Doyle v. State

• Decision Date: 12 October 1989
• Docket Number: Nos. 01-88-00620-C,01-88-00622-CR,s. 01-88-00620-C
• Citation: 779 S.W.2d 492
• Parties: Sally Ann DOYLE, Appellant, v. The STATE of Texas, Appellee. Tony Lynn DOYLE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 492

779 S.W.2d 492

Sally Ann DOYLE, Appellant, v. The STATE of Texas, Appellee.

Tony Lynn DOYLE, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-88-00620-CR, 01-88-00622-CR.

Court of Appeals of Texas Houston (1st Dist.).

Oct. 12, 1989.

Mike DeGeurin and Paul Nugent, Foreman, Degurin & Nugent, Houston, for appellant.

John B. Holmes, Dist. Atty., Timothy G. Taft and Karen Morris, Asst. Dist. Attys., Houston, for appellee.

Before MIRABAL, SAM BASS and COHEN, JJ.

OPINION

MIRABAL, Justice.

The trial court found appellants guilty of possession of marihuana, in a quantity of more than 4 ounces and less than 5 pounds, and assessed Sally Doyle's punishment at six years confinement, probated, and a fine of $500, and Tony Doyle's punishment at four years confinement. Both parties appeal. For clarity, each appellant will sometimes be referred to by first name.

Each appellant asserts, in two points of error, that (1) the trial court erred in denying the motion to suppress the fruits of a warrantless search and seizure, and (2) the evidence is insufficient to establish the possession of marihuana as charged.

The trial court conducted an evidentiary hearing on the respective motions to suppress. At the close of the evidence, the trial court denied the motions. Immediately following the hearing, appellants each pled not guilty, waived a jury, and stipulated to the evidence that was introduced at the suppression hearing plus one additional exhibit, reserving their right to appeal. The trial court found appellants guilty and sentenced them in accordance with plea bargains as to punishment only.

The evidence introduced at the suppression hearing, all of which was stipulated to for purposes of the guilt/innocence bench trial, was the following, unobjected-to testimony of Houston Police Officer R.D. Massey, which covers a total of 21 pages in the statement of facts.

At approximately 3:45 p.m. on July 8, 1987, Officer Massey received a telephone call from an anonymous informant. Officer Massey testified:

Q. (By Prosecutor) What was the telephone call about?

A. Informant called the narcotic division, I spoke with the person, and informant advised me that a person named Sally Doyle and a man named Tony Doyle were at the Ellis Radiator Shop at 1000 block of Charles and that he had seen them in possession of a pound of marijuana and that they had that marijuana in the trunk of their car, and he also gave me a description of the vehicle they were driving. It's a yellow Nissan and gave me the license plate of the car.

Q. Did he give you any other information?

A. He advised me that the people would not be at that location long. They would be leaving shortly.

Q. Did he give you an idea of what shortly meant in terms of time?

A. Within an hour.

Q. And did he give you his name?

A. He give me a first name only.

* * * * * *

Q. (By Prosecutor) Did that person that called you, besides expressing the concern that the people were going to be leaving the radiator shop shortly, give you any other indication of when they would be leaving or where they might be going?

A. Yes, ma'am. Informant advised they were leaving with the marijuana to go some place to sell the marijuana.

Officer Massey did not obtain an arrest warrant or a search warrant. He arrived at the Ellis Radiator Company in an unmarked police car and saw a yellow Nissan car, with license plate numbers that matched the ones the informant described, parked out front. He conducted surveillance of the Nissan car until 5:00 p.m., when a man and a woman left the premises in the car. The woman drove, and the man sat in the front passenger's seat. Officer Massey followed the car for 15 minutes, over a distance of three miles, after which he and a uniformed patrol unit stopped the car. The uniformed officer spoke with the woman driver, who was Sally Doyle, and asked her to step out of the car. Officer Massey testified:

Q. (By Prosecutor): When you stopped the defendants, how were each of them acting, let's take Sally Doyle. When you asked her to step out of the car and questioned her, do you remember noticing anything about her behavior?

A. She was very nervous.

Q. Could you describe what you mean by that?

A. Well, she was stuttering a little bit, just seemed very nervous at the time.

Q. Did that indicate anything to you?

A. It appeared to me she had something to hide.

Officer Massey then informed Sally Doyle that the Houston Police Department had information that she had marihuana in the car. She responded that she had some marihuana roaches in a bag on the front floorboard of her car.

Officer Massey then asked Tony Doyle to step outside from the passenger's side of the car, after which Officer Massey removed the bag of used marihuana cigarettes from under the passenger seat. At that time, he arrested appellants. Officer Massey asked Sally Doyle whether there was any other marihuana in the car, to which she made no reply. Officer Massey then removed the car keys from the ignition and opened the trunk of the car. He found approximately one pound of marihuana in a bag wrapped in a brown blanket. Appellants do not dispute that the substance found in the trunk was marihuana.

Appellants each contend in their first point of error that the trial court erred in denying appellants' motion to suppress the fruits of the warrantless search and seizure. Appellants argue that Officer Massey had ample time to secure search and arrest warrants, so he was not justified in making the warrantless search and arrests. Appellants further argue that an anonymous phone call does not justify a warrantless search and arrest.

The anonymous phone call in the present case did not, alone, provide probable cause for the issuance of an arrest warrant or a search warrant. However, an anonymous phone call will provide sufficient justification for police officers to initiate an investigation. Clemons v. State, 605 S.W.2d 567, 570 (Tex.Crim.App.1980). Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation, since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Livingston v. State, 739 S.W.2d 311, 326 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Leighton v. State, 544 S.W.2d 394, 397 (Tex.Crim.App.1976). In Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972), the Supreme Court reasoned:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See Terry v. Ohio, 392 U.S. 1, 23 [88 S.Ct. 1868, 1881, 20 L.Ed.2d 889] (1968). A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

An officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is about to, or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to a crime. Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986). In Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983), the Court of Criminal Appeals held that, in order to justify such an intrusion, a police officer "must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation." An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Lopez v. State, 663 S.W.2d 587, 589 (Tex.App.--Houston [1st Dist.] 1983, pet. ref'd).

In this case, the officer did possess specific facts to justify a temporary detention of appellants. He had information from an informant that a drug transaction was about to take place, and he had corroborated, by personal observation, the following information received from the informant: the location described by the informant was indeed the address of Ellis Radiator Shop; a yellow Nissan was parked outside the radiator shop; the license number of the car matched the license number given by the informant; a male and a female came out of the shop and left in the car a little more than an hour after the call from the informant.

At that point, the only facts that had not been verified were the identities of the man and woman as Tony and Sally Doyle, and the presence of marihuana in the trunk of the car they were driving. We hold that the officers were justified in stopping the car for further investigation.

Sally Doyle's subsequent admission that she had some marihuana roaches in a bag on the front floorboard of the car provided probable cause that an offense was being committed in the officer's presence, which justified the seizure of the marihuana indicated, and the arrest of Sally and Tony Doyle. See Lunde v. State, 736 S.W.2d 665, 666-68 (Tex.Crim.App.1987); Delgado v. State, 718 S.W.2d 718, 720-21 (Tex.Crim.App.1986).

In light of the marihuana found in the car, coupled with the informant's tip that marihuana would be found in the trunk, we hold that the officers had probable cause to believe there would be more marihuana in the trunk, and therefore were authorized to conduct a warrantless search of the trunk. United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982); Osban v. State, 726 S.W.2d 107, 109 (Tex.Crim.App.1986); Delgado v. State, 718 S.W.2d at 723-24.

Appellants' first point of error is overruled.

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