Griffin v. State
| Decision Date | 20 December 2006 |
| Docket Number | No. PD-1036-05.,PD-1036-05. |
| Parties | Adam Troy GRIFFIN, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Stan Schwieger, Waco, for Appellant.
Kathryn J. "Jody" Gilliam Marlin, Matthew Paul, State's Atty., Austin, for State.
This is a "stop and frisk,"1 "plain-feel"2 case. The police stopped and detained appellant in a public area to investigate whether he was selling crack cocaine. We decide that the police legally seized crack cocaine from inside appellant's pocket during a pat-down search of the pocket.
The evidence in this case shows that appellant was arrested for possessing a small amount of residue cocaine in a "long plastic tube" about two days before the incident in question (the legality of this arrest is not at issue in this case). One or two days later, a confidential informant, whom the police considered reliable, provided the police (narcotics investigator Kingsley) with information that appellant was selling crack cocaine at a specific location in a "drug trafficking" part of town. About five minutes later, three law enforcement officers (Kingsley, Eskelin and Hamilton) went to that location and saw appellant. They did not observe appellant engaged in any overt criminal activity, but they knew that appellant carried narcotics in tubes and that appellant had been arrested a day or two before for possessing cocaine in a "long plastic tube."3 For example, Eskelin testified:
Q. And do you know at that time what he was found to be in possession of?
A. I believe it was a small amount of residue cocaine.
Q. Okay. And what about containers?
A. A long plastic tube.
Q. Okay. Did you receive other information that he carried narcotics in tubes?
A. Yes.
Appellant acted nervous when he saw the police approaching him. The police did not believe that probable cause existed for appellant's arrest at this time; but, they did stop and detain appellant to investigate the information provided by the informant.4 Eskelin immediately frisked the outside of appellant's left front pocket for "officer safety" and felt two long cylindrical tubes which Eskelin believed contained illegal narcotics based on his knowledge that appellant carried illegal narcotics in tubes. When Eskelin felt these tubes in appellant's pocket, he instructed Hamilton to handcuff appellant. As Hamilton handcuffed appellant, Eskelin removed the tubes from appellant's pocket and confirmed that they contained numerous rocks of crack cocaine. Eskelin testified:
Q. Okay. He was sitting down?
A. Yes, he was.
Q. Okay. Go ahead.
A. He was very tense—his muscles were very tense, although he did comply with my request. We walked approximately two to three feet to the side of the bench where it was—the wall was open, and he did place his hands up on the wall as I requested.
Q. Okay.
A. At that time, I began to pat him down. I started with his left front pocket. As I started to feel his left front pocket, [appellant] took his left hand off the wall and tried to turn around. At that time, I took his left hand and placed it back up on the wall. [Hamilton] took hold of his right arm and brought it back around behind his back.
I continued to—the pat-down, and at that time, I felt two long, cylindrical objects in his left front pocket.
Q. When you felt these, what did you believe it to be?
A. Containers containing illegal narcotics, crack cocaine.
Q. What you felt, did that match and was it consistent with what you had heard had been found on [appellant] a couple of days prior to that that contained cocaine?
A. Yes.
Q. Okay. After that, what happened?
A. At that time, when I felt the two cylindrical objects in his pocket, I told [Hamilton] to go ahead and place handcuffs on him. As [Hamilton] was placing the handcuffs on him, I retrieved the objects from his pocket, and there were in fact two long, cylindrical plastic tubes containing numerous rocks of rock-like objects believed to be crack cocaine.
Eskelin testified that it is common practice for him to frisk a suspect he is investigating for drug-dealing because of the possibility that the suspect might be armed.
Q. And why is that?
A. Because—especially in the area down there where drug dealers are known, in my experience—for the possibility that they may be carrying weapons, may be a danger to myself and others.
However, Eskelin also stated on cross-examination:
Q. How long have you known [appellant]—or known of him?
A. A couple years.
Q. Have you ever known him to carry a weapon?
A. No, sir.
Q. Did you have any reason to believe—did you receive any information whatsoever that [appellant] was armed—
A. No, sir.
Q. —or that he might be dangerous?
A. No, sir.
Q. Either in this case or any time in the past?
A. No, sir.
Q. So when you say, "for officer safety," is that a routine thing that you do to everybody?
A. Not everybody.
Q. Okay. But in saying it's for officer safety, you had no reason to believe and no information present or past that he might be dangerous or carrying a weapon, correct?
A. That is correct.
Q. The items which you felt, you clearly knew they were not a weapon, correct?
A. That is correct.
Q. As a matter of fact, at that time, when you pulled them out—before you pulled them out of his pocket, you knew that they were not a weapon?
A. That is correct.
Q. You knew they were of no danger to you, correct?
A. Yes, sir.
Q. Okay. At that point, could you—all you could tell is it was a round, cylindrical tube, correct?
A. Yes, sir.
Q. Or two of them, right?
A. Correct.
Q. You could not feel or tell that it was—as to what was contained inside the tubes, could you?
A. That is correct.
Q. Okay. And before you pulled them out of his pocket, you instructed the other officer to place him under arrest, correct?
A. I instructed the other officer to handcuff him, yes.
Q. Okay. He was at that time absolutely in custody, correct?
A. Correct.
Q. He was not free to leave?
A. Correct.
Q. And at that point, then you pulled these tubes out and opened them and inspected them, correct?
A. Correct.
Q. And once again, you knew before you did all this that these were not weapons?
A. Correct.
Q. And just one more thing: At the time you laid hands on him, he was not under arrest for any particular offense?
A. That is correct.
Appellant's boilerplate motion to suppress generally alleged that the State's evidence was obtained in violation of appellant's federal and state constitutional rights and unspecified state statutory rights. Appellant claimed at the suppression hearing that the police lacked reasonable suspicion "justifying an investigatory detention" because the only information known to the police was that appellant was at the location where the informant said he would be.
[DEFENSE]: That's what we have. And there's some more cases there, too. What we have here, Judge, is they didn't go to arrest him; they went to do an investigation. All that they verified was [appellant] is at this corner. Any person driving by who knew [appellant] could make that determination. That is not, in and of itself, illegal.
When you look at the totality of the circumstances, even if this is a reliable informant, they did nothing and confirmed nothing else. There was no future [sic] movements; there was no actions; there was nothing else that they confirmed. They just immediately went and started patting him down and stopped him and detained him, of which they had no right even to—they had no right to even detain him.
Appellant also seemed to claim that his initial warrantless investigatory detention (not his subsequent warrantless arrest) violated state statutory law because the State did not prove that appellant "was about to escape and there was no time to procure a warrant."5
[DEFENSE]: In that case, the State— the Court found that the State failed to prove any exception. Even though the officer had obtained information from a credible person that the Defendant had committed a felony, the State did not prove that the Defendant was about to escape and there was no time to procure a warrant.
In this situation, I in fact proved the opposite. As the officers are approaching, everybody is just standing there. Nobody tried to run away. Clearly, no evidence of attempted—that they're about to escape; no reason why they could not have obtained a warrant. There's no evidence of that.
The trial court denied appellant's motion to suppress. The Court of Appeals decided on direct appeal that the initial investigatory detention of appellant was based on reasonable suspicion; that the police were justified in frisking appellant for weapons; that the warrantless seizure of the crack cocaine from appellant's pocket during this weapons frisk was valid under the "plain-feel" exception to the Fourth Amendment's warrant requirement; and that appellant's subsequent warrantless arrest did not...
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