Arcila v. State

• Decision Date: 02 March 1990
• Docket Number: No. 05-88-01217-CR,05-88-01217-CR
• Parties: Oscar Emilio ARCILA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 587

788 S.W.2d 587

Oscar Emilio ARCILA, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01217-CR.

Court of Appeals of Texas,

Dallas.

March 2, 1990.

John H. Hagler, Dallas, for appellant.

Yolanda M. Joosten, Dallas, for appellee.

Before McCLUNG, LAGARDE and OVARD, JJ.

OPINION

LAGARDE, Justice.

Following denial of his motion to suppress evidence, Oscar Emilio Arcila, an illegal Colombian national, pled nolo contendere before the court to possession of cocaine. Pursuant to a negotiated plea bargain agreement, the court sentenced Arcila to a $1,000 fine and thirty-five years' confinement. In his single point of error he contends that the trial court should have granted his motion to suppress evidence because he did not freely and voluntarily consent to a search of his house. We disagree with appellant and affirm his conviction.

The appellant's arrest and the subsequent search resulted from a joint Houston-Dallas investigation of a murder-for-hire scheme. At the hearing on appellant's motion to suppress, a Dallas police officer, Donald S. Ortega, testified that an informant told Houston police that he, the informant, had been contacted by a couple (one male and one female) in Dallas who wanted to kill an undisclosed victim. Equipped with a body microphone, the informant flew into Dallas Love Field where the couple met him and took him to a house in Carrollton where the three discussed details of the murder. At all times monitoring his actions by means of the body mike, officers from the Dallas area ¹ and from Houston followed the informant and kept him under surveillance. At the meeting in Carrollton, the couple gave the informant two loaded guns and instructed him to kill his target and any witnesses; they did not give the informant the name of his target. He also received information that two other men were paying for the murder contract and, although these other men were not named, the couple did disclose their address on Valwood in Farmers Branch. At this time, the informant excused himself and, while alone in the bathroom, repeated the address into the body mike for the benefit of the listening officers.

Although the female wanted to go and watch the killing, she was refused and stayed behind in Carrollton while the male and the police informant left to find the victim. At this time neither the informant nor the police knew the victim's name or location. The police continued to follow the informant by helicopter and in a variety of unmarked police cars. After following for a time, and fearing they might lose the informant and cause him to be faced with either carrying out the murder or being killed for his failure to do so, the police decided that they did not want the plot to proceed any further. They stopped the informant and his driver and arrested them both. At this time, the police realized that they were only a few blocks from the Valwood location of the two unidentified men who were allegedly paying for the murder contract. During the suppression hearing, Officer Ortega explained why the police decided to arrest the unidentified individuals at that location:

THE COURT: Now I've the main part. Why is it that you went down to that address after you had stopped the car on Valwood? Why did you go down to that address and knock on the door without first going to a magistrate and seeking an arrest warrant?

[OFFICER ORTEGA]: The reason we went to that location is that we had--we knew there was [sic] suspects there and that they had the capabilities of going and committing the murder of the individual that they were supposed to go kill that we didn't know.

We didn't know where the person was supposed to be killed, we didn't know who he was, and we knew that they had the capabilities if this individual had been given firearms by these other individuals at a location in Carrollton. We felt it necessary to go to that location and place those people under arrest.

Because appellant contests the validity of the consent to search, we will set out the surrounding circumstances. Houston police officer J.M. Castillo testified that before he approached appellant's house, he received information that the residence was listed as belonging to appellant. Officer Castillo testified that most of the six marked patrol cars remained at the site of the arrest of the informant and his driver, while Castillo and approximately fifteen other officers went to appellant's house. Police officers surrounded the house. Officer Castillo testified that he knocked on appellant's door at approximately 1:30 a.m. and that appellant opened the door after the first knock. At this time, none of the three officers at the door were displaying their weapons and none of the patrol cars were using their sirens or lights. Appellant wore either "longjohn's" or his underwear. The officer stated that appellant "most definitely" invited him inside. Officer Castillo told appellant that he was under arrest and read him his Miranda rights in Spanish. Officer Castillo stated that appellant appeared to understand what was said.

Officer Castillo then told appellant that he suspected that appellant had some drugs ² on the premises, and appellant confirmed that he did, stating that he had four kilos of cocaine. At this time, the initial three officers and the two Colombians were inside the residence. Appellant orally consented to a search of his residence and later signed a written consent form. The consent form was in English, but Officer Castillo orally translated it into Spanish before appellant signed it. A Farmers Branch officer witnessed appellant's signature. Officer Castillo stated that, without coercion or duress, appellant admitted to possessing the cocaine and freely pointed out its location in the house. Speaking in Spanish, Officer Castillo told appellant that appellant could refuse to consent to the search, and that if he did consent he could later withdraw his consent; however, Officer Castillo did not threaten to get a warrant if appellant did refuse to consent or later withdrew his consent. Nowhere in his testimony does Officer Castillo indicate that appellant was physically intimidated. In fact, the officer stated that appellant was not even subjected to a pat-down search for weapons.

Officer Ortega, the only other testifying witness at the motion to suppress hearing, stated that prior to entering the Valwood residence, he had drawn his gun, but that when appellant invited the officers inside, he holstered his weapon. Thereafter, the gun was under his jacket and not visible. He said that he did not recall any of the policemen carrying riotguns or shotguns and that the three police cars in front of the residence did not use their lights or sirens. A police helicopter hovered over the residence but did not flash its lights. He stated that after appellant was arrested, appellant gave oral consent to search; however, the police did not begin their search until ten minutes later when appellant signed the written consent form. Officer Ortega stated that he, too, witnessed appellant sign the consent form. Officer Ortega, who also speaks Spanish, corroborated Officer Castillo's testimony in substantially all respects.

A review of the statement of facts reveals that Officer Castillo did not obtain search and arrest warrants because he clearly felt that he was in a fast-moving, emergency situation. He felt that he did not have time to obtain the warrants because he needed to move quickly to protect the unidentified victim. Further, he knew that appellant and his companion were Colombians, and he feared that they might escape. Officer Ortega stated that because he did not know the names of the Colombians and because he did not have a physical description of them, he believed that he lacked sufficient information to obtain a warrant.

Because of its relevance to the contested issue of consent, we address the issue of the validity of the warrantless arrest. In Texas, a peace officer's authority to make a warrantless arrest is controlled exclusively by statute. Fry v. State, 639 S.W.2d 463, 465 (Tex.Crim.App.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1430, 75 L.Ed.2d 790 (1983). Statutory warrantless arrests stand as exceptions to the general rule that an officer must obtain a warrant prior to an arrest. Id. See TEX.CODE CRIM.PROC.ANN. arts. 14.01, 14.03, 14.04 (Vernon 1981). For example, a warrantless arrest can be valid under article 14.04 if the officer has probable cause to believe that a person has committed or is about to commit a felony and that such person is about to escape. Lott v. State, 686 S.W.2d 304, 307 (Tex.App.--Houston [1st Dist.] 1985), aff'd 770 S.W.2d 570 (Tex.Crim.App.1986). Probable cause results from reasonably trustworthy information which warrants a reasonable, prudent person in believing that a particular person has committed or is committing a crime. Id. In the instant case, the informant told police that the execution contract was paid for by two individuals at the Valwood address. The informant received this information from the couple who picked him up at Love Field, supplied him with two guns, and attempted to transport him to the victim. Assuming that this information constituted probable cause to believe a felony had been or was about to be committed, the record does not contain sufficient probable cause evidence that appellant was about to escape. Police had surrounded appellant's house and when appellant answered the door, he was wearing only his undergarments. ³ Besides these circumstances, the record simply contains no probable cause evidence that the officers believed the appellant was about to escape or that appellant could have escaped either from the house or from the Dallas area.

Clearly, practical considerations played a part in the decision to arrest appellant. Officer Ortega's testimony shows that the police officers believed the most prudent, reasonable course of action...