Daniels v. State

• Decision Date: 26 January 1984
• Docket Number: No. C14-83-093-CR,C14-83-093-CR
• Citation: 681 S.W.2d 78
• Parties: Thomas Edgar DANIELS aka Thomas Edgar Austin, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 78

681 S.W.2d 78

Thomas Edgar DANIELS aka Thomas Edgar Austin, Appellant, v. STATE of Texas, Appellee.

No. C14-83-093-CR.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 26, 1984.

Rehearing Denied Feb. 23, 1984.

Discretionary Review Granted Nov. 14, 1984.

Ronald Waska, Houston, for appellant.

Calvin Hartmann, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

DRAUGHN, Justice.

Thomas Edgar Daniels appeals from his conviction for possession of a controlled substance for which he was sentenced to five years' imprisonment. In two grounds of error, appellant claims that the trial court incorrectly admitted into evidence certain items seized from him during an airport stop and search. We hold that the trial court did not err in admitting such evidence and accordingly affirm the judgment.

Officers Furstenfeld and Bernias, while on Airport Detail for the Houston Police Department's Narcotics Division, observed appellant and his co-defendant, Stephen Bogden, arriving at Houston Intercontinental Airport from Miami. The officers were looking for people who displayed certain characteristics typical of drug couriers. They were particularly interested in this flight as it originated in Miami, a known drug source city. Furstenfeld's attention was immediately drawn to appellant Daniels because he and Bogden deplaned separately, but obviously "locked eyes" in the lobby. Daniels scanned the lobby nervously, and then he and Bogden proceeded separately down the concourse. They nodded at each other once, and both appeared unusually nervous. They met at the baggage claim area where Bogden handed appellant his suitbag while Bogden went to the restroom. Bogden rejoined Daniels and they waited to claim a white suitcase. The officers then followed Daniels and Bogden into the elevators which took them to the airport's covered parking area. Furstenfeld approached appellant Daniels as he left the elevator and began walking down the parking lot, while Bernias followed Bogden further down the lot. Furstenfeld greeted appellant and asked if he could speak with him. He then identified himself as a police officer and asked if Daniels would mind answering a few questions for an investigation he was conducting. Daniels replied that he did not mind. Furstenfeld asked him if he was traveling with Bogden, to which he responded that he was not. Furstenfeld then asked if he would mind showing his plane ticket. Appellant produced two tickets, one in the name of G. Daniels and one in Bogden's name. Furstenfeld then returned the tickets and asked him for some identification. Daniels handed him a temporary driver's license in the name of T. Daniels. After looking at it, Furstenfeld returned the license and identified himself as a narcotics officer. Appellant then became nervous and began shaking and perspiring.

Furstenfeld then asked for Daniels's permission to search him and his suitcase. He informed Daniels that he did not have to consent and that he could require him to obtain a search warrant. In spite of this admonition, Daniels consented to the search, which subsequently revealed certain controlled substances. Daniels was then arrested and charged with the instant offense.

Before the case went to trial on the merits, Daniels made a motion to suppress the introduction of the narcotics. The trial judge denied the motion after a lengthy hearing. Daniels was thereafter found guilty of possession of a controlled substance. He now contends on appeal that the narcotics were obtained as the result of an illegal search and seizure, and therefore should have been excluded.

There have been a myriad cases dealing with airport stops and searches. The courts have had difficulty with these issues and have reached varying results. This diversity stems from the constitutional need to balance the intrusion on an individual's Fourth Amendment rights against the government's interest in ending drug smuggling. See United States v. Berry, 670 F.2d 583, 594 (5th Cir.1982) (en banc). However, two recent cases have attempted to resolve these uncertainties and establish specific guidelines for future airport stop and search cases. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Berry, supra.

We begin with the premise that not all airport stops of individuals by police invoke the protections of the Fourth Amendment. Rather, the purview of protections is governed by which one of three types of police-citizen encounter is at issue: a communication between police and citizens involving no coercion or detention, a brief, Terry-type investigatory stop, or a full scale arrest. Berry, 670 F.2d 591. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Perchitti v. State, 659 S.W.2d 75 (Tex.App.--Houston [14th Dist.] 1983, no pet.). If the events in the case constitute a permissible police encounter in a public place or a justifiable Terry type detention, evidence obtained in a subsequent voluntary search is admissible. See Royer, 103 S.Ct. at 1326. If, however, the stop amounts to a full scale arrest, it must be supported by probable cause for the evidence gained thereby to be admissible. Thus, our initial task is to determine the proper category here involved.

Communications between police and citizens involving no coercion or detention do not violate the Fourth Amendment. Berry at 594. Police officers may approach an individual in a public place by asking him if he is willing to answer some questions, or by putting questions to him if he is willing to listen. Without more, the fact that an officer identifies himself as a police officer does not make the encounter a seizure requiring some amount of justification. Simply stated, if there is no detention--no Fourth Amendment "seizure"--then no...