Rodriguez v. State

838 S.W.2d 780, 1992 Tex. App. LEXIS 2324, 1992 WL 208608
Court of Appeals of Texas·Decided August 31, 1992·No. No. 13-91-645-CR·Published·Cited by 9 cases

Opinion

OPINION

NYE, Chief Justice.

A jury found appellant, Modesto Rodriguez, guilty of aggravated unlawful possession of a controlled substance. After finding the two enhancement allegations true, the jury assessed his punishment at ninety-five years in prison, plus a $50,000 fine. By a single point of error, appellant complains that the trial court erred in denying his motion to suppress evidence. We affirm.

Viewing the evidence in the light most favorable to the prosecution,1 Officer Turner, an investigator with the Victoria Coun[781]*781ty Sheriffs Department, testified that about 4:00 p.m. on May 7,1991, he received a telephone call from a confidential informant. He had received information from this informant on three prior occasions and found the information truthful and reliable. On this occasion, the informant advised Officer Turner that about 5:00 p.m. on May 7, Modesto Rodriguez would be driving an older model, green automobile to a house in the vicinity of Lone Tree Shopping Center to retrieve an unknown amount of cocaine that he (Modesto Rodriguez) had left there at an earlier time. After receiving this information, Officer Turner and other officers put the area immediately around Lone Tree Shopping Center under surveillance. Officer Turner positioned himself in the Lone Tree Shopping Center’s parking lot. Between 4:30 and 4:45 that day, he saw appellant, whom he knew from a previous encounter, driving an older, green automobile westbound on Lone Tree Road. He saw appellant turn onto Dupont Street, which was in the vicinity of Lone Tree Shopping Center, and stop in the driveway of a residence on that street. Appellant got out of his vehicle and walked towards a residence on Dupont. About ten minutes later, appellant returned to his vehicle and drove away. Officer Turner waited to see what direction he went and then alerted Deputy Dollins to stop appellant’s vehicle. Deputy Dollins stopped appellant’s vehicle, and Officer Turner asked appellant to get out. He got out, and Officers Turner and Seger searched the vehicle. At this time, Deputy Dollins patted down appellant’s outer clothing for contraband and felt a bulge under the waistband of his pants. Deputy Dollins did not remove the bulge at that time, but he notified Officer Turner that he had found a bulge in appellant’s pants and that he believed it might have been narcotics. Officer Turner testified that during his fifteen years as a peace officer, he had found narcotics concealed within a suspect’s pants. He said that based upon the information that he had received from the confidential informant, his surveillance of appellant, and the bulge in appellant’s clothing, he arrested appellant for suspected possession of a controlled substance.

After appellant was arrested and taken to jail, Deputy Dollins searched him. In appellant’s left front pants’ pocket, he found a large plastic baggie containing cocaine. He found more cocaine in the watch pocket of appellant’s pants.

The trial court held a pretrial suppression hearing and overruled appellant’s “MOTION TO SUPPRESS EVIDENCE.” The cocaine was admitted into evidence during trial.

By his sole point of error, appellant complains that the trial court erred in denying his motion to suppress because the cocaine was discovered pursuant to an illegal, warrantless search of his person prior to the time of his arrest. A warrantless arrest or search is justified if the State can show the existence of probable cause at the time the arrest or search is made, as well as circumstances which made the procuring of a warrant impracticable. Nastu v. State, 589 S.W.2d 434, 439 (Tex.Crim.App.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Brown v. State, 481 S.W.2d 106, 109 (Tex.Crim.App.1972); Albert v. State, 659 S.W.2d 41, 44 (Tex.App. — Houston [14th Dist.] 1983, pet. ref’d). A need to prevent the imminent destruction, removal, or concealment of property intended to be seized justifies a warrantless search. Green v. State, 666 S.W.2d 291, 294 (Tex.App. — Houston [14th Dist.] 1984, no pet.). Probable cause exists when the facts are sufficient to justify the conclusion that the property which is the object of the search is probably in the area to be searched. Rojas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App.1990); Winkles v. State, 634 S.W.2d 289, 298 (Tex.Crim.App. 1982).

Probable cause determinations in warrantless search situations are made using the same standard as searches involving warrants. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971); Rojas, 797 S.W.2d at 43. The “totality of the circumstances” test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) applies for determining probable cause for war-[782]*782rantless searches and seizures of persons and property. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991); Whaley v. State, 686 S.W.2d 950, 951 (Tex.Crim.App.1985); Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex.Crim.App.1984). The State has the burden to prove the existence of probable cause to justify a warrantless arrest or search. Amores, 816 S.W.2d at 413; Brown, 481 S.W.2d at 109.

In Gates, the Supreme Court declared that a totality of the circumstances analysis would be used to determine whether an informant’s tip provides probable cause for a search. This determination involves a common-sense resolution whether, considering all the facts and circumstances including the veracity and basis of knowledge of persons supplying hearsay information, a fair probability exists that contraband or evidence of a crime will be found in a particular location.

According to the Gates Court, an informant’s veracity, reliability, and basis of knowledge are critical in this analysis. However, a deficiency in one may be compensated for by a strong showing of the other two, or by some other indicia of reliability. One way of proving an informant’s reliability is to show that the informant has provided truthful information in the past. An informant’s tip can also be confirmed by the independent police work which corroborates the information received. Additionally, the credibility of the tip is strengthened if it is given in great detail which indicates a strong basis for the informant’s knowledge. The tip is further strengthened if it is based on personal observation rather than hearsay. Finally, the surrounding circumstances combined with the information received must be viewed in the light of their having been evaluated by a trained law enforcement officer.

In Whaley, supra,

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Rodriguez v. State, 838 S.W.2d 780, 1992 Tex. App. LEXIS 2324, 1992 WL 208608 (Tex. Ct. App. 1992).

838 S.W.2d 780 (Rodriguez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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