Williе Lee FAULK, Appellant, v. The STATE of Texas, Appellee.
No. 54141.
Court of Criminal Appeals of Texas, Panel No. 3.
Nov. 29, 1978.
Rehearing En Banc Denied Jan. 10, 1979.
574 S.W.2d 764
I would hold that Roger Duncan‘s sworn statements contained in his search warrant affidavit (set out in the majority opinion) were sufficient to show that the unidentified informant “helped set up the criminal occurrence and played a prominent part in it.” James v. State, supra, 493 S.W.2d at 202. It is not significant that the appellant did not raise an entrapment defense at trial. See James, supra, 493 S.W.2d at 203, 206 (dissenting opinions).5
For the reasons stated, I would reverse and remand.
John J. C. O‘Shea, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., and B. Jаckson Jones, Jr., Asst. Dist. Atty., Lubbock, for the State.
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
OPINION
PHILLIPS, Judge.
This is an appeal from a conviction for the offense of aggravated robbery. Upon his plea of not guilty before a jury, the appellant was found guilty and his punishment was assessed by the jury at confinement for a period of seven years.
In appellant‘s Ground of Error No. 1 he complains that the trial court erred in failing to grant his motion to suppress certain evidencе which he alleges was obtained as a result of an unlawful search and seizure.
On July 19, 1975, an armed robbery occurred at a Seven-Eleven convenience store located near the intersection of 49th Street and Memphis Avenue in Lubbock, Texas. After the victim released herself from the cold storage vault, she called the police and told them that she had just been robbed by a young black male wearing a multicolored shirt. No further description was given according to her testimony at the motion to suppress hearing. She testified that while in the cold storage vault she observed the robber exit the store and run to the south, which happened to be in the direction of 50th Street. It should also be noted that it was also probably in the direction of 51st Street, 52nd Street, 53rd Street, and every other consecutively numbered street to the south. However, 50th Street has been emphasized since it is a six-lane thoroughfare that connects east and west Lubbock. It also appears that a large segment of the black community in Lubbock lives in east
Although appellant‘s first ground of error is couched in terms of both an unreasonable and illegal search and seizure and a search and seizure of excessive scope, the discussion and arguments under that ground of error are sufficient to identify the issues for this Court to pass upon. See
“. . . Probable cause for an officer to detain a person temporarily for investigative purposes exists where the circumstances reasonably indicate that that particular person either has or is preparing to commit a crime. [Footnote and citations omitted.]
“The inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause under any of the three above named classes. [Citations omitted.] For ‘[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ Beck v. Ohio, [379 U.S. 89, 85 S.Ct. 223, 11 L.Ed.2d 604 (1964)].”
Brown v. State, supra, is instructive also in determining the appropriate disposition of the instant case, besides the general propositions of law set forth therein. In that case, it was known that a robbery was committed by three armed men who escaped on foot; that the men were described by race and аpproximate size; that they were observed 24 hours later riding in an automobile; that they looked at the police officer; that they were observed at 1:30 a. m. on a poorly lighted and sparsely travelled street; and that two of the individuals made “furtive gestures” by moving their shoulders while observing the police officer. This Court noted that the fact that they were in an automobile was of no value in determining whether probаble cause existed. As in this case, there was no testimony as to what type of car the armed robbers might have used or whether they used one at all. The Court resolved the question to this:
“Thus, we must first determine whether the general description of the armed robbers coupled with the movements of Ellis and Nezey would lead a reasonable and prudent man to believe that the appellants were the armed robbers.”1
As mentioned in Brown v. State, supra, аnd of equal applicability to the case at hand, “[T]he description of the robbers contained no identifiable characteristics which would serve to distinguish them from the general populace[,]” and the “furtive gestures” of the two individuals who were looking at the police officer could not operate to “transform” the investigating officer‘s “vague suspicion . . . ‘into probable cause for arrest‘” sincе such movement was ” ‘ambiguous conduct which the arresting officers themselves have provoked.‘” Id. at 111, quoting from Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
It is abundantly clear that in the case at hand the police officer who stopped appellant had only one fact to connect the appellant to the armed robbery—that he was a young black male. Nowhere in the record does it disclose that the police officer observed thе appellant wearing a multicolored shirt before he ordered him to exit his vehicle. Further, the so-called “furtive gestures” are as consistent with innocent activity as anything else. Also, his bending over could have resulted in the slight increase in speed of the vehicle and it is noted that the police officer stated that he observed no traffic offenses. Finally, such so-called “furtive gestures” do not bear with them the indicia of a guilty mens rea as they would had the stopping police officer been occupying a marked police vehicle. In this case, it was an unmarked police vehicle.
The only question left is whether the close temporal proximity of the armed robbery and Brackeen‘s observation of the appellant in his automobile constituted a circumstance which pointed to the appellant as the robber. In Brown v. State, supra, the police officer made his observations 24 hours after the armed robbery. In the instant case, the appellant was stopped within a very short time of the robbery. We do not believe that this fact alone contributes anything to an officer‘s determination of
As was stated by this Court on rehearing in Armstrong v. State, 550 S.W.2d 25, 30-31:
“While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the аctivity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. * * * There must be reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indiсation that the activity is related to crime. [Citations omitted.] Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.”
This Court has consistently held that the fruits of a search do not justify the initial stop or arrest. Brown v. State, supra.
Neither are there grounds for a stopping of the appellant‘s vehicle under
Thus, there being no probable cause for the stopping of appellant‘s vehicle, the trial court erred in failing to grant appellant‘s motion to suppress the evidence seized pursuant to the unlawful stoр. See
Since we cannot conclude that the use of this illegally seized evidence was harmless beyond a reasonable doubt, the judgment is reversed and the cause remanded.
VOLLERS, Judge, dissenting.
The majority passes upon the question presented in this case on the mistaken assumption that Officer Brackeen must have “probable cause” to arrest the appellant at the time he was initially stopped. This approach by the majority completely overlooks many cases decided by this Court holding that circumstances falling short of probable cause for arrest may justify a temporary detention for the purpose of investigation, since investigation is a lesser intrusion than an arrest. Coleman v. State, 500 S.W.2d 472; Ablon v. State, 537 S.W.2d 267; George v. State, 509 S.W.2d 347; Baity v. State, 455 S.W.2d 305.
I will agree that the information possessed by Officer Brackeen at the time he stopped appellant did not amount to probable cause. However, it was shown that he was aware that a 7-11 convenience store, located near the intersection of 49th Street and Memphis Avenue in Lubbock, Texas, had been the location of an armed robbery by a young black male wearing a multicolored shirt. He was aware that this location was near 50th Street, which was a six-lane thoroughfare that connects east and west Lubbock. He was also aware that a large segment of the black community in Lubbock lives in East Lubbock and the location of this robbery was in West Lubbock. As Officer Brackeen was traveling toward the location of the robbery, approximately one-half mile from that location, he observed a vehicle heading east on 50th Street occupied by a young black male. At this point Officer Brackeen made a u-turn and observed the automobile driven by the young black male speed up slightly. At this point, appellant leaned forward and to the right as he was driving his vehicle and reduced his
It is well settled that circumstances falling short of constituting probable cause for arrest may nevertheless justify a temporary detention for the purposes of investigation. White v. State (No. 57,667, delivered June 14, 1978); Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). The standard applied in determining the reasonableness of such a stop under the Fourth Amendment has been held to be the existence of specific and articulable facts along with reasonable inferences therefrom which, in light of the experience and general knowledge of the officer, reasonably warrant such an intrusion. White v. State, supra; Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976) (opinion of Onion, P. J., on Motion for Rehearing); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Terry v. Ohio, supra. It has been held that in order to satisfy this standard it must be shown that the police officer had a reasonable suspicion that some activity out of the ordinary had occurred; that there was some suggestion to connect the person detained with said unusual activity; and that the alleged unusual activity was criminal in nature. White v. State, supra; Shaffer v. State, supra; Armstrong v. State, supra. Furthermore, a weapons search incident to such a stop limited in scope to the purpose of allowing the officer to pursue his investigation without fear of violence is justified where the officer has reason to believe that the subject of the detention is armed and presently dangerous. Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Terry v. Ohio, supra.
In the instant case, Officer Brackeen was acting on the basis of the following specific facts, of which he had reasonably trustworthy information: (1) there had been an armed robbery in close proximity to his location (within six blocks); (2) the robbеry had occurred within five minutes of his decision to stop this suspect; (3) the suspect in the robbery was described as a young black male, the subject of this stop was a young black male; (4) when he swung around to follow this car, the driver speeded up slightly and then made a furtive gesture, as if hiding something under the seat; (5) the subject was proceeding eastbound on 50th Street and could have been coming more or less directly from the scene of the crime; (6) the section of town in which the robbery occurred was predominantly white, while the robber was black; and (7) 50th Street was a major east-west thoroughfare connecting the predominantly white with the predominantly black sections of town—the most direct route between the scene of the crime and east Lubbock. In the category of reasonable inferences from the facts, in light of the officer‘s (six years‘) experience and general knowledge are the following: (1) that the robber would probably be traveling by auto, although no report to that effect had been received; (2) that the robbery might very well be travelling eastbound on 50th Street, based on the fact that that street is a major east-west thoroughfare and the robber was black and the robbery occurred in the predominantly white section of tоwn, not more than a block off of 50th Street.
These facts and inferences are sufficient to warrant a reasonble man in making an
In Wood v. State, supra, this Court upheld the search under the seat of an automobile as a limited weapons search in spite of the fact that the subjects of the stop were outside of the car at the time of the search. This Court said:
“The officer then searched under the seats of the Ford automobile, which appeared to be within four or six feet from the appellant and his companion. The record does not reflect that the same was a general exploratory search, but one limited to a search for weapons for the officer‘s protection. The area which police may search for potential weapons in frisk situations is the same as that area which the police may search when making a search incident to a lawful arrest, and is the area within the lunge, grasp or reach of the suspect or suspects.”
In the instant case, the record reflects that appellant was standing just outside of his vehicle when the officer reached in under the dashboard, to a place toward which he had seen the appellant make a furtive gesture. In that place, underneath the dashboard on the driver‘s side, he located a loaded pistol, which was cocked. The other items seized were also retrieved from an area toward which this officer had seen the appellant make a furtive gesture. The discovery and seizure of the pistol, the money and money bag and the hat were in the course of a search reasonably limited in scope to enable the officers to proceed with
their investigation without fear of violence. Hooper v. State, supra; Wood v. State, supra; Brown v. State, supra; Terry v. Ohio, supra; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
This case is more similar on its facts to Hooper v. State, supra, although it is conceded that there the facts are stronger. That case involved a 7-11 robbery in Lubbock, Texas, as well. Also, the suspects were stopped in that case by officers who had set up surveillance along the route which it was believed that the robbers, identified as black, would travel from the predominantly white to the predominantly black section of town. Shining a light into the car, the officers noticed that the passenger fit the general description they had received over the radio. Unlike the instant case, the car continued down the highway for approximately one mile before yielding to the officers’ flashing red lights. The defendants were stopped within 18 minutes of the robbery in Hooper. True, in Hooper, the defendant was described somewhat more particularly than in the instant сase (six-foot to six-foot-two inches, black male, black leather coat or jacket, approximately 180 pounds). It is also true that a police unit had given chase to an automobile spotted in the area shortly after the robbery and had lost the car on a street connecting with the highway on which the defendants were ultimately stopped whereas in the instant case there was no direct informаtion that the suspect was in a car at all. However, I do not feel that the distinctions between the two cases are sufficiently strong to call for different results. The description in the Hooper case is not significantly more detailed than that given in the instant case. And, although there was a chase of some nature before the ultimate stop in the Hooper case, it was never clear that the vehicle chased was the same as the vehicle stopped, nor was there any solid
Since the officer properly made an investigatory stop, I dissent to the reversal of this cause.
VOLLERS
Judge