Bell v. State

• Decision Date: 13 January 1993
• Docket Number: No. 3-92-124-CR,3-92-124-CR
• Citation: 845 S.W.2d 454
• Court: Texas Court of Appeals
• Parties: Steven BELL, Appellant, v. The STATE of Texas, Appellee.

Page 454

845 S.W.2d 454

Steven BELL, Appellant, v. The STATE of Texas, Appellee.

No. 3-92-124-CR.

Court of Appeals of Texas Austin.

Jan. 13, 1993.

Kenneth E. Houp, Jr., Austin, for appellant.

Ken Oden, County Atty., Giselle Horton, Asst. County Atty., Travis County, Austin, for appellee.

Before POWERS, KIDD, and ONION, ^* JJ.

ONION, Justice.

This appeal is taken from a conviction for the unlawful possession of marihuana of two ounces or less. Appellant entered a plea of nolo contendere to the information in a bench trial. The trial court assessed his punishment at confinement in the county jail for sixty days and a fine of one thousand dollars. The imposition of the sentence was suspended, and appellant was placed on probation subject to certain conditions.

In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence illegally seized during the execution of a search warrant that did not specifically name him "as a suspect in a drug raid." We will reverse the conviction.

Appellant filed a pretrial motion to suppress evidence seeking, inter alia, to have the trial court suppress any tangible evidence seized without lawful warrant, probable cause, or other lawful authority in violation of appellant's rights under the Fourth and Fourteenth Amendments, United States Constitution, Article I, Section 9 of the Texas Constitution, and Chapters fourteen and thirty-eight of the Texas Code of Criminal Procedure.

An evidentiary hearing on the motion was conducted in two stages, first on November 6, 1991, and then on January 23 and 24, 1992. At the conclusion of the hearing, the trial court denied the suppression motion. Appellant then entered a plea of nolo contendere to the information. After conviction, appellant gave notice of appeal. See Tex.R.App.P. 40(b)(1).

The evidentiary hearing revealed that on March 6, 1991, Austin Police Officer Liana Crow obtained a combination search and arrest warrant. The warrant authorized peace officers to enter the premises at 7513 Meador Avenue in Austin to search for and seize the marihuana described in the affidavit for the warrant and to arrest "each person described and accused in the affidavit." The affidavit stated that the premises were controlled by "1. Otis Neal Daniels, Jr., black male, born 03/14/61, and; 2. Other persons whose names and identities are unknown to your affiant at this time." The affidavit further stated that the affiant believed, charged, and accused the "afore-described persons" as having intentionally and knowingly possessed marihuana at the described premises on or about March 1, 1991.

About 12:30 p.m. on March 6, 1991, eight or nine Austin police officers arrived at 7513 Meador Avenue to execute the warrant. Appellant Bell was on the front porch of the house. When he saw the officers, appellant moved toward the front door and shouted "Police, Police." Officer Richard Burns testified that within a matter of seconds, he had grabbed appellant and had taken appellant to the ground and handcuffed him. In a subsequent frisk of appellant, Burns felt an object in appellant's right front pants pocket that seemed to be a knife. In removing what was a pen knife, not an illegal weapon, Burns also removed a plastic baggie of marihuana, which is the basis of the instant prosecution. Inside the house, the officers found Otis Daniels, three other men, cocaine, and marihuana. Appellant was not charged with the possession of the contraband found in the house. The law of parties is not involved here.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court considered the authority of an officer to frisk persons who are present at the time of the execution of a search warrant. In Ybarra, officers had secured a warrant to search a tavern for narcotics. In executing the warrant, officers subjected all the tavern's patrons to a frisk search. The Court held that the search which yielded the contraband was improper in the absence of a reasonable belief that the person to be frisked was presently armed and dangerous. Before the Ybarra decision, an officer in Texas executing a valid search warrant had the right to search all persons found on the premises during the execution of the warrant. See, e.g., Rice v. State, 548 S.W.2d 725 (Tex.Crim.App.1977); Hernandez v. State, 437 S.W.2d 831 (Tex.Crim.App.1968); Conner v. State, 712 S.W.2d 259, 260 (Tex.App.--Austin 1986, pet. ref'd). This authority of Texas peace officers was further abrogated by the decision in Lippert v. State, 664 S.W.2d 712 (Tex.Crim.App.1984), which followed Ybarra. The Lippert opinion articulated the following principles: (1) a warrant to search a premises and to arrest and search specified individuals does not carry with it the right to detain, search, or frisk persons found on the premises but not directly associated with the premises and not named or specifically described in the warrant; (2) to justify the detention and search of a person, other than an occupant, present at the scene of a valid execution of a search warrant, there must be some independent factors, other than mere presence, tying the person to the unlawful activities on the premises; and (3) a frisk of a person merely present at the scene must be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), i.e., the police must have a reasonable belief that the person may be armed and presently dangerous. Lippert, 664 S.W.2d at 721-22. See also Worthey v. State, 805 S.W.2d 435, 438 n. 5 (Tex.Crim.App.1991); State v. Owens, 810 S.W.2d 874, 875 (Tex.App.--Austin 1991, no pet.); Conner, 712 S.W.2d at 260.

Appellant initially claims that the first principle of Lippert was not met. Appellant was not shown to be a resident or occupant of the Daniels' house. While appellant was present at the time of the execution of the warrant, he was not named or specifically described in the warrant. Officer Crow, the affiant on the affidavit for the warrant, testified that she had seen appellant on the premises in question on two occasions within three days of the raid. Once she saw appellant standing on the porch and another time she observed him helping wash a car. Officer Crow agreed that appellant had not been named or specifically described in the warrant. The State urges that the warrant sufficiently described appellant and was not so general as to permit indiscriminate arrests and searches of a larger number of persons. The State's reliance upon Gonzales v. State, 761 S.W.2d 809 (Tex.App.--Austin 1984, pet. ref'd), is misplaced. Gonzales is distinguishable on its facts as well as the different terms of the two warrants.

Appellant also urges that there was no compliance with the second principle of Lippert in that there were no independent factors, other than mere presence, tying him to the unlawful activities the police believed were occurring at 7513 Meador Avenue. The State disagrees. The State contends that appellant's act in warning or attempting to warn those in the house of the approach of the police cannot be characterized as consistent with innocent activity. In Conner, as in the instant case, the officers were wearing jackets clearly identifying themselves as police officers. In Conner, this Court stated:

We do not believe that only a person engaged in criminal activity would be startled by the sight of seven, presumably armed, police officers approaching a house as he stepped outside. Nor do we find it necessarily indicative of criminal behavior that such a person would advise the others present in the house of the approach of the police.... In short, we find the evidence cited by the State insufficient to tie appellant to the unlawful activities allegedly taking place in the Benson house.

Conner, 712 S.W.2d at 261. We similarly hold that the evidence in this cause is insufficient to tie appellant to the unlawful activities, if any, taking place in the Daniels' house.

Furthermore, the frisk search was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court held an officer may conduct an investigatory detention and protective patdown when he "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous...." Terry, 392 U.S. at 30, 88 S.Ct. at 1884. The inquiry breaks down into two parts. First, the officer must be justified in initially detaining the individual. A brief detention is lawful when it is supported by specific and articulable facts that reasonably warrant the intrusion. Second, in order to justify the patdown, the officer must be able to point to specific and articulable facts suggesting that the individual presented a risk of harm to the officer or to others. United States v. Campbell, 942 F.2d 890, 892 (5th Cir.1991). An officer may pat down an individual only if his suspicions of dangerousness are directed toward the subject of the patdown. United States v. Rideau, 949 F.2d 718, 721 (5th Cir.1991).

In the instant case, Officer Burns testified that in a matter of seconds after the police arrived on the scene, he had appellant on the ground and had handcuffed him. Appellant did not resist. Burns acknowledged that appellant had not assaulted or threatened him. The officer did not see a weapon on appellant before taking appellant into custody. He could not point to one thing that made him believe that appellant had a weapon. When Officer Burns was asked if he had any articulable fact that appellant was a danger to the officers or others, he replied: "That's an unknown." Officer Burns did testify that the police assume that everyone "in the house" during a narcotic raid is a possible threat and may be armed and dangerous. He related that police officers try to maintain control of everybody as quickly as possible...