Eisenhauer v. State

Decision Date17 October 1984
Docket NumberNo. 889-83,889-83
PartiesLee Warren EISENHAUER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

W. Scott Carpenter, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft and Jesse Rodriguez, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal is from a conviction for possession of a controlled substance, to-wit: cocaine. Following appellant's plea of nolo contendere before the court, punishment was assessed at six years' imprisonment, probated, and a fine of $2,000.00.

Prior to the bench trial, the appellant filed a pre-trial motion to suppress evidence seized pursuant to his warrantless arrest and the search incident thereto. At a hearing on the motion to suppress, only one police officer testified and the motion was overruled. Thereafter appellant entered his nolo contendere plea and the evidence seized as a result of the search was utilized to support his plea and the judgment. See Article 1.15, V.A.C.C.P. After conviction, the appellant appealed only the denial of the pre-trial motion to suppress, which was permissible under Article 44.02, V.A.C.C.P.

On appeal the conviction was reversed by the Houston (1st) Court of Appeals. Eisenhauer v. State, 657 S.W.2d 184 (Tex.App.--Houston [1st] ). That court found the trial court erred in overruling the motion to suppress in that the warrantless arrest of appellant was based on an informer's tip which failed to meet the second prong of the test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

It is clear that the decision of the Court of Appeals was solely based on federal constitutional grounds.

We granted the State's petition for discretionary review to determine the correctness of that decision. The State urges that the Court of Appeals erred in not applying Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which rejected the rigid two-prong test of Aguilar.

In his motion to suppress appellant urged:

"I.

"Defendant was arrested without a warrant and without probable cause in violation of the IV, V, and XIV Amendments to the Constitution of the United States and in violation of the laws and Constitution of the State of Texas.

"II.

"That the search of Defendant's person and luggage does not fall within any cogent exception to the Fourth Amendment."

After a hearing on said motion, appellant's counsel offered no authority to support his position that no probable cause had been shown except a reference to "Draper-Aguilar-Spinelli situations." The motion to suppress was overruled.

In his first ground of error on appeal, appellant contended:

"The trial court erred in failing to suppress the evidence for the reason that appellant's (sic) arrest was without probable cause."

Among the authorities urged were Aguilar, Spinelli, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Shimel v. State, 640 S.W.2d 666 (Tex.App.--Houston [14th] 1982), applying Draper.

In grounds of error two, three and four appellant expressly contended the search was in violation of state law. In grounds of error five and six he contended there was insufficient evidence to show he consented to the search, and if he did consent, such consent to search was secured through the exploitation of his illegal arrest.

The Court of Appeals sustained appellant's first ground of error on federal constitutional grounds finding no probable cause for the warrantless arrest and that any evidence derived from the arrest should have been suppressed citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Court of Appeals also sustained the fifth and sixth grounds of error regarding consent. As to appellant's contentions regarding state statutes and law, the Court wrote:

"Appellant's second, third, and fourth grounds of error also address the illegality of the search. In view of the fact that the Aguilar test of probable cause was not met, these grounds need not be addressed."

The State in its petition for discretionary review urged that the "panel opinion of the First Court of Appeals erred in its failure to apply Illinois v. Gates ... to this case." 1

Thus the only question before us for review is whether the Court of Appeals properly applied federal constitutional law in finding that there was no probable cause for the warrantless arrest and that the trial court erred in overruling the motion to suppress evidence.

Initially we look to the facts developed at the suppression hearing.

Houston Police Officer D.D. Furstenfeld of the Narcotics Division was assigned to the Houston Intercontinental Airport on February 16, 1982. About 1 p.m. he received a telephone call at his office in Terminal A. He revealed the call was from "a reliable informant, confidential" who gave him information concerning an individual named Lee Eisenhauer. Furstenfeld was told Eisenhauer would depart from the airport at 1:30 p.m. en route to Miami, Florida, and would return to Houston on the same day with cocaine in his possession.

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

Officer Furstenfeld went to Terminal C and observed the plane for Miami leaving the gate. He went to the Continental Airlines ticket desk and ascertained that a Lee Eisenhauer was on the 1:30 flight to Miami, and was booked on a return flight the same day which would arrive in Houston at 8 p.m.

At 8:03 p.m. Furstenfeld saw an individual fitting the description given by the informant, deplane. He testified that while the individual was dressed as described, etc., he still did not know the individual's name. The individual looked around the gate lobby, appearing somewhat nervous. The individual was carrying a piece of carry-on luggage. He walked at a fast pace down the concourse, looking over his shoulder twice. He took the escalator to the baggage area, bypassed that area, and approached the north exit.

At this point Furstenfeld and his partner, Officer Burnias, approached the individual, identified themselves as police officers, and asked if they could talk to him. The individual agreed. He moved toward a small phone booth or cubicle and put his bag down. The officers asked if he had just returned from Miami. He stated he had.

When asked for his ticket and other identification, the individual complied. The airline ticket and other identification bore the name Lee Eisenhauer.

When appellant inquired "What's this all about?" Furstenfeld advised Eisenhauer, identified as the appellant, that he believed him to be in possession of cocaine brought in from Miami. Appellant, according to the officer, became nervous, his hands began to shake, perspiration broke out on his forehead and he began to stutter.

At this juncture, another police officer, 2 Castillo, standing nearby, approached the appellant and told him that they "were onto his game" and knew he had gone to Miami to "score cocaine" and asked if he had it with him. Appellant looked at the officers and stuttered, "What happens now?" Furstenfeld advised they would like for him to consent to a search of his person and bag, that he did not have to consent, that he had a right to require a search warrant before any search was made.

What happened thereafter varies somewhat from the direct to the cross-examination of the officer.

On direct examination by the State Furstenfeld related appellant responded to his advice about consent by taking off his jacket, handing it to Officer Burnias and stating, "It's in the pocket." Burnias looked in one pocket and Furstenfeld looked in the other pocket, and he (Furstenfeld) recovered a small ziploc baggie wrapped in a napkin, containing approximately 28 grams of white powder. Furstenfeld field-tested it and it reacted positive for cocaine.

On cross-examination Furstenfeld stated that after his statement regarding consent that appellant stuttered but did not say anything. It appears that the appellant's bag was then searched which did not reveal any contraband. At this point Officer Gannon, standing nearby, suggested the cocaine might be in appellant's sock. Officer Castillo then said to appellant, "Give it up you are caught" or something "like that." It was then that appellant handed his coat to the officers who found the cocaine.

In Aguilar, the Supreme Court wrote:

"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 was 'credible' or his information 'reliable'." 378 U.S. at 114-115, 84 S.Ct. at 1514.

The holding in Spinelli was, inter alia, that corroborating facts from police observations which are stated in the search warrant can be taken into account to determine whether the affidavit as a whole meets the requirements of Aguilar.

The Court of Appeals in this warrantless arrest case found the first prong of Aguilar was "satisfied by the highly detailed nature of the informant's allegations," citing Spinelli, but found the...

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