jail, officer Asher admitted to asking appellant questions concerning the incident. Appellant was not taken before a magistrate before signing the confession. See Tex.Code Crim.Pro.Ann. art. 15.17 (Vernon Supp.1981).