Amores v. State

• Decision Date: 18 September 1991
• Docket Number: No. 0795-89,0795-89
• Citation: Amores v. State, 816 S.W.2d 407 (Tex. Crim. App. 1991)
• Parties: Jorge Lorenzo AMORES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 407

816 S.W.2d 407

Jorge Lorenzo AMORES, Appellant, v. The STATE of Texas, Appellee.

No. 0795-89.

Court of Criminal Appeals of Texas En Banc.

Sept. 18, 1991.

John H. Hagler, Dallas, Howard Sohn, Miami, Fla., for appellant.

John Vance, Dist. Atty., Robert P. Abbott and Mark Hasse, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted by a jury of aggravated possession of more than four hundred grams of cocaine with intent to deliver. TEX.REV.CIV.STAT. Art. 4476-15 § 4.03. ¹ The jury assessed punishment at thirty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $250,000 fine. The Dallas Court of Appeals affirmed appellant's conviction in an unpublished opinion. Amores v. State, No. 05-88-0117-CR (Tex.App.--Dallas, March 16, 1989). We granted the appellant's petition for discretionary review to determine whether the court of appeals erred in holding that evidence was legally seized from appellant within the proper scope of a search incident to a valid investigative detention. ² We will reverse the judgment of the court of appeals.

I.

At 11:30 a.m. on June 16, 1986, Willetta Stellmacher, owner and manager of the Square Apartments in Dallas, observed an "unkept [sic] black male" drive a 1975 Chevrolet "junk car" into the parking lot of her apartment complex. The man, later identified as appellant, parked the car, got out and opened the trunk. Stellmacher, who noticed that appellant was not a tenant of the complex, immediately ran inside her apartment and called the police to report a "burglary in progress" by a "black man" at the Square Apartments. Stellmacher reported no further details at that time.

Stellmacher then retrieved a handgun from her apartment and watched appellant as he took a large brown box out of the trunk of the Chevrolet, walked the length of the parking lot, opened the trunk of a 1980 Oldsmobile with Florida license plates and placed the box inside the trunk. The Oldsmobile was the only other car on the parking lot and was backed into a parking space at the far end of the lot. Stellmacher testified that the standard lease for her complex contained a provision prohibiting tenants from backing their cars into their parking spaces, as this method was commonly used by burglars. According to Stellmacher, she could not see the contents of the box and did not know if the box belonged to any of her tenants. She testified that, when she saw appellant get the box out of the car, she briefly considered that he might be making a delivery.

Officer Henry Jachna of the Dallas Police Department was patrolling a few blocks away when he received a radio call for a "burglary in progress" at the Square Apartments involving a "black male" putting something in the trunk of a car. Jachna testified that no other details were provided in the police broadcast. Jachna arrived at the scene within one minute after receiving the call and observed appellant sitting in the driver's seat of the Oldsmobile. Jachna testified that he knew no "blacks" lived at the Square Apartments at this time. Jachna pulled his patrol car into the parking lot, and appellant began to drive the Oldsmobile out of the parking space.

Jachna blocked the Oldsmobile with his patrol car, got out of the car, pulled out his revolver and ordered appellant out of his car. After hesitating a few seconds, appellant complied with Jachna's orders and got out of the car slowly with his hands raised. Stellmacher testified that she was running towards that end of the parking lot at this point, gun in hand, yelling "Get him! ... That's him!," but Officer Jachna testified that he did not recall her making these statements and did not recall her presence on the scene at this point.

Once appellant was out of his car, Jachna ordered him to lie face down on the parking lot with his hands behind him. Jachna held his gun to appellant and told him, "If you don't do what I tell you to do, I'm gonna shoot you." Stellmacher testified that she added, "If he doesn't, I will." With his gun still out, Jachna gave appellant a quick "patdown." He found no weapons on appellant. Jachna then made a visual inspection of the front seat of the Oldsmobile and found nothing. He testified that he saw no implements of a burglary inside of the car. Jachna testified that at this point he was conducting an investigative detention only, and that appellant was not under arrest and would be free to leave if nothing more developed. Jachna then checked the front seat of the Oldsmobile again. He noticed a blue "gym type bag" under the front seat. Jachna put his hand on the bag under the seat and felt "some type of metal object that could have been a weapon."

Officer Christy Carmell, the first "back-up" to respond, arrived as Jachna was removing the blue bag from the Oldsmobile. Appellant had already been handcuffed by this time and was still lying face-down on the pavement, although the testimony differed as to precisely when the handcuffing occurred. ³ Carmel held appellant at gunpoint while Jachna holstered his weapon, unzipped the blue bag and discovered a "Mack 10 gun," an Intratec, 9mm Luger. Jachna testified that he considered appellant to be under arrest at this point.

Jachna then took the keys out of the Oldsmobile and opened the trunk. During a complete search of the trunk, Jachna seized a cardboard box containing several bags of cocaine of various purities and a scale. At this point, Jachna finally stopped to talk with Stellmacher, who had left the parking lot after Carmell arrived and returned after Jachna completed his search of the Oldsmobile. Stellmacher informed him that appellant arrived in the Chevrolet. Jachna obtained the keys from appellant's pocket and proceeded to search the second car. He located and seized additional packets of cocaine from the Chevrolet. In all, Jachna seized approximately 1032 grams of cocaine (including adulterants), a scale, $668 in cash, and the gun.

At the pretrial suppression hearing, appellant moved to exclude the items seized at the time of his arrest on the basis that the evidence was seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Texas Constitution. Jachna and Stellmacher were the only witnesses who testified at the hearing. The trial court denied appellant's motion to suppress the evidence.

The court of appeals affirmed appellant's conviction, holding that the initial stop by Jachna was a valid investigative detention. The court concluded that once appellant was stopped, Jachna was justified in believing that he was in danger and had "reasonable grounds to feel under the driver's seat for weapons." The court further found that a limited search of appellant's car was within the permissible scope of a search incident to an investigative detention, and that once the search produced a prohibited weapon, appellant was subject to a warrantless arrest for an offense committed in Jachna's presence. The court concluded that the cocaine was seized in a legal inventory search of appellant's impounded automobiles. ⁴

Appellant contends that the search and seizure was premised on a warrantless arrest made without probable cause, and not an investigative detention. Alternatively, he argues that the scope of the search exceeded that permissible in the course of a valid investigative detention. The State does not argue that the search was incident to a legal arrest. Rather, the state has argued throughout, to the trial court, the court of appeals and this Court, that the search and seizure was premised on a valid investigative detention.

II.

The threshold issue is whether the court of appeals correctly characterized the detention of appellant as an investigative detention rather than an arrest, because the nature of the detention determines the constitutional parameters which apply to determine its legality. An investigative detention, to be constitutionally valid, may be founded upon a reasonable, articulable suspicion that the person detained is connected with criminal activity, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), ⁵ but an arrest, to pass constitutional muster, must be supported by the greater conclusiveness of probable cause to believe that a particular person has committed or is committing an offense. ⁶

We find that the initial detention in this case was in fact an arrest. An arrest occurs when a person's liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Cr.App.1987) (citing Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980) and Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973)). Article 15.22, V.A.C.C.P., provides that "a person is arrested when he has been actually placed under restraint." Here, the police officer blocked the appellant's car in the parking lot, drew his service revolver, ordered the appellant from his car at gunpoint, ordered him to lie face-down on the pavement with his hands behind his back, and told him he would be shot if he did not obey these orders. These facts are sufficient to demonstrate that appellant had been restricted or restrained in his liberty to such a degree as to constitute an arrest. ⁷

In Hoag v. State, 728 S.W.2d 375 (Tex.Cr.App.1987), a case involving similar facts, we held that the defendant's detention constituted a warrantless arrest rather than an investigative detention where the police officers removed the defendant from his car at gunpoint, took him to the rear of the car and gave him Miranda ⁸ warnings. Id. at 379. The court of appeals in the present case distinguished Hoag on the basis that the police officer there testified that he believed the defendant was under arrest while the officer in the present case testified that the stop...