McVea v. State

ESQUIVEL, Before BUTTS and CAN- TU, JJ.

CANTU, Justice. Appeal taken conviction "jury from a for burglary building. court as- punishment, sessed enhanced two convictions, imprisonment. at life ground asserts in his first failing error that the trial court erred suppress evidence discovered as a result of allegedly illegal search which resulted in his arrest. It thus becomes necessary evaluate the adduced at testimony the hear- ing on suppress the motion to the evidence. officers, arresting The two Arthur Trevi- Asher, no and Richard both of the San Department’s Antonio Police Crime Task Force, were the witnesses called to testify hearing. testimony Their re- approxi- veals that on October m., mately working 11:00 a. were un- they dercover, driving an unmarked car Waverly westbound on when Street spotted appellant in a car driven east- ap- bound. officer Trevino Only recognized pellant. He stated: before; I had seen him on the also street car; mug shots of him in the also had that I used knowledge my partner to work with. Officer Black told me who he was.

‡ $ % ^[*] ‡ $ day before, day, I the information that or the by my partner, had been told Bob Glenn, something people there were subject had been arrested [sic] times, buying were conditioning place this air burglary several on narcotics Asher testified property.” violations. know did not the informant. Officer that he fa- Asher testified was not appellant’s past miliar with history location, During of this their surveillance he recognize did not the man. They decid- which occurred three Trevino estimated ed to follow the car in which was receiving tip, “ques- the daily hours after a passenger. proceeded The car eastbound on dif- tionable characters” were observed on and turned Waverly entering leaving Street onto a street ferent and occasions which intersects he meant premises. Culebra Street. The offi- When asked what characters,” cers up park- “questionable observed the car back Trevino stated into the ing arrive Conditioning “[m]ostly persons area of “Pete’s Air we saw Ser- addicts, drug pulled vice.” The officers into car wash the location to us to be known just occupation, generally across the street and continued to observe didn’t have any However, appellant’s activities. run the Trevino day.” streets all cross-examina- testified both on direct and previously The location had been property being tion that he never saw placed under surveillance as a result exchanged. upon his observations Based “tip” received by Officer Trevino from an him, and what told Trevino informants had unidentified informant.1 The informant people stated that that these he “surmised” had person oper told Trevino “that the going were the “fence” to make first ates Pete’s Car Air Conditioning Service arrangements price for the and then would buys just property any from about bring property. later Officer Asher body who wants to sell it.” On cross-exam did not he observed dur- testify as to what ination again he stated that unidenti this placed time was ing the that this location fied informant told him “that guy this here under 31. surveillance October shop there would buy anything [sic] anybody.” from Trevino from During received this in observation officers’ wash, formation the week getting before the arrest in the out car was seen Asher, vehicle, instant case. in response passenger Officer to the of the the driver side question by appellant’s attorney remaining Appellant as to how in the car. walked long this location had been porch building under surveil around to the back of the lance, “[m]y partner stated that whom Trevi- gotten approached a man Officer informant, Yes, Pertaining guy 1. Trevino testified A: sir. He told me that this here anything shop buy on direct examination that he had received the would there was, talking weapons, people”. anybody. information from to a It “few care what it I don’t by appellant TVs, had, stereos, you on cross-examination car tires. Whatever attempted that he to narrow it buy. down to one he would following colloquy place: attempted informant. The took While it is true that to es credibility by stating tablish that he had re O.K., somebody is this informant known Q: to ceived from this information informant you to be reliable? past, we do the State met its not feel that past, yes, A: He has been reliable in the sir. credibility. interpret proving burden of We many you How times have used him Q: the testimony Trevino’s to be a mere assertion or past? conclusion the informant to considered A: You would have to consider him reliable be reliable. 484 S.W.2d 779 See Cole about two or three times. 1972). twice, (Tex.Crim.App. not The State did at You used him before once Q: tempt put testimony you— as to this issue. on testimony There was no as to some A: Yes. underlying upon really which in circumstances You don’t know? Q: A: feel that credibility formant conclusions. We I have based his established his in order alone, tip, standing something. insuffi to tell me I informant’s would believe what Aguilar say. he would cient to cause. constitute you you tell me what he Can told about Q: place this Pete his of business? person training past experi- no “believed” was the who runs the Based his man, ence, that this Trevino testified that he felt and this whom business.2 properties were was a “transaction where “Pete,” Trevino thereafter referred to as fence, and decided to being sold to a known car, appellant walked to the back of the for hav- place [appellant] under arrest pulled ap- the trunk and out “what possession.” his ing peared to green laundry bag” be a with a Af- procured never a warrant. officers had drawstring top. He placed driver of the placing appellant ter and the it, ground, opened and allowed Pete reading their arrest3 and them car under to look looking, into it. After Pete nodded rights, Miranda4 was seized point his head affirmatively. It was at this police department transported that Trevino “It’s time to partner, told to the Task Force where it was turned over move.” Office. up unmarked car was backed begin We with the well established driveway, blocking into the the exit of the search or ar proposition that a warrantless car in which had been. The offi- Coolidge v. per rest is se unreasonable. got badge cers out of the car “with in 443, 454, Hampshire, New 403 U.S. hand,” advised the driver to remain where 2022, 2031, (1971); Honey 29 L.Ed.2d 564 was, she proceeded to the back of the State, 662, (Tex. cutt v. 499 664 S.W.2d car. As they approached appellant and to Crim.App.1973). It is the State’s burden Pete, grabbed bag, Pete walked to an or legality of a warrantless arrest prove truck, abandoned orange placed bag supra; Coolidge Hampshire, v. New search. truck, began slammed the door and to State, 762, (Tex. Hooper v. 533 S.W.2d away. stopped walk him Officer case, the instant Crim.App.1975). Since in get and ordered him to come back issued, the was re no warrants had State bag out of the truck. The officer probable quired to show the existence and found an assortment of radio or search was cause at the time the arrest equipment appeared which to him to be made, well as the existence of circum as new, because some the items still of a war procuring stances which made the tags compa- on them from communication State, 522 impracticable. rant Reed v. ny. Appellant gestures made no furtive (Tex.Crim.App.1975); S.W.2d during this whole time but remained frozen State, (Tex. Brown S.W.2d position he had been in when first Crim.App.1972). approached by the officer. determining applicable The standard attending bag, While Trevino was support whether the facts of the case Officer Asher was the trunk of the holding cause assessment at the probable officer’s open prevent pos- car to from is challenged arrest and search time of nice, sibly closing fairly it. A new tele- to be stringent required than that no less phone was answering machine observed magistrate for the issuance shown proper- the trunk. When asked about this State, 611 warrant. Barber v. S.W.2d State, told the officer he had come ty, appellant (Tex.Crim.App.1981); Ochs v. money (Tex.Crim.App.1976) “to leave it with Pete for some cert. S.W.2d appel- he needed.” Trevino believed S.Ct. denied (1977). It has been held lant had he was to receive L.Ed.2d 778 said $40.00. appears though from the record. even fate was not disclosed 2.It as Trevino did not 3. Pete’s person standing back know who the was, porch per- Arizona, much less whether he was the 4. See Miranda reading son who ran A further the business. 16 L.Ed.2d 694 record, hearing the suppress, outside the on the motion did not learn reveals officers identity person arrest was the made. of this until the scene, a crime. Ac present sons cause to search or arrest exists probable Trevino, person who where the facts and circumstances which cording to Officer officer on knowledge Conditioning are within the Service Pete’s Air operated reasonably the scene and of which he has allegedly buying trustworthy information would lead a man fact, from who wanted to sell. In anybody be prudence of reasonable caution and it is re testimony, of his an examination instrumentality lieve that he will find the who “believed” the man vealed that he pertaining of a crime or evidence to a to be Pete because spoke with crime, has person or that the to be arrested from an undisclosed information received committing committed or a crime. prior to the arrest informant a week 110; State, Brown see also supra, set true that the officer instant case. It is Lewis v. location; however, of this up a surveillance Crim.App.1980); Jones v. produced any how it ever we fail to see However, 935 (Tex.Crim.App.1978). evidence. No corroborative hunch, suspicion the mere inarticulable exchanged at this location. ever seen good faith of the officer is insufficient persons” were “suspicious The fact Ohio, Terry constitute cause. coming going seen on a few occasions 1868, 1880, are had a criminal record and that (1968); Barber v. sufficiently specific reasona not the kind of at 68. facts to warrant ble and articulable argues in its brief that the Further, the officers’ actions in this case. justified officers were in entering prem be bag and car trunk cannot search of the detaining appellant ises and because Ohio, supra. justified Terry under v. See this was part investigation of an into sus Illinois, 85, 100 v. 444 also Ybarra U.S. S.Ct. officers, pected criminal behavior. The Ohio, (1979). Terry 62 238 v. L.Ed.2d asserts, specific State had sufficient of supra, only authorized a limited search articulable facts to a justify temporary de lawfully clothing the outer detained Ohio, tention of Terry supra; v. suspect, upon the officer’s reasonable based Hernandez v. 523 S.W.2d 410 suspect was and articulable belief that the believe, Crim.App.1975). We do not under rec presently dangerous. armed and The case, the circumstances of this that the ar ord indicates that no search of resting officers had an suspi “articulable placed person was made until after 5 “particularized cion” or a objective arrest, under nor did the officers ever testi basis” which entitled them to interfere with were in fear violence fy of appellant’s activities or detain him in order appellant or Pete. to investigate suspected “fencing” oper ation, much less to conduct a search of this Moreover, agree we do not with magnitude. Compare United States Cor to this was a mere detention State tez, 66 L.Ed.2d U.S. S.Ct. entered and con investigate. The officers (1981). ducted a full-blown search. It elementa to probable that there must be cause6 ry

The evidence discloses that the officers apparent search and it is had no reasonable and articulable facts im- conduct such a not plicating appellant, per- or of the other the record that the officers did 438, 444, ported by probable particularized Georgia, with 5. In Reid v. cause (1980) person. requirement respect can- to that necessary suspicion by simply pointing court characterized the or not undercut avoided person’s liberty, coincidentally prob- curtail a in the absence of there exists to the fact that arrest, probable cause to as reasonable another or to able cause to search or seize unparticu- and articulable. An “inchoate and person may hap- premises search the where the suspicion larized will not suffice. Illinois, hunch” pen to be. Ybarra v. L.Ed.2d, at 245. cause, probable 6. Where the standard is a sup- person search or seizure of a must be While we admit that the adduced satisfy sufficient information to evidence have hearing suppress on the motion to quantum necessary of cause devel- procure the issuance of a warrant under the evidence could have been better testimony of the Aguilar oped,10 standards set forth in we hold that the officers, of- 12 L.Ed.2d 723 which was the U.S. Therefore, (1964). hearing, was suffi- suppression since the standard is “at fered at the stringent” least as in warrantless search cient to show had a reasona- a situation, in the areas expectation privacy has failed to sustain its ble of State true that proving legality burden of of the searched the officers. It is open to premises search.7 was on business nor- public, privacy expectations where reject We also conten State’s existing of somewhat different mally are standing tion that the lacked dimensions, Manry v. see complain question of the search. No however, appel- (Tex.Crim.App.1981), The standing was raised at the trial.8 general search complain lant does not appeal. raises this issue for the first time on specific search premises of the but of the Goehring In trunk. bag of the and the car conducted noted, “The (Tex.Crim.App.1982),the court had a is whether Thus the issue concept having a Fourth Amendment in these expectation privacy protected claim actually replaced by has been areas. concept that a defendant must be able to appel show a revealed that expectation privacy testimony reasonable asserting a Fourth Amendment lant exerted control over the trunk apparent claim. car and it was to the officers Matthew-Bender’s Texas Criminal Guide, I, 30-6).” laundry bag (Vol. p. Practice There he had stored in the trunk fore, control or mani suppres in order to be entitled to seek over which he also exerted crime, possessory sion interest. See United of evidence of a a defendant fested Jeffers, must Fourth personal establish that some States action subsequent vio L.Ed.2d 59 privacy Amendment interest of his was throwing grabbing by police involving premis by lated actions Pete not amount es searched or the seized. Rakas it into the abandoned truck did Illinois, 128, 421, appel negation relinquishment v. 439 99 58 to a or U.S. S.Ct. (1978); State, bag. interest in the and privacy Lewis v. 598 lant’s See Colbert, v. 474 F.2d (Tex.Crim.App.1980). compare S.W.2d 280 The “au United States (5th 1973) v. tomatic v. 174 and United States standing” rule of Jones United Cir. Cir.1975). States, 725, Canada, (9th App 257, F.2d 1374 362 80 4 L.Ed.2d 527 U.S. S.Ct. el see Unit (1960) possessory ownership,11 697 of never denied was overruled for lant (5th Salvucci, Anderson, 500 F.2d 1311 fenses in United v. 448 U.S. ed States v. States 83, 2547, (1980).9 1974), 100 619 nor was there evidence 65 L.Ed.2d Cir. mistakenly dissenting opinion the date of the states that This did not occur until after 7. The 9. requiring probable justify we are cause to an trial the instant case. investigative detention. We are not character- detention, izing simple investigatory this as a testify suppres- appellant did not at the 10. The but rather a full-blown search conducted with- hearing. might have been the better sion necessary probable right out the stop cause. The to follow since there is no self-incrimi- course to investigation by testify- by does not confer incurred a defendant nation risk ing general power to search and hearing. officers the suppression See Simmons 967, States, 377, seize. 19 88 S.Ct. v. United (1968). L.Ed.2d Presumably recognized 8. the State that Brown S., 223, 1565, fact, U. 36 L.Ed.2d v. U.S. 93 S.Ct. that when testified 11. In Officer Trevino (1973) upon appellant standing property, doing conferred with the asked what he was appellant prong possessory under test in crimes. leave it the four had come to stated that he money at the time of trial. This test was still in effect he needed. with Pete for some may against to hence not used unequivocally had been transferred (Tex. Canada, Pete, supra. v. see United States v. Green See Crim.App.1980). There was no evidence of an abandonment. Colbert, supra. From See United States without after arrested Appellant, officers, of the it was reason- testimony warrant, and without cause maintained ably apparent receiving the warn- a confession after made bag13 the trunk12 and

control of Arizona, 384 by Miranda ings prescribed of others and that he took normal exclusion 1602, 436, 16 L.Ed.2d 694 86 S.Ct. U.S. precautions maintain interest privacy his chain to be for the causal (1966). In order Rawlings v. Common- them.14 Contrast and illegal or arrest between search broken Kentucky, wealth of thereto, subsequent it statements made (1980). 65 L.Ed.2d 633 We hold that the confession must be shown affirmatively a suffi- record discloses pri- purge act of free will to sufficient showing personal cient taint; thus, a of the mary consideration Fourth Amendment interest in the dis- admissibility light of the statement’s Lewis v. sought suppressed. to be Cf. and interests of the Fourth policies tinct stated, where supra: the court v. Illi- is Brown Amendment mandated. no motion the evi- suppress “There was nois, 422 U.S. 95 S.Ct. of, complained attempt dence no and thus offer evidence from warnings giving of Miranda competent other source as to what relation- determining whether important factor in ship existed between and by exploi confession has been obtained premises at the time entered.” the officers arrest, illegal but it is not the tation of an S.W.2d, added). at 284 (emphasis temporal to be considered. only factor complains also that the written confession, of the arrest and proximity statement made him after his arrest circumstances, presence intervening un- product should be considered flagrancy particularly purpose arrest, lawful the trial search and that are all relevant. of the official misconduct overruling sup- court erred in motion to admissibility showing rests The burden press confession. In Wong v. Unit- Sun Illinois, Brown State. States, ed L.Ed.2d, 427; (1963) L.Ed.2d court stated that In see also Green determining test for if evidence of this sort S., L. Matter of R. it suppressed should be is not whether Crim.App.1978). have come to light illegal would but for police, actions of but rather whether it The evidence reveals immediately has been “come at of that arrested and transferred exploitation hour after illegality sufficiently police or instead station. Within an means to the arrest, began to be Detective interro distinguishable purged primary the Perez interrogation taint.” 371 at This lasted gating appellant. minutes, and cul L.Ed.2d, forty-five We the approximately at 455. think it is clear in a written appellant signing case that the was “come in the instant confession minated intervening no exploitation illegality” of There were by the that statement. dissenting opinion’s application opened of Appellant the the seizure of the 12. was the who 14.The one trunk, they open justify view doctrine and the officers that held testified recognize open property the trunk fails to keep appellant in order the trunk nothing about was “inadvertent” closing there viewing it. property; property nor did the absence of some “contraband” in the constitute showing 13. was the one who property that the officer knew that drawstring another to and allowed Coolidge v. New fruit of a crime. See was the it, drawing look into thereafter it shut. Hampshire, 403 U.S. informants, events of any significance.15 Concerning One of Trevino’s known to him the purpose flagrancy as a person,” the official “street had told him the week misconduct, proprietor concedes that before that the of Pete’s State Car purpose of Air on Conditioning the initial action of officers Culebra Tre- Service Street willing vino and kind of stolen investigation. buy prop- Asher was TV’s, that, erty weapons, stereos, tires, amounts prior to an admission car to arri- — ving given whatever. The had him scene, informant they had no previous information on two or three occa- cause to search or arrest There sions, proven and it had correct. The was no lead knew, evidence that detectives given by the informant was corroborated prior to the time of interroga- sources, with other and surveillance of tion, that the confiscated property had been Pete’s begun. From the time taken in a of & P burglary S Communica- began, surveillance location was tions Company. appears It that the officers day. watched about three hours a Numer- and detectives upon embarked this whole persons ous drug known to be addicts who expedition hope that evidence of people” were unemployed “street were seen some unspecified crime would be revealed. Pete’s, to come and go at and were seen Thus, considering after the relevant factors what discussing with Pete officer Trevino case, in this we hold the statement was negotiations believed were for the “fenc- the fruit of the unlawful search and arrest ing” property. According of stolen to Tre- and that the has failed to meet its vino, experience based on his and his con- showing burden of admissibility. See informants, persons seeking versations with Green v. supra. to sell go often would first Grounds of number error one and two are to a price “fence” to for negotiate sustained and judgment is reversed and sale, bring in and then would the cause remanded. at a later time. On particular day question, ap- BUTTS, Justice, dissenting: a.m., proximately Trevino and 11:00 Asher My dissent rests two principles: the Street, were driving Waverly one west on constitutional law of “investigative stop” Culebra, block north and saw appellant and appellant’s failure sustain his burden riding as a in an passenger automobile be- proof priva- his Fourth Amendment ing driven a woman. It was later estab- cy interest by police was violated actions lished that name was Linda woman’s involving premises searched and the Proctor, car belonged and that the to her. property seized. sight on because he knew This is burglary a conviction for before, had seen him on the street building. car, police “mug” of him in the photos knew had had arrests The testimony at the hearing adduced burglary and narcotics offenses. Trevi- the motion to suppress evidence established no and Asher the other car until followed 31,1977, the following: On October officers they a driveway by saw it back into the side Arthur Trevino and Richard Asher of the Pete’s, which the establishment was un- San Department’s Antonio Police Crime der pulled officers surveillance. The into a Task Force were conducting undercover car wash street and across the observed surveillance on what believed to be a appellant’s activities. major is, “fencing” operation, that a loca- tion in wash, west Antonio where they San be- While from the car they watched lieved being car, was bought. appellant got opened out the the of only intervening ing significance 15. The event the taken incident. was not be- by against magistrate signing reflected the record militates fore a the confession. the before arrested, appellant (Vernon State: after but before See Supp.1981). art. 15.17 Tex.Code Crim.Pro.Ann. county jail, his arrival at the officer Asher ad- questions asking appellant mitted to concern- contents, and the its along bag with and green trunk, large bag and removed un- placed He were the and the woman drawstring opening. appellant had a around arresting left but bag ground appellant, the After placed by the arrest.1 der car, scene, out onto to rear of the and Pete walked Trevino talked leaving the before drive- porch brought the of a house next to the back that he had who stated appellant, Pete to way. up walked where Pete leave it with the to were, the bag appellant opened and the $40.00.2 over, into and then bent looked bag, Pete booked, appel- and After arrested nodded bag, appellant, the looked at and in which statement lant executed written affirmatively. & P. having burglarized S. to he confessed this, drove their quickly With the officers con- also stated in his He Communications. the exit of driveway car into block the to Proctor’s house went fession in, been out of got the car had the He burglary. the after day October car, told driver’s their the woman stated, from trunk bag “I took the stay put, badges, their and seat to showed We drove put and it in her car.... my car police announced were officers. where the garage to some over immediately grabbed bag, dragged Pete trunk and radios were in the stopped us it 10 to 15 feet to an old mail abandoned . . . I know is I wanted the car. All truck, truck, it put slammed state- Neither the written the radios.” sell door, began away. truck and to walk Tre- ment nor testimonial stopped ordered come vino him and him to Proctor, be- Pete was offered appellant, or get bag back and out of the truck. suppression hear- trial court at the fore the said, “I Pete don’t know what are talk- you Therefore, this cannot consider ing. we said, ing you about.” bag “The and sei- assessing search statement placed in the Pete truck.” retrieved issues in this case. zure it, bag, opened and when Trevino he found error, appellant ground first In his new-looking pieces in it numerous of radio of the seizure of the lawfulness attacks equipment, tags and electronic some with contents, well the tele- its as as bag and stating, & them. “S. P. Communications” on from the machine seized phone answering equipment The total value of the was over whether question is car trunk. The proctor $5,000.00. It was later established that S. for the initial justification was no there & P. Communications in Antonio had San by officers. intervention burglarized been sometime on 29th October 30th, bag and that the items en- the officers’ characterizes burglary. been stolen in Apparently initial their try premises onto Pete’s Trevino and were not Asher aware deten- authority investigative as an show burglary at the time of they confronted of such validity tion. constitutional Pete and contingent upon investigative stop is facts and circum- “specific articulable with Throughout dealings the officers’ knowledge, as officer’s within the stances” Pete, appellant standing had been inferences drawn well as reasonable car, said noth- rear of the and had or done and circumstances. from those facts officer open ing. Asher stood car trunk Brignoni-Ponce, States v. could United held the lid so that open, (1975); 95 S.Ct. close it. After the not Ohio, Terry saw inspected, the contents the officers State, 549 (1968); ly- Scott machine L.Ed.2d telephone answering brand-new (Tex.Crim.App.1977); car. was seized ing in the trunk of the (Vernon 1979). There 38.22 art. disclose fate. Crim.Pro.Ann. 1. The record does not Pete’s however, objection, when this testimo- nowas hearing ny on the motion was offered at the record unclear whether this statement 2. The suppress admin- evidence. was elicited or after officers before warnings Tex.Code istered under 438 State, 106,

Brown v. 481 (Tex. S.W.2d 109 The second element contained in the Crim.App.1972). It was stated in Arm idea that an assessment of the whole strong 25, (Tex. v. 550 31 S.W.2d picture yield particularized suspi- must Crim.App.1977), cion is concept process just that the There must be a suspicion by reasonable suspicion described must raise a the law enforcement officer that some particular stopped individual en- is out of activity the ordinary is or had gaged in Justice wrongdoing. Chief [sic], occurred suggestion some to connect Warren, speaking for the in Terry Court person detained with the unusual ac- Ohio, said, “[tjhis v. demand for tivity, and some indication that the activ- specificity upon which information ity is related to crime. police predicated action is is the central In Cortez, United States v. teaching of this Fourth Court’s Amend- 101 S.Ct. (1981), it was U.S., jurisprudence.” ment Id. 392 at stated that a reviewing court must deter- 21, 18, S.Ct., n. (emphasis at n. 18 mine the reasonableness of the officer’s ac- also, added). See Brown v. [443 tion based on “the totality of the circum- 2637,2640, ” U.S. 61 L.Ed.2d stances—the picture.... whole (1979)]; Prouse, Delaware v. [440 418,101 at S.Ct. at 695. The Court went on 648, 661-663, U.S. 1400- state, (1979)]; 59 L.Ed.2d 660 United The idea that an assessment of the Brignoni-Ponce, supra, States v. whole picture must yield particularized S.Ct., at at 2581. suspicion elements, contains two each of which present must be stop before a S.Ct., Thus, 449 U.S. at at 695. permissible. First, the assessment must majority’s and the insistence upon based all the circumstances. The probable the officers needed to have analysis proceeds objective with various justify investigative cause order to their

observations, information from re- him detention of is mistaken. ports, available, if such are and considera- presented Under circumstances as tion of the modes or patterns operation suppression hearing, officers had an of certain kinds of lawbreakers. From suspicion” “articulable which entitled them data, these a trained officer draws infer- ences and to enter premises open makes public deductions—inferences and deductions might well elude an investigate suspected “fencing” order to person. untrained operation. They could detain process does not with deal hard the other individuals involved and make certainties, but probabilities. with Long investigation. further United v. States probabilities before the law of was articu- Cortez, supra; Brignoni- United States such, lated practical as people formulated Ponce, Ohio, supra; Terry supra; Manry certain common sense conclusions about 619 (Tex.Crim.App. S.W.2d behavior; human jurors as factfinders 1981); Greer are permitted to do the same—and so are Crim.App.1976). Compare Peters v. New law enforcement officers. Finally, the York, evidence thus collected must be seen and (1968).3 weighed not in library analysis terms of by scholars, This court must ap- but as determine whether understood those versed in the field of law pellant enforcement. established that he has reasonable 3. The circumstances in Peters were ent crime much less even where he could not make an suspicious present simple than in the case. In his arrest for the ing that there reason is noth- concurring opinion U.S., noted, anyone although Justice Harlan to arrest Hence for. offi- 1909, L.Ed.2d, Lasky at 943: cer has small reason believe that a arrest, committed, right “Unlike stop cause to reasonable crime had been grounds stop depend any degree justified do not Peters can be if had a reasonable suspicion (emphasis writer) supplied likelihood that a crime been has committed. this may forcibly incipi- An attempt burglary.” officer intrude that he was about to evidence, Items of presents no error. into in the privacy of expectation legitimate and or instrumentalities bag taken fruits of Pete and contraband or property business automobile, as officer on police aby from the trunk of Proctor’s be seized may a crime of the that trunk itself. A review justification well as prior if he has a sight he did not. In order discovery record reveals that item, if the to see position in a suppression be to seek of evidence entitled is inadver incriminating of the crime, estab- a criminal defendant must tent, immediately apparent if it is and personal Fourth Amendment lish some him is before the evidence the officer by the interest of his was violated privacy Hamp Coolidge v. New incriminating. premises involving actions 2022, 467-472, 443, shire, 403 U.S. Rakas v. property seized. searched and (1971); McGlynn 2039-2041, Illinois, State, (No. 67,43 —Tex.Crim.App.—de 5 State, (1978); Lewis v. al 12/23/81). We have determined cided S.W.2d entitled were the officers ready that located on question in driveway saw the question, in property on the and not open public property business plain trunk automobile in the machine ap the instant by appellant. owned From given view. We hold further bag ground pellant placed bag, found in the its quantity equipment it, only person who exercised condition, new and the of distinc presence consistent bag control over the physical tags equipment, tive store on much of the Pete privacy with a interest in it was Pete. justified concluding the officers were bag, nodded his head affirm looked into that the machine in the car trunk was also atively, approached, and when the officers Their item property. seizure of that tried, unsuccessfully, to it was he who albeit and the admission of it into evidence was state dispose bag. Even addition, In proper. failed brought ment at the scene that he had show interest in the necessary privacy money” to Pete for “some is con contesting trunk precluded having sistent with his surrendered it to matter. Pete’s control to the officers’ interven was admit- written confession Appellant’s failed at Quite simply, tion. He evidence, objection. over his ted into any “legiti trial to establish that he had and seizures illegal search contends that the expectation privacy,” mate see Rakas and ren- his confession scene tainted Illinois, at supra, 439 actions The officers’ it inadmissible. dered in the truck at the time officer Further, were lawful. the scene it, bag to remove the from or ordered Pete of show- met the burden did not Trevi bag in the or its contents at the time inter- Amendment Fourth ing any personal Appellant no searched and seized it. ques- premises est interest. the burden to demonstrate such an error ground of first Appellant’s tion. upon appellant It was to show incumbent overruled. should be interest, Goehring possessory propriety (Tex.Crim.App. S.W.2d of error ground In his second 1982). Lewis v. 598 S.W.2d admitting his erred in contends the court 284; Darland v. it because statement into evidence written State, 560 (Tex.Crim.App.1979); Kleasen v. filed involuntarily Appellant made. Ap (Tex.Crim.App.1977). the voluntariness motion to determine His pellant presented no such evidence. Jackson compliance with In confession. of the con contention as to the admission Denno, is without tents of the into evidence (1964) Crim.Pro. and Tex.Code L.Ed.2d merit. 1977), the 38.22, (Vernon Ann. art. § appel- hearing based conducted court answering telephone

The seizure of the maintains car, motion. lant’s Proctor’s machine from the trunk of had not confession have made the of that item would not subsequent and the admission the officers promised Proctor, to release

who was arrested with him. Officers Trevi- Asher,

no and along with the officer who confession,

took the testified there was no

agreement and that Proctor was released

for lack of against her. judge at the Jackson v. Denno hear

ing is the judge sole weight

evidence and credibility of the witnesses.

He may believe or part disbelieve all or any

of any witness’ testimony. Evans v.

622 870 (Tex.Crim.App.1981),

Moon 607 S.W.2d

Crim.App.1980), Barton v.

605 (Tex.Crim.App.1980). The court’s con

clusion that the confession was voluntarily

given after the fully apprised

of his rights and rights waived those

supported by the ground evidence. This

error should be overruled.

I respectfully dissent. CENTER,

SPRINGWOODS SHOPPING Lively, Appellants,

INC. and Truitt V. ASSOCIATION,

UNIVERSITY SAVINGS

Appellee.

No. 18147.

Court of Appeals of (1st Dist.).

Houston

April 15, 1982. Waits,

Pope Engel, & Edward W. Hous- ton, appellants.

Case Details

Case Name: McVea v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 7, 1982

Citation: 635 S.W.2d 429

Docket Number: 04-81-00045-CR

Court Abbreviation: Tex. App.