Garcia v. State

Decision Date01 April 1992
Docket NumberNo. 929-90,929-90
PartiesAntonio GARCIA, Appellee, v. STATE of Texas, Appellant.
CourtTexas Court of Criminal Appeals

Steve W. Simmons, Dist. Atty., and Debra Morgan, Asst. Dist. Atty., for appellant.

Bruce W. Weathers, El Paso, for appellee.

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

Before the court en banc.

OPINION ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellee was charged with unlawful possession of a controlled substance in Penalty Group I, namely cocaine, having an aggregate weight of less than 28 grams. Tex.Health & Safety Code § 481.115. The trial court granted appellee's motion to suppress the cocaine after finding it was the fruit of a search based upon a "pretext stop." The State appealed the trial court's pretrial order, pursuant to Tex.Code Crim.Proc. art. 44.01. The El Paso Court of Appeals held the trial judge had "erred as a matter of law" by granting the motion to suppress, vacated the trial court's order, and remanded the case to the trial court. State v. Garcia, 794 S.W.2d 472 (Tex.App.--El Paso 1990). We granted appellee's petition to address the "pretext arrest" theory on which the court of appeals premised its holding. 1 We will affirm.

I.

The following facts are taken from the court of appeals' opinion:

On the afternoon of March 25, 1989, two uniformed El Paso police officers, Duran and Ruiz, were on routine patrol in their assigned district. They observed a tan Cadillac parked at the curb in front of 3717 Finley Street. The address was known to both officers as a frequent "shooting gallery" for drug offenders, as well as a frequent exchange point for stolen property. They had never seen this vehicle at or near the premises before. The officers were not in fact even aware of whether the driver of the vehicle was in that house. Nonetheless, their suspicions were aroused--albeit without sufficient reasonable, articulable facts to justify an investigative stop. They continued their patrol through the nearby streets. One hour later, they were again approaching the 3700 block of Finley, southbound on Latta Street. As they approached the intersection with Finley, they observed the Cadillac pass through the intersection in front of them, eastbound on Finley. Officer Duran testified that he started to follow the Cadillac from the intersection of Latta and Finley street (sic) and then saw the driver continue through the next intersection without stopping at a posted stop sign. Officer Ruiz' testimony was to the effect that they saw the stop sign violation from the first intersection and then turned to pursue the Cadillac. At any rate, Officer Duran pursued the Cadillac, employing both emergency lights and siren to signal the driver to stop. The Cadillac continued, south on Gateway South and then west on Paisano Drive. The Cadillac's progress was stopped by vehicles waiting for a red light on Paisano. Duran stopped to the left and rear of the Cadillac. He approached the driver's window on foot, knocked on the glass and asked the driver to lower the window. The Appellee (the driver and sole occupant of the Cadillac) did not comply despite repeated requests. Duran returned to the patrol vehicle and told Officer Ruiz to ask the drivers ahead of the Cadillac to remain in position, blocking Appellee's vehicle, while Duran called for back up (sic). Ruiz walked ahead of the Cadillac. Appellee suddenly backed up even with the patrol vehicle and then accelerated forward at an angle toward Ruiz. Duran shouted a warning, drew his weapon and fired a shot into the passenger door on the Cadillac. Ruiz dodged out of the way. In moving forward, Appellee hooked his rear bumper on the front bumper of the patrol vehicle and began dragging the police unit down Paisano Drive. As the vehicles passed Ruiz, he dove into the passenger seat of the police unit. Duran pursued on foot initially, but was then given a ride by a civilian motorist. Appellee dragged the patrol vehicle approximately two hundred yards before stopping and fleeing on foot into an adjacent residential area. Duran resumed his foot pursuit. Appellee jumped a fence and entered the residence of an elderly woman who was outside. Duran pursued the Appellee inside and found him in a bathroom trying to dispose of several small plastic bags containing what appeared to be cocaine.

Id. at 473. Police searched appellee's vehicle and found cocaine. Appellee was charged with the instant offense, as well as with aggravated assault on a police officer. No traffic citations were issued to appellee.

The court of appeals noted that one of the trial court's findings of fact was that appellee committed the stop sign violation. Consequently, the court of appeals framed the "pretext arrest" issue as whether a trial court must suppress evidence seized during an objectively valid detention for a trivial offense, when the arresting officers had a preexisting suspicion of a greater offense at the time of the detention and took advantage of the occurrence of the trivial offense to enhance their investigative opportunities of the greater offense. Id. at 474. After extensive discussion regarding the genesis of the "pretext arrest" doctrine, that court held that, given the actual occurrence of appellee's traffic offense, the officers' actions leading to the stop, search and seizure were proper, regardless of the existence of any preexisting suspicion or desire to stop appellee's automobile.

II.

Appellee contends that recent decisions of the United States Supreme Court indicate the motivations and bad faith of government officials are relevant and important to a determination of whether a Fourth Amendment violation has occurred. In support of this proposition, appellee cites this Court to New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); and Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). These cases are not applicable as they are concerned with the scope of various searches by law enforcement officials, rather than actual pretext stop situations.

Appellee also argues that the purpose of the exclusionary rule is to deter willful or flagrant actions by the police. Appellee contends that since good faith is a consideration given weight in the Fourth Amendment context, bad faith should be considered as well. Appellee avers that the rule proposed by the court of appeals would dilute the deterrent effect of the federal exclusionary rule.

III.

The term "pretext arrest," as used in the instant case, refers to an "objectively" valid stop for an allegedly improper reason. In other words, a pretext arrest occurs when an individual is validly stopped or arrested for one offense only because law enforcement officials desire to investigate that individual for a different offense--i.e., an offense for which they do not have valid legal grounds to stop or arrest. The pretext arrest doctrine is not new to this Court. See, e.g., Bain v. State, 677 S.W.2d 51 (Tex.Cr.App.1984); Dodson v. State, 646 S.W.2d 177 (Tex.Cr.App.1983) (op. on rehearing); Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1976); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973); McDonald v. State, 415 S.W.2d 201 (Tex.Cr.App.1967).

The leading decision from this Court addressing the pretext arrest doctrine is Black v. State, 739 S.W.2d 240 (Tex.Cr.App.1987). 2 In Black, homicide detectives were surveilling Black, whom they suspected had committed murder. During the course of their surveillance, the detectives observed Black commit several traffic violations, whereupon they stopped Black and arrested him for suspicion of murder. This Court held that Black's arrest was illegal because the averred traffic violations were relied upon merely as a pretext to circumvent the warrant requirement for their murder case, their subjective intent being to question Black about the murder. 3

In Black, we held that "[a]n arrest for one crime is not permitted to be used as a pretext to search for evidence of another." Black, supra at 243, citing United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). However, the Supreme Court, in Lefkowitz, dealt with the legality of a warrantless search incident to arrest when the search was for evidence of the crime for which the defendant was arrested--not for evidence of some other offense. When read carefully, it is apparent that in Lefkowitz the Supreme Court actually confronted constitutional limitations on the scope of a search incident to arrest. 4 Given this context, the dicta in Lefkowitz that "[a]n arrest may not be used as a pretext to search for evidence," does not directly address the pretext arrest doctrine, as such, that we discussed in Black and that the court of appeals addressed in the instant case. Id. 285 U.S. at 467, 52 S.Ct. at 424, 76 L.Ed. at 884.

In advancing the pretext arrest doctrine, this Court relied, in Black, primarily upon Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.1968), a panel decision of the Fifth Circuit which concerned a fact situation similar to that of the instant case. In Black, we held:

It is apparent that the instant case fits the criteria for a pretext arrest set out in Amador-Gonzalez, supra.... The facts show that the officer did not try to get a warrant, but simply used the traffic violations as a pretext to get around the warrant requirement. Appellant's detention was, therefore, illegal.

Black, supra at 245. However, a few months after Black was decided, the Fifth Circuit Court of Appeals, sitting en banc, expressly overruled Amador-Gonzalez. See United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (en banc).

IV.

In Causey, police received an anonymous tip that defendant Causey had robbed a bank. Because the police believed they lacked probable cause to arrest Causey for the robbery, they sought a way to...

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