Guzman v. State, No. 190-94

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: McCORMICK; OVERSTREET; MANSFIELD; MEYERS
• Citation: 955 S.W.2d 85
• Parties: Joe Rivera GUZMAN, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 24 September 1997
• Docket Number: No. 190-94

Page 85

955 S.W.2d 85 Joe Rivera GUZMAN, Appellant,
v.
The STATE of Texas, Appellee. No. 190-94. Court of Criminal Appeals of Texas,
En Banc. Sept. 24, 1997.

Mark Darrow Wilson, Austin, for appellant.

Page 86

Robert Smith, Asst. Dist. Atty., Austin, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of the offense of possession of heroin and punishment was assessed at twenty years' imprisonment. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. Section 481.115 (Vernon 1992). The Austin Court of Appeals reversed appellant's conviction and remanded the cause to the trial court. Guzman v. State, 867 S.W.2d 126 (Tex.App.--Austin 1993). In its petition for discretionary review, the State presented the following question:

"If an officer knows from prior training and experience that heroin is commonly carried in a dealer's mouth packaged in small balloons, and it is common for the dealer to swallow the balloons when approached by the police, does probable cause to arrest arise when a tip that a particular dealer is secreting heroin in his mouth is corroborated by the suspect's failure to comply with a lawful order to stop and his overt swallowing of the contents of his mouth?"

Essentially, the State argues the Court of Appeals erred when it held the police did not have probable cause to arrest appellant. We agree with the State and therefore reverse the decision of the Court of Appeals.

On the afternoon of November 18, 1992, Officer Troy Gay of the Austin Police Department was patrolling the 1700 block of East First Street which was an area well-known for drug trafficking. While patrolling, Gay saw a male pedestrian flag down a passing vehicle. Gay saw a passenger in this vehicle give the pedestrian cash in exchange for an object the pedestrian took from his mouth. Believing he had witnessed an unlawful sale of narcotics, the officer detained both parties. Officers Jimmy Cardenas and Ronald Lara responded to Officer Gay's call for assistance.

The pedestrian told the officers he knew where they could "get a lot more heroin" than "what we're speaking of now." See Guzman, 867 S.W.2d at 127. The pedestrian then stated that he had personally seen appellant, an older, small Hispanic male wearing a brown leather jacket, with balloons of heroin in his mouth at approximately the same time the police detained the pedestrian. ¹ See id. Shortly thereafter, the informant spotted appellant walking nearby and pointed him out to the police.

Officer Cardenas testified that the officers then began walking hurriedly towards appellant, saying, "Hey, stop." Cardenas stated that appellant "kind of turned and looked at us and started walking a little faster." Officer Cardenas testified that at that time he asked appellant what he had in his mouth. Cardenas testified that as the officers ran up to appellant, appellant began swallowing. Cardenas testified that he believed appellant was swallowing balloons of heroin. Cardenas testified he then grabbed appellant around his throat and ordered him to "spit it out." ² Appellant continued trying to swallow but Cardenas squeezed harder causing appellant to spit out three small balloons.

Appellant was transported to a hospital where one more balloon was recovered. The balloons were later found to contain heroin. Prior to trial, appellant sought to have the trial court suppress the admission of the heroin into evidence, arguing it was the product of an unlawful warrantless arrest. The trial court overruled appellant's motion to suppress.

Court of Appeals' Opinion

The Austin Court of Appeals determined that appellant's arrest was warrantless and analyzed the facts pursuant to Article 14.01, V.A.C.C.P. The Court of Appeals examined the arrest in light of the principle

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that "an investigating officer's hunch, suspicion, or good faith perception is not alone sufficient to constitute probable cause for an arrest." Guzman, 867 S.W.2d at 130, citing Stull v. State, 772 S.W.2d 449, 451 (Tex.Cr.App.1989). While this principle is well-established, the Court failed to appreciate the definition of probable cause. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex.Cr.App.1991). The determination of the existence of probable cause concerns "the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." See Woodward v. State, 668 S.W.2d 337, 345 (Tex.Cr.App.1982) (opinion on rehearing), cert.denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. See id.; see also Brinegar v. United States, 338 U.S. 160, 174-75, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949) (probable cause is more than "bare suspicion"); United States v. Woolery, 670 F.2d 513, 515 (5th Cir.1982). The rule of probable cause seeks to accommodate the sometimes opposing interests of safeguarding citizens from rash and unreasonable police conduct and giving fair leeway to legitimate law enforcement efforts. See Woodward, 668 S.W.2d at 345-46.

The Court of Appeals concluded that the "totality of the circumstances in this cause did not give the police probable cause to arrest appellant. Because the balloons of heroin were seized incident to, or were the fruits of appellant's unlawful arrest, the district court abused its discretion by overruling appellant's motion to suppress." Guzman, 867 S.W.2d at 130. Although the Court of Appeals claimed to have applied the "totality of the circumstances test," after reviewing the opinion we find that the Court actually examined each fact independently and found that none of the facts standing alone were sufficient to warrant a finding of probable cause. The court should have determined whether the facts, when taken as a whole, were sufficient to give the officers probable cause to arrest appellant.

Standard of Review

In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. The amount of deference a reviewing court affords to a trial court's ruling on a "mixed question of law and fact" (such as the issue of probable cause) often is determined by which judicial actor is in a better position to decide the issue. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). If the issue involves the credibility of a witness, thereby making the evaluation of that witness' demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts. Miller, at 114-16, 106 S.Ct. at 452. On the other hand if the issue is whether an officer had probable cause to seize a suspect, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination.

In a recent decision, the United States Supreme Court held that, although great weight should be given to the inferences drawn by the trial judges and law enforcement officers, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Court stated, "the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles." Ornelas, 517 U.S. at ----, 116 S.Ct. at 1662, citing Miller, 474 U.S. at 114, 106 S.Ct. at 451-52.

In this case, the Court of Appeals, after affording deference to the trial court's determination of the historical facts leading up to appellant's arrest, decided de novo that there was no probable cause for appellant's arrest. Also affording deference to the trial court's determination of the historical facts,

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we decide de novo that the Court of Appeals erred in this respect by misapplying the totality of the circumstances test and by applying an incorrect definition of probable cause. ³

The concurring and dissenting opinion contends the Court of Appeals' de novo review of the trial court's ruling on the probable cause issue and our de novo review of the decision of the Court of Appeals on this issue are inconsistent with this Court's decision in Arcila v. State and the gloss the concurring and dissenting opinion puts on this Court's more recent decisions in DuBose v. State and State v. Carter. See DuBose v. State, 915 S.W.2d 493, 497-98 (Tex.Cr.App.1996); State v. Carter, 915 S.W.2d 501, 503-04 (Tex.Cr.App.1996); Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992). According to the concurring and dissenting opinion, DuBose and Carter should be read as requiring the intermediate appellate courts to show almost total deference to a trial court's ruling on an application of law to fact question.

However, as illustrated by some of the cases cited in footnote two of the concurring and dissenting opinion, this has not been how DuBose and Carter have been practically applied. For example, the concurring and dissenting opinion cites two intermediate appellate court opinions that have reversed a trial court's ruling on an application of law to fact question because "no reasonable view of the record could support the trial court's ruling." See Jones v. State, 926 S.W.2d 386, 389 (Tex.App.--Fort Worth 1996, pet. ref'd); State v. Brown, 927 S.W.2d 722 (Tex.App.--Texarkana 1996) (trial court's ruling "fell outside zone of reasonable disagreement"). When an intermediate appellate court...