Hardison v. State, 57554

• Decision Date: 06 February 1980
• Docket Number: No. 3,No. 57554,57554,3
• Citation: 597 S.W.2d 355
• Parties: Theophilus H. HARDISON, Jr., Appellant. v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 355

597 S.W.2d 355

Theophilus H. HARDISON, Jr., Appellant. v. The STATE of Texas, Appellee.

No. 57554.

Court of Criminal Appeals of Texas, Panel No. 3.

Feb. 6, 1980.

On Denial of Rehearing May 7, 1980.

William R. Magnussen, Fort Worth, for appellant.

Tim Curry, Dist. Atty., George B. Mackey, Greg Pipes and Marvin Collins, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W.C. DAVIS and CLINTON, JJ.

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for possession of heroin. The trial court assessed punishment at ten years confinement.

The appellant complains on appeal that the trial court erred in denying his motion to suppress the introduction of heroin into evidence, as it was obtained as a result of an illegal arrest. In his second ground of error, the appellant contends that the arrest and search violated Article 14.04, Vernon's Ann.C.C.P. We agree.

The record reflects that on December 17, 1976, an unidentified informant told Officer James Little that the appellant was dealing in heroin on the corner of the eleven hundred block of Evans, in front of a barber shop. The informant said that the heroin, in the form of capsules, would be found in the appellant's hatband. The police officer was told that the appellant would be wearing a light green suit with a green vest and a brown hat. The officer testified that he had known this informant for three years and that he had received reliable information from him on at least twelve occasions.

Officer Little testified at the hearing on the motion to suppress evidence that he and his partner arrived at the location given to them by the informant approximately 15 minutes after receiving the information. The officers observed the appellant for five to ten minutes, as he talked to people in front of the barber shop. The officers stated that the appellant did not commit any offense in their presence. The police officers approached the appellant, took his hat, and upon finding five capsules of what appeared to be heroin in his hatband, they placed the appellant under arrest.

Officer Little testified that he had searched the appellant on several occasions and that he frequently searched people at that location. The officer testified that he knew that a magistrate was available at the time of the arrest and that he knew the means to obtain a warrant were easily available to him, yet he made no effort to obtain a warrant. There was no testimony to the effect that the officers feared that the appellant would escape, or that they felt there was not enough time to procure a warrant.

A police officer should always obtain an arrest warrant when possible. Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). There are, however, limited circumstances where an arrest without a warrant is authorized in Texas. See Chapter 14, Vernon's Ann.C.C.P. Article 14.04, Vernon's Ann.C.C.P., states:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without a warrant, pursue and arrest the accused."

A showing that the offender is about to escape is indispensable under Article 14.04, supra. Honeycutt v. State, supra. See Butler v. State, 151 Tex.Cr.R. 244, 208 S.W.2d 89 (1948).

In Honeycutt v. State, supra, the defendant was arrested without a warrant when she was found in her home, in bed. In that case, we held:

"In accordance with the strict construction given exceptions allowing warrantless arrests, this court has always required a clear showing that the person arrested was about to escape....

We cannot conclude the evidence shows the appellant was about to escape or that it was not possible to secure a felony arrest warrant under the circumstances presented."

In Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978), this Court upheld a warrantless arrest under Article 14.04, supra, where the arresting officer testified at a hearing on a motion to suppress, that he had been informed that the defendant was about to leave his hotel room, and that he knew it would take 45 minutes to an hour to procure an arrest warrant.

In Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976), this Court again upheld an arrest based on Article 14.04, supra. In Carmouche v. State, supra, a reliable informant told the police officer that he had seen the defendant with marihuana in his possession and that the defendant was preparing to leave town. The defendant was driving away as the officers arrived. In Carmouche v. State, supra, we held that there was sufficient evidence to show that the officers did not have time to obtain a warrant and that the arrest and search were authorized. However, in the instant case, there was no testimony concerning the time it would take to obtain a warrant. The officer testified that he knew that he could obtain a warrant, yet he gave no indication as to why he did not do so. We recognize that circumstances could exist which would require police officers to act immediately where the accused is on a public street as opposed to being in a private residence. As the State points out in its brief, "It could have been only a matter of moments before appellant was able to dispose of either the hat or the contents of the hatband." In view of the record, however, we cannot conclude that the requirements of Article 14.04, supra, have been met. The warrantless arrest of the appellant was therefore unauthorized. The appellant's contention concerning the reliability of the informant need not be considered in view of our disposition on this ground of error.

The judgment is reversed and...