Ceniceros v. State

• Decision Date: 16 February 1977
• Docket Number: No. 52528,52528
• Citation: 551 S.W.2d 50
• Parties: Raymond G. CENICEROS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 50

551 S.W.2d 50

Raymond G. CENICEROS, Appellant, v. The STATE of Texas, Appellee.

No. 52528.

Court of Criminal Appeals of Texas.

Feb. 16, 1977.

On Rehearing May 18, 1977.

Bruce J. Ponder, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and William J. Ellis, Thomas C. Roepke, Asst. Dist. Attys., El Paso, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of possession of heroin. Punishment was assessed at five years.

In appellant's sole ground of error he contends that the trial court erred in overruling his motion to suppress evidence "because there was not sufficient probable cause on the part of the arresting officer to stop and investigate the appellant."

Prior to the introduction of evidence of the heroin, the court conducted a hearing in the absence of the jury on appellant's motion to suppress such evidence. Officer Nunez of El Paso Police Department testified substantially as follows:

About 10:20 a.m. on June 19, 1975, while Nunez was on regular patrol duty in his police car in El Paso, he noticed four men standing together on the sidewalk at the intersection of Missouri and Randolf Streets, a residential area in El Paso. Due to a number of recent burglaries in the neighborhood, Nunez, after passing the men, turned his car around, stopped it, and approached the men. He started talking to them "to see if they had any business in the area." Noting that one of the men, identified as appellant, appeared to be shaking and nervous, he asked for identification of each of them. The men "started to pull out their wallets to get some ID." As appellant was "thumbing" through his wallet, a piece of tin foil and a pawn shop ticket fell from it to the sidewalk. Nunez knew from his experience as a policeman that heroin was frequently packaged in this manner. He picked up the foil, opened it, and found a brown powdery substance which appeared to him, based on his experience, to be heroin. He then arrested appellant and the other men. Examination by a chemist proved this powder to be heroin.

Testimony of one of the men with appellant conflicted with that of Nunez. Victor Rodriquez, who at the time was a resident of a "halfway" house on parole from a federal narcotic conviction, testified that when the officer approached them he immediately ordered them to place whatever was in their pockets on the top of the police car. He stated that he did not see anything fall from appellant's wallet, and did not see Nunez reach down and get anything from the sidewalk.

The court, who at the hearing was the trier of facts, overruled the motion to suppress, and permitted the officer to testify before the jury of finding the heroin as above stated.

In Baity v. State, Tex.Cr.App., 455 S.W.2d 305, we quoted as follows from the majority opinion and Justice White's concurring opinion in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889:

"The majority opinion stated:

" 'One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. (emphasis supplied)'

" * * *est

" 'And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'

"Mr. Justice Harlan, concurring, wrote:

" 'Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so.'

"And Mr. Justice White in his concurrence said:

" 'There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for his arrest, although it may alert the officer to the need for continued observation.' "

In the instant case, Nunez, acting from his experience as a police officer and from his knowledge that a number of recent burglaries had occurred in the area, violated no constitutional rights of appellant in approaching and engaging in conversation. Appellant and his companions were not stopped by the officer; they were standing still when he first saw them, and when he approached them. When Nunez noticed that appellant appeared nervous as he approached, the evidence does not disclose that he placed appellant or his companions in any kind of restraint or detention. As Justice White stated in Terry v. Ohio, supra, appellant could "refuse to cooperate and go on his way." However, when the wrapped foil paper fell from appellant's wallet, and the officer recognized it as the type of wrapper often used to contain heroin, he was justified in securing it and making further investigation. See Art. 14.03, V.A.C.C.P. It is a well recognized rule that when contraband is thrown, dropped, or placed away from the person of accused in a public place, the recovery thereof does not constitute a search and the evidence is admissible. Tatum v. State, Tex.Cr.App., 505 S.W.2d 548; Gomez v. State, Tex.Cr.App., 486 S.W.2d 338 and authorities there cited; Baity v. State, supra.

The court did not err in overruling the motion to suppress and admitting the evidence relative to the seizure of the heroin.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge, dissenting.

The facts are sufficiently stated by the majority, but I further note the following: that the "experience" of the arresting officer was of some seven months; that one of the appellant's companion's parents lived in the neighborhood where they were questioned; that the arresting officer's testimony was contradictory as to when the appellant became nervous, as the officer approached him or only after he asked for his identification; that the fact that the officer approached appellant because of recent burglaries in the area was brought out by the trial court's examination of the officer at the motion to suppress; ¹ that the officer testified that the appellant and his companions were not holding any tools, ropes or crowbars, and were, in fact, empty-handed; that the arresting officer testified that he did not suspect the appellant and his companions to have committed a crime; that the arresting officer stated unequivocally at least four times that the appellant and his companions were doing nothing suspicious.

This case presents the question of whether the reasonableness of a temporary detention for investigative purposes, what we have formerly denominated as a "lesser intrusion upon the personal security of an individual," ² should be tested by the application of Fourth Amendment principles and Article I, Section 9 of the Constitution of this State when such investigation is merely a request for identification. I would hold that it should be so tested; that the instant investigative detention was unreasonable in light of the facts; and that the evidentiary fruit obtained from such unreasonable investigative detention was improperly admitted into evidence.

A recent federal decision focuses on the exact problem that we face in the case at bar: the reasonableness of the request for identification. In United States v. Salter, 521 F.2d 1326 (2nd Cir. 1975), Judge Friendly, speaking for a unanimous court, stated that a routine request for identification is allowable once an otherwise lawful stop for investigative purposes has taken place.

"Once a lawful stop for investigative purposes is under way, it is mere routine for an officer to ask for identification, see United States v. Lincoln, 494 F.2d 833, 838 (9th Cir. 1974). . . . Such a request is relatively non-intrusive, and there are important reasons why an officer needs to obtain a correct identification. . . . an officer may need to know a person's identity so as to be able to contact him at a later date. (Citation). Naturally, there is a possibility of harassment in even routine requests for identification, but there are too many legitimate uses not to allow it once an otherwise lawful stop has taken place. (Citation)" (Emphasis added).

This is a reasonable view. Part and parcel of practically every temporary detention for investigation is the request for identification. It serves many purposes, and efficient law enforcement requires it. However, should we require that quantum of justification necessary for a lawful investigative detention before we should sanction any of its incidents.

In Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), we stated that:

"The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. (Citations). Such an intrusion may be justified upon a showing that the facts of a case presented any one of three classes of probable cause. These are probable cause to arrest, probable cause to search and probable cause to investigate.

". . . Probable cause for an officer to detain a person...