Eisenhauer v. State

• Decision Date: 11 August 1983
• Docket Number: No. 01-82-0501-CR,01-82-0501-CR
• Citation: 657 S.W.2d 184
• Parties: Lee Warren EISENHAUER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 184

657 S.W.2d 184

Lee Warren EISENHAUER, Appellant, v. The STATE of Texas, Appellee.

No. 01-82-0501-CR.

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

Aug. 11, 1983.

W. Scott Carpenter, Houston, for appellant.

Timothy G. Taft, Houston, for appellee.

Before WARREN, BASS and BULLOCK, JJ.

OPINION

BASS, Justice.

This is an appeal from the offense of possession of cocaine, upon a plea of nolo contendere. In accordance with a plea bargain, the court assessed punishment of six years confinement, probated, and fined appellant $2,000. The court granted appellant permission to appeal the denial of his motion to suppress evidence.

The judgment is reversed and the cause is ordered dismissed.

At 1:00 p.m., on February 16, 1982, Officer Furstenfeld, a Houston police officer, received a phone call from an unknown informant concerning an individual named Lee Eisenhauer. The informant advised the officer that Eisenhauer would depart from Houston Intercontinental Airport at 1:30 p.m. en route to Miami. The informant further revealed that Eisenhauer would return from Miami the same day with cocaine in his possession.

The informant gave the officer a description of Eisenhauer. The description included the following details: Eisenhauer was a white male, approximately 22 years of age, 5' 10"' tall, weighing 160 pounds, with short, dark hair. He would be wearing a beige tweed jacket, blue jeans, and white tennis shoes.

The officer went to the Continental ticket desk and ascertained that an individual named Lee Eisenhauer was booked on a 1:30 p.m. flight to Miami, and was booked to return on the same day from Miami at 8:03 p.m.

At 8:00 p.m. the officer observed appellant deplane and determined that he fit the description given by the informant. Officer Furstenfeld testified that appellant was carrying a piece of luggage and walked at a fast pace down the concourse, looking over his shoulder twice. Appellant took the escalator to the baggage area, bypassed the area, and approached the north exit. Officer Furstenfeld stated that none of these actions were unusual in an airport.

At this point Officers Burnias and Furstenfeld approached appellant, identified themselves as police officers, and asked if they could speak with him.

Furstenfeld asked appellant for his ticket and identification. Appellant complied with the request. Furstenfeld then advised appellant that he believed appellant to be in possession of cocaine. Appellant's hands began to shake, and he appeared nervous. His forehead broke out in perspiration and he began to stutter.

Furstenfeld requested permission to search appellant and his luggage. However, appellant did not respond. At this juncture, another officer, Officer Castillo, approached appellant and told him that they knew he had gone to Miami to buy cocaine and that they believed that appellant had cocaine in his bag or on his person. Appellant stated, "What happens now?," whereupon Furstenfeld told him that he could consent to a search of his bag and person or require the officers to procure a warrant.

Another officer, Officer Gannon, joined the group at this time. Appellant was standing, backed into a phone cubicle, with four officers surrounding him.

Although appellant did not consent to a search, his luggage was then searched. No contraband was discovered. Officer Gannon then commented that the cocaine was probably in appellant's sock, and, at the same time, Furstenfeld asked appellant where the cocaine was located. Officer Castillo then told appellant to "give it up," in that he was "caught".

Appellant responded by taking off his jacket and handing it to Officer Burnias, saying only, "It's in the pocket". Two of the officers searched the pockets and a package wrapped in a napkin was discovered. Furstenfeld opened the napkin and observed a plastic bag filled with a white substance, which tested positive for cocaine.

Appellant at no time gave his permission for either a search of his luggage, his jacket, or the napkin-wrapped package. Although he was told that he could either consent to a search or require a search warrant, his luggage was immediately searched without consent. He handed over his jacket only after he had been told to "give it up," because he had been "caught."

In his first ground of error, appellant contends that the trial court erred in denying his motion to suppress evidence, because probable cause for his arrest was not established. He correctly points out that under current Texas law, where a warrantless arrest is based upon an informant's tip, the two-pronged Aguilar test must be met. 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The Aguilar test requires a showing of (1) the circumstances underlying the informant's conclusions, i.e., the source of the informant's information; and (2) the reasons the officer deemed the individual credible and the information reliable.

Appellant asserts that the informant's tip in the case at bar was insufficient to establish probable cause for appellant's arrest because no evidence was introduced establishing how the informant had obtained his information. Moreover, the officer had not previously received information from the informant. Appellant urges that Officer Furstenfeld's mere assertion that his informant was reliable is an insufficient basis for establishing probable cause for arrest, and cites Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.1972), as authority.

Appellant further points out that although the first prong of the Aguilar test, the "basis of the informant's knowledge" aspect, may be buttressed by the tip itself, the tip must describe the accused's criminal activity in sufficient detail to demonstrate that the information is based on personal knowledge. That is, the information must be more substantial than a casual rumor circulating in the underworld, and must not constitute merely an accusation predicated on an individual's general reputation. Appellant cites Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as authority. He argues that the tip in the instant case is so vague, general, and lacking in detail as to constitute mere rumor, and asserts that it does not rise to the specificity required by Draper v. U.S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Appellant's contention that the Aguilar test was not met is correct.

However, contrary to appellant's assertion, the first prong of the Aguilar test was satisfied by the highly detailed nature of the informant's allegations. Every detail concerning appellant's physical description, attire, date and time of departure, destination, date and time of arrival, and name, was verified by the officers prior to interception. The only detail not verified prior to interception was possession of cocaine. Authority has held such evidence, when combined with evidence of the informant's reliability, to be sufficiently detailed. See, e.g., Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977); Spinelli, supra; Draper, supra.

Yet, regardless of whether the tip was sufficiently detailed to satisfy the first prong of the Aguilar test, the second prong was not met. No evidence was introduced establishing why the officer deemed the informant credible and the information reliable. To the contrary, the officer testified that he had never received any information from the informant previous to the phone conversation of February 16, 1982. He had no idea whether the informant had accurate information when he acted upon it, and he testified that the informant himself had never seen the cocaine appellant was to obtain. According to the officer, all the informant knew was that "a person was supposed to go to Miami and obtain some cocaine". It is clear that the officer had no basis, such as past dealings with the informant, upon which to determine that the informant was credible and the information reliable. Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979); Hicks, supra.

It is clear from the evidence adduced at trial through the officer's testimony that appellant's detention was no mere "Terry stop and frisk." The search of appellant's baggage was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers entered into a full-blown search without probable cause. See, e.g., McVea v. State, 635 S.W.2d 429 (Tex.App.--San Antonio 1982, PDRR), and cases cited therein. Furthermore, after the search of his luggage failed to reveal any evidence of illegal activity, appellant was told that he had been "caught" and should "give it up." For all practical purposes, at this point he...