Beasley v. State, s. 61770

• Decision Date: 15 September 1982
• Docket Number: 61771,Nos. 61770,No. 1,s. 61770,1
• Citation: Beasley v. State, 674 S.W.2d 762 (Tex. Crim. App. 1982)
• Parties: Bobby Lee BEASLEY, Appellant, v. The STATE of Texas, Appellee. Donald Ray BEASLEY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 762

674 S.W.2d 762

Bobby Lee BEASLEY, Appellant, v.The STATE of Texas, Appellee.

Donald Ray BEASLEY, Appellant, v.The STATE of Texas, Appellee.

Nos. 61770, 61771.

Court of Criminal Appeals of Texas Panel No. 1.

Sept. 15, 1982.

Rehearing Denied July 18, 1984.

Randolph C. Chandler, Stephenville, for appellant.

Robert J. Glasgow, Dist. Atty., and Robert S. Lee, Asst. Dist. Atty., Stephenville, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeals are taken from convictions for aggravated robbery obtained in a single trial; each appellant's punishment was assessed at life confinement pursuant to V.T.C.A. Penal Code, § 12.42(d).

By ground of error five, each appellant alleges his written inculpatory statement was a product of his illegal detention arising from an unreasonable warrantless arrest.We are constrained to reverse both convictions under this contention.

The record reflects each appellant filed a motion to suppress evidence which contained an allegation comporting with their fifth grounds of error on appeal.It was determined at a pretrial hearing that the State would undertake its burden of proving the arrests of appellants were lawful, during trial on the merits.

As best as we can determine from the testimony of Officer R.D. Bowers¹ the salient facts follow: On October 25, 1978, at approximately 6:30, ² Bowers and his partner, Officer Peters, received "a radio call of suspicious people" being in a residential area of Mesquite in Dallas County.Arriving approximately simultaneously with another squad car containing Officer Perkins, Bowers pulled up head on to a pickup truck parked legally on the right side of the road.Appellants were standing at the rear of the truck, the doors of which were closed, the hood of which was ajar.The area was dark, Bowers remarked, with trees on each side.

Exiting the car, Officers Bowers and Peters walked up to appellants, requested identification and asked their purpose in being where they were.Both appellants produced a driver's license, and Bowers handed them over to Peters, who went back to the squad car "to do the checks."Appellants explained that they were electricians on their way to work, but the clutch in the pickup "burned out" and the motor was causing trouble.They were waiting for someone already in route to help them.

As this conversation was taking place appellants, with Bowers, walked along side the pickup and reentered it.Bowers testified that "when they were inside the truck, we were running a check on the license of the pickup,"³ but since he later said, "I ran the twenty-eights and twenty-nine's"⁴we take his meaning to be that he stepped away from the pickup and one or another officer remained, later to be rejoined by Bowers.Everyone was just carrying on a conversation while appellants were sitting inside the pickup "and the N.C.I.C. hit came back on them."⁵He later explained that the N.C.I.C. indicated "known offenders," but never elaborated on what that term meant.

The next thing we glean from the testimony is that, after about ten to fifteen minutes inside, the appellants were somehow outside the pickup, and in front of it "sitting there talking with the officers," apparently awaiting a return on the "twenty-nine,"⁶ the inquiry for which required the VIN.Officer Bowers testified he had obtained it from "off the inside section of the cab, it's a plate that is riveted to the cab wall."From the testimony it is impossible to determine at exactly what chronological point Bowers came into possession of the pickup's VIN, but he denied that he had opened a door to the pickup to get it, asserting, "the door was open."⁷

At any rate, according to Bowers:

"We were sitting there talking and they[appellants] asked for some cigarettes out of the vehicle, and at that time, we'd had some information from the computer [that they were known offenders] and I walked back to the side of the pickup, on the passenger side, and opened the door and [in plain view, there was a gun case laying in the floorboard]."

Bowers described the gun case as a brown suede leather "zip-up type" case.He conceded that he could not see through it and did not know whether it contained a weapon until he picked it up, opened it and removed a "twenty-two automatic."

Both appellants were placed under arrest for unlawfully carrying a weapon.⁸They were taken to the Mesquite City Jail and the truck was impounded.

Apparently appellants were moved to the Dallas County Jail sometime between the day of their arrests and October 28, 1978, because the State established that on the latter date appellants received a visit there from David Ward, an investigator for the district attorney for Erath County.Appellants were advised of their rights and ultimately gave written statements incriminating themselves in commission of the offense for which they were convicted and have brought the instant appeal.

Appellants now insist the State failed to establish their arrests, made without a warrant, were lawful.We agree.

It is apparent that Officer Bowers, et al, proceeded to the location of appellants' breakdown in order to investigate the unremarkable presence of appellants who were legally parked in a residential neighborhood.The State has never asserted the officers possessed any particularized and objective basis for suspecting these appellants were engaged in any particular criminal activity, which would have justified the issuance of a warrant for their arrests by a detached magistrate, or justified a less intrusive "seizure" based on suspicion which would warrant the officers' "investigation" or demand that they identify themselves.Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357(1979);see alsoUnited States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621(1981);Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968);Hull v. State, 613 S.W.2d 735(Tex.Cr.App.1981).

Thus, the first inquiry to be made is whether, under the totality of the circumstances proved, appellants were "seized" by the officers within the meaning of the Fourth Amendment to the United States ConstitutionandArticle I, § 9, of the Texas Constitution.

Clearly, the fact that appellants' vehicle was disabled and therefore "already stopped when the officers arrived," has no probative force in resolution of the question.Ebarb v. State, 598 S.W.2d 842, 849(Tex.Cr.App.1980)(Opinion on State's Motion for Rehearing).As was observed by the Court in Ebarb, supra,

"In the law of search and seizure the term 'stop' means something other than 'halt;' it refers to a type of temporary detention for investigation.The 'stop' was put in its constitutional framework in Terry v. Ohio, [supra, 392 U.S. at 16, 88 S.Ct. at 1877]: 'It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.'It matters not whether the person was moving or standing still when the police officer accosted him; what matters is that the person was then restrained in his freedom to move.Thus, when a person is sitting in a parked car and a police officer orders him to roll down the window or to open the door, there is at that point a temporary seizure for investigative detention--a 'stop.'State v. Smith, 137 Ga.App. 101, 223 S.E.2d 30(1975).A 'stop' is a seizure that is less intrusive than a full arrest, just as a 'frisk' is a pat down for weapons that is less intrusive than a search for evidence."

598 S.W.2d at 849-850.

While it might be inferred from the scant record before us that the initial arrival of two patrol cars containing three apparently uniformed police officers, one parking "eye to eye" with appellants' truck and the other positioned behind, constituted a "seizure" of appellants at that moment, we are reluctant to resolve the issue on this circumstance alone.For, though little is clear from this record, it does establish that at a later point appellants were in fact "detained" by the officers to the extent that they had to "ask" for cigarettes from the truck, and Officer Bowers, for his "own safety," felt an appropriate response to this request was that he should go to the passenger's side, open the door and go into the vehicle for them.

The record makes manifest that at this point, the information within the officers' knowledge was that appellants' truck, legally parked in a residential area, had malfunctioned; appellants were electricians on their way to a job; they were apparently cooperative, readily answering questions and providing proof of their identities; the license of the truck was registered to one appellant; and both were reported to be "known offenders."⁹Just that is far short of facts which would justify a "seizure" of any sort recognized as reasonable under the Fourth Amendment.Hull, supra.Since there was no justification for appellants' detention, it follows Bowers' own action in opening the door and entering the truck was unreasonable, and the State may not therefore successfully rely on the "plain view doctrine."Ebarb, supra, (Opinion on Original Submission).

Neither will this record support a conclusion that the computer check on the VIN which subsequently revealed the truck to be stolen, [see n. 8, ante ] justified appellants' arrests nevertheless.The record is devoid of evidence indicating the circumstances under which the VIN was in the first instance obtained from inside the cab.Thus, the State's failure to develop the facts in this regard leaves that party's burden of proof unmet; what remains is the glaring inference that, at a minimum, the VIN, like the automatic weapon, was obtained as a result of appellants' illegal detention.Cf.Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441(1963)[wherein finding heroin held not...