Woodward v. State

668 S.W.2d 337, 1984 Tex. Crim. App. LEXIS 616

• Court: Court of Criminal Appeals of Texas
• Decided: March 7, 1984
• Docket: 092-82
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Adjudged guilty of deadly assault on a court participant and found to have been previously convicted of a felony, appellant was assessed punishment at confinement for life.¹ Judgment of conviction was affirmed by the Court of Appeals in an unpublished opinion. We granted appellant’s petition for discretionary review in order to decide whether the court correctly determined that the trial court did not err in overruling appellant’s motion to suppress evidence obtained by what appellant claims is an illegal search of his automobile and in admitting into evidence a pistol seized during the search. The issue is of paramount importance in that the pistol was shown to be the murder weapon, and there is precious little other evidence that appellant killed the deceased, his former girlfriend, as she stood in the doorway of her residence in Austin at an early Saturday morning hour in March.

We are confronted at the threshold by a warrantless stop of appellant as he was driving his automobile through downtown Columbus by a Colorado County Deputy Sheriff. At about five o’clock, just under two hours since deceased had been killed, an Austin-originated bulletin was received by the Sheriff’s Office in Columbus, and presumably elsewhere. The “BOLO” was for “1979 Silver Corvette SPB 714 driven by Paul Woodward W/M 26-28” and requested, “If located, hold for questioning ref to homicide occ. this city app. 2:30 am...” Deputy Riehs made the stop on the strength of a radioed report by a Sheriff’s dispatcher. As she was reading the bulletin the dispatcher received a transmission from a peace officer in LaGrange that the described automobile had been spotted there en route to Columbus. She relayed this information to all available units and Deputy Riehs responded by proceeding to the intersection of Highway 71 and the main street in Columbus, which is also Highway 90. Shortly he saw the Corvette and pulled in behind it to confirm its license number; then he turned on overhead lights. Appellant pulled off the street into an area by a closed place of business and got out. Riehs told him the reason for the stop and said, “I'm going to take you on down to the Sheriff’s Office so we can get everything straight.” He allowed appellant to lock the Corvette where it was parked, telling him that he would bring appellant “right back out here so he could continue on his way if Austin didn’t want to hold him...” Appellant was put in the booking room and a teletype message was sent to the Austin Police Department. It requested instructions.²

Taking a citizen into custody and to a police station for questioning on less than probable cause to arrest violates the Fourth Amendment as well as Article I, § 9 of the Texas Bill of Rights. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981). The only reason Deputy Riehs stopped appellant without a warrant is derived from the tele-typed BOLO from Austin police; we must, therefore, ascertain what cause Austin officers had. Whiteley v. Warden, 401 U.S. 560,³ 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

The record of hearing on application for writ of habeas corpus by stipulation became the basis for the ruling of the trial court on appellant’s motion to suppress. Aside from their personal observations and acts, the investigating officers testified to hearsay information given by persons they interviewed.

The homicide actually occurred about 3:20 a.m. There are no known eyewitnesses to the killing, but at least two persons heard related sounds: Lana Lee, housemate of Patricia Dohnalik, deceased, and Thomas Luchenbach, a neighbor who lived across Laurel Valley Drive. Both reported to investigating officers that there were loud noises of successive knocking or bumping on the front door followed immediately by two or three sounds like gunshots. Dohnalik was found where she had fallen back from the doorway onto carpeting, landing on her right side. Her death was pronounced by EMS personnel within fifteen to twenty minutes. Three spent shells were recovered from the same room. The killer was not seen or heard by anyone, nor was an automobile alien to the neighborhood seen in the area.

Having set the scene of the homicide, we will now paraphrase the facts and circumstances relied on by the State in its brief to show “that probable cause existed to arrest [appellant] under Article 14.04, V.A.C.C.P.”

To the first officer who responded Lee, housemate of deceased for several months, said that she suspected appellant was the killer. Lee explained that appellant had been calling the deceased in an attempt to get her to drop criminal mischief charges in Tyler, where the deceased was to testify against appellant in April for cutting her tires. Deceased had been keeping a diary to document evidence in the event something happened to her, and she feared for her life. Appellant had been threatening the deceased.⁴ Lee further related that the deceased and appellant had lived together and split up, deceased getting a truck and appellant a certain Corvette auto but there was “trouble” over the property division. Lee said that appellant was jealous. When the deceased had dated someone, his tires were slashed by appellant; another of deceased’s boyfriends had mysteriously disappeared when he left a party he was attending with deceased for a moment to turn off the dome light of his car. Lee showed officers a Tyler newspaper article regarding the disappearance. It was further stated by Lee that because of her fear of appellant the deceased had moved to Austin to get away from him, that she “felt” appellant carried a gun, and that he (appellant) had been to prison but was on parole or probation.⁵ Lee also said that two of appellant’s threatening calls to deceased had been made to deceased at her Austin residence. Lee also showed officers contents of a box in deceased’s bedroom closet; she disclosed the “diary,” a photograph of deceased and appellant, a checkbook with appellant’s name and address in Tyler printed thereon, a newspaper clipping from a Tyler paper regarding deceased’s boyfriend’s disappearance and a reward information and some papers regarding the sale of a Corvette with appellant’s name thereon. Lee stated that appellant drove a silver Corvette. The Corvette papers contained a VIN number; a registration check revealed the Corvette was registered to “Woodward Homes” of Tyler and a license number was obtained.

At about 4:00 a.m. a local “pick-up” was put out on appellant and the described automobile. At the same time a teletype to Tyler Police Department requested that they check to see if appellant was home because “... if he was at home, there was no sense in looking at [sic] him any further because there would be no way in that length of time he could have gotten from Austin to Tyler.” Apparently, however, Tyler did not respond. Later the BOLO was transmitted statewide.⁶ As already indicated, it was received by the dispatcher in Columbus at about five o’clock, and the stop of appellant in his car and seizure of his person followed some thirty minutes later.

The test of probable cause for a warrant-less arrest is “at least as stringent as the standards applied with respect to the magistrate’s assessment” as a prelude to issuing an arrest or search warrant. Whiteley v. Warden, supra, 401 U.S. at 566, 91 S.Ct. at 1035. Applied to all arrests, “without the need to ‘balance’ the interests and circumstances involved in particular situations,” Dunaway v. New York, supra, 442 U.S. at 208, 99 S.Ct. at 2254, the long standing test for probable cause remains:

“ ‘Probable cause exists where “facts and circumstances within their (the officers’) knowledge and of which they had reasonable trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed (by the person to be arrested).’ Brinegar v. United States, 338 [69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879] (1949), quoting Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925).”

Dunaway, id., n. 9.

Drawing on the teachings of Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), we are unable to find probable cause in the information obtained by the investigating officers and their supervisor that, in turn, we attribute to the detective who decided to put out the BOLO statewide. See also Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) and Irvin v. State, 563 S.W.2d 920 (Tex.Cr.App.1978).

The request that, if located, appellant be held “for questioning” reflects a quantum of suspicion less than probable cause.⁷ At best the record shows no more than appellant was considered a suspect and that the local pickup and statewide BOLO were put out with the hope that he might be located as soon as possible in order to determine the likelihood of his presence in Austin at the time of the killing. An inarticulate hunch, suspicion or good faith is insufficient to constitute probable cause to arrest. Barber v. State, 611 S.W.2d 67, 68 (Tex.Cr.App.1981).

Therefore, arrest of appellant by Deputy Riehs, only the strength of the BOLO and his own confirmation of the license number violated his constitutional rights under the Fourth and Fourteenth Amendments and under Article I, § 9; the evidence secured as an incident thereto—the details of which we need not examine—should have been excluded from his trial. Whiteley v. Warden, supra, 401 U.S. at 568-569, 91 S.Ct. at 1037; Barber v. State, supra, at 69.

The judgments of the Court of Appeals and of the trial court are reversed and the cause remanded to the trial court.

1 . Initially appellant was indicted for capital murder, the theory being that he had caused the death of deceased while in the course of committing and attempting to commit burglary. On appeal from a habeas corpus proceeding to fix bail we found that proof of capital murder was not evident. Ex parte Woodward, 601 S.W.2d 378 (Tex.Cr.App.1980). Thereafter a grand jury returned an indictment with two counts: the first alleged murder pursuant to V.T.C.A. Penal Code, § 19.02(a)(1), but is fatally defective in that it does not name an accused; the second count alleged in detail an offense under id., § 22.03(a)(2)(B), the essence of which is that appellant assaulted deceased in retaliation for her testifying against him before a grand jury in Smith County that indicted him for criminal mischief.

2 . “We have Woodward, Paul Lanier Jr. in custody at this time. Would like to know what to do with him. Also the Corvette.” In reply, an unidentified Austin police officer telephoned, saying someone would be sent to Columbus "right away,” or the “next couple of hours.” Riehs responded that he would book appellant and keep him in jail until Austin officers arrived.

3 . “Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Id., at 568, 91 S.Ct. at 1037. The test of probable cause for a warrantless arrest by an officer on the strength of a request by another officer is in the information known to the latter. Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Cr.App.1978).

4 .Neither the nature nor content of any “threat” was ever indicated. Even the officer who retrieved the "diary” that was said by Lee to cata-logue them merely "glanced over it” noting, "It didn’t really go into specifics as far as I could tell.” When it was shown to him the supervising sergeant "just glanced at it" and "didn’t even start to read it.”

5 . Typical of reliability of Lee's reports of such matters, the officer testified that though Lee "felt” appellant carried a gun, "she wasn’t sure,” and while appellant had been to prison, it was "for, she thought, drunk charges, but she wasn’t sure.” Of course, on the face of it, Lee was reporting to the officers her recollection of what she had been told by others, mainly the deceased.

6 . The decision to "put out a local pickup” on the Corvette and to teletype Tyler police was made about four o’clock at the scene by a uniformed patrol supervising sergeant. He made it based on reports of officers investigating under his supervision: he did not personally talk to Lana Lee. His theory was that finding appellant in Austin or its environs "would increase [his] suspicions" pertaining to appellant. The decision to issue a statewide BOLO was made by a Homicide Detail Sergeant who later arrived on the scene and talked with the uniformed sergeant and other officers. The detective did not testify during the hearing; so, though awareness of all information collected at the scene may be attributed to him, we are left to wonder what motivated him to go statewide. Perhaps it was because the "local pickup” had been fruitless.

7 . When the first responding officer characterized his feeling as "strong suspicion," the prosecutor, to her credit, did not attempt to coax him to escalate it upward to probable cause:

"Q: Officer this strong suspicion was based upon information that came from Lana Lee and some from, I guess, Doreen Snyder. But basically from Lana Lee, is that correct?

A: That’s correct.”