Ebarb v. State

• Citation: 598 S.W.2d 842
• Decision Date: 27 June 1979
• Docket Number: No. 56747,No. 2,56747,2
• Parties: Winnie R. EBARB, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 842

598 S.W.2d 842

Winnie R. EBARB, Appellant, v. The STATE of Texas, Appellee.

No. 56747.

Court of Criminal Appeals of Texas, Panel No. 2.

June 27, 1979.

On Rehearing May 28, 1980.

John V. Elick, Bellville, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and ODOM, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for carrying a handgun wherein punishment was assessed at 10 days and a $500 fine. In a prior opinion this appeal was dismissed for lack of a timely notice of appeal. By supplemental transcript it has been shown that a timely notice of appeal was in fact given. Accordingly, the appeal is reinstated and will be disposed of on the merits.

Appellant asserts error was committed when the trial court refused to suppress the handgun as the fruit of an illegal detention. The trial court denied appellant's motion to suppress after conducting a hearing on the issue. This was sufficient to preserve the matter for review on appeal. Art. 40.09(6)(d) (3), V.A.C.C.P. Although appellant's son testified on direct examination by the defense that he was responsible for the pistol being in the car at the time of the arrest, his testimony was presented in an attempt to meet, rebut and explain the evidence obtained in the challenged seizure, and does not constitute a waiver of the objection. Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169. We therefore consider this search and seizure issue on the merits.

Sheriff Maddox of Austin County was at the annual Sealy Firemen's Frolic when someone told him that Winnie Ebarb was carrying in her car some illegal pills and a handgun. He and several of his deputies, Sealy policemen, and the local District Attorney, who were also attending the Frolic, departed in two cars in search of Mrs. Ebarb. After driving around Sealy for awhile the car was spotted by the Sheriff and followed until it pulled into a driveway and stopped. The driveway was that of Mrs. Ebarb's son where she was staying. The car contained Mrs. Ebarb, her son and daughter-in-law. The sheriff and his companions in the search stopped their cars and went to Mrs. Ebarb's car. The Sheriff approached the passenger side where Mrs. Ebarb was sitting, identified himself and asked if he could search the car. She replied "Well, certainly" and exited the car. As she was doing so the dome light came on and revealed a pistol on the front seat of the car. The car was searched and no drugs were found. The pistol was used in the instant prosecution.

Appellant argues that the pistol was seized as the result of an illegal detention while the State declared that the pistol was admissible as having been observed in plain view before seizure. The State is correct as far as it goes. Contraband seen in the open is subject to seizure by police. Jones v. State, Tex.Cr.App., 565 S.W.2d 934; Clark v. State, Tex.Cr.App., 548 S.W.2d 888; Evans v. State, Tex.Cr.App., 530 S.W.2d 932. However, before the plain view doctrine may be relied on, it must be shown that the officer had a right to be where he was at the time of his observation.

As was stated in Clark, supra, at 889, "A police officer may seize what he sees in plain sight or open view if he is lawfully where he is." (Emphasis added.) In the instant case the gun was observed in plain view by police officers in the course of an investigatory stop. ¹ If the stop was not a lawful exercise of police power, then the object seen in plain view should have been suppressed.

In this case information about a criminal act came to the Sheriff's attention at a time when it was not possible to obtain a magistrate's approval to search or arrest in the form of a warrant. However, police officers are not required to shrug their shoulders and permit crime to occur and criminals to escape, even when probable cause to arrest or search does not exist. Circumstances short of probable cause for arrest may justify temporary detention for purposes of investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Brem v. State, Tex.Cr.App., 571 S.W.2d 314; Greer v. State, Tex.Cr.App., 544 S.W.2d 125; Mann v. State, Tex.Cr.App., 525 S.W.2d 174. But in order to justify the intrusion, the law enforcement 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. Shaffer v. State, Tex.Cr.App., 562 S.W.2d 853. The reason for having this requirement for specific articulable facts is so a magistrate can, at a later date, examine the circumstances to ensure that the constitutional rights of the citizenry have been observed.

"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard; would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. at 1880.

The specific and articulable circumstance which justified this investigatory stop was solely and exclusively the tip of an informant. It therefore behooved the trial court to examine this information and its source to see if it would "warrant a man of reasonable caution in the belief" that a crime was taking place or that an investigatory stop was justified. At the suppression hearing the only testimony about the informant was from Sheriff Maddox on cross-examination:

"A. All right. I had information that she had some pills in the car that she had been trying to sell to some kids, and that she definitely had a revolver in the car with her.

"Q. And who was this information from?

"A. I will have to get that information. I don't have any of it my notes or anything with me. I sure don't have. I can get it, but I don't have it with me today."

Defense counsel was not allowed to inquire further into the informant's identity.

"Q. This informant, have you gotten information from this informant before?

"A. Yes, we got some information.

"Q. Have you made an arrest on that information?

"A. I haven't myself.

"Q. How many times, if you know, have you gotten information from this informant?

"A. I wouldn't be able to give you an answer.

"Q. Is it because you don't recall?"

The inquiry was then cut off by objections, which were sustained, that the informant was irrelevant because the gun had been found in plain view.

The Sheriff's testimony was inadequate to make an evaluation of the reliability of the informant or the information on which the stop was based. In Adams v. Williams, supra, the U.S. Supreme Court case which most clearly parallels this one, a police officer was told that a person sitting in a car in a parking lot had drugs and a pistol with him. The information justified an investigation by the police officer. The informant was known to him personally and had provided him with information in the past. This combined with other circumstances to give "enough indicia of reliability to justify the officer's forcible stop of Williams." Adams, 407 U.S. at 147, 92 S.Ct. at 1923-24. Milton v. State, Tex.Cr.App., 549 S.W.2d 190, involved the investigatory detention of an individual on the basis of an informant's tip. The information had been received "from a known and reliable informer who had previously given information to the police about narcotic violations." We pointed out that the informer told police that the suspect had heroin on his person packaged in tinfoil, that he had personally observed heroin in the suspect's possession within the last 24 hours, and that the informer was familiar with heroin and narcotics paraphernalia. This information from an informant the officer considered reliable was a specific and articulable circumstance sufficient to justify the initial investigatory stop of the suspect. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In the present case the trial court had before it only the testimony that the Sheriff had gotten information from someone whose name he didn't remember and who had given some information in the past. ² There was no testimony which would enable the trial court to evaluate the reliability of the informant or the information. That being the case, and since the informant's tip was the only justification for the stop which allowed the plain viewing of the gun, we find that there was insufficient evidence of specific and articulable circumstances to justify the stop and that the pistol found as a result of that stop should have been suppressed. As the gun was essential to the crime charged, we cannot say the error was harmless.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge, dissenting.

In this case there was no arrest. Even though the appellant gave consent to a search, there was no search. The majority holds that even though the officers did not stop the automobile in which the appellant was riding, it will be considered as a stop. The car was already stopped when the officers arrived. There was no detention of appellant until after the officers saw the pistol on the seat of the car where she had been sitting.

After receiving information that the appellant was selling pills, uppers and downers, to children and that she had a pistol, the officers began to look for her. Sheriff Maddox testified that he never got within a half block of the car until it stopped in a driveway at a garage...