Scott v. State
549 S.W.2d 170
Tex. Crim. App.
1977
Check Treatment

*1 SCOTT, Appellant, Louis Texas, Appellee.

The STATE 52137.

No. Appeals of Criminal of Texas. Barry Helft, Dallas, P. appellant. 20, Oct. 1976. Wade, Henry Atty., Dist. Ronald D. Opinion Dissenting On Motion For State’s Hinds, David C. Schick and Stewart C. Rob- Rehearing April 1977. inson, Jr., Attys., Dallas, Asst. Dist. Jim D. Vollers, Atty. State’s and David McAn- S. Austin, gus, Atty., Asst. State’s for the State.

OPINION BROWN, Commissioner. appeal

This is an from a conviction for burglary. Appellant was tried before a jury which found guilty and assessed punishment (5) years at five in the Texas Department of Corrections. sufficiency support evidence to the conviction is not challenged. Appel- ground lant’s sole of error is that the trial overruling appellant’s court erred in motion suppress evidence seized from the auto- appellant mobile in which passenger, was a the search illegal. because The State’s witness at the motion to officer, suppress hearing the arresting J. S. Williamson. Williamson testified that he was a member of the Tactical Division City Department. of Garland Police He patrol, stated that he was on car, driving dur- clothes an unmarked early morning February hours of Tuesday. which was a He defined Towngate area at that time as the area, which consisted of fashionable new large apartment townhouses and a complex Eastgate major known as located across the thoroughfare servicing the area. William- son characterized the area as a area” assigned that he was “burglary patrol” in that area based on a computer analysis of the likelihood of crime during committed in that area time. stated that there had *2 paintings. terial” He asked reports hubcap of thefts in the East- were oil Smith been particu- complex prior at a time to this the gate they doing what appellant and occasion, precise the time but was not they lar got paintings area where and and at about 1:30 determined. He that they responded that had exited the they coming he a car from the di- a. m. saw nearby LBJ and had become lost Freeway of of the on some newer townhouses rection way to apart- their decorate a friend’s on only a street where few homes ment. A second officer arrived on occupied and some model townhouses Williamson sent back to scene and said that he were located. Williamson any signs to see there were townhouses if his car to the curb to observe the pulled was burglary. While the second officer car “I down that other because been [had] dispatcher to gone, radioed the Williamson months, during for several and this appel- check the identification of and Smith time, night, there is at time of no cars this (the lant record does not show the result people . . . that on that street check). officer then this radio The other . . have the in that area . rear live radio advise called Williamson over the pull . they . . garages end appeared that that at least one it go in . there alley and homes burglarized had and townhouses been activity at night out there is never spaces bare where on the walls no .” He stated that there were pictures hanging. had been lights in the it was area and street Throughout the investi- duration this other totally passed car within a dark. gation twenty thirty (approximately feet of Officer Williamson’svehicle and few minutes) appellant alternately and Smith he stated that could determine that it he up paced sat in their and and down over a “white blue '74 Cadillac” con- expressed their dissatisfaction taining two black males in the front seat the road appeared what “sheets materi- re- being to Williamson detained. After square up five feet propped al” about from the other officer ceiving word that the back seat. burglarized, William- townhouse placed appellant son ar- and Smith under pa- Williamson stated that he turned his put them patrol rest and in his car. He trol around followed Cadillac then retrieved keys to Cadillac and approximately before turn- blocks the trunk where he opened discovered other his on red it. He said that apparently decorative items stolen reported dispatcher to the radio that he he townhouse. requested was “out on traffic” and back- up squad. He stated he had observed legality of the search of the no traffic violations and that Cadillac the seizure of items de Cadillac and proceeded average speed. at an He justification pends on the for the initial “purely that he the car testified validity of the car. The constitutional investigate due circumstances “spe investigative stop depends such (he) had seen it

under articulable and circumstanc cific and facts townhouses.” stated that he around the es” and officer’s reasonable inferences the car for their occupants asked the case. from those facts in each individual driver, Smith, Mr. identification 422 U.S. Brignoni-Ponce, United States (it card was not produced an identification 2574, (1975); 45 L.Ed.2d 607 95 S.Ct. was a driver’s stated whether card York, New Sibron v. license). Appellant sitting pas- (1967); Brown produced of the car no senger seat State, identification, (Tex.Cr.App.1972). 481 S.W.2d 106 but told name investigative stop It is axiomatic birth date. Williamson stated that as subsequent justi cannot request search approached Cadillac to iden- Sibron, tification, supra; window the fied what discovered. rear Brown, supra. ma- determined that the “sheets of car and compare We the facts and (Tex.Cr. circumstances Talbert v. 489 S.W.2d 309 Brown, supra, with the instant case. In App.1973) also involved a similar set of Brown, the Dallas police officer was on circumstances. There the Austin of- patrol in routine the downtown area of that patrol near ficer was on the University of city in an unmarked car. At about campus Texas which he characterized as a green 1:30 a.m. he saw a bearing Volvo area.” He observed the tail- *3 plates out-of-state license half about one car lights of a at a curb and saw poorly lighted, block ahead of on a the slowly man enter car. The car then sparsely traveled street. He that his stated away drove and the officer followed for attention was attracted to the car because stopping several blocks before it “to make clothing there were and a box of crackers everything was in sure order.” The officer ledge on the between the back rear seat and possible that he had stated observed no He stated window. that could see that During investigative traffic violations. men, four the car contained three of whom stop, paper the observed a sack on general description” persons “fit the who plastic front seat and baggie sticking the had committed an robbery armed at a Dal- paper bag. out of the He stated he could supermarket previous on the day. las That substance, green, grass-like discern a later general description consisted of race proven marihuana, plastic inside the approximate height weight. and and bag. Appellants subsequently were arrest- stated that he observed the men in two the ed and the contents of the bag introduced seat turn around back and look toward him Brown, Citing as evidence. supra, we held then move their shoulders. He con- probable that the officer had no cause to they concealing cluded firearms in the stop appellant’s automobile. subsequently seat. The car was back examining testimony In the officer’s stopped and searched and various items of ease, that, present Brown, we the note as in contraband found. Talbert, supra, supra, he saw no traffic justifi- We determined that the officer’s justify which would the initial violation stopping cation for the car was based on Hampton State, stop. (Tex. v. 511 S.W.2d facts, (1) two his conclusion that fit State, Cr.App.1974); Borner v. 521 S.W.2d general description of the armed rob- (Tex.Cr.App.1975). We note also that bers, (2) his conclusion that the two officer had dispatch received no concealing weap- men in the back seat were suspected person about a automobile or ons. We held his conclusions to insufficient might justified likewise have the ini justify and search on the basis that stop. State, Washington tial 518 S.W.2d general description height, weight (Tex.Cr.App.1975). Compare Colston serve, most, only race would raise (Tex.Cr.App.1974). 511 S.W.2d 10 suspicion mere that the men were the Therefore, such an justification robbers and inarticulate hunch or for Offi suspicion of the officer is insufficient rest on cer Williamson’s initial must Sibron, probable supra. specific cause. cir constitute and articulable facts and suspicion further held that such could We cumstances which he observed and from by into not transformed cause which he drew his inferences. Those facts (1) movement of the men in the back circumstances consist of his aware type hubcap This movement was not the reports seat. ness gesture” nearby apartment complex; which would indicate “furtive thefts activity, (2) Towngate but was more in the na- his characterization criminal «of area”; “ambiguous (3) ture of conduct which the ar- as a his obser resting provoked.” officers themselves have of two black driving vation males a white States, dark, Wong sparsely v. United blue 1974 Cadillac on a Sun m.;1 (1963). (4) traveled street at 1:30 a. his project superintendent 1. called the suppress hearing. motion to some of He stated that Towngate development a witness at the townhouses young- were owned when then conditions As result “sheeting material” observation his obtained, pulled car Williamson Officer of the car. the back seat other vehicle. curb observe justify facts insufficient We find the a white-over- it was He determined was, therefore, error stop and it the initial by two males occupied Cadillac blue suppress appellant’s motion to to overrule or five sheets of it contained four and that from the car. the evidence seized the backseat. propped up in material and the judgment reversed freeway opposite Lighting remanded. to make area enabled Towngate as the Cadillac observations these Opinion approved by the Court. feet of The offi- few his vehicle. within a around and followed turned cer DOUGLAS, Judge (dissenting). be- approximately two blocks Cadillac majority reverses conviction stopping it. He fore ground against used *4 the evidence that the no traffic violations observed obtained as result of an appellant was the speed. proceeded average had at an Cadillac illegal search. investigatory He further stated that his Testimony concerning arrest solely upon was based circumstanc- Williamson, by J. given search was S. he es under which had observed car. Tactical the Gar- member of the Division of occupants asked both Williamson ex- Department years’ with six land Police Smith, driver, pro- The their identification. perience. Officer Williamson was on Appellant, an identification card. duced February during early morning of hours identification, the officer his told without assigned high 1975. He was to ap- birthdate. As Williamson name The Towngate. known area in Garland request to identifica- Cadillac proached on crime classification was based the ear tion, window of rear computer analysis of of probability that of materi- determined the “sheets activity occurring dur- criminal in that area paintings. They oil were in were al” time. Towngate that to paintings Williamson found the view. complex expensive as a characterized of those had observed to similar townhouses. In to Williamson’s response townhouses. appellant said that Smith and questioning, had Williamson stated that there Officer way lost on their they had become while to nearby hubcap of in the reports been thefts apartment with the a friend’s decorate Eastgate complex that apartment earlier paintings. He stated that evening. approximately coming an 1:30 m. he saw a. automobile returned to car Williamson Officer where from an area a few dispatcher. radio and called the occupied were some mod- homes where computer dispatcher run a asked el townhouses located. He had ap- for warrants on both Smith check area for months and worked in that several point, Aldridge ar- At this Officer pellant. usually early knew that it was devoid to return to Williamson directed him rived. activity. There were no cars on morning Towngate area southwest section of the burglary. the street because homeowners signs check the homes for later, garages which rear-end entered minutes Al- Approximately twenty through alley. an There no street advise dridge called Williamson to one of the had been from which the other at least townhouses spaces were bare burglarized and had come. couples prior burglary, er and that it was ment to this not unusual for them which tends guests evening. testimony entertain until late was a rebut that the area nothing He also stated that he had about heard crime area.” being develop- crimes committed in the pictures the walls where hang- tag bearing

on second the name of a Beaumont ing. Williamson then ap- Smith and woman. Defendant told them that he had pellant subsequent under arrest. A search found the suitcase in Baytown. gave of the Cadillac’s trunk revealed other stolen the officers conflicting accounts his home items. address and said he did not know where he was going. legality of the search of the Cadillac and the seizure of the items therein turns point At that the officers arrested the justification for the initial suspects and took them to the automobile. Circumstances which are subsequent A station. search of the suit- insufficient to establish cause for case revealed two telephones. desk Later may justify temporary arrest morning detention for a burglary was discovered at purposes investigation investiga- since an elementary school in Port Arthur. A involves a lesser tion intrusion containing blue suitcase two demonstration security personal of an individual than does telephones belonging to Southwestern Bell Ohio, Terry an arrest. reported stolen. burglary took (1968); Ablon v. place a few blocks from where defendant State, 537 267 (Tex.Cr.App.1976). suspect the other were arrested. We purposes may Such include determination held that the location and time of defend- identity suspicious individual or ant’s detention by police, coupled momentary preservation quo of the status the fact the suitcase was evidently in order to obtain more information. Ad- owned someone defendant, other than *5 Williams, 143, 1921, ams v. 407 92 inability U.S. S.Ct. explain and his to satisfactorily his (1972); State, 32 L.Ed.2d Wood v. 515 possession of the enough suitcase were to (Tex.Cr.App.1974). S.W.2d In this con- warrant arrest of defendant under Arti- occupant nection an just 14.03, of an automobile is cle V.A.C.C.P. subject a as to brief detention pedes- as is a case, In the instant the combination of Williams, trian. Adams v. supra; Wood v. location, time, reports of recent criminal State, supra. The officer specif must have activity protruding and the sheets in the which, ic and light articulable facts in of his sufficient, light Cadillac was in of Officer experience general and knowledge, reason experience general Williamson’s knowl- ably stop. Ohio, warrant such a Terry v. edge, permit stop to him to and detain the supra; Brignoni-Ponce, United States v. subsequent automobile. The officer’s ob-

422 U.S. 95 S.Ct. paintings, conjunction servation of the in (1975); State, Baity (Tex.Cr.App.1970), 455 S.W.2d 305 Aldridge’s report paint- Officer t. denied 400 cer ings been recently nearby stolen from a 180, 27 L.Ed.2d 158. occupants’ inability home and the to satis- The case at bar is factually factorily explain similar to possession their State, Thompson (Tex.Cr. paintings, provided proba- S.W.2d 825 Williamson with App.1976). In Thompson, two pursuant men were ble cause to arrest the two men to walking along 14.03, supra. a Port Arthur street at 1:00 Article Hernandez v. See high State, a. m. This was a crime area where (Tex.Cr.App.1975). 523 S.W.2d 410 prowlers recently active. Defend upon relies Talbert v. carrying appeared ant was what to the offi (Tex.Cr.App.1973). Talbert cers as a woman’s type suitcase. The offi There, distinguishable is on its facts. de- stopped requested cers the two men and was fendant because he was driv- one of some identification. Defendant told ing his University automobile near the burgla ficer that he had been convicted for campus Texas at 1:30 a. m. and Austin ry recognized after that officer his name. spotted who policeman him wanted “to

The officers observed everything that defendant was was in Dur- "make sure order.” carrying investigative a blue suitcase tag with one metal marihuana ing this was reading “Western Electric Company” and a the front seat. We held that discovered pinpoint probable crimi- night, in order had no officer activity assign special on the six man holding Our turned nal automobile. arrest lo- areas. characterization unit these inaccurate tactical The high crime area. record cation effectively “(B) combat In order crime de- high the officer’s reflected activity, anticipated units expe- personal was based termination cars, unmarked in clothes and rience, upon objective analysis. His not specifically be on the look-out for were to included colli- high crime area definition burglaries and various forms of theft. traffic and violations the uniform sions that he The record also reflected held act. “(C) had worked Officer Williamson University area that the entire opinion years, five first area off on for area. high We determined as a later as a tactical blanket-labeling a substantial such officer. of Austin as a crime area could portion “(D) he had worked As a tactical officer justify stopping of defendant’s not period for a townhomes among these automobile. prior to this occurrence. several months shown; the judgment No error is should affirmed. first “(E) saw Officer 1:00a. subject’s vehicle about m. GUPTON, J., joins in this dissent. in a The was first on street seen new is the townhomes which DISSENTING OPINION ON STATE’S section ‘totally is dark’. FOR REHEARING without street MOTION file majority denies leave to “(F) that at experience officer’s Rehearing. Motion for The State’s State’s normally night that time of motion, support prepared by brief no street cars out on that Hinds, Attorney Assistant Ron District fact, any activity is out ‘there never adopted as a County, part Dallas dis- night.’ there at *6 grant in the failure to sent such motion. Further, “(G) only six or seven families page omitted, With numbers it is as follows: living on at particular were street police “. . . The officer had made an entry garages and all time had rear Ohio, investigatory stop under Terry v. 392 and, particular normally, never used that (1968), L.Ed.2d 889 . night. at street and, upon seeing plain view evidence at “(H) anyone If was encountered automobile, seat of the back further de- ‘they are night, time of particular subjects the two period tained for a brief thieves, po- or going either lovers rapid investigation until a time for criminal lice.' . activity in completed the area by could be “(I) subject’s time vehicle At the police another officer. It was after observed, no other cars first there were completion, results, affirmative were there area nor this residential investigation, this additional that Officer streets. . people on the subjects the two under parked po- “(J) vehicle and made a arrest search of the vehicle. As in a black males car, two he observed outline of all facts and circumstances lice An belonging recognize not he did bearing vehicle officer’s decision make in the area. initial vehicle would read as follows: four five or “(K) further observed material, three some or

“(A) computer A is used the Garland sheets thick, build- may have been Department Police to evaluate crime rate inches material, seat areas, sticking up in back according to particular statistics . nights, particular times of of the automobile. ble Appellant cause to arrest and search finally observed that the officer police It him, finding burglary. the fruits of a he would stopped indicated have the vehicle regardless occupants of whether the “(B) Judge Douglas, writing for the or black. . in Thompson (1976) white State (no dissent), dealt with a case S.W.2d again emphasized point “It is that at this in which officers observed two individuals search had no arrest nor been made. The prowl- many in ‘a crime area where subjects had simply pulled been over for an recently reported. Appel- ers had been investigatory stop. When Officer William- carrying appeared to the lant was what approached request son the vehicle to driv- type officers as a woman’s suitcase.’ identification, er’s license he observed that This was deemed sufficient sheeting actually material was a collec- justify momentary, large paintings. tion of several oil . stopped, request identification. Once This information in combination with the provided suspicious incon- foregoing facts and circumstances were suf- name sistent and address information and acceptably raise the officer’s sus- ficient suspi- the officers in plain observed view picions point requesting rapid tag jus- cious suitcase information. This townhomes, along investigation the ultimate tified arrest search of subject street from which the vehicle had pair. appeared, by a fellow officer. ... At Roberts, “(C) opinion by Judge In an point, Appellant occupant and the other 1973) ([Tex.Cr.App.] State Castillo were still not under arrest of the vehicle (no dissent), it was shown They nor had been searched. alley patrolling approxi- that while simply being momentarily detained while m., mately police a. officers ‘ob- 12:35 officer checked out the town- the second parked served an automobile near fifteen Approximately twenty homes. burglaries There had been several alley. passed and Officer Williamson re- minutes men recently. in the area Two were seen radio communication ceived exiting alley, walking rapid pace at a second that he had indeed found vehicle. That car toward entry into one of the townhomes forced officers followed. drove off and the further, that, paintings similar to those in sought They soon the car and subject missing from the investigatory Once this identification.’ Only townhome. now did Officer made, stop had been officers Williamson, new in- with this and further received inconsistent information from formation, subjects arrest and search appearance the two and observed that the their vehicle. suspects was consistent with crimi- similar cases is in- *7 “A review of several activity. provided justification nal This evaluating quality of the structive police to detain them until a second unit activity: above described ‘dispatched alley and could be back to the beef, “(A) ([Tex.Cr.App.] In still Moses State the officers discovered a side of calculator, (no dissent), cold, 1971) adding 464 116 machine and a S.W.2d an 14.03, C.C.P., alley. all on one side of the The back provisions of Article company to a meat forced opinion by Judge door had been invoked in an Odom point, open.’ ‘Appellant At this and his police a wherein a offi- control situation companion arrested.’ a business-residential area patrolling cer panel ‘coming saw a truck from behind ([Tex.Cr.App.] “(D) Baity In v. State Be- buildings lights (no dissent), some without its on.’ 1970) Judge 455 305 S.W.2d m., it was about 3:40 a. the officer involving discussed a situation a Onion investiga- the vehicle for a brief experience ‘pa- officer with much police and, it, approaching he saw in down town upon trolling tion in the business building check.’ The officer plain burglary view various tools. a routine man proba- alley enter the . officer then felt had sufficient ‘observed

177 marijuana, vehicle, finding more suddenly alley.’ turn back out of then suspects. m., up arrested being ‘sped 4:56 a. the officer It Jackson, the man on for writing his vehicle observed “(G) Judge Eighth “walking ([Tex.Cr.App.] fast with his coat Street in Anderson v. State dissent), tight walking . real dis- pulled up 1974) (no 504 507 S.W.2d ’ recognized person ‘Appellant The officer indicating fast.” facts cussed parked attempting a record arrests theft to enter a as one with found was campus.’ University burglary point and at this made an on the automobile aroused, security officer investigatory stop. Appellant When the suspicions His re- call, When this response officer’s identification. requested turned refused, arrest- plain Appellant then observed in view a was was quest the officer object, the ultimate disclo- burglary tool and some other ed and searched with prohibited weapon. proved to be a coin box. The offi- which sure Appellant detained until he cer then ([Tex.Cr.App.] “(H) In Denham State nearby determine that a cafeteria dissent), could (no another 1968) 428 S.W.2d burglarized. point Ap- At this Onion, Judge approximate- ‘at opinion by was arrested. pellant Pappas . Officer ly 2:00 a. m. he ob- when suspicions had his aroused “(E) opinion by Judge Dally, an Her- In operated near a coin Appellant served ([Tex.Cr.App.] 1975) nandez v. State ap- the officer news stand rack.’ When (no dissent), it S.W.2d was noted that got investigate, Appellant proached to m., p. 3:00 officers on ‘saw ‘immediately nearby into a vehicle motel; an automobile in front aof having ‘Pappas followed and drove off.’ open trunk he piece saw a speeding and that Corbin was determined partly wrapped furniture with a blanket.’ assistance, stopped the having called for recognized One of the officers further passen- Appellant companion having and his vehicle, the approach ger.’ On arrests, prior made a U-turn and started plain view various observed back toward the motel. As followed emphasis Placing burglary tools. vehicle, the officer noted that near the coin actions at or ‘Appellant’s furniture seen earlier was a tele- console immediate stand and his news operated They vision set. made investigatory an of the offi- approach upon the departure vehicle, stop of then did the circum- sufficient cer,’ opinion found officer observe ‘in view on the rear suspicions. justify the officer’s stances an adding floor board machine that ease, Ringo v. older “(I) In a somewhat adding like the looked machine that (1955) Tex.Cr.R. 93] State [161 lawyer’s knew had been stolen from a dissent), officers (no S.W.2d burglary.’ suspects in a recent office repu- a bad area with an patrolling were then under arrest. they ‘observed a. m. when at 1:30 tation “(F) opinion In another by Judge Dally, off, on the with the automobile an 1972) ([Tex.Cr.App.] v. State Onofre away street, pulling wrong side (no dissent), officer, saying an beer circling a restaurant or “suspicious ‘he car behind the car followed then The officers joint.’ nighttime; a business at at 2:00 a. m. in stop. The oc- investigatory made ’, morning” observed two men in a *8 were unable cupants at 2:30 a. m. As behind bar. inconsist- gave identification produce ‘dump he saw Appellant approached, registration concerning ent information something appear under the seat or They were arrested automobile. of the something under the seat.’ dump Order- and searched. stop, approached two to of1 that footnote be noted also cigarette view “It should car and observed factually opinion in this case the Court’s marijuana. He then searched papers and project spo- superintendent incorrect. of, witness, called

ken as a defense George Raymond DYBA, Appellant, answer to question concerning testified in hours, parties, late and the entertainment Texas, Appellee. The STATE of - guests neighborhood, that ‘I’m 52956. No. sorry, I can’t I generally answer that. in the afternoon and I don’t

leave Appeals of Criminal Texas. happens.’ ... know what further April 13, 1977. response to question concerning frequently the used how residents

streets, question that ‘that’s a hard testimony

I know.’ . His don’t con-

cerning awareness whether this simply crime area of T don’t consisted don’t

recall. I believe—I was not notified department.’

by police course, the wheth- question

“Of whole testimony

er his tends or does not tend to

rebut that officer is one be Acting

decided fact-finder.

role, trial judge court evaluated the

evidence concluded that the officer did he could to

everything protect rights subject protecting consistent general and conse-

rights public,

quently, the evidence was admissible and motion

Appellant’s was overruled. This Appellant burden to show this facts, light these taken in the

court that were not suffi-

most favorable findings. support judge’s A

cient

careful evaluation the above outlined with the

facts combination summarized to no

cases can lead other conclusion than has not satisfied bur-

den.” appears

It that Officer Williamson should good police for

be commended work should not reversed. motion

case rehearing granted should be and the

judgment should be affirmed. J.,

ONION, joins P. in this dissent.