Clemons v. State

• Decision Date: 16 July 1980
• Docket Number: No. 3,No. 58993,58993,3
• Citation: 605 S.W.2d 567
• Parties: Olivia D. CLEMONS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 567

605 S.W.2d 567

Olivia D. CLEMONS, Appellant, v. The STATE of Texas, Appellee.

No. 58993.

Court of Criminal Appeals of Texas, Panel No. 3.

July 16, 1980.

Rehearing Denied Oct. 22, 1980.

Stephen M. Orr, Austin, for appellant.

Ronald Earle, Dist. Atty., Bill White and Ralph B. Graham, Asst. Dist. Attys., Austin, Robert Huttash, State's Atty., Austin, for the State.

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

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of aggravated robbery wherein the jury assessment punishment at confinement in the Texas Department of Corrections for twenty-five years.

Though appellant advances six grounds of error for our consideration, we need not reach each of these contentions. In her first ground of error complaint is made that the trial court erred in failing to grant her motion to suppress certain evidence obtained as a result of an illegal search and seizure. We will sustain that ground of error and have concluded that this evidence was prejudicial in regard to the punishment assessed notwithstanding that its erroneous admission may have been harmless at the guilt-innocence stage of the trial. Accordingly, we now reverse the judgment below.

Les Elich, a concessionaire with the Austin Municipal Auditorium testified that on the afternoon of February 5, 1976 three persons entered his office seeking employment. Elich told the three, one of whom he later identified as appellant, to return at a later time to fill out employment applications though he did not have any vacancies available at that time. The trio asked Elich if he would be interested in purchasing some jewelry and, after he indicated he did not want to purchase any, they left.

At approximately 6:15 that same evening, the same three persons returned; Elich recounted that he looked up from his desk and found himself "looking into a shotgun," which he noted was of the sawed-off variety. ¹ The male, appellant's husband Robert, held the shotgun to his head, told Elich to open his safe and, when he balked at doing so, the assailant informed him that unless he opened the safe, he would kill him. Elich noted that during this episode appellant also displayed a weapon, which he identified as a chrome-plated pistol. The third person, one Brenda Lewis, also exhibited a pistol. After Elich opened the safe and removed its contents, appellant ordered him to lie down near the safe and, as he was complying with the request, appellant struck him in the mouth. Elich then heard Robert Clemons instruct appellant to kill him, and he positively identified appellant as one who fired her weapon at him, striking him in the back. The complainant pleaded with his assailants not to shoot him again; he feigned being dead to avoid being shot again. The trio took Elich's watch and ring and, after they left, Elich called the police. Appellant and Clemons fled to Kansas City and their later arrest in a fortuitous incident there gives rise to her present grievance.

Complaint is made that the trial court erred in failing to suppress certain evidence seized during the course of a warrantless search of a motel room at the time of her arrest. ² At a pretrial hearing on the motion, Officer Arnold Rider of the Kansas City Police Department testified that around 8:00 p. m., February 20, 1976, he and two fellow officers were dispatched to the Travel Lodge Motel at the behest of their superior, Sergeant Finlay. Finlay had received an anonymous telephone call advising him that two undescribed individuals in Room 312 of the Travel Lodge Motel were armed with shotguns and had allegedly committed several robberies. Upon arriving at the motel, the officers were informed that the management had already requested police aid to investigate a disturbance by occupants of Room 312. Rider, two other officers and David Staffer, an off-duty Kansas City police officer working in uniform as a security officer for the motel, proceeded to Room 312 where they could hear loud noises and laughter coming from the room. Officer Staffer knocked on the door and, upon receiving an oral reaction, identified himself as motel management who had reports of a disturbance in the room and wanted to talk about that. The door was opened by a male, later identified as Robert Clemons, who was again told of the reports of a disturbance from 312 and asked by Officer Staffer if the officers might step into the room. It was established that Officer Rider was brandishing a .12 gauge shotgun and, though each officer was armed with a service revolver, it is unclear whether the other officers had their own weapons in hand. Staffer testified that after hesitating for a moment, ³ the male stated that the officers "might as well get out of the hallway," and stepped back and aside to let them into the motel room. ⁴ Officer Rider led the way.

Once in the room, Rider observed appellant lying on the bed clad in pants and a brassiere. He told Robert that the disturbance complaint was "of relatively minor consequence," that the "main thing" was the officers had received information that the occupants of the room were armed with a sawed-off shotgun; Robert Clemons denied having any knowledge of that. Meanwhile appellant began backing up towards a suitcase to put a blouse on. Rider testified that at that juncture he became fearful that appellant was attempting to obtain a shotgun from the open suitcase and that, feeling that he and the other officers were in danger, ordered appellant to halt. The officer then moved around the suitcase and discovered a silver-colored revolver inside, which he believed to be loaded. ⁵

After Robert and Olivia Clemons complied with the officer's request to produce some identification, Officer Meadows called police headquarters via walkie-talkie for a check with the Kansas City crime computer to determine if the subjects had local records or outstanding warrants. This inquiry revealed that neither Robert nor Olivia Clemons were "wanted" in Kansas City for any type of offense or the like. A second inquiry to the National Crime Information Center (NCIC) revealed, however, that Robert Clemons was indeed wanted in connection with a robbery outside of the Kansas City area. As Rider moved the subjects toward the door, and away from the weapon that had already been discovered, he saw a sawed-off shotgun under a nearby bedspread. The officer formed the opinion that the shotgun was an illegal weapon under the purview of both Missouri and federal statutes, and he advised Robert and Olivia that they were going to police headquarters for investigation of possession of an illegal firearm pursuant to a Missouri statute which empowers local authorities to hold an individual believed to be connected with a felony for twenty hours pending investigation.

Robert Clemons and appellant were advised of their Miranda rights, after which the officers conducted a complete search of the motel room. All seizures and searches produced a .25 caliber automatic weapon, a .32 caliber pistol, the sawed-off shotgun, and some narcotics paraphernalia including several needles and several packets of an unknown white powdery substance. At no time was a warrant procured for the purpose of searching the motel room. Except for the packets, the seized evidence was admitted over appellant's objection at the conclusion of the hearing on her motion to suppress and again at trial.

The thrust of appellant's contention is that the instant search and seizure were patently illegal because the officers never obtained a warrant and, further, that the State did not meet the burden of showing that the search was justified pursuant to one of the several exceptions to the rule requiring a search warrant. The State responds that "the officers were voluntarily admitted into the room," and that the subsequent discovery of the weapons resulted from appellant's movements toward the open suitcase and the subsequent "protective" search. We do not agree.

It is true that an anonymous telephone call, such as the one in the case before us, will provide sufficient justification for police officers to initiate an investigation, e. g., Mann v. State, 525 S.W.2d 174 (Tex.Cr.App. 1975); George v. State, 509 S.W.2d 347 (Tex.Cr.App. 1974); but such a "tip" will not justify a warrantless arrest or search. Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App. 1974); Kaser v. State, 505 S.W.2d 806 (Tex.Cr.App. 1974).

While the odor of burning opium that led narcotics officers to Room 1 of the Europe Hotel in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) was stronger cause than the tip and complaint motivating Officer Rider and his group, the scene at the door followed a remarkably similar scenario, quoted in full in the margin, ⁶ which preceded the search of that hotel room. The late Mr. Justice Jackson ⁷ writing for the Court, after pointing out the facts, set forth in full provisions of the Fourth Amendment and then declared:

"Entry to defendant's living quarters, which was the beginning of the search, was demanded under color of office. It was granted in submission to authority rather than an understanding and intentional waiver of a constitutional right."

It is well settled that when the State...