Fry v. State

• Citation: 639 S.W.2d 463
• Decision Date: 09 June 1982
• Docket Number: No. 1,61123,Nos. 61122,s. 61122,1
• Parties: James Francis FRY, Appellant, v. The STATE of Texas, Appellee. Jimmy Rincon MARTINEZ, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 463

639 S.W.2d 463

James Francis FRY, Appellant, v. The STATE of Texas, Appellee.

Jimmy Rincon MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 61122, 61123.

Court of Criminal Appeals of Texas Panel No. 1.

June 9, 1982.

On Rehearing Oct. 6, 1982.

Tom S. McCorkle, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Karen Chilton Beverly, C. Wayne Huff and Will Wilson, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, CLINTON and McCORMICK, JJ.

OPINION

ROBERTS, Judge.

These appeals are from convictions for aggravated robbery. These appellants were tried together and each was assessed as punishment confinement for seven years.

The appellants do not challenge the sufficiency of the evidence. In their sole ground of error they contend that certain evidence admitted at their trial was the product of an illegal search and seizure. We agree.

The appellants were among four persons accused of committing an aggravated robbery of the complainant, Robert Herdman, on March 25, 1978, in Dallas. Herdman was reported missing during the early morning hours of March 25 by his fiancee, Carol Hutyra. Hutyra reported seeing Herdman leave his apartment with co-defendant William Paddock. As they left, Hutyra noted that the car had California license plates; she wrote down the license number. About 5:00 a. m. the car returned to the apartment complex without Herdman. Appellant Fry and co-defendant Paddock got out of the car. They then attempted to burglarize Herdman's apartment. When Hutyra screamed they left. Hutyra reported the incident to a police officer who left a written report for his replacement watch.

Later that afternoon, Officer Swafford followed up the report. He picked up Hutyra at her apartment and took her back to Herdman's apartment to see if he had returned yet. They arrived there about 2:00 p. m. and discovered that Herdman had just arrived. Herdman had been very badly beaten.

Herdman then told Officer Swafford that at about 3:00 a. m. he had taken Paddock home. Upon arriving at the house, which was about three blocks from his apartment, Herdman was ordered into the house by appellant Martinez who was holding a shotgun. During the next ten or eleven hours Herdman was robbed and repeatedly beaten by four men inside the house. At about 2:00 p. m., the men finally agreed to release Herdman, and appellant Martinez drove him back to his apartment.

About 3:00 p. m., Officer Arnold arrived at the apartment. Herdman again related the day's events to Arnold. He told Arnold that the men had discussed leaving for California that day. He also told him that at the time he was released three of the four men were asleep or had passed out.

Arnold left Herdman's apartment about 3:30 p. m. and drove to a nearby police substation. He called the Crimes Against Persons Section downtown and requested additional manpower to assist him in arresting the four men described by Herdman. He told the sergeant on duty that he "knew where the suspects probably were" and that he "didn't have time to secure a warrant."

After making the call, Arnold drove to a position near the house. He kept it under surveillance until the back-up officers arrived about thirty minutes later. During that time Arnold saw nothing occur at the house.

About 4:15 p. m., Arnold and the other officers surrounded the house. Arnold knocked on the door and identified himself as a police officer. When one of the other officers saw movement inside the house, Arnold kicked open the door. All four men were then arrested, and numerous weapons and other items were seized. Only appellant Martinez was awake when the police officers entered the house.

Before their joint trial, the four co-defendants filed a motion to suppress all items seized as a result of their arrest and the search of their residence. After an extensive hearing, the trial court overruled the motion. At trial the following items were admitted into evidence: a sawed-off shotgun, a shotgun, a rifle, a baseball bat, a wooden club, a chain belt, a bayonet, a butcher knife, an aerosol spray can, three spent tubes of toothpaste, a knife, a shotgun shell, and hair specimens. In addition, thirteen photographs of various parts of the house, which were taken at the time of arrest, were admitted into evidence. Three photographs of the house which were taken three months after the arrest were also admitted into evidence.

The testimony at the suppression hearing established that no police officers ever attempted to contact a magistrate in order to obtain an arrest warrant. Officer Arnold testified that because it was Saturday he did not think such an attempt would be successful.

If there was previously any doubt, it is now clear that under the Fourth Amendment to the United States Constitution, a warrantless arrest of a person in his own home is per se unreasonable absent exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). As the Court stated in Payton:

"The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their ... houses ... shall not be violated.' That language unequivocally establishes the proposition that '[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.' Silverman v. United States, 365 U.S. 505, 511 [81 S.Ct. 679, 683, 5 L.Ed.2d 734]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."

445 U.S. at 589-590, 100 S.Ct. at 1381-1382.

However, we need not decide whether the warrantless arrest made in this case violated the Fourth Amendment to the United States Constitution.

In Texas, a peace officer's authority to make a warrantless arrest is controlled exclusively by statute. Lewis v. State, 598 S.W.2d 280 (Tex.Cr.App.1980); Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). The Code of Criminal Procedure authorizes very few exceptions to the general requirement that a peace officer obtain a warrant before making an arrest. ¹

At the pre-trial hearing held in this case, the State relied solely upon V.A.C.C.P., Art. 14.04, as authority for the warrantless arrest of the appellants. Art. 14.04 provides:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."

There is no question in this case concerning the credibility of the information given to the arresting officers by the complaining witness. Neither is there a question concerning whether the arresting officers had probable cause to believe that a felony had been committed. The sole question in this case is whether the State met its burden of proving that the arresting officers reasonably believed that the appellants were about to escape, so that there was no time to procure an arrest warrant.

In Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973), we stated:

"In accordance with the strict construction given exceptions allowing warrantless arrests, this court has always required a clear showing that the person arrested was about to escape. As is often said when considering an arrest without warrant, inarticulate hunches and suspicions are not enough to justify the arrest."

499 S.W.2d at 665. See also, Hardison v. State, 597 S.W.2d 355, 357 (Tex.Cr.App.1980) ("A showing that the offender is about to escape is indispensable under Article 14.04 ....")

The State argues that the arresting officers reasonably believed that the appellants were about to escape, so that there was no time to procure an arrest warrant. It points out that the arrest took place on a Saturday afternoon, that the suspects had said that they intended to leave for California that day, and that the complainant, who had been released, knew where the suspects lived. The combination of these facts, the State contends, justified the arrest of the appellants without a warrant. We do not agree.

First, the testimony in the case is clear that Officer Arnold merely assumed that a magistrate would not be available to issue an arrest warrant for the appellants. Neither he nor anyone else even attempted to test that assumption by trying to locate a magistrate. In light of the other testimony in the case, Arnold's assumption carries little weight.

Shortly after 2:00 p. m. Officer Swafford had received enough information from the complainant to begin the process of obtaining a warrant. He did not attempt to do so.

Officer Arnold arrived at the complainant's apartment about 3:00 p. m. At about 3:30 p. m. he left the apartment and drove to a nearby police substation where he called for back-up officers. He, too, did not make any attempt to contact a magistrate himself or request that anyone else make such an attempt.

Arnold testified that he was aware that Dallas County had numerous judges who had the power to issue warrants. He also testified that on other occasions he had been able to obtain a warrant on a weekend or at night, and that to do so he had called a magistrate at home, if necessary, and then had gone to the magistrate's home to physically obtain the warrant. When he was asked why he did not attempt to obtain a warrant in this case, he replied:

"Because I have secured many warrants, and it takes a great deal of time in even locating a Judge on Saturday...