Ramirez v. State

672 S.W.2d 480, 1984 Tex. Crim. App. LEXIS 718

• Court: Court of Criminal Appeals of Texas
• Decided: July 18, 1984
• Docket: 1039-83
• Status: Published

Opinions

OPINION ON APPELLANT’S' PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of carrying a weapon on premises licensed to sell alcoholic beverages, in violation of V.T.C.A. Penal Code, Sec. 46.02(a) and (c). Punishment, enhanced by two prior felony convictions, was assessed at life in the Texas Department of Corrections. On appeal appellant’s conviction was affirmed by the Corpus Christi Court of Appeals in Ramirez v. State, 658 S.W.2d 808, (Tex.App.—Corpus Christi 1983). We granted the appellant’s petition for discretionary review in order to consider the Court of Appeals’ holding that the action of the police officer in searching appellant and the admission into evidence of a gun obtained as a result of that search was proper. We affirm the holding of the Court of Appeals.

A brief review of the facts surrounding the search is appropriate.

Officer Reynaldo Martinez was patrolling the downtown area of Brownsville when a man approached the police officer and told the officer that a Latin male wearing a yellow T-shirt had a gun in a nearby bar. The informant described the man as having a tattoo of a knife on his right arm. At that time, Officer Martinez got in his patrol car and proceeded directly to the bar. Once inside, the officer recognized one of approximately eight patrons as matching the description given to him by the man on the street. Officer Martinez approached the man sitting at a table and ordered him to stand. Upon standing, Officer Martinez noticed a large bulge in his right pocket. He patted down the suspect, determined that the bulge was a gun, and removed the gun from appellant’s pocket. The police officer then arrested the appellant.

Appellant’s contention that the State failed to show sufficient probable cause to justify the warrantless search of appellant in that there was no showing that the informant had first-hand knowledge of the facts or reasonably trustworthy information is without merit.

As stated by the Court of Appeals, there is no evidence that the person supplying the information to Officer Martinez was anything but a witness to the crime. The man told the police officer that he was coming from the bar. Officer Martinez testified that he did not know the man who approached him with the information. Upon receiving the information, Martinez proceeded directly to the bar. At the time the officer entered the bar, he had uncorroborated information specifically describing appellant and indicating that he had a gun. He did not search or arrest appellant solely upon the information supplied by the man on the street. Only after approaching appellant, who matched the given description, and after observing the bulge in appellant’s pocket did Officer Martinez pat down the appellant. A police officer in circumstances short of probable cause for arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Milton v. State, 549 S.W.2d 190, 193 (Tex.Cr.App.1977); Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976). “An officer must have specific, articulable facts, which in light of his experience and general knowledge taken, together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen.” Morrison v. State, (Tex.Cr.App. No. 68,323, Delivered June 20, 1984) (State’s Motion for Rehearing) citing Terry, supra. See also Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981) and Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). In the course of such a temporary detention, an officer may conduct a limited search for weapons where it is reasonably warranted for his safety or the safety of others. Once Officer Martinez, armed with the uncorroborated “tip”, observed the bulge in appellant’s pocket he then had sufficient facts to justify a search under Terry, supra. In Terry, supra, the United States Supreme Court wrote,

“In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907. See also Cortinas v. State, 571 S.W.2d 932 (Tex.Cr.App.1978) and Perez v. State, 548 S.W.2d 47 (Tex.Cr.App.1977).

It is this limited pat down search for weapons that we, under the facts of this case, and the Supreme Court in Terry, supra, sanction; not a full-blown search for contraband. Under the facts of this case the police officer’s actions that resulted in the finding of the weapon were justified. Upon finding the weapon, Officer Martinez was justified in arresting the appellant. See Art. 14.01, V.A.C.C.P. No fruits of any search incident to that arrest were introduced at appellant’s trial.

The judgment of the Court of Appeals is affirmed.

CLINTON, J., dissents.