Jоrge Lorenzo AMORES, Appellant, v. The STATE of Texas, Appellee.
No. 0795-89.
Court of Criminal Appeals of Texas, En Banc.
Sept. 18, 1991.
816 S.W.2d 407
John Vance, Dist. Atty., Robert P. Abbott and Mark Hasse, Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MALONEY, Judge.
Appellant was convicted by a jury of aggravated possession of more than four hundred grams of cocaine with intent to deliver.
I.
At 11:30 a.m. on June 16, 1986, Willetta Stellmacher, owner and manager of the Square Apartments in Dallas, observed an “unkept [sic] black male” drive a 1975 Chevrolet “junk car” into the parking lot of her apartment complex. The man, later identified as appellant, parked the car, got out and opened the trunk. Stellmacher, who noticed that appellant was not a tenant of the complex, immediately ran inside her apartment and called the police to report a “burglary in progress” by a “black man” at the Square Apartments. Stellmacher reported no further details at that time.
Stellmacher then retrieved a handgun from her apartment and watched appellant as he took a large brown box out of the trunk of the Chevrolet, walked the length of the parking lot, opened the trunk of a 1980 Oldsmobile with Florida license plates and placed the box inside the trunk. The Oldsmobile was the only other car on the parking lot and was backed into a parking space at the far end of the lot. Stellmacher testified that the standard lease for her
Officer Henry Jachna of the Dallas Police Department was patrolling a few blocks away when he received a radio call for a “burglary in progress” at the Square Apartments involving a “black male” putting something in the trunk of a car. Jachna testified that no other details were provided in the police broadcast. Jachna arrived at the scene within one minute after receiving the call and observed appellant sitting in the driver‘s seat of the Oldsmobile. Jachna testified that he knew no “blacks” lived at the Square Apartments at this time. Jachna pulled his patrol car into the parking lot, and appellant began to drive the Oldsmobile out of the parking space.
Jachna blocked the Oldsmobile with his patrol car, got out of the car, pulled out his revolver and ordered appellant out of his car. After hesitating a few seconds, appellant complied with Jachna‘s orders and got out of the car slowly with his hands raised. Stellmacher testified that she was running towards that end of the parking lot at this point, gun in hand, yelling “Get him! ... That‘s him!,” but Officer Jachna testified that he did not recall her making these statements and did not recall her presence on the scene at this point.
Once appellant was out of his car, Jachna ordered him to lie face down on the parking lot with his hands behind him. Jachna held his gun to appеllant and told him, “If you don‘t do what I tell you to do, I‘m gonna shoot you.” Stellmacher testified that she added, “If he doesn‘t, I will.” With his gun
Officer Christy Carmell, the first “backup” to respond, arrived as Jachna was removing the blue bag from the Oldsmobile. Appellant had already been handcuffed by this time and was still lying face-down on the pavement, although the testimony differed as to precisely when the handcuffing occurred.3 Carmel held appellant at gunpoint while Jachna holstered his weapon, unzipped the blue bag and discovered а “Mack 10 gun,” an Intratec, 9mm Luger. Jachna testified that he considered appellant to be under arrest at this point.
Jachna then took the keys out of the Oldsmobile and opened the trunk. During a complete search of the trunk, Jachna seized a cardboard box containing several bags of cocaine of various purities and a scale. At this point, Jachna finally stopped to talk with Stellmacher, who had left the parking lot after Carmell arrived and returned after Jachna completed his search of the Oldsmobile. Stellmacher informed him that appellant arrived in the Chevrolet. Jachna obtained the keys from appellant‘s pocket and proceeded to search the second car. He located and seized additional packets of cocaine from the Chevrolet. In all, Jachna seized approximately 1032 grams of cocaine (including adulterants), a scale, $668 in cash, and the gun.
The court of appeals affirmed appellant‘s conviction, holding that the initial stop by Jachna was a valid investigative detention. The court concluded that once appellant was stopped, Jachna was justified in believing that he was in danger and had “reasonable grounds to feel under the driver‘s seat for weapons.” The court further found that a limited search of appellant‘s car was within the permissible scope of a search incident to an investigative detention, and that once the search produced a prohibited weapon, appellant was subject to a warrantless arrest for an offense committed in Jachna‘s presence. The court concluded that the cocaine was seized in a legal inventory search of appellant‘s impounded automobiles.4
Appellant contends that the search and seizure was premised on a warrantless arrest made without probable cause, and not an investigative detention. Alternatively, he argues that the scope of the sеarch exceeded that permissible in the course of a valid investigative detention. The State does not argue that the search was incident to a legal arrest. Rather, the state has argued throughout, to the trial court, the court of appeals and this Court, that the search and seizure was premised on a valid investigative detention.
II.
The threshold issue is whether the court of appeals correctly characterized the detention of appellant as an investigative detention rather than an arrest, because the nature of the detention determines the constitutional parameters which apply to determine its legality. An investigative detention, to be constitutionally valid, may be founded upon a reasonable, articulable suspicion that the person detained is connected with criminal activity, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),5 but an arrest, to pass constitutional muster, must be supported by the greater conclusiveness of probable cause to believe that a particular person has committed or is committing an offense.6
We find that the initial detention in this case was in fact an arrest. An arrest occurs when a person‘s liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Cr.App.1987) (citing Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980) and Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973)).
In Hoag v. State, 728 S.W.2d 375 (Tex.Cr.App.1987), a case involving similar facts, we held that the defendant‘s detention constituted a warrantless arrest rather than an investigative detention where the police officers removed the defendant from his car at gunpoint, took him to the rear of the car and gave him Miranda8 warnings. Id. at 379. The court of appeals in the present case distinguished Hoag on the basis that the police officer there testified that he believed the defendant was under arrest while the officer in the present case testified that the stop was only an investigative detention. The distinction is without consequence, however, as the officer‘s opinion is not the controlling factor.
In deciding Hoag, we specifically “acknowledge[d] that the question of whether a person is under arrest is not tо be determined solely by the opinion of the arresting officer. See Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979); Boone v. State, 629 S.W.2d 786 (Tex.App.—Houston [14th Dist.] 1981, no pet.). Rather, the officer‘s opinion is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place.” Hoag, 728 S.W.2d at 378-379. The facts in the instant case establish that the initial detention of the appellant constituted an arrest even though the arresting officer characterized the stop as an investigative detention.
Furthermore, although the officer characterized the initial stop as an investigative detention, there was no investigation conducted. The record reflects that the officer did not ask the appellant any questions prior to or during the search and seizure conducted of appellant and his vehicles. Neither did the officer ask any questions of Stellmacher, at least not until after he had already seized the blue bag from the car, found the weapon, and conducted an inventory search of the trunk of one of the cars, at which point he already considered the appellant to be under arrest in any event.
The investigative detention contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is one during which the police are allowed to briefly question a suspicious person respecting his identity, his reason for being in the area or location, and to make similar reasonable inquiries of a truly investigatory nature. Here, no such investigation was conducted and the detention can by no means be characterized as investigatory within the meaning of Terry v. Ohio, supra.
III.
The second issue is whether the warrantless arrest was supported by probable cause. We hold that the arrest was not supported by probable cause and that the items of evidence should have therefore been suppressed as fruit of the illegal arrest.
The court of appeals relied on the officer‘s location of the weapon as the basis
As we stated in Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977), “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.” In Texas, warrantless arrests are authorized only in limited circumstances and are governed primarily by Chapter Fourteen of the Code of Criminal Procedure. See generally Lowery v. State, 499 S.W.2d 160, 164-165 (Tex.Cr.App.1973) (analyzing the provisions of Chapter Fourteen with respect to a warrantless arrest).
The three most common provisions arising in the caselaw are:
The “totality of the circumstances” test applies in Texas for determining probable cause for a warrantless search and seizure. Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988); see also United States v. Mendoza, et al., 722 F.2d 96, at 100, n. 5 (5th Cir.1983). The burden is on the State to prove the existence of probable cause to justify a warrantless arrest or search. Brown v. State, 481 S.W.2d 106, 109 (Tex.Cr.App.1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Probable cause exists where the facts and circumstances within the officer‘s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense. See, e.g., Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1982) (opinion on rehearing), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); see also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1308, 93 L.Ed. 1879 (1949).
Jachna testified that the facts known to him at the time he initially detained the appellant were the following:10 (1) that the police received a telephone report of a burglary in progress involving a black male putting something in the trunk of a car; (2) that the location of the reported burglary was at an apartment complex whose manager he knew to have called in
Officer Jachna testified that, at the time he arrived on the scene, “no burglary was occurring from [his] viewpoint.” He also testified that, until the point at which he found the weapon in appellant‘s car, he did not observe any violation of the law. Thus,
Jachna further acknowledged that, until the point at which he found the weapon, none of the activity he observed upon arriving at the scene was inconsistent with innocent activity. He testified that the fact of a black male putting something in the trunk of a car backed into a parking space at the Square Apartments was consistent with innocent activity, and that the fact of a black male about to drive away as a police officer was pulling into the parking lot was likewise consistent with innocent activity. We have held that, where events are as consistent with innocent activity as
The officer was also relying on the information he received in the dispatcher‘s report of a “burglary in progress” call, however, and so we now consider whether the information in the report, together with the other information known to the officer, constituted “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,” as required by
To bring this case within the purview of
Although the record indicates that the identity of Stellmacher as the person who phoned in the report was revealed some time after the fact of the arrest, the record never establishes that the identity of the caller was a fact known to Jachna or the dispatcher at the time of the arrest.12 In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest; subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest. See Colston v. State, 511 S.W.2d 10, 13 (Tex.Cr.App.1974).
Indeed, the testimony elicited from both Jachna and Stellmacher seems to indicate that the phone call by Stellmacher was made anonymously.13 Although Jachna did testify that he believed Stellmacher to be a sort of “Crime Watch for [the police] in that area” and that he believed she was credible, he never testified that he knew she was the person who phoned in this report. Jachna‘s testimony that he considered Stellmacher a reliable source in general does not еstablish that he knew, at the time of the arrest, that she was the party who phoned in this particular report. Without this link, the past reliability of Stellmacher cannot factor in to the probable cause equation.
Further, even had the officer assumed that it was Stellmacher who called in the report at the time he responded to the police broadcast, we have held that it is the objective facts in existence at the time of the arrest and not the subjective conclusions of the officer which the reviewing court must scrutinize to determine the existence of probable cause. Johnson v. State, 722 S.W.2d 417, 419 (Tex.Cr.App.1986) (citing Townsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983) and cases cited therein). Here, the State failed to prove the objective fact, through any witness, that the identity of Stellmaсher as the reporter of the “burglary in progress” was a fact within the knowledge of either the dispatcher or Jachna at the time of the arrest.
The only information which was provided in the police broadcast was that there was a burglary in progress involving a black male putting something in the trunk of a car at the address of the Square Apartments.
It is well established that neither a police broadcast nor an anonymous phone call is sufficient, standing alone, to establish probable cause for an arrest. See Rojas v. State, 797 S.W.2d 41, 43 (Tex.Cr.App.1990); Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984); Ferguson v. State, 573 S.W.2d 516, 522 (Tex.Cr.App.1978); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There must be additional facts available to the officer, or the dispatcher, which would warrant a man of reasonable caution to conclude that a crime had been or was being committed. See, e.g., Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974); see also Rojas v. State, 797 S.W.2d 41 (Tex.Cr.App.1990) (additional facts are required to establish probable cause under the totality of the circumstances test, where an anonymous tip is relied on for search and seizure). In this case, there were no additional corroborative facts within the officer‘s knowledge, beyond the police broadcast, to give rise to probable cause for an arrest of appellant for the offense of burglary.
In Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974), we held that the warrantless arrest of the defendant was not justified where the officer relied solely upon a police dispatch stating that the defendant was heavily armed and was believed to be carrying narcotics, and describ-
As in the present case, the arresting officer in Colston did not learn any information, apart from that communicated in the police dispatch, which was “in any sense corroborative of the fact that appellant had committed a crime or was in [the] process of committing any crime.” Id. We therefore held that, “since the validity of the arrest is dependent upon the probable cause possessed by a [police dispatcher] who was not called to testify, this record does not reflect probable cause for the warrantless arrest.” Id. at 13. As we explained in Colston, id. at 12-13, although the arresting officer in a situation such as that presented here “[has] the right to act upon the basis of the teletype dispatch and [is] entitled to assume that the officer requesting the arrest had sufficient probable cause to justify the arrest,” where the record fails to establish that the issuing officer in fact had probable cause, the detention is not insulated from challenge.
The State never argues that the detention of appellant was a valid arrest based upon probable cause. The entirety of the State‘s argument is that the detention was based upon reasonably suspicious circumstances sufficient to justify, not an arrest, but the lesser intrusion of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, as we held in part II of this opinion, the detention in this case was a full-blown arrest from its inception, not an investigative detention. Thus, the State bore the higher burden of proving probable cause to justify a warrantless arrest; the State‘s undertaking on the record before us, of proving suspicious circumstances sufficient to justify an investigative detention, is insufficient to uphold the warrantless arrest.
Since there was no available fact or circumstance to support probable cause other
Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court.
CAMPBELL, Judge, dissenting.
I write in dissent for two reasons. First, I believe that the majority‘s/plurality‘s analysis of the distinction between investigative detentions and warrantless arrests, under Texas law, is wholly inadequate and provides no guidance to our lower courts to properly analyze and characterize police detentions. Second, I would find that probable cause to support a warrantless arrest, pursuant to
I. CHARACTERIZATION OF DETENTIONS UNDER TEXAS LAW
The United States Supreme Court, under the Fourth Amendment, authorized a police
In Hoag, supra, a burglary victim gave a general description of the burglar and his car, and tentatively identified Hoag from a photo array. Officers placed Hoag under surveillance. After following him to two houses and an apartment complex, police had not observed criminal activity or found signs that a burglary had been committed. When Hоag returned to his car from the apartment complex, he appeared to place something on the floorboard. Hoag was stopped a few blocks away. An officer approached Hoag and asked him to get out of the car. Hoag was then taken at gunpoint to the rear of his car, where officers read him his Miranda4 warnings. The arresting officer testified that he believed Hoag was under arrest at that time. The officers on the scene did not conduct a patdown search of Hoag. With Hoag still surrounded by officers, one officer went back and looked inside the passenger compartment of Hoag‘s car and saw a diving knife sticking out from under the driver‘s seat and lumps under the floormat. The officer flipped back the mat and found jewelry and coins. This Court held that the seizure of Hoag was in fact a warrantless arrest not supported by probable cause.
In Hoag, we relied on the meaning of “placed under restraint” within
This Court has characterized an individual‘s detention as a warrantless arrest in a variety of factual situations. Hogan v. State, 631 S.W.2d 159 (Tex.Cr.App.1982) (Defendant was arrested without warrant, when officers grabbed his left arm and “escorted him outside.” Once outside, defendant was ordered to raise his hands, and was told he was “under arrest for robbery investigation“); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973) (Arrest took place when reserve officer for Sheriff‘s Department “held” defendant for the police); Woods v. State, 466 S.W.2d 741 (Tex.Cr.App.1971) (Defendant, who asked if he was under arrest and was told that he was only under investigation, was arrested when taken outside and ordered to place his booted feet into several boot tracks leading from the scene of the crime to the vicinity of defendant‘s house. “It is evident at that time [his] freedom of movement ceased“); White v. State, 601 S.W.2d 364 (Tex.Cr.App.1980) (Defendant was under arrest when he was “subdued and
Texas courts of appeals have also applied article 15.22 in finding that detentions were in fact warrantless arrests. Pickens v. State, 712 S.W.2d 560 (Tex.App.—Houston [1st] 1986, rev. ref‘d) (Handcuffing and placing the defendant in patrol car was equivalent to arrest); Campbell v. State, 644 S.W.2d 154 (Tex.App.—Austin 1982, rev. ref‘d), 647 S.W.2d 660 (Tex.Cr.App.1983). (Defendants were not free to go when they were ordered out of car and instructed to sit on highway guardrail with their hands in their laps); Gilmore v. State, 666 S.W.2d 136 (Tex.App.—Amarillo 1983, rev. ref‘d) (Appellant‘s liberty of movement was restricted and thus under arrest when “held by the U.S. Customs Service“); Jones v. State, 746 S.W.2d 281 (Tex.App.—Houston [1st] 1988, rev. ref‘d) (Appellant was arrested when officer placed him in patrol car and drove him to the house appellant had burglarized); but see Burkhalter v. State, 642 S.W.2d 231 (Tex.App.—Houston [14th] 1982) (Appellant was not under arrest at hospital after wild driving and head-on collision, even when officer previously handcuffed appellant and told him he was under arrest. Appellant had been taken to hospital for blood sample and was not in presence of officer or handcuffed); Snabb v. State, 683 S.W.2d 850 (Tex.App.—Amarillo 1984, disavowed in Morris v. State, 739 S.W.2d 63 (Tex.Cr.App.1987) (plurality opinion)) (Appellant was not under arrest after officers chased down her car, on foot, stopped her, and told her that she was under arrest. Appellant was arrested only after she ran from car
This Court has not articulated a specific standard or test for determining when an investigative detention, valid at it‘s inception, becomes so intrusive that it must be considered an arrest under article 15.22. This Court has made clear, however, that any of the following facts and circumstances, standing alone, do not necessarily transform an investigative stop into a warrantless arrest. We have found that the detaining officer‘s opinion is a factor to be considered, along with the other facts and circumstances, but is not solely determinative of the status of the detention. Hoag, 728 S.W.2d at 378-79; Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979). Although the display of weapons may be a critical factor in the showing of an actual arrest, the officer‘s use of weapons need not always preclude a valid investigative detention. Marsh v. State, 684 S.W.2d 676 (Tex.Cr.App.1984); Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1979).
Furthermore, the giving of Miranda warnings may be viewed, in some situations, as more indicative of proper cautiousness than of the officer‘s intent to arrest. Dancy v. State, 728 S.W.2d 772 (Tex.Cr.App.1987), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484. In addition, blocking in the suspect‘s car does not neсessarily indicate an arrest. Ebarb v. State, supra.
Finally, the announcement of an arrest is not required to effectuate an arrest. White v. State, supra. Nevertheless, some combination of the facts and circumstances surrounding a particular detention may signal the onset of an arrest.
The clearest standard arising from the existing cases interpreting article 15.22, is that the characterization of the detention must be made in light of all of the facts and circumstances surrounding the stop. Hoag, 728 S.W.2d at 379. Some factors that have been used by various courts to aid in characterizing detentions are; the use of force,5 including the display of weap-
This and other Texas courts, when evaluating the facts and circumstances used to characterize a detention, have focused on the actual physical restraint or forced movement of the detainee. In almost all cases deciding that the challenged detention was an arrest under article 15.22, the detainee‘s freedom of movement has been restricted or the detainee has been forced to move to a more controlled location. Thus, I would find that the detainee must be actually restrained, such that his freedom of movement is restricted, either through force or the imminent use of force by the detaining officer, before a detention can be characterized as an arrest under the “placed under restraint” provision of
In the instant case, appellant‘s detention is most appropriately characterized as a warrantless arrest under article 15.22. Jachna blocked in appellant‘s car, drew his service revolver, ordered appellant out of his car at gunpoint, ordered him to lie face down on the parking lot with his hands behind his back, and told him that he would be shot if he did not obey these orders. The amount of force used, the degree of the intrusion, the admonitions of the officer, and the extent to which appellant‘s freedom of movement was curtailed indicate that his detention should be characterized as an arrest under article 15.22. For other analyses see United States v. Ceballos, 654 F.2d 177 (2d Cir.1981); State v. Williams, 102 Wash.2d 733, 689 P.2d 1065 (1984).
The general rule in Texas is that an arrest must be made pursuant to a warrant. Dejarnette v. State, 732 S.W.2d 346, 349 (Tex.Cr.App.1987); Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). However, “it is state law and not federal law that govеrns the legality of a state arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures.” Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977).
“The legislative provision of what must be ‘shown by satisfactory proof’ [under art. 14.04] is the legal equivalent of constitutional probable cause.” Earley v. State, 635 S.W.2d 528 (Tex.Cr.App.1982); Webb v. State, 760 S.W.2d 263 (Tex.Cr.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989). The Supreme Court has articulated the probable cause requirement as follows:
[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they obsеrve as trained officers. We weigh not individual layers but the ‘laminated’ total.... ‘In dealing with probable cause, ... as the very name implies, we are dealing with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’
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Probable cause exists where “the facts and circumstances within their [the officers‘] knowledge, and of which they had reasonably 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.
Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1982) (opinion on rehearing), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985).
To satisfy the second requirement of article 14.04, the facts must show that the suspected offender is about to escape. “From the ‘concrete factual situation’ ... it must be apparent to the arresting officer that the offender is, in fact, ‘about to escape’ ” Stanton v. State, 743 S.W.2d 233, 235 (Tex.Cr.App.1988) (citing King v. State, 631 S.W.2d 486 (Tex.Cr.App.), cert. denied, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982)). The general rule for a showing of escape has been stated as follows:
[I]n order for an arrest to be justified under the Art. 14.04 exception to the warrant requirement, there must be some evidence amounting to satisfactory proof, either related by a credible person to an officer оr observed by the officer him/herself indicating that the defendant was about to escape so that there was no time to procure a warrant.
Dejarnette, 732 S.W.2d at 350-51 (citing numerous cases).
In the instant case, I would find that appellant‘s warrantless arrest was supported by probable cause and authorized under article 14.04. First, I would consider the following facts and circumstances surrounding appellant‘s arrest, and known to
Once probable cause for the arrest had developed, Jachna could search appellant‘s person and the area “within his immediate control.” Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The interior of a passenger car is normally “within the immediate control of the arrestee.” New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). “[A]rticles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon’ ...” Furthermore, “the police may examine the contents of any open or closed container found within the passen-
Jachna‘s continued searches of appellant‘s cars were valid inventory searches of impounded vehicles. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Delgado v. State, 718 S.W.2d 718 (Tex.Cr.App.1986). When the driver is removed from his car and placed under arrest, his car may be impounded and inventoried, if there are no other alternatives available to insure the protection of the car. Delgado, supra; Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978). In the instant case, appellant‘s cars were illegally parked on private property and appellant had no alternative means for removing his cars. Thus, the cars were subject to impoundment and proper inventory.
The majority opinion contends that Stellmacher‘s phone call to the police was made anonymously, because neither she nor Officer Jachna testified that she identified herself when she first reported a burglary in progress at the Square. I think it strains credulity to call Stellmacher an anonymous source of information, when she testified to the facts surrounding her call to the police, both at pretrial and at trial. Moreover, while we recognize that the existence of probable cause is a mixed question of fact and law, in most cases the determination of probable cause is necessarily a combination of an examination of the facts and the reasonable inferences that can be drawn from those facts. The officer at the scene is not limited to the facts as presented, but must also be аllowed to draw reasonable inferences from those facts.16 Jachna‘s
Even assuming arguendo, however, that Stellmacher‘s track record of reliability could not enter into the probable cause equation, I would still find that probable cause to arrest existed in the instant casе. The majority is correct in finding that “it is well established that neither a police broadcast nor an anonymous phone call is sufficient, standing alone, to establish probable cause for an arrest.” ante at 416. The cases cited by the majority, however, do not necessarily preclude a finding of probable cause in the instant case.
In Rojas v. State, 797 S.W.2d 41 (Tex.Cr.App.1990), the police received an anonymous tip that marijuana would be found in the trunk of Rojas’ car. The anonymous informant gave a detailed description of the car, and told police that the car would be at a particular church and cemetery that afternoon, in connection with funeral services for Rojas’ brother. Officers located the vehicle at the church, followed it to the cemetery, and later stopped the car at a local gas station. We reversed Rojas’ conviction, because most of the information supplied by the informant could have been available to any careful observer. The in-
In Glass v. State, police received an anonymous tip that the occupants of two cars were shooting at each other. The informant gave a general description of the cars and the location of the alleged shooting. Police later stopped a car that matched one description near the reported location. This Court found that this investigatory stop was not supported by “probable cause to investigate.” This Court relied primarily on the lack of a showing of proximity in time between the alleged shooting, the report, and the stop. Without a showing of proximity in time, this Court found that “it would not be reasonable to conclude, solely on the basis of the match of color and make of the car, that the car stopped was the car involved in the reported incident.” Id. at 601. In the instant case, we have a clear showing of an extremely close proximity in time. Thus, Glass is largely inapplicable.
Furthermore, I consider the other anonymous tip cases relied on by the majority to be either inapplicable or unhelpful. See e.g. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976) (A Terry stop case involving an anonymous report describing a suspicious
The majority claims that “there were no additional corroborative facts within [Jachna‘s] knowledge, beyond the police broadcast, to give rise to probable cause for an arrest of appellant.” ante at 416. The majority relies primarily on Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). In Colston, officers received a Department of Public Safety BOLO17 naming Colston, describing the make and license number of his car, and advising that he was believed to be carrying narcotics and was heavily armed. The BOLO was originated by a Federal narcotics agent in San Antonio. Officers located Colston‘s car in the parking lot of a local lounge, and arrested him as he was about to enter his car. This Court found that his arrest was not supported by probable cause because the arresting officers had not observed any unusual conduct on the part of Colston that could corroborate the information contained in the BOLO. Although we concluded that the arresting officers were entitled to rely on another officer‘s request to arrest, we found the record did not reflect probable cause, since the federal officer who requested the BOLO was not called to testify about the basis of his information.
In essence, the holding in Colston requires that either (1) the officer requesting an arrest demonstrate his basis for probable cause, or (2) the arresting officers show that the information in the BOLO was corroborated by their observations.
In the instant case, there was no police request for arrest or BOLO. Stellmacher was a citizen informant who testified at pretrial and at trial as to the basis of her report to the police. Moreover, as previously discussed, the information reported
I fail to comprehend what the majority would require the State to show in this case. Officer Jachna was confronted with a situation that surely occurs every day. A citizen reported a crime in progress. The police dispatcher issued a report. An officer was fortunately in close proximity. His observations at the scene partially corroborated the report and his experience told him that the situation could be dangerous. The suspect was attempting to flee. Must he then be required to attempt to ascertain the basis for the report?
I think the majority would attempt to impose an unrealistic and dangerous requirement on the officer faced with this situation. Police officers must be allowed to rely on such radio reports to make arrests when their own observations are corroborative of the informatiоn they have received.
I would overrule appellant‘s ground for review, and affirm the judgement of the court of appeals. Therefore, I dissent.
MCCORMICK, P.J., and WHITE, J., joined.
Nos. 0711-90, 1090-90.
Court of Criminal Appeals of Texas, En Banc.
Sept. 18, 1991.