Cerna v. StateCerna v. State
Lead Opinion
OPINION
This is аn appeal of a conviction on a plea of guilty for possession of less than 28 grams of heroin. Punishment was set at five years’ confinement.
On February 16, 1983, San Antonio narcotic detectives secured a search wаrrant for specific premises under the control of one Jose Alvarez. At the time, the officers had received no information about the defendant, and he was not mentioned in either the affidavit or the search warrant. The warrant commanded the officers to arrest the person or persons alleged to be in charge of the premises and “to arrest all other parties found in said premises or making their escape therefrom.”
The officers executed the warrant the following day and found a number of people outside the residence when they arrived. Several packets of heroin were found outside the residence where they had аpparently been thrown down. The officers could not connect the heroin to any individuals, and no arrests were made relating to that particular contraband.
The defendant was found inside the house in the kitchen. He was tоld by an officer to freeze, and he made no movement. He was immediately frisked by one of the officers. The frisk was fruitless. One other person, a female, was found inside the residence, hiding in a bathroom. Everyone on the premises was secured and brought inside. They were searched one at a time. The officers testified that this was their standard procedure on executing a search warrant.
The defendant was frisked again and searched thorоughly. His wallet was removed to check his identification. A tinfoil packet of heroin was found in his wallet. Some controlled substance pills were found in the bedroom, and the female occupant of the house was charged with their possession. Jose Alvarez, the person named in the warrant, was not on the premises.
The defendant filed a pretrial motion to suppress the heroin found in his wallet. On June 3, 1983, a hearing was held on the motion to suppress. The trial court overruled the motion. On June 20, 1983, the defendant entered a plea of guilty before the court. The court assessed the punishment recommended by the prosecutor and agreed to by the defendant and his attornеy. We have jurisdiction to review the issues raised by the motion to suppress filed prior to trial. TEX.CODE CRIM. PROC.ANN. art. 44.02 (Vernon 1977); Morgan v. State,
The State concedes that the arrest and search of the defendant would be constitutionally impermissible under the decision in Lippert v. State,
The Statе is correct that new constitutional doctrine which does not relate to the integrity of the fact finding process will be applied prospectively only. U.S. v. Peltier,
The fallacy in the State’s argument is that the decision in Lippert was not a new extension to the exclusionary rule. It was an application of the holding in Ybarra v. Illinois,
[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person ... Where the standard is рrobable cause, a search or seizure of a person must be supported by probable cause*572 particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing tо the fact that coincidentally there exists probably cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protеct the ‘legitimate expectations of privacy’ of persons, not places ... It follows that a warrant to search a place cannot normally be construed to authorize a search of each individual in that place.
Ybarra v. Illinois,
In Rodriguez v. State,
In Visor v. State,
We realize that the officers in the present case and the trial judge were following what had long been the established law in Texas. But we are bound to follow the pronouncements of the United States Supreme Court and the Texas Court of Criminal Appeals. We hold that the Ybar-ra decision applies to the present case. The arrest and search of the defendant cannot be justified unless the officers possеssed probable cause independent of the search warrant.
Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information would wаrrant a reasonable and prudent person in believing that a particular person has committed or is committing a crime. Lewis v. State,
Here there was not established any nexus between the defendant and the other contraband found on the premises. There was no showing that the defendant was an owner or occupant of the residence being searched. Though he was present when the officers burst in, the defendant did not flee. He made no furtive gesture or sudden movement toward a possible weapon or to destroy evidencе. No threats were made and no attempt was made to resist detention. Lippert, supra at 721. Giving the officer who searched the defendant constructive knowledge of the information possessed by all of the officers present at thе scene, probable cause to believe that the defendant had committed or was committing a crime simply did not exist.
The judgment is reversed and cause is remanded to the trial court.
Concurrence Opinion
concurring.
I agree with the majority in their disposition оf the motion to suppress. My dilemma is in their decision to reverse and remand this case.
In Morgan v. State,
From the record before us, to remand this case in the face of the judicial confession is to engage in judicial gymnastics with no useful purpose. I therefore jоin my colleague, Justice Cantu, in his reluctance, and concur in the result.
Concurrence Opinion
concurring.
Morgan v. State,
A review can hardly be meaningful if the appealing party is placed in a no win situation in return for the entry of a guilty plea.
In the instant case appellant entered a plea of guilty to the offense charged and the State discharged its burden of proof by securing from the appellant an executed “Written Waiver and Consent to Stipulation of Testimony and Stipulations” which included the following:
I Viviano Cerna do hereby judiсially admit and confess that on February 17, 1983, in Bexar County, Texas, I did then and there knowingly and intentionally possess a controlled substance namely: less than twenty-eight grams (28) of heroin; against the peace and dignity of the State_ Said defеndant in person under oath together with his counsel and the attorney representing the State of Texas further agrees and stipulates that he the said defendant, is the identical person named in the indictment in the above styled аnd numbered cause, and that all the acts and allegations in said indictment charging the offense of possession of a controlled substance namely heroin are true and correct, and that the acts therein alleged occurred in Bexar County, Texas.
The stipulations and the express judicial confession have until now always supported the plea of guilty independent of the matter contested in the pretrial motion. Therefore, any erroneous ruling on the motion to suppress did not vitiate the conviction. Ferguson v. State,
Since the handing down of Morgan v. State, supra, this court is required to consider the issue presented for review arising out of an article 44.02 plea even if accompanied by proof independent of the matter contested. But why? No matter how this court rules on the matter, the appellant can receive little consolation from the holding. In the instant case appellant has secured a reversal аnd remand for a new trial with a judicial confession staring him in the face. What is to be gained by a retrial?
No issue has been made of the voluntariness of the plea and yet it is obvious that an accused would not knowingly and voluntarily give up a valuable right to trial in return for a no win dilemma.
I agree that a plea of guilty pursuant to article 44.02 does not carry with it a guarantee of a successful review. But it ought to carry with it an expectation that a successful review of his “preserved” issue will be of some benefit to him.
Since appellant is a “successful” party to this appeal I defer the question of volun-tariness of the plea to the appropriate court
Notes
. It profits the appellant little that the "consideration” underlying the pleа bargain ... will facilitate the plea bargaining process and must be encouraged by the courts out of deference to the legislative intent of Article 44.02. See Morgan v. State, supra, n. 2. Surely the legislature did not intend a meaningful appeal to be rendered meaningless.