Angulo v. State

• Decision Date: 01 April 1987
• Docket Number: No. 1197-84,1197-84
• Citation: 727 S.W.2d 276
• Parties: Orlando ANGULO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 276

727 S.W.2d 276

55 USLW 2598

Orlando ANGULO, Appellant, v. The STATE of Texas, Appellee.

No. 1197-84.

Court of Criminal Appeals of Texas En Banc.

April 1, 1987.

Geraldo G. Acosta, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and Frances Madden, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was found guilty, after a plea of nolo contendere, of possession of a controlled substance with the intent to deliver. He was sentenced to three years incarceration in the Texas Department of Corrections pursuant to a plea bargain agreement. Appellant filed a "Motion to Suppress" prior to his plea. The motion was denied after a hearing in the trial court.

On direct appeal the First Court of Appeals in Houston, in an unpublished opinion, concluded that under the Fourth Amendment to the U.S. Constitution, the arresting officers lacked sufficient probable cause to make a warrantless search of appellant's automobile. The Court of Appeals evaluated probable cause by looking at the totality of the circumstances under guidelines established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We granted the State's Petition for Discretionary Review to determine whether the police officers had a sufficient basis for searching appellant's automobile.

The record reflects that Officer S.L. Shafer received an anonymous telephone tip on June 23, 1983, which revealed the following information: Shafer was instructed that a red American Motors Pacer automobile with license plate identification RUV 662 contained narcotics; the informant told Shafer that the automobile would contain two Cuban males, one of whom would be appellant. In addition, the informant explained that the Pacer's gasoline cap was missing and that a red rag was being used in its place. The destination of the automobile would be 7201 Spencer Highway, Casa Maria Apartments, number 54. The informant also told Shafer that time was of the essence as the car was already en route. The informant did not reveal the source of his information.

After receiving this information from Shafer, Lt. William McBeth drove to the Casa Maria Apartments and observed the above-mentioned automobile, occupied by two males, parked in a space directly in front of apartment number 54. McBeth also noted the red rag hanging from the gasoline intake. McBeth observed the two men get out of the car as they were approached by others. When an additional automobile drove into the lot and parked directly behind the Pacer, McBeth, based on his experience in narcotics investigation, initiated an investigatory stop and ascertained that one of the original occupants of the automobile was appellant, the party named by the informant

When Shafer arrived on the scene he talked briefly with appellant and then searched the vehicle. This search produced 2000 Methaqualone pills located in paper sacks inside the spare tire compartment.

Shafer further testified that he had been involved in prior surveillance at apartment 54 because of suspected narcotics activity. McBeth testified that he had been working on a narcotics investigation on apartment 54 for two months and that he had personally observed what appeared to be narcotics related "traffic in and out of the apartment" there on twenty-five occasions. McBeth also had information from a reliable confidential informant that a resident of apartment 54 was selling narcotics at an adjacent gameroom.

Appellant argued on appeal that there was insufficient probable cause to support the search of his automobile. Appellant attempted to distinguish Gates, supra, by showing that in that case the officers had an extensive period of time between receiving the tip and making the search during which independent police investigation took place, while in the instant case the limited amount of time between tip and search did not allow for independent investigation. Appellant argued that because this independent police investigation, which corroborated much of the anonymous tip information in Gates, supra, added immeasurably to the finding of probable cause in that case and was absent here, the trial court's denial of appellant's Motion to Suppress was erroneous. The First Court of Appeals in Houston agreed and reversed appellant's conviction.

We are of the opinion that, under the totality of the circumstances shown in the instant case, the Court of Appeals erred in determining that the officers did not have probable cause to search appellant's automobile.

At the outset we note that the standard of reviewing the existence of probable cause established in Gates, supra, has replaced the two-prong approach of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Further, the "totality of the circumstances" approach in determining probable cause established in Gates, supra, applies to warrantless as well as warrant searches. United States v. Mendoza, et al., 722 F.2d 96 (5th Cir.1983); Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984). ¹ As a result of Gates, supra, the duty of the reviewing court is to look to the "totality of the circumstances" to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action.

In Gates, supra, the Bloomingdale, Illinois, Police Department received an anonymous letter which read:

This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance wil be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.

They brag about the fact they never have to work, and make their entire living on pushers.

I guarantee if you watch them carefully you will make a big catch. They are friends with some big drug dealers, who visit their house often.

Lance and Susan Gates

Greenway

in Condominiums

462 U.S. at 225, 103 S.Ct. at 2325.

After further investigation, the Bloomingdale Police Department discovered that Lance Gates had been issued an Illinois driver's license and that he had made a reservation on an Eastern Airlines flight to Florida for May 5th.

An agent for the Drug Enforcement Administration confirmed that Lance Gates boarded the Eastern Airlines flight to Florida. Other federal agents in Florida observed Lance Gates arrive in West Palm Beach and take a taxi to the Holiday Inn where he occupied a room reserved for Susan Gates. The next morning Lance Gates left Florida with a female companion.

An affidavit setting forth these facts along with a copy of the letter was presented to a magistrate who issued a search warrant. Pursuant to the warrant, officers searched the Gates' automobile and home, resulting in the discovery of more than 350 pounds of marihuana, some weapons and other contraband.

The United States Supreme Court, substituting the totality of the circumstances standard for that of the two-prong Aguilar-Spinelli approach, determined that the letter along with the corroboration of the tip by independent police investiation was sufficient to justify the magistrate in issuing the search warrant.

Thus, in Gates, supra, independent police investigators corroborated at least the following allegations made in the letter from the anonymous informant:

(1) Sue and Lance Gates had lived at Greenway, off Bloomingdale Rd.

(2) Sue Gates drove the car to Florida.

(3) Lance Gates flew to Florida.

(4) Lance Gates drove the car back to Illinois.

In the instant case the following allegations made by the anonymous informant were corroborated by independent police investigations:

(1) Appellant was with another Cuban male...