Green v. State
| Decision Date | 16 January 1980 |
| Docket Number | No. 1,Nos. 55590,55591,s. 55590,1 |
| Citation | 594 S.W.2d 72 |
| Parties | Benjamin GREEN, Appellant, v. The STATE of Texas, Appellee. Randall Corcoran MABRY, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
William W. Morris, San Antonio, for appellants.
Felipe Reyna, Dist. Atty., and Karen R. Cable, Asst. Crim. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.
OPINION
This a joint appeal from convictions for possession of heroin. Each appellant pled not guilty and each was convicted by the court who assessed appellant Green's punishment at 15 years' confinement and appellant Mabry's punishment at 6 years' confinement.
Appellants both contend that the heroin was seized as the result of an unlawful arrest and therefore, should have been excluded as evidence. We agree and reverse.
Waco police officer Robert Fuller testified that he first encountered the appellants at approximately 9 p. m. on January 20, 1976, when he stopped them for a traffic violation. While he was questioning the appellants, Fuller observed in the car's open glove compartment a clip of ammunition which led him to ask the appellants if they were carrying a gun. The appellants acknowledged that fact and surrendered a pistol to Fuller who copied its serial number and then returned it to the appellants. He released the appellants with only a verbal warning concerning the traffic violation. A subsequent check on the pistol revealed that it was stolen in San Antonio.
Later that evening, Fuller observed the appellants' car parked outside a motel. He checked the motel's register and found that appellants' car license number was given as part of the registration information for room 17 which was registered to a Mona Johnston, whose address was given as 219 Austin Street, Waco. Fuller concluded that this was a fictitious address because he had personal knowledge that the only structures standing on the 200 block of Austin Street in Waco were the city hall and convention center. Fuller reported his suspicious findings to Sergeant Herrin, his superior officer, whom he had called to the motel for assistance. Herrin told Fuller to return to the police station in order to verify the fact that the pistol possessed by the appellants was "an active stolen." Fuller confirmed that the pistol was currently reported stolen and returned to the motel at approximately 1 a. m. with this information. Fuller, Herrin and two other Waco police officers went to room 17, knocked on the door, identified themselves as police officers, and after no response from the occupants inside, used a pass key to open the door only to find that it was latched with a chain from the inside. The officers heard the occupants of the room moving around inside hurriedly and after a minute or two, appellant Mabry unlatched the door from the inside and told the officers, "Come on in." Fuller went inside and stood near the restroom where he noticed floating in the toilet several plastic bags filled with a brown powdery substance which was later determined to be heroin.
Fuller further testified that when he and the other officers went to appellants' motel room it was their intent to recover the stolen pistol from the appellants and arrest the appellants for violating the City of Waco's "Innkeeper's Ordinance" because of the false registration information given.
The dispositive question before us is whether or not Officer Fuller was lawfully present inside the appellants' motel room at the time he observed the heroin in the toilet, for if he was, the seizure of the heroin which was in open view was lawful. Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978). Since the appellants were arrested without a warrant, the officers' entry into the appellants' motel room can only be justified by the authority to arrest without a warrant under V.A.C.C.P., Articles 14.01 and 14.04 or if the entry was made with the appellants' consent.
With respect to the authority to arrest without a warrant, we note that Article 14.01, supra, provides in relevant part that "A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Article 14.04, supra, allows a peace officer to make a warrantless arrest when he has reasonably trustworthy information from a third person that...
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