Colston v. State

• Decision Date: 02 July 1974
• Docket Number: No. 46658,46658
• Citation: 511 S.W.2d 10
• Parties: James Ray COLSTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 10

511 S.W.2d 10

James Ray COLSTON, Appellant, v. The STATE of Texas, Appellee.

No. 46658.

Court of Criminal Appeals of Texas.

July 2, 1974.

Claude R. Giles, Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Joe Guyton, Asst. Dist. Atty., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the possession of a dangerous drug, to-wit: lysergic acid diethylamide, wherein the punishment was assessed at eight (8) years. The trial was before the court.

In three grounds of error appellant contends his warrantless arrest was illegal and that any search incident thereto was likewise invalid, and that the court erred in overruling his motion to suppress. We agree that the record before us does not show the fact that there was probable cause for the arrest.

McLennan County Deputy Sheriff Stovall received a Department of Public Safety teletype purportedly at 11:22 a.m. on August 21, 1971, which read:

'Federal narcotics in San Antonio request that you bolo 1971 VW Van 71 TX GNP96 driven oy (sic) 2 wm subjs James Ray Colston and Tom Hutchinson both subjs heavly (sic) armed and believed to be in Waco area or nearing Waco area from El Paso subjs believed to be carrying narcotics no warrants are issued.

'Agent Collier Federal Narcotics San Antonio

DPS San Antonio GLC 21--1125 DPS SA GLC 22--1018'

Deputy Stovall did not know the appellant and had no personal knowledge concerning any crime that the appellant may have committed. He did run a license registration check on the vehicle mentioned in the teletype and found such a vehicle registered to J. R. Colston of 187 Mather, Waco.

Acting upon the teletype, Stovall went to west Waco to set up a surveillance in order to intercept the vehicle in question. Making no contact, Stovall left his location about 3:30 p.m. and proceeded about other business. Stovall went home to eat about 5 p.m., but shortly thereafter left home to go shopping. On his way to the store he spotted the vehicle in question bearing the license number 'GNP 96' at the Peppermint Lounge east of Waco. He then radioed Lacy-Lakeview police officers from an incorporated area nearby and displayed to them the teletype dispatch and asked them to proceed to the lounge with him. The four Lacy-Lakeview officers arrived first and parked behind the van which the appellant was about to enter, the door to the van being open. Officer Trick of the Lacy-Lakeview police jumped from the car with a shotgun, told the appellant to freeze, and then ordered him to place his hands on the van. At this point the officers began to frisk and search appellant's person. During this time, Officer Trick looked through the open door of the van and saw what appeared to be a police radio receiver and a derringer lying on the floor-board partly under the front seat. After seizing the derringer, Trick searched the vehicle and found the five thousand tablets of 'LSD' in a picnic cooler. These were turned over to Deputy Stovall, who arrived on the scene after the other officers. Trick testified that he did not know the appellant and had no personal knowledge of any crime being committed when he arrived on the scene and told the appellant to freeze. He related he relied exclusively upon the teletype which he was shown.

Article 15.22, Vernon's Ann.C.C.P., provides that:

'A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.'

Clearly appellant was under restraint when at gunpoint he was told to freeze and to place his hands on the van. There was no warrant, so it must be determined if there were probable cause for the warrantless arrest.

Only Officers Trick and Stovall testified, and it is clear that they had not acquired probable cause on their own, but were acting upon the strength of the teletype dispatch. They, of course, had the right to act upon the basis of the teletype dispatch and were entitled to assume the officer requesting the arrest had sufficient probable cause to justify the arrest, Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Weeks v. State, 417 S.W.2d 716, 718 (Tex.Cr.App.1967), cert. denied, 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494 (1967); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969); Muggley v. State, 473 S.W.2d 470, 472 (Tex.Cr.App.1971). 'Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.' Whiteley v. Warden, Wyoming State Penitentiary, supra.

The test as to probable cause in such cases where the officers act solely upon a request for arrest is the information known to the officer who requests another officer to effect the arrest. Piper v. State, 484 S.W.2d 776 (Tex.Cr.App.1972); Branch v. State, 447 S.W.2d 932 (Tex.Cr.App.1969), cert. denied, 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 864 (1971); Miller v. State, 442 S.W.2d 340 (Tex.Cr.App.1969); Texas Digest, Vol. 5, Arrest, k 63.4(11).

In the instant case the State made no attempt to call Agent Collier, nor was he identified in any way other than the description in the teletype. The source of his information is not revealed, and if from an informer, there is no showing as to reliability of such informer or as to the credibility of the information. See and cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 s.Ct. 584, 21 L.Ed.2d 637 (1969).

The standards applicable to the factual basis of the officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to a magistrate's assessment of probable cause. See Whiteley v. Warden, supra, 91 S.Ct. at 1036; McCray v. Illinois, 386 U.S. 300, 304--305, 87 S.Ct. 1056, 1058--1059, 18 L.Ed.2d 62 (1967); Brown v. State, 481 S.W.2d 106, 109 (Tex.Cr.App.1972).

Other than the teletype dispatch, the only other information Deputy Stovall had learned was that the vehicle license tags had been issued to a J. R. Colston. This information was not in any sense corroborative of the fact that appellant had committed a crime or was in process of committing any crime.

Since the validity of the arrest is dependent upon the probable cause possessed by an unidentified 'Agent Collier,' who was not called to testify, this record does not reflect probable cause for the warrantless arrest, and the items seized cannot be justified as a result of a search incident thereto.

And certainly it is well established that probable cause for a warrantless arrest cannot be bolstered by the results or fruits of a subsequent search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed.2d 520 (1927); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969) (Concurring Opinion, footnote #4, p. 302).

While the State does not so urge in its brief, it might well be argued that the officers relied upon 'probable cause to investigate.' See Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The officers involved did not rely upon any unusual conduct on the part of the appellant observed by them to conclude that criminal activity may be afoot and that the appellant may be armed...