Ebarb v. State

DOUGLAS, Before ROBERTS ODOM,JJ.

OPINION

ODOM,Judge. appeal This is an from a conviction carrying handgun punishment wherein days was assessed and a fine. $500 prior opinion appeal was dismissed By timely appeal. for lack of notice of it has been shown supplemental transcript appeal was in fact timely that a notice of is reinstat- given. Accordingly, appeal disposed will of on the merits. ed and commit Appellant asserts error was suppress when the trial court refused to ted handgun illegal the fruit of an deten appellant’s tion. The trial court denied mo suppress conducting hearing tion to after pre This was sufficient to issue. appeal. for review on Art. serve the matter appel 40.09(6)(d)(3), Although V.A.C.C.P. examination lant’s son testified on direct responsible the defense that he was pistol being in the car at the time arrest, presented in an testimony his meet, explain the attempt rebut and seizure, challenged evidence obtained in the a waiver of the and does not constitute State, Tex.Cr.App., objection. Nicholas v. consider this 169. We therefore merits. search and seizure issue on the was at County of Austin Sheriff Maddox when Sealy Firemen’s Frolic the annual Winnie Ebarb was someone told him that illegal pills and carrying in her car some deputies, handgun. and several of He At- the local District Sealy policemen, and Frolic, attending the torney, who were also of Mrs. in two cars in search departed Sealy for driving around Ebarb. After spotted by the Sheriff awhile the car was driveway into a pulled until it and followed stopped. was that of arrest search does not exist. staying. Mrs. Ebarb’s son where cause for Circumstanсes short Ebarb, The car contained Mrs. her son and may justify temporary arrest detention for daughter-in-law. sheriff and his com- purposes investigation.

panions in cars the search 20 L.Ed.2d Williams, went to Mrs. Ebarb’s car. The (1967); Adams proached side where Mrs. passenger the (1972); Brem v. sitting, 314; himself and Ebarb identified State, Tex.Cr.App., S.W.2d Greer the asked if could search car. She re- 125; Tex.Cr.App., v. 544 S.W.2d “Well, certainly” plied and exited the car. State, Tex.Cr.App., Mann v. 525 S.W.2d 174. doing light As she was so the dome came on intrusion, justify in the But order pistol and revealed the front seat of specific law enforcement officer must have the car. The car was searched and no which, expe- light articulable in facts drugs was used in found. The knowledge, together personal rience and prosecution. the instant facts, those with other inferencеs from reasonably would intrusion on warrant the Appellant argues that fur- the freedom of citizen detained for illegal seized as result of an detention v. Tex. investigation. ther Shaffer while the State declared that the Cr.App., 853. The reason for 562 S.W.2d plain having admissible as observed in been having requirement specific articu- this view before seizure. The State is correct can, at a later magistrate lable facts is so goes. open far as it Contraband seen in the date, to ensure examine circumstances subject by police. v. seizure Jones rights of the citizen- constitutional 934; State, Tex.Cr.App., 565 S.W.2d Clark ry have been observed. 888; State, Tex.Cr.App., Ev ans Tex.Cr.App., S.W.2d 932. “The Amend- scheme of the Fourth However, the plain before view doctrine meaningful only ment when it becomes on, may be relied it must bе shown that the point conduct of assured that at some officer had a be where he was at charged enforcing the laws those with detached, the time of observation. subjected can be more scrutiny judge neutral of a who must Clark, supra, in at “A As stated particu- of a evaluate the reasonableness police may seize what he sees in light the partic- lar search or seizure lawfully if plain sight view he is making And in ular circumstances. (Emphasis added.) In where he is.” that the facts imperative assessment it is plain gun instant case the was observed standard; judged against objective by police view officers in the course of an at would the facts to the officer available stop.1 investigatory stop If was not a the moment of seizure or the search police power, lawful exercise of then the ‘warrant a man of reasonable caution object plain seen in view should been ap- the belief’ that action taken was suppressed. propriate?” 392 U.S. at case about a this information 21-22, 88 at 1880. criminal act came to the Sheriff’s attention possible specific at a it was to obtain articulable circum time when justified investigatory magistrate’s approval to search or arrest stance which However, police exclusively tip of an solely the form of a warrant. trial required shrug It therefore behooved the officers are not informant. its permit crime to occur and court examine this information shoulders and source to if it would “warrant man escape, even when see criminals separately search for he would not have cars 1. The Sheriff testified that car, converged occupants when she was found Ebarb or the other allowed Mrs. occupants been of one of the cars. the car to leave once had proached. officers also had driven two provided him with information caution in the belief” that had reasonable with circum This combined other investiga- past. taking place crime reliability give “enough indicia of stances to justified. tory stop suppression At the stop of Wil justify the officer’s forcible hearing testimony the infor- only about Adams, at liams.” cross-ex- mant was Maddox on State, Tex.Cr.App., 549 1923-24. Milton amination: investigatory de involved “A. All had right. I information of an on the basis tention of individual pills she had some in the car that she been tip. The information had informant’s kids, some and that trying to sell to in known reliable received “from a definitely had a revolver in the given previously who informa former her. narcotic violations.” tion to the about “Q. And who was this information po told pointed We out that the informer from? per the had heroin on his suspect lice that get “A. I will to informa- have that tinfoil, person that had packaged son he my must be tested Fourth Amend- sitting. seat near where she had been She general proscription against un- ment’s pistol. carrying convicted for this and reasonable searches seizures.” The majority points to no evidence assumed, In it from the out- Terry, was stop. the officers made a There is no evi- set, The “stop” reasonable. appellant dence that officer detained followup nub of the case was whether the any way. only thing stop in The about a In prеdicate. “frisk” had also a reasonable case is the statement made Terry, the Court wrote: stop. that will be majority it considered a case, however, “The crux of this is not Appellant’s son testified and did propriety He tak- testify stopped that the the car. of Officer McFadden’s officer gun ing suspi- steps investigate petitioner’s testified that the was in the car behavior, gun belonged rather, that the cious whether there but justification knew was in car. for McFadden’s invasion personal security by searching of Terry’s assumes that the sheriff weapons him in the course of that for right a had no to be on a near 23, U.S. 88 S.Ct. 1881. investigation.” 392 garage apartment. The sheriff suffi- cient to have the auto- information governmental permits interest which “stop frisk” mobile under the doctrine upon a citizen’s free- limited restraint 1868, 1, 88 U.S. accosting something more than mere dom— but York, (1968); 20 L.Ed.2d 889 Sibron New pre- than formal arrest —is less U.S. 88 S.Ct. This venting detecting crime. interest (1968). Baity v. In “stop.” Terry, is served the Court (Tex.Cr.App.1970). wrote: and ex- consider first the nature Terry, Supreme recognized “[W]e in- governmental tent interests

that, “stop” more limited in because the general is of course volved. One interest scope than an arrest and because prevention that of effective crime full scope more limited in than a “frisk” is detection; it is which under- search, actions, this interest though ‍​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‍not un- blown such recognition police lies the that a officer arbitrarily, may be dertaken reasonable may appropriate circumstances and contemplation of Fourth within the person appropriate approach sub- manner Upon рredicate Amendment. less Sgt. Md.App. 306 A.2d 587. investigating possibly purposes of for inchoate acting upon is no Baker was not ‘his though even criminal behavior suspicion unparticularized make an arrest.” probable cause to ’ point “hunch” but rather was ‘able stop was not a in the though there Even which, facts taken specific and articulable case, more reason to the officer had present inferences from with rational together in the appellant than there was stop the facts, reasonably those the] warranted infor- The officer had received Terry case. at 21- Terry, supra, intrusion.’ selling up- mation at 1880. and downers to children and that she pers occu- “Initially it is to noted that an pistol. had a subject to just automobile is pant of an though Even there was no frisk to a rеasonable ‘stop’ a reasonable present after the car was Adams v. Wil- pedestrian. ‘frisk’ as is a officers had a to “frisk” or look for a liams, weapon. weapon appel- seen when People v. And see L.Ed.2d 612 frisk was got lant out of the car. No Cassese, 1031, 263 N.Y.S.2d 47 Misc.2d opinion by A Jus- necessary. well-reasoned Sgt. Baker that when 734. We believe Moylan tice in Williams v. 19 Md. parking lot individuals on a spotted four (1973), App. 310 A.2d 593 involved night late at in an automobile In that case and frisk of motorist. recently description of one matched that a the officers had received information ‘shooting,’ he came nearby involved in a shooting had occurred an hour and a half ‘recognition Supreme Court’s within A the offi- police before. bulletin notified may appropriate that a cers to be оn the lookout for a “dark auto- man- appropriate and in an circumstances mag Acting mobile with chrome wheels.” purposes approach person ner information, on this an officer observed a investigating possibly criminal behavior mag chrome “black ’62 Chevrolet with probable cause to though even there is no sitting [Parking] Center wheels on Walter’s at 392 Terry, supra, make an arrest.’ to follow Lot.” The officer made a U-turn ‘stop’ The was U.S. stopped it. It devel- the automobile and and, therefore, constitutional.” reasonable oped any that neither the automobile nor of State, In 544 S.W.2d Crawford occupants its been involved in the had talking to (Tex.Cr.App.1976),an officer shooting at Chino’s. The Court wrote: committed suspect whom he believed had a unnecessary us to fаce the “It is for right He had no the crime of theft. Sgt. probable whether Baker had issue of stop her right He had a make an arrest. to search the automobile or had he had grabbing purse because probable any cause to arrest of its occu- pistol. a He informed that she carried been intimates pants, and our forbearance making weapon’s check justified in a nothing regards. enough in those It found in the pistol for and the purse similarity the car hold that the between search admissible. the car described in the and State, (Tex. ‘a rea- In Ablon v. 537 S.W.2d gave bulletin him at least probable the officers lacked Cr.App.1976), to believe’ suspicion’ sonable or ‘a reason had been in- They Ablon. occupants may its cause to and a person wearing activity.’ suspicious that a bеen ‘connected with criminal formed boots, jeans and a blue ample ‘stop’ cowboy the occu- hat This was reason to fenced green type shirt was in the to detain tank pants of the automobile and Later no one was at home. yard back when ‘briefly questioning’ for under them location saw Ablon near that 88 the officer 392 U.S. rationale that were wearing the clothes (1968), and and he was L.Ed.2d 889 call- description by person York, given in the v. New Sibron that he told the officer ing. When Ablon (1968). Gibbs 20 L.Ed.2d 917 there, right investigate did not live the officer asked for officers had a and this Court affirmed. The officers had more The asked Ablon to identification. officer case, present especially after step squad patted him down consent, to look into an than the automobile bulge weapon’s for search and noticed apartment officers did to look into the with- pants’ the bottle out pocket. his Ablon took out in the case. home consent Johnson The pills and the took it. It contained officer protection entitled to more the auto- than has a diazepam, which trade mobile. the Court held: name Valium. There majority opinion, followed, if would falling proba- short “Circumstances unreasonably legitimate investiga- curtail may justify arrest tem- ble cause for an tion of crimes. porary purposes of in- detention vestigation investigation an since is con- housing There were at least two units on upon the premises. sidered be a lesser intrusion opinion, Before this there personal security holding that officers could an individual than is go parking area or upon an arrest.” apаrtment complexes questions to ask cases, opinion many including That cited ask permission for to search. Baity v. (Tex.Cr.App. 455 S.W.2d 305 If it could be Fourth conceived 1970), Williams, and Adams v. violated, rights were those Amendment 32 L.Ed.2d 612 rights gave Mrs. were waived when Ebarb in the officer had less information Ablon As stat- consent for the officers to search. than case. present case he did before, ed no search. (Tex.Cr. In Greer v. (Tex. Sutton App.1976), saw automobile detective, talking after Cr.App.1975), wrong driven on the side of Seventh informer, apartment rented went to the possibly driving Street Austin When the detective Ellen Given. while An officer received a intoxicated. door, opened at the knocked Sutton any police for unit in that radio broadcast door invited in. asked if him When An “possible area that dwi.” there, anyone him thаt else was Sutton told description officer saw a car that fit that was in the room. The detective son Court, it. This boy through the door and saw a looked has been held held Fourth Amendment a .357 on the bed and saw require policemen precise not to who lack a table. detective knew that bedside necessary level information proper- the list stolen .357 shrug cause to their shoul- simply arrest ty. room exam- He went to the next or a ders and allow crime occur criminal identify ined able to it as escape, citing many authorities. The dummy the stolen. also found a one He occupant Court held that an of an also out or under plastic made wood just subject as to a brief automobile is gun another bed the room. This pedestrian. detention as is a complaining the witness as the identified robbery. one in a cited stolen does, assuming, Even has been many authorities that where one appellant present in the there was a trespassers are and have invited in not case, stop appel- a right officers view. right to seize articles investigation. Dodd v. lant an See right had no Beto, 1970). Even if officers (5th In John- 435 F.2d 868 Cir. present to be or on the case State, (Tex.Cr.App. son v. 469 581 S.W.2d lot, to a parking consented 1971), judge permitted evidence to trial consent, the saw After this sheriff search. where the officers went introduced Any right pistol. Fourth Amendment complex premises apartment of an was waived. and saw some through looked window goods. State, (Tex. stolen This was before warrant v. 447 S.W.2d 684 Barnett the officers judge Cr.App.1969), ‍​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‍The trial ruled that the issued.

849 majority in this Under decision to search They asked fоr consent arrest. Barnett informed that attache case in it. who has been car and an an officer legal. to be The search was held he does not consented. committed a crime to make probable cause have sufficient State, (Tex.Cr. 525 S.W.2d In Mann go up any questions cannot ask arrest anony by an tip provided App.1975), up to an automobile of a house or investigated and the door mous caller. The officers to him might wrote: talk occupant some evidence. The Court if obtained and ask an not if he does invited in a house telephone call did or ask to be anonymous “The an arrest or Amend- constitute cause for The Fourth probable cause. How- or his car. a search searches unreasonable only prohibits ment ever, prob- falling short of circumstances in this The officers’ conduct and seizures. may justify tem- able cause for an arrest unreasonable. case was not purposes of investi- porary detention for general rule years ago, few Until a is con- investigation gation, since substantially the was that the admission upon the be a lesser intrusion sidered to or another testimony by an accused same than is personal security of an individual error harmless. See makes witness State, Tex. Hernandez v. arrest. See State, (Tex.Cr.App. Hart v. S.W.2d 410; State, Brown v. Cr.App., 523 S.W.2d State, 1969). also Ehrman See (fn., page Tex.Cr.App., 481 S.W.2d (Tex.Cr.App.1979). S.W.2d 110), citing Terry v. 889; Baity gun be- Ebarb testified Robert State, Tex.Cr.App., 305. See it in put and that he longed to his mother York, 392 v. New Sibron at the time that it was there her car and 1889, 20 L.Ed.2d 917. it. the officers saw Broussard, upon re- Price and “Officers upon harmless nеcessary rely It is not call, anonymous justified ceiving the error in this case. proceed- initiating investigation by occupants fit-

ing to hunt for a car and officers; by the “stop” was no There description given phone. over the ting the until after or detention there was no arrest State, Tex.Cr.App., 509 George v. no search seen. There was gun 347; Tex.Cr. Onofre therefore, and, search no unreasonable 699; Moses v. App., 474 S.W.2d Fourth Amendment. seizure under the 116; Baity v. Tex.Cr.App., 464 S.W.2d judgment should be affirmed. fitting Upon locating a car supra. them, three description given Before the court en banc. whose vehicle had helping men another down, proper police work called broken FOR ON MOTION STATE’S investigation. for them to continue their REHEARING the car The officers were called to vehicle, sought injured who driver of the ROBERTS, Judgе. testified Price a ride to work. Officer car; did not search that the officers motion for granting the State’s After voluntarily papers were the identification panel’s ma- conclude that rehearing, we by appellant, who was handed to him entirely correct. jority opinion was The remainder under arrest. at the time proceedings, as summa- of the officers’ dissenting opinion under above, proper police work rized was no investi that there was panel would hold ” . . circumstances. . case because gatory stop in this “[t]he Arrest, Digest, ®=>631. the officers ar Texas already when distinct confuse two This would rived.” should many and others The Mann case “stop.” In the law meanings of the word majority; they should ignored by the not be “stop” means the term search and seizure or overruled. be followed “hаlt”; change a wrought. it refers to No in the law has been something other than investiga- type temporary opinion only things: detention for Our should curtail two “stop” put tion. constitu- its (and prose It deter officers should Ohio, Terry v. tional framework cutors, if is typical) this case from under 16, 1868, 1877, 20 L.Ed.2d 889 88 S.Ct. taking people on evidence which detain (1968): recognized when- “It must be that a would not man reasonable warrant police ever a officer accosts an individual the action taken caution the belief that away, his he and restrains freedom walk as Such seizures the one appropriate. person.” It not has ‘seized’ that matters not, in this case are and have not moving standing person whether the permitted by the Fourth Amendment him;1 police still when the officer accosted and Article United States Constitution then person what matters is that the 9, of the Texas Constitution. Section Thus, restrained in his freedom move. parked sitting when is in a person a the prosecu It should curtail police a him to roll down orders of a practice offering the fruits tors’ door, there is at that window or to proving first search and seizure without investigative point temporary seizure for proper were that search seizure Smith, “stop.” detention—a State under our constitutions. “stop” Ga.App. A S.E.2d infirmities af- One or both of these two is a full is a seizure that less intrusive than it this fected the evidence in arrest, pat just is a down for as “frisk” V.A.C.C.P., not should have been admitted. weapons than a search that less intrusive Article 38.23. no to do “stop” for evidence. A has more rehearing is over- The State’s motion for prior person’s with a motionlessness thаn ruled. prior “frisk” to do his friskiness. has with used ‘stop’ terms and ‘frisk’ are

“The referring CLINTON, Judge, concurring. ways herein as convenient practices, and use is distinct That his unit onto Sheriff Maddox drove suggest not the words intended six officers “more or and some more resolving difficult themselves aid in private appellant’s car less surrounded” concerning these constitutional issues driveway largely undisputed. Let us practices.” then, curtilage. ponder, the matter Seizure, 9.1(a) LaFave, W. & Sec. Search States, 389 v. United Since Katz n. 2. (1967) created 88 S.Ct. 19 L.Ed.2d soon appellant was detained as against warrantless elec- invisible shield car, approached while the as sheriff telephonic con- of one’s tronic surveillance posse impromptu other members of booth, we are wont public all versations in a detaining blocking Stewart, “the say, Mr. Justice United appellant’s son. See States protects people, Fourth Amendment Beck, 1979). (5th 602 F.2d Cir. Yet, telephone like Katz in places.”1 booth, person is still some where a has expressed con- There is For “unreasonably bearing expectation privacy. opinion will cern that lofty expression2 its notwithstanding own investigation of crimes.” legitimate curtail Generally, people. Terry supra, tection affords those itself demonstrates here, question requires ref- person “stopped,” for Ter- the answer motionless can States, ‘place’,” ry policeman moving erence to a Katz v. United when the supra, grabbed spun at at him and him around. “Officer and saw McFadden followed Chilton opinion example, near Mr. 2. For the end . them 392 U.S. at proclaims, “Wherеver a man Justice Stewart (emphasis supplied). be, may he will he is entitled to know that rejoinder unreasonable searches Justice remain free from from Mr. 1. Less familiar through- (All emphasis supplied however, question, ‍​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‍pro- seizures.” is what “The Harlan:

851 the side of the car up vehicle fussy itself is often Supreme from it alighting passenger, was a made arrest is whether a warrantless about “by so much as her without accosting v. place,” g., e. United States “public in a 1, 88 392 U.S. Terry v. your leave”? 820, 411, 46 Watson, 423 U.S. 96 S.Ct. addressed, (1968) 1868, 889 20 L.Ed.2d S.Ct. (1976), consequence of or as a L.Ed.2d 598 con- words, questions “serious in its own field,” v. “open Hester from an observations Amendment the Fourth cerning the role of 445, States, 57, 68 265 44 S.Ct. United U.S. the street between on in the confrontation Variance (1924) and Air Pollution L.Ed. 898 investigating policeman and the citizen Corp., 416 U.S. v. Western Alfalfa Board circumstances,” 4, at 88 S.Ct. id. suspicious 861, 2114, (1974), or 40 L.Ed.2d 607 94 S.Ct. progeny sup- 1871,3 it nor its so neither at street, parking public on a in a a seizure is law enforcement proposition ports areas, M. G. space or about other private onto to come privileged officer is States, Leasing Corp. v. United 429 U.S. amorphous strength of an property on the 619, (1977). 338, 50 L.Ed.2d 530 97 S.Ct. person at- report an unremembered from State, 110 Tex. part from Wolf v. For its If, now are event.4 as we tending a festive 124, (1928) through Cr.R. 9 350 S.W.2d York,-U.S. New by Payton v. permitted State, 288, 12 Worth v. 111 Tex.Cr.R. 1371, -, L.Ed.2d 639 100 63 S.Ct. (1928) 557 582 to Cantu S.W.2d confidence, policeman (1980) to state this Court (Tex.Cr.App.1977) 107 S.W.2d making a warrantless prohibited of a regarded “curtilage” descriptive has into a home entry and nonconsensual Thus, though concept protected area. felony arrest5 to make a routine order “constitutiоnally protected may areas” being within no business —perforce, he has every not “serve as a talismanic solution to purpose6 curtilage for that forbidden its Katz, supra, problem,” Fourth Amendment say —surely it is anomalous 9, 351, 9,n. at 511 n. 389 U.S. at 88 S.Ct. protection less than full citizen is afforded resolving surely may ignored not be governmen- arbitrary by invasions “against them. Court, officials,” Municipal tal Camara then, 1727, 1730, By right, power authority, 523, 528, what 18 87 387 U.S. S.Ct. en- curtilage (1967), policeman when the penetrate did Maddox curtilage with less than driving his motor ters his of the residence here in reputation appellant. by ly general opinion other- on the out the writer of this unless 410, 416, States, indicated.) Spinelli U.S. v. United wise 589, 584, (1969). 21 L.Ed.2d 637 York, 40, In Sibron v. New 392 U.S. 1889, (1968) ob- 20 L.Ed.2d 917 the officer clearly by the Court 5. A matter not so stated public places step but had him served Sibron rehearing in Moore v. on motion for cоnfrontation; Peters was outside for the prehended Tex.Cr.R. true, apartment building, it is in an by but an officer who resided there and saw by analysis employed the Court A similar apart- suspicious movements from his own Taylor rehearing 120 Tex. ment, and incident to a lawful arrest searched 459,461 (1932) in which it Cr.R. Williams, Peters; in Adams was written: (1972) 32 L.Ed.2d 612 however, If, yard they were in his . . in the front seat of a car was taken from one unlawfully street; Pennsyl- the time discovered parked public Mimms in on a offense, Mimms, of the of the the arrest commission vania v. get can- (1977) the search of his residence out of was directed to L.Ed.2d 331 guilt upheld, of his not be and the evidence motor vehicle after it had his entry illegal into his violation. obtained virtue of an a traffic yard would be inadmissible opinion original panel submission 4. As the But, finding officers were armed with just suggests, not reveal Sheriff Mаddox did warrant, Tay- the Court concluded search information. informant came how his complain position not in a lor “was reception activity Thus, tip did not describe criminal was obtained of evidence which to know the trial court in sufficient detail for through legal entry curtilage virtue something report more substantial warrant .” of a search mere- rumor or accusation based than a casual 852 constitutionally protected questing enough for a area

cause to arrest still vaded but appellant.10 doors remain to do so. A lawman to whom confront produces closed until he an arrest warrant7 join I ground in over- On additional authorized to take the must be otherwise Rehearing. ruling the Motion for State’s way the of with- step public first off greater is or out one.8 It not a matter of DOUGLAS, dissenting. Judge, competing weighing lesser in- intrusion jumbo legalistic mumbo No amount terests, judgmental calls often made the change to show that officers can the facts Supreme making Court Fourth Amend- already the when law, existing understanding but an ment son Her stopped before arrived. In Pay- common law.9 constitutional riding the in which she car ton, Supreme the finds that supra, Court signal order any without own accord Fourth “has drawn a firm line Amendment officer. part the of an house;” Texas, at the the entrance only there could have been way boundary curtilage. is the bar the posse stop by the officers was that led the Sheriff in- comitatus inclosing Supreme imaginary Payton, supra, the real or structure 7. In the Court conclud- “the land,” (Rev. Dictionary Fourth ed: Black’s Law 1675; Ed.) Trespass 219. 2 Waterman on “. It is that arrest true an warrant extinct, Thоugh requirement law forms are that may protection common afford less than peace may brought against requirement, officer action a fice search warrant but will suf- or, actually person, trespass interpose magistrate’s the if he seizes determina- for probable imprisonment been the rule tion of cause between zealous for false has Lord, If Tex. and the there is sufficient since v. 59 citizen. Texas at least Hubbard is, Kimball, participation (1883) Moody of a in a felo- evidence citizen’s v. 173 384 still ny persuade judicial 270, (Tex.Civ.App.1943) officer that his ar- a it is no 274-275 S.W.2d constitutionally justified, reasona- history. policeman rest is ble one is a writ The fact that require open his doors to the trespasser him into not make him less a does Thus, Amend- 469, officers of the law. for Fourth Ross, curtilage. Peoplе Cal.App. 19 purposes, arrest founded on ment probable warrant (1912); Eyre, 1 P. 375 Commonwealth v. 126 implicitly cause with it the carries (Pa.); Chaplain Serg. & R. 347 Clannan v. cf. dwelling authority in which limited the to enter (1923). 136 Va. 116 S.E. 499 suspect when is reason to lives suspect believe within.” exception” to the constitu ‍​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‍10.The “automobile requirement be obtained tional that a warrant proposition A 8. considered so fundamental States, first enunciated Carroll United (Tex.Cr. was Delaporte v. 856 (1925). 69 L.Ed. 543 App.1971) authority that without citation of exception, Mr. Justice White apartment The core as held invalid arrest outside an painstakingly explained “[tjhere testimony v. Maro in Chambers show because 42, 48-51, 1975, 1980, pushed ney, prior Keeton U.S. 419 time Officer (1970), preexisting probable apartment door either of the officers being pres seizing saw committed in officer to believe that a crime stops of a “distur ence” nor there evidence automobile he offend contents against Carroll, purportedly brought law, supra, bance” place, them to the 267 U.S. 155- 14.04, 14.01, 285-286, 156, 158-159, 14.03 and id. See Articles Com 45 S.Ct. at authority statutory general States, for a a pare V.A.C.C.P. Scher United by peace Here, officer without warrantless arrest verbal order from a while L.Ed. magistrate pursuant its views to has not communicated State 14.02, id. is state law and “[I]t Article brief, through clear the record makes governs legality of a state federal law arrest so not con that in the court below the State did long that law not violate does appel approached Sheriff Maddox the cause, tend against protections un federal constitutional requisite probablе but lant’s seizures,” Milton reasonable searches on its under sustained seizure 1977). (Tex.Cr.App. standing “plain doctrine. view” panel opinion original submission demon exclusionary remedy for rule one Prior to clearly with that Sheriff Maddox was strates damage wrongful trespass, Payton at-, action for arrest was a civil Thus, ap preexisting cause. out pellant York, supra,-U.S. v. New when were still in others 1383. The common law 100 S.Ct. at officers them does invoke accosted trespass fregit quare action is clausum —“tres- exception. automobile Carroll close,” pass close broke the wherefore he Further, it any if there were error was any says stop there was a without factual son testi- says appellant’s made harmless when majority Then there basis. after the gun belonged appellant through fied аppellant, was a some of by when was was the car it seen reasoning, they discuss two strange sort of This is also discussed in dis- officers. stop. kinds of original submission. senting opinion on ignores the majority The record good was What the officers did search, no shows that there no commended, not crit- They should work. appellant. of pat down and frisk searches sei- Only unreasonable icized. basis of this pistol The which formed the Constitutions of prohibited zures are prosecution appellant opened seen after was no and Texas. There the United States The gave consent to a search. door and in this case. unreasonable search seizure pistol on officers did search but saw the from mak- should not be deterred Officers car the seat where investigations to deter the com- ing рroper been seated. mission of crimes. until stop, There was no halt or arrest illogical opinion on rehear- key The pistol. pistol The after the sheriff saw the ing quoted follows: “The as illegal was not seized an arrest or ap- the sheriff was detained as soon as illegal stop, There sort of real fancied. majority . .” The proached car illegal was no detention. opinion says the officers blocked majority panel opinion held The riding she had been from leav- car which as a officers obtained the the occu- ing. shows that The evidence investigatory ques- The stop. result of in the car. pants trying were not to leave stopped appellant? tion is who The answer process leaving the car They were in the stopped that her son the car in which gо apartment. garage into the riding. Let us look to the facts by what This case should be controlled validity determine the of the officers ob- did, they might not what the officers taining the pistol. done later. appel- Officers received information rehearing The should be downers, motion for selling pills, uppers lant was be af- granted judgment should and the pistol. to children and that she had a Sher- firmed. that, looking iff Maddox testified after car, got he never within half block of DAVIS, J., joins in dissent. W. C. driveway garage

it until it at up apartment and he drove to the side DALLY, dissenting. Judge, the car and asked if he could search. She panel quote the I facts stated said, “Certainly.” He made no search but majority: opinion of the saw seat where she had on the County of Austin “Sheriff Maddox sitting. Sealy Firemen’s Frolic the annual rehearing writes that the told Winnie when someone him that dissenting panel opinion in the confused carrying in her car some ille- Ebarb was ‘stop’ word ”. meanings “two distinct handgun. He gal pills and several and a meanings? If is a What are the two one Sealy and the deputies, policemen, detention, halt where is and the other is a Attorney, who were also local District in this either shown case? Frolic, departed in two cars attending driving detention, After suffi- search Mrs. Ebarb. If there was a Sealy spot- for awhile cient reason shown in the record for around until it and followed investigate reported carry- ted the Sheriff officer to one stopped. ing selling pills pulled driveway into to children. that of Mrs. Ebarb’s son panel opinion discuss- See the dissent staying. The con- ing investigate. where she was officer to Ebarb, daughter- Mrs. her son I agree tained cannot the majority are companions properly in-law. The and his well-known applying Sheriff law stat- case; therefore, the search cars and went ed to the facts of this I Mrs. Ebarb’s car. must dissent. proached passenger side where Mrs. sitting, identified himself

Ebarb was DAVIS, DAVIS, JJ., TOM G. and W. C. if he could search the car. asked She join in this dissent. ‘Well, certainly’

replied and exited the doing light she was so car. As the dome pistol and revealed a came on on front seat of the car. The car was drugs searched and no were found. The pistol prosecu- was used in the instant

tion.” stopped

None of the officers nor detained KNOWLES, Petitioner, appellant spot- car was Brian Thomas —“. ted by the and Sheriff followed until pulled stopped.” into the SCOFIELD, Judge, Honorable 158th Bob simply support finding not record does Court, County, Judicial District Denton any the Sheriff the officers Texas, Respondent. appellant or detained or her stopped voluntarily by son. No. 64432. The car appellant’s son near his apartment. Texas, Appeals of Criminal officers, and the other as would Sheriff En Banc. citizen, any other had to be where were; they they violating what law were April they where were? When the car door Rehearing Denied June appellant was opened either or her light son the dome came on Sheriff open another officer saw

view the seat. The was observed without a ob- recovered search. After view serving the the officers perfect right appellant to arrest occupants of the car. other officers did automobile passenger. which They good judgment used waited until voluntarily; automobile was question

thеn the asked a question. asked a If the citizen could have appellant ‍​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‍and her son had remained seated and if the the automobile request

refused the Sheriff’s to search automobile, perfect right had a do, many questions may different depending action then raised However, appeal taken the officers. facts decided on the in the record should be might questions have been in different circumstances. raised tion. I don’t have of notes it— suspect’s posses observed in the ally heroin anything I with me. I sure don’t have. hours, sion within the last 24 it, get I don’t with me can but have it was with heroin and nar informer familiar today.” This information paraphernalia. cotics inquire was not to Defense counsel allowed considered from an informant the officer identity. further into the informant’s cir and articulablе specific reliable was informant, “Q. gotten This you justify have to the initial cumstance sufficient suspect. investigatory stop information this before? informant States, Draper v. U.S. United Yes, got “A. we some information. In the “Q. that you Have made an arrest on it case court had before present the trial information? had only testimony the the Sheriff myself. “A. I haven’t whose gotten information from someone times, know, “Q. How many you if who had name he didn’t remember and you gotten this information from There given past.2 some information informant? the testimony was no which would enable you “A. I be able give wouldn’t to the reliability to the of trial court evaluate answer. information. That informant the “Q. you Is it because don’t recall?” tip was and since the informant’s the objections, inquiry by The was then cut off justification which only stop the sustained, infоrmant the plain viewing gun, we the allowed gun was irrelevant because the had been evidence find that there was insufficient plain found view. circumstances specific articulable found as justify stop and that The was inad testimony Sheriff’s sup been stop result of that should have the relia equate make an evaluation of gun As pressed. essential bility of the informant or the information say charged, we cannot the error crime based. Adams v. stop on which the In harmless. Williams, supra, Supreme the U.S. judgment reversed and the The one, clearly parallels this case which most remanded. sitting person that a police officer was told drugs and a parking in a car in lot DOUGLAS, Judge, dissenting. justified pistol with him. The information Even investigation police The this case arrest. officer. to a gave consent personally though to him informant was known ability Revealing to an to vouch relevant evaluation not neces- an informant’s name is reliability. sary reliability. show fact that informant’s however, is, Sheriff did not know his name search, “probable cause”, there was no search. stantial than made though holds that even the officers did it clear the “stop and frisk” rationale in which the judged automobile was to the warrant clause riding, stop. Amendment, will be considered as a of the Fourth but rather already stopped when the offi- car It said reasonableness clause. at 392 cers arrived. There was no detention of 20, at 88 1879: appellat until after officers saw police “If this case involved conduct of the car seat where she subject to the Warrant Clause of the sitting. Amendment, Fourth we would have ‘probable asсertain whether cause’ exist- receiving After information that the justify ed to the search and seizure which pellant selling pills, uppers and down- However, place. took not the ers, pistol, children and that she had a * * * case. here deal [W]e the officers began to look for her. Sheriff rubric entire conduct—necessari- got Maddox testified that he never within a ly upon swift the on- predicated action half in a block until it the-spot observations the officer on garage apartment he been, historically beat—which has not up drove asked if the side be, practical and as a matter could not said, Appellant he could search. “Certain- subjected procedure. warrant In- ly.” got He made but as out no search stead, case the conduct involved the car saw the the front

Case Details

Case Name: Ebarb v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 28, 1980

Citation: 598 S.W.2d 842

Docket Number: 56747

Court Abbreviation: Tex. Crim. App.