Conner v. State

• Decision Date: 11 June 1986
• Docket Number: 3-85-111-CR,Nos. 3-85-109-C,s. 3-85-109-C
• Citation: 712 S.W.2d 259
• Parties: Clifford CONNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 259

712 S.W.2d 259

Clifford CONNER, Appellant, v. The STATE of Texas, Appellee.

Nos. 3-85-109-CR, 3-85-111-CR.

Court of Appeals of Texas Austin.

June 11, 1986.

Steve Gibbins, Austin, for appellant.

Ronald Earle, Dist. Atty., Ashton Cumberbatch, Asst. Dist. Atty., Austin, for appellee.

Before SHANNON, C.J., and SMITH and GAMMAGE, JJ.

PER CURIAM.

Appellant pleaded guilty in our cause number 3-85-109-CR to the offense of possession of cocaine, Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04(b) (Supp.1986) and was sentenced, in accordance with the terms of a plea bargain, to fifteen years imprisonment. In our cause number 3-85-111-CR, appellant pleaded nolo contendere to the offense of possession of methamphetamine, Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04(b) (Supp.1986), and was sentenced, again in accordance with a plea bargain, to serve a fifteen-year term to run concurrently with the first sentence.

In both causes, appellant contends the trial court erred by overruling his pretrial motions to suppress the controlled substances. We agree, and will reverse both judgments of conviction.

No. 3-85-109-CR

On November 27, 1984, Austin police officers went to the residence of Greg Benson to execute a warrant authorizing the search of the residence and the arrest of Benson. When the police arrived, appellant, who was walking out the front door of the house, ran back into the house and slammed the door. The police announced themselves and kicked down the door. Once inside, the police found appellant and a woman sitting on a couch. According to police testimony, neither appellant nor his companion displayed weapons nor attempted to escape or resist the officers, and each complied when asked to raise his hands. The police then searched appellant. The search turned up no weapons but rather three small bags of what was later determined to be cocaine.

There was also testimony that at the time the police entered the house, they heard a rear door slam. Apparently, this was Greg Benson, as he was apprehended shortly thereafter while attempting to escape down an alley.

It was well-established in Texas, prior to the decision of the Supreme Court in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), that an officer executing a valid search warrant had the right to search all persons found on the premises during the execution of the warrant. Hernandez v. State, 437 S.W.2d 831 (Tex.Cr.App.1968); Johnson v. State, 440 S.W.2d 308 (Tex.Cr.App.1969); Guzman v. State, 461 S.W.2d 602 (Tex.Cr.App.1970); Fisher v. State, 493 S.W.2d 841 (Tex.Cr.App.1973); Guerra v. State, 496 S.W.2d 92 (Tex.Cr.App.1973); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973); Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977). However, these decisions were expressly overruled by the Court of Criminal Appeals in Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App.1984). After a thorough discussion of Ybarra and decisions from other jurisdictions, the Lippert opinion articulates 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; (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.

The State does not seek to justify the search of appellant as the culmination of a valid Terry frisk. Moreover, it is undisputed that appellant was not named or described in the warrant, was not a resident or occupant of the Benson house, and was unknown to the police before the day in question. Nevertheless, the State seeks to avoid the effect of Lippert by arguing that appellant was not "merely present," but, rather, his behavior was sufficient to connect him to the unlawful activities the police had probable cause to believe were occurring in the Benson house. The State points to the fact that when he saw the police approaching the house, appellant promptly went inside and slammed the door. The State characterizes this behavior as "flight." The State also notes that the officers heard a rear door slam as they entered the house, from which it infers that appellant warned Benson, who was arrested nearby, of the approach of the police. The State concludes that this conduct "cannot be characterized as being consistent with innocent activity." We cannot agree.

The record reflects that seven officers were involved in the execution of the search warrant at the Benson house. The officers were wearing protective vests and jackets clearly identifying themselves as police officers. 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. Finally, if, as the State argues, appellant attempted to flee from the police, he did so in a singularly unusual way: by sitting on the couch in the living room. 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.

Alternatively, the State argues that the police had probable cause to arrest appellant for violating Tex.Pen.Code Ann. § 38.05(a)(3) (1974), which provides that a person commits an offense if, with intent to hinder the arrest of another for an offense, he warns the other of impending discovery or apprehension. Again, we cannot agree. Because appellant was searched and arrested before Benson was discovered running down the alley, it cannot be said the police had probable cause at that point to arrest appellant for aiding Benson's escape. Moreover, even if it is assumed that the slamming door heard by the police as they entered was caused by Benson seeking to escape, and even if it is further assumed that Benson fled after being informed by appellant that police officers were outside the house, appellant's actions were as indicative of innocent conduct as of criminal conduct. Just as a person's mere propinquity to another independently suspected of criminal activity does not, without more, give rise to probable cause to search that person, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), neither does the mere fact that a person informs another independently suspected of criminal activity of the approach of a police officer, without more, give rise to probable cause to arrest that person for hindering arrest.

We hold the trial court erred in overruling appellant's motion to suppress evidence of the cocaine. The judgment of conviction in number 3-85-109-CR must be reversed.

No....