Milton v. State

549 S.W.2d 190, 1977 Tex. Crim. App. LEXIS 1076
CourtCourt of Criminal Appeals of Texas
DecidedApril 13, 1977
Docket53332
StatusPublished
Cited by70 cases

This text of 549 S.W.2d 190 (Milton v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milton v. State, 549 S.W.2d 190, 1977 Tex. Crim. App. LEXIS 1076 (Tex. 1977).

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed by the jury at twenty (20) years’ imprisonment and a fine of $10,000.

In his sole ground of error appellant contends the “court erred in overruling appellant’s objection to the admission of the alleged heroin as evidence as it was seized as a result of an illegal arrest under Article 14.04, Texas Code of Criminal Procedure.”

The record shows that on the evening of November 22,1975 Detective Spriggs of the Killeen Police Department received information from a known and reliable informer who had previously given information to the police about narcotic violations. The informer told Spriggs that appellant had heroin on his person packaged in tinfoil, that he (informer) had personally observed the heroin in appellant’s possession within the last 24 hours, and that he was familiar with heroin and the instruments used to inject heroin. He said appellant would be located in the Yellow Cab Cafe in Killeen. Spriggs had seen appellant prior to the date in question. At approximately 11:10 p. m. on November 22, 1975, Spriggs and Officers Tampio and Smith set up a surveillance of the cafe. Shortly thereafter, the appellant walked up the street and stood in the doorway of the cafe. Several minutes later a marked patrol car came up the street, and upon observing the same, the appellant entered the cafe quickly. Spriggs went to the rear door because “. . . it is very easy to just run out the back door and elude officers.” The officers entered the cafe and detained the appellant. Spriggs rejoined them, and as they were escorting the appellant outside the cafe, he asked why he was [192]*192being detained and Spriggs told him they had information he was in possession of heroin. At this point appellant reached his right hand into his right jacket pocket. Spriggs grabbed his hand to prevent any narcotics from being removed and destroyed and for the officers’ “self-protection.” Appellant was frisked, and a matchbox containing four tinfoils of a substance, later shown to be heroin, was found in the pocket into which appellant had reached. An ounce of what was later shown to have been heroin was in the left pocket of the jacket under his top jacket. A syringe, needle and plunger were also discovered. Appellant’s arms bore track marks.

The United States Supreme Court only recently held that the federal constitution does not require a showing of exigent circumstances for a felony arrest made in a public place which is based on probable cause. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See also United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Watson the Court wrote:

“Law enforcement officers may find it wise to seek arrest warrants where practicable to do so . . . But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.”

Despite these decisions under our dual system of government, it is state law and not federal law that governs the legality of a state arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The states are free to impose greater or additional restrictions on police conduct than are required by the federal constitution if its citizens either by their Constitution or their Legislature so determine. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-1902, 20 L.Ed.2d 917 (1968). See also People v. Hoinville, 553 P.2d 777 (Colo.1976).

Thus appellant relies upon Article 14.04, Vernon’s Ann.C.C.P., which provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

Unquestionably this state statute imposes greater restrictions on peace officers than does the federal constitution as interpreted by the United States Supreme Court.

Appellant urges first that there is no showing that the police officers involved could not have secured a warrant, and that there was no information conveyed to the officers that the appellant was about to escape. This, he contends, would prevent a warrantless arrest for a felony under Article 14.04, supra.

The record on the sole question presented to this court was not as well developed as it might have been. In Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), it was written:

“The record relating to the search and seizure was not developed as well as it might have been, which always increases the burden upon the appellate court in passing on the grounds of error presented. Cf. Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974).”

There was no evidence as to the lack of availability of magistrates or even the officer’s opinion that a warrant could not be obtained. The only evidence bearing upon the subject is the fact the “tip” was received on the evening of Saturday, November 22, 1975 and that about 11:10 p. m. a [193]*193surveillance was set up. The time lapse between the “tip” and the surbeillance was not elicited. While normally magistrates may not be available on weekends at such hours, this was not established. Further, there was no showing that the officers had received information that appellant was about to escape. The only evidence bearing on escape was the fact that Officer Spriggs feared that when the appellant entered the cafe upon the approach of the patrol car the appellant would leave by the rear door.

We need not, however, determine whether the requirements of Article 14.04, supra, have been met.

Police officers are not required to shrug their shoulders and permit crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. den. 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158.

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Bluebook (online)
549 S.W.2d 190, 1977 Tex. Crim. App. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milton-v-state-texcrimapp-1977.