*2 DOUGLAS, and W. C. Before PHILLIPS DAVIS, JJ.
OPINION DOUGLAS, Judge. appeal
This is from a conviction for offense possession of heroin. Punish- ment, felony prior convic- enhanced one tion, jury twenty assessed years. sufficiency of the evidence challenged. Appellant that an incrimi- first contends nating oral which was made statement was the fruit of him and at trial introduced therefore inadmissi- an unlawful arrest and ble. apart-
On November surveillance City ment in Texas was under At Fleming. by police officer Frank time, burglary suspected of m., p. At 4:00 trafficking in narcotics. apartment with Viola left his McComb, Ellis. The Joyce Larry Ellis car to Woolco four drove in department inside. Officer store and went followed, parking Fleming lot waited to assist and radioed to Deril Oliver Officer appellant exit the him. Both saw hand, store with something alone in his some stuff there.” He related that look around him and walk to the ear. He drove linen would find heroin the bathroom the car store entrance where he closet and further stated that heroin stopped and continued to look around. Vio- belonged McComb to him and not to Viola McComb, la Larry Joyce Ellis and Ellis living. Appellant with whom he had been emerged from the All store next. had ob- Fleming requested that Officers and Oliver *3 jects in their continually hands and looked charge possession not McComb with of her- manner; suspicious over their shoulders in a oin, request agreed. A they to which Larry appeared Ellis telling Joyce to be produced appellant’s apartment search of hurry up Ellis to get and into the ear. plastic con- syringes two and a red balloon taining which found in the
On
heroin
were
cross-examination Officer Oliver testi-
precise spot
fied:
where
bathroom
police they
lant
had been hidden.
told
all,
by
“First
when
went
Hamel
him-
alone,
self,
took the
out of
park-
car
Fleming
at the time
Officer
testified that
ing lot, put
up
entrance;
to the main
stop appellant’s
he radioed
Oliver to
Officer
subsequently Viola
hurry,
came out in a
he
that
had
car
had no evidence
looking over her shoulder.
felony upon
peace
committed a
or
breach
later,
“Just a minute or two
the other
which he
have obtained
warrant.
could
parties
too,
two
They,
came out.
rushed
reason, appellant
For this
his ar-
contends
automobile,
too,
they,
acted as if
upon probable
rest was
made
cause and
not
they
looking
were
over their shoulder to
by
incriminating
that
statement made
anyone
see if
coming
was
after
them.
him
thereafter
inadmissible.
something
“We felt
occurred in the
store but we didn’t know what. We had
previously
While
Court has
pretty good
idea.”
hunch, suspicion,
held that
the inarticulate
good
or
of an officer will
consti
faith
request
At the
Fleming, appel-
of Officer
arrest,
probable
search or
tute
cause for
stopped
lant’s car was
by Officer Oliver’s
detention,
State,
309
Talbert v.
489 S.W.2d
patrol
marked
unit on
Highway.
Palmer
considerably more than
(Tex.Cr.App.1973)
Officer
appellant’s
Oliver testified that
car
stopped
present
because
an inarticulate hunch existed in
thought
the officers
that
there was a possibility
apartment
case.
had been
Appellant’s
four
were shoplifting. On the
console
of time
period
front
and watched
a considerable
for
rear
arresting
floorboard
tips
officers found nu-
acting upon informant’s
new,
merous
small
price
items with Woolco
negotiated
were
in
drug
being
sales
them;
not,
tags
they
however,
convictions
Appellant
previous
side.
had
bags
they
bought.
as if
had been
The four
heroin,
selling
burglary,
for
and was
were then
shoplifting.
arrested for
Fleming and Oli
further known to Officers
subject
burglary
ver as
of numerous
Appellant was
City
taken before Texas
Appellant’s
as a
investigations.
behavior
Justice of the
Bishop
given
Peace
and
“wheel
in front
Woolco store
man”
statutory warnings
stated
which he
he un-
hurried,
suspicious,
as was the
nervous
Following
derstood.
his
admonishment
and
behavior
and his
watchful
the magistrate appellant
was informed
companions,
into the
all
whom went
apartment
officers that his
had been
emerged carrying
empty
store
handed but
under surveillance
they suspected
and that
circumstances,
objects
hands.
that it
in their
Such
contained
prop-
narcotics
stolen
cause,
erty.
probable
while
never
Appellant agreed
sign
falling short
a consent to
justified
temporary
search
theless
but was not
Officer Oliver’s
induced to do so by
threats, coercion,
Mann v.
physical
detention of
car.
any
abuse of
State,
signing
search,
(Tex.Cr.App.1975);
kind. After
S.W.2d
Baity
stated to
cert. denied
going
officers: “You’re
455 S.W.2d
anyhow.
you
find it
tell
L.Ed.2d 158
will
there’s
(Tex.Cr.
414 S.W.2d
detaining appellant and his Pearson
(1970).1 Upon
Fleming
passengers,
Officers Oliver
App.1967).
view,
saw,
plain
the car in
new
lying in
of the admission
complains
also
He
price tags
had
merchandise which
Woolco
the same reasons
heroin into evidence
they
in bags
but which were not
would
already
have
de-
We
previously advanced.
normally
purchased.
if
be
had been
was lawful.
arrest
termined
point
empowered
the officers were
At this
search
in the consensual
heroin found
pur-
to arrest
without a warrant
inad-
was not tainted
apartment
of his
14.03, V.A.C.C.P.,
to Article
which
suant
evidence.
missible
provides:
arrest,
“Any peace
may
officer
without
court
argues that the
Appellant next
warrant,
persons
suspicious
found
and his
admitting both the heroin
erred in
places
which
and under circumstances
grounds
evidence on
oral confession into
*4
reasonably
persons
show that such
have
was not voluntar
to search
that the consent
guilty
felony
been
or
some
breach
rather,
but,
promise
induced
a
ily given
threaten,
peace,
or
are
to
or
about
posses
charge
Viola McComb
not
against
commit some offense
the laws.
sion of heroin.
Fleming
that Officers
The record reflects
pursuant
Warrantless arrests
to Article 14.-
possession
a
promised not to file
and Oliver
comparable
03 under circumstances
to those
appel-
after
Viola McComb
charge against
present
approved by
case have been
already been
had
lant’s consent
to search
State,
this Court in Castillo v.
494 S.W.2d
preceded the offi-
executed. Such
State,
(Tex.Cr.App.1973);
844
Kwant v.
472
response
given in
promise and was not
cers’
Baity
(Tex.Cr.App.1971);
S.W.2d 781
v.
mental
physical
any
to it or to
kind
State,
State,
supra; Alaniz v.
458 S.W.2d
lawfully
evidence was
coercion. The
State,
(Tex.Cr.App.1970);
813
v.
and Stuart
obtained;
is shown.
no error
447
(Tex.Cr.App.1969).
S.W.2d 923
conviction
complains that his
Hamel next
appellant’s
We
de
conclude that
ap-
his and
reversed because of
should be
tention and arrest without a warrant were
in
to waive
failure
pointed defense counsel’s
been,
proper. Even if it had not
that fact
period
preparation
writing
day
the ten
trial
alone would not render
oral
26.04(b), V.A.C.C.P.
required by Article
as
statement
inadmissible
absent
causal con
April
appointed on
Counsel was
nection between the arrest and the confes
April
on
case was tried
and the instant
State,
(Tex.
sion. Jurek v.
522
934
S.W.2d
that de-
actually reflects
1976. The record
Cr.App.1975);
State,
Brantley v.
522 S.W.2d
originally retained
fense counsel
(Tex.Cr.App.1975).
present
519
In the
case
that he
January
1976 and
in
shoplifting.
was arrested for
Af
in a re-
represent appellant
continued to
being properly
ter
rights,
informed of his
when
April 19
capacity until
tained
however,
freely
voluntarily
he
and
admitted
Although
pauper’s oath.
executed a
lant
heroin,
possessing
an unrelated offense.
seems
point,
this
the record
ambiguous on
His oral admission led officers to fruits of
appointed
trial court
to indicate that
Where,
case,
the crime.
inas
this
the re
as
counsel to continue
38.22, V.A.C.C.P.,
defense
quirements
are
of Article
appellant and
21. Both
with,
attorney
April
on
complied
the defendant acts of his
time
orally waived additional
own free will
counsel
and his statement has
he had
the court
itself,
counsel stated to
resulted from the arrest
his confes
the case for
in
represented
sion is not vitiated
an unlawful arrest.
company
justification
merely walking
of two
police stop
fast
The sufficient
for a
in
men,
pocket
present
may
put something
when
his
into
case
be contrasted with lack
black
car,
State,
(Tex.
not known
and was
thereof in Jones v.
pointment time and looked
prepa
to actual
ment is affirmed.
ration time in determining
whether
dic
26.04(b)
tates of Article
have been satisfied.
DAVIS, Judge, concurring.
W. C.
State,
(Tex.Cr.
Henson
ly not, complied procedures with the How- prior filed to trial. confession was Art. Vernon’s Ann.C.C.P. ever, police offi- two involved prior to the Having concluded that arrest testifying to the confession and cers revealed, was valid under either Art. 14.03 or Art. to search and what the search 18.16, agree majority upholding hearing jury and a conducted was excused produced consent search the her- ob- judge during which which an before the trial admissibility oin. jection was entered to con- The evidence involved. evidence in an found of a balloon of heroin sisted PHILLIPS, Judge, dissenting. occupied by apartment In disposing of er- grounds police that appellant’s statement *6 challenge admissibility ror which the of his place particular heroin in a they would find oral statement pursu- and evidence seized of the apartment. An examination search, ant to his consent to because of an jury the presence the witnesses outside illegal arrest, majority the concludes that appellant’s apartment that the revealed the arrest and proper. detention were suspect- because he under surveillance disposing approxi- In At trafficking contention ed of in narcotics. and three concerning mately p. appellant the m. the admissibility of his oral statement, leaving apartment the majority the a uses standard of others were observed review to a Woolco previously applied only travelling by automobile to determin- and the ing entered Department whether a statement All four or confession is Store. store, the given admissible when without a the four had entered benefit of store. After magistrate’s at the warning. at the scene To succeed on such Oliver arrived Officer contention, Fleming. They both appellant a traditionally has of Officer request appellant been held to the leave the store establishing burden of observed the car. go causal and to his relationship “something” between the lack of in his hands Woolco of the giving and the the car to the front of the confession. He drove others. majority ignores The the rule of Brown v. store and waited for .three Illinois, entered the McComb who 95 S.Ct. 45 Next came Viola proceeded (1975). L.Ed.2d 416 exited and majority, The as did car. Then the Ellises testified Supreme police the Illinois The officers Court in Brown v. Illi- to the car. nois, be in supra, appeared to problem primarily views the and the Ellises McComb (1966). Arizona, 86 S.Ct.
1. Miranda v. 384 U.S. L.Ed.2d 694 hurry and looked purposes. around them as investigative stop exit- Since an ais ed the intrusion, Woolco store. It leeway was also adduced more given lesser that all people four exited the store with police officers’ discretion. We cannot con- hand, items in bags. but not in The four clude that was unreasonable for the offi- then'departed police and the stop appellant investigative officers radi- cers to for oed patrol for another stop purposes marked unit under the circumstances described vehicle on here. Highway. Palmer After the vehicle stopped, police inquiry The next order is to determine approached and in open observed stop whether after this for in- authorized view several items with price tags Woolco vestigative purposes police officers had in the front and back of the vehicle. The probable appellant. cause to arrest the The four were then shoplifting arrested for and only evidence adduced as to what the transported to the City Texas Police De- investigative officers discovered after partment. Only was then stop was the were items in fact that there taken magistrate before a purposes price tags the automobile with Woolco being warned rights. of his See Article any inquiry them. There is no evidence 15.17, V.A.C.C.P. receiving After these concerning receipts by police offi- sales warnings, executed a consent merely cers. Based on the observation of form for the search of his residence and vehicle, these items in the made complained of statement. others arrested. question first to be addressed is “Probable cause for an arrest exists whether probable where, officers had moment, the facts and stop cause to and his vehicle knowledge of circumstances within the investigative purposes. arresting officer and of which he has reasonably trustworthy information “. . . Probable cause for an offi prudent would warrant a reasonable cer person to detain a temporarily for believing person particular man in that a investigative purposes exists where the committing has a crime. committed or is reasonably circumstances indicate that Id. at citations [Footnote omitted.]” particular person either has or is preparing to commit a crime.7 . falling probable 7. Circumstances short of majority attempts uphold this ar may justify temporary cause for an arrest de- rest on the basis of Article V.A.C.C.P. purposes investigation,
tention for since an reading provision It is clear from a of that investigative stop is considered to be a lesser that an arrest without a warrant is autho upon personal security intrusion individual than is an arrest. omit- [Citations *7 peace persons rized when the officer finds State, ted.]” Brown v. 481 S.W.2d 106at 110. suspicious places “in and under circum police The officers they reasonably testified that that such stances which show were appellant familiar with through felony the persons guilty have been of some previous their investigations burglaries peace, breach of the . . . The ma reputation and his trafficking in jority goes narcot- note on to that “[Warrantless ics. police One of the officers pursuant testified that arrests to Article 14.03 under cir he knew appellant However, to be a comparable thief. those of the cumstances to they any denied appellant present approved by awareness of the this case have been being engaged shoplifting previous State, in Court in Castillo v. 494 S.W.2d State, occasion. question The (Tex.Cr.App.1973); then becomes Kwant v. whether the nature of (Tex.Cr.App.1971); Baity the and S.W.2d 781 State, the three others’ exiting 305]; conduct in the Alaniz v. S.W.2d [455 Woolco store police (Tex.Cr.App.1970); warranted the and S.W.2d 813 in stopping their investigative (Tex.Cr. vehicle for Stuart S.W.2d ease, App.1969).” cursory already A in this but review of the au- concluded upon thorities relied the evidence in- by majority the for the there was no search since proposition view. The Court mere- clearly plain set forth volved was in shows those Castillo, ly attention to Article inapposite. cases to be directed the reader’s supra, In 14.03,V.A.C.C.P., right to two men and the inherent police were observed officer to his arrest. at 12:35 search an arrestee incident alley walking a.m. in an in El Paso language indicating that There was no rapidly parked towards a auto. After driv- predicated on off, conclusion of the Court ing police stopped officer them and a warrant arrest without authority asked for identification. He observed that Alaniz, 14.03, supra. In su- under Article they perspiring, had bloodstained and a driving down pra, police officers were dirty clothing, gave and conflicting stories lane,” parking gravel “lovers’ known presence for their alley. in the After call- m. approximately p.5 drinking, and at unit, ing another it was discovered that a pickup a truck and they when observed meat company door was open forced and a occupied by parked two men wagon station beef, cold side of adding machine and they on the side of the road. As made calculator were alley. found in the The two passby, they appellant second observed Kwant, men were then supra, arrested. In police officers re- paper throw a out. The police up officers set surveillance of an it to contain paper trieved the and found apartment after receiving tipa that there In marihuana. Alaniz was arrested. was approximately pounds of marihuana Stuart, supra, police officers observed apartment. officers ar- running clothing a store from rested a male who left apartment 1:30 a. m. with suits of clothes in hand at bag a and found it to contain marihuana. Later, motorcycle on a arrived bar, In the case and Corvair, another individual arrived in a during exiting a store observed Woolco empty-handed. They both apart- left the hours, picking up three of his com- business together ment put and bags two with, panions carrying items that he arrived trunk and left. radioing After this infor- bags, driving There is no and off. officers, mation to other the Corvair was testimony any traffic violations were followed, stopped, and a search of the trunk appellant. committed He was then revealed bags to contain marihuana. stopped Highway. By on Palmer no stretch An arrest was then Baity, effected. In a imagination can this be considered supra, police officer years’ experi- with 13 Further, “suspicious place.” the circum- ence observed a alley man enter an here, although stances deemed sufficient suddenly turn back out at 4:56 a. m. in the autho- stop, authorize a are not sufficient to area, downtown walking fast with his coat discovery the items rize an arrest. The pulled up tight. recog- officer tags nothing price to contain Woolco adds nized the defendant previous from theft cannot be previous observations and burglary arrests. He stopped then justify considered sufficient to (crowbar) observed nail bar police officers testified lant’s arrest. The under the defendant’s coat. After observ- knowledge anything had no ing object coat, another concealed in the being Department the Woolco stolen from *8 police officer asked what it was and the any felony or Store nor did observe appellant indicated it was a coin box. The pres- their peace breach of the committed in appellant officer took the nearby to a Furthermore, ence. the circumstances de- cafeteria and pry observed marks on a construed to scribed in this record cannot be vending machine and noticed the provide ground[s] suppose coin box to “reasonable missing. stolen, This Court concluded that the in- .” The property the to be . . . vestigative stop appellant fact appro- majority places great emphasis was on the priate circumstances, under the It is com- bagged. as I have that the items were not
432 n
mon knowledge
many people,
that
for a
at the same time [the defendant]
[B]ut
reasons,
variety
go
specific
of
.
decline to have their
must
forward
goods
demonstrating
taint.’ Alder
bagged
legiti-
evidence
purchasing
after
them
States,
Therefore,
165, 89
mately.
man v. United
394 U.S.
probable
there was no
961,
(1969).”
176
Arm
S.Ct.
L.Ed.2d
appellant
cause to arrest
the
Article
under
strong v.
at 31.
supra,
14.03,
18.16 or
V.A.C.C.P.
offi-
cers testified that no
commit-
offense was
Again, from the same case:
view,
ted within
negating
their
therefore
that
“And
has been said
any
14.01,
basis for an arrest under Article
defendant,
sufficiently
the
if
an act
V.A.C.C.P.
was
representation by
There
no
purge
primary
free will to
taint
the
any
person
credible
that a felony had been
(Wong
the unlawful arrest or detention
committed
that
appellant
the
States, supra,
at
v. United
Sun
U.S.
about
escape
to
justify
in order to
arrest
an
486,
416) may produce
“When it has been
established
given
and testified
while
illegal seizure,
there was an
the State
he understood
indicated
m.,
‘has the
persuasion
p.
ultimate burden of
5:55
warnings. At approximately
show that
his “Waiver
its evidence is untainted .
executed
*9
Search” form.2 It is noted that this consent
is
whether
the confession [consent]
appellant
form does not reflect that the
by exploitation
illegal
obtained
of an
ar-
right
advised of his
to refuse a search. The
they
only
rest. But
are not the
factor to
appellant
record also reflects that the
temporal proximity
be considered. The
never
right
warned of his
to refuse such a
[consent],
of the arrest and the confession
search.3 The record also reflects that the
presence
intervening
of
circumstanc-
previously
had
been convicted for
es, and, particularly,
purpose
and fla-
sale
burglary
unlawful
of heroin and
grancy of the
misconduct are all
official
day
the same
in
signifi-
1972. Of additional
S.,
Wong
[supra,
relevant.
v. U.
See
Sun
cance to the
determination of whether
U.S.,
S.Ct.,
419],
at
at
appellant’s consent to search was a suffi-
voluntariness of the statement [consent]
cient
purge
primary
act of free will to
requirement.
is a threshold
And the bur-
exploitation
taint or was an
of the initial
rests,
showing admissibility
den of
testimony
taint is the
arresting
of the
offi-
course,
prosecution.”
on the
[Citations
cers that the
only
was the
one
Id.,
and footnotes
at 603-
U.S.
omitted.]
magistrate
taken before a
statutory
604, 95
at 2261-2262.
warnings
he was the one we
“[B]ecause
wanted to
talk to.” The
hand,
In
the consent form was
the case
special
admitted that
in
had
interest
signed
an hour and five minutes after
Appellant
narcotics.
con-
illegal
only intervening circum-
arrest. The
throughout
tends
his brief that this arrest
delivery
warnings
stances were the
pretext
was a
arrest in order to effectuate
15.17, V.A.C.C.P., and the
under Article
what
officers could not otherwise
questioning
appellant by the officers.
do,
e.,
i.
search
house. Fi- Furthermore,
testimony of these offi-
nally, it is noted that the consent form was
Brown,
indicates,
in
cers
as the record did
executed in the
magistrate
office of the
illegal
quality
arrest had “a
signed by
magistrate.
investiga-
purposefulness.” The arrest was
Illinois,
tory
purpose
case of Brown v.
in
and the officers indicated
(1975),
95 S.Ct.
STATS
OF GALVSCTON
COUNTY
warn an
that the failure to
We understand
right
unrea-
to be free from
individual of this
fatal
and seizures is not
sonable searches
given
circumstanc-
under noncustodial
Bustamonte, supra.
es. See Schneckloth v.
However,
evidentiary
important
factor
is an
determining
a suffi-
whether the consent was
primary
purge
taint
cient act
free will to
illegal
of this
arrest.
*10
admissibility
ap-
of
Turning
Bustamonte,
now to
supra.
It
v.
Schneckloth
offi-
to the
pellant’s oral statement
after an
necessary in this State
also not
arrest,
good police practice.
but is
De
would
See
where the “stuff”
telling them
cers
Voyle State,
lawful conduct and independent
interest of maintaining integrity of our
State courts from utilization of unlawfully
obtained evidence. See also Article
V.A.C.C.P. I would conclude that the consent parte Jay ARMES, Appellant. Ex J.
search form by executed exploitation case was a direct of his 60990, Nos. 60991. initial unlawful arrest and there were no intervening sufficient circumstances or oth- Texas, Court Appeals of Criminal occurrences, er totality within the of cir- Panel No. 1. confronting appellant, cumstances which made his consent a sufficient act of April 1979. free will purge primary taint of his Thus, unlawful Rehearing July arrest. En Denied 1979. consent form Banc executed the appellant and the evidence
seized pursuant to that con-
sent should have been excluded the trial
court.4 The failure to exclude such evi- error,
dence constitutes reversible for with-
out po- oral statement
lice officers could not have been corrobo-
rated, assuming for the moment that
confession was admissible. Article 38.- See 22(l)(e), V.A.C.C.P.5 The evidence un-
questionably incriminatory and harmful. V.A.C.C.P., 38.23(c), purge warnings 5. See Au- 4. If alone sufficient to Article effective arrests, gust the taint of unlawful would become a “cure-all” violations Fourth Amendment to the U.S. Constitution I, and Article Section Texas Constitution.