Glass v. State

• Decision Date: 14 November 1984
• Docket Number: No. 307-83,307-83
• Citation: 681 S.W.2d 599
• Parties: Anthony Raymond GLASS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 599

681 S.W.2d 599

Anthony Raymond GLASS, Appellant, v. The STATE of Texas, Appellee.

No. 307-83.

Court of Criminal Appeals of Texas En Banc.

Nov. 14, 1984.

Philip R. Presse, Leon J. Grizzard, Austin, for appellant.

Ronald Earle, Dist. Atty., and Ralph Graham and LaRu Woody, Asst. Dist. Attys., Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Anthony Raymond Glass, the appellant on appeal and the defendant in the trial court, attempted in the trial court, through a written motion to suppress, to keep "[a]ny evidence, including contraband, alleged to have been recovered from the Defendant or from the vehicle which the Defendant was driving, after it was stopped by law enforcement officers on or about the 17th day of November, 1979," from being admitted into evidence at his trial. He was unsuccessful. After a hearing on stipulated evidence, which had been adduced at an examining trial, the trial judge overruled the motion. Thereafter, appellant waived his right to trial by jury and entered a plea of not guilty to the charge of unlawful possession of methamphetamine, a controlled substance, after which the trial court found him guilty. Punishment was assessed at five (5) years' confinement in the penitentiary, probated, and a fine of $1,000, which was not probated.

Appellant's sole contention on appeal was: "The trial court erred in failing to grant appellant's Motion to Suppress, and in admitting evidence at trial which was the fruits of the illegal stop." He argued under his contention that the initial automobile stop by the police was not supported by reasonable suspicion and that the items recovered from the vehicle he had been driving were the fruits of an illegal stop by the police. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Austin Court of Appeals, in a unanimous but unpublished opinion by Justice Powers, overruled appellant's contention and affirmed the conviction. See Glass v. State, No. 3-82-373-CR (T), March 3, 1983. We reverse.

Because of the issue that is presented, we find it necessary to state some of the more prominent facts that led the police officers to stop the vehicle appellant was driving, which stop resulted in the seizure, inter alia, of methamphetamine for which appellant was charged and convicted for possessing.

The facts presented through Officer Ben Rodriguez of the Austin Police Department reflect or indicate that a dispatcher of the Austin Police Department received a telephone call from a person who did not identify himself. The caller notified the dispatcher that occupants of two automobiles, which automobiles were only described by the caller as a brown over beige El Camino and a blue Fairlane, were shooting at each other at or near the intersection of Parker and Oltorf Streets in Austin.

The dispatcher relayed the information that he had received from the anonymous telephone caller, through police radio channels, presumably to all police patrolling units that were situated in that area of Austin.

Patrol Officers Rodriguez and Garza heard the dispatch, after which they immediately proceeded to the intersection. However, after arriving at the intersection, they saw no unusual activity occurring or taking place, such as persons in one vehicle shooting at persons in another vehicle. Nevertheless, they stationed themselves near the intersection. Within three or four minutes, they observed a brown over beige colored El Camino vehicle traveling south on Parker Lane. The officers stopped the vehicle. Garza went to the driver's side of the vehicle and Rodriguez went to the passenger's side of the vehicle.

Rodriguez testified that after he went to the passenger's side of the vehicle, he "noticed" the outside passenger in the car looking at him. To Rodriguez, the passenger "seemed kind of nervous." Rodriguez also testified: "As I walked up he turned away from me, and I walked up and asked for identification. He was nervous then and made me nervous, so I asked him to get out of the car," which the passenger did. A search of the passenger compartment of the vehicle appellant had been driving followed, revealing two pistols and methamphetamine, the latter which is the basis of this case.

We first hold that the above facts, that gave rise to Rodriguez and Garza stopping the vehicle driven by appellant, do not rise to the level of probable cause to arrest or probable cause to search either appellant or the occupants of the vehicle or the vehicle itself. This is because an anonymous telephone call, like an anonymous letter, standing alone, will never provide sufficient facts that would authorize a warrantless arrest or search, which is, per se, unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Something more is required before probable cause to make a warrantless arrest or search is shown to exist. E.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, 541 (1983).

Notwithstanding that we have concluded that we are not presented with sufficient probable cause facts, that would have authorized Rodriguez and Garza to stop the vehicle driven by appellant, we must decide whether sufficient facts were established that would have authorized them to make an investigatory stop short of a warrantless arrest. We find that such facts do not exist in this record.

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