Hawkins v. State

• Decision Date: 01 March 1993
• Docket Number: No. 07-92-0087-CR,07-92-0087-CR
• Citation: 853 S.W.2d 598
• Parties: Cleveland HAWKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 598

853 S.W.2d 598

Cleveland HAWKINS, Appellant, v. The STATE of Texas, Appellee.

No. 07-92-0087-CR.

Court of Appeals of Texas,

Amarillo.

March 1, 1993.

Rehearing Denied March 31, 1993.

Motion to Publish Granted May 20, 1993.

Jeffrey H. Conner, Lubbock, for appellant.

Travis Ware, Crim. Dist. Atty., Michael West, Lubbock, for appellee.

Before DODSON, BOYD and POFF, JJ.

DODSON, Justice.

Upon a plea of not guilty, appellant Cleveland Hawkins was convicted of possession of less than twenty-eight grams of cocaine. Upon finding the indictment's two enhancement paragraphs true, the jury assessed appellant's punishment at confinement for life in the Texas Department of Corrections, Institutional Division. In a single point of error, appellant contends the trial court erred in overruling his suppression motion and admitting evidence recovered in an unlawful investigative detention. We reverse and remand.

At about 12:15 a.m. on December 2, 1990, Jeff Davis, a Lubbock police officer, was patrolling the area of 17th Street and Avenue B. Davis reported that this area was a high crime area, primarily known for street level drug dealing. While patrolling, Davis observed a green Oldsmobile parked on the street between two apartment buildings, where Davis previously made several arrests for drug violations. Whereupon Davis activated his spotlight and saw two black men in the car. Davis recognized appellant as the driver. As the light shined upon him, appellant immediately bent down and reached under his seat.

Davis knew appellant was a convicted felon, had a violent nature, and had been held for narcotics violations. Davis stopped his car and decided to speak with appellant and the passenger, "just for a field interview." Davis parked his car and officer Pedro Lara, who had been following him, also parked his car. Davis approached appellant, who rolled down his window. Davis intended to ask appellant to step out of the car. In the meantime, Lara went to the passenger side, got the passenger (Kim Carter) out of the car, and asked Davis to assist him. Davis took Carter to his squad car. Yet before taking Carter to his car, Davis told Lara to watch appellant because he thought appellant might have a weapon in the car.

When Davis started back toward appellant, Lara already had him out of the vehicle. Davis saw appellant take something out of his mouth and place it in Lara's hand. Appellant then gave Lara a cellophane wrapper containing 15 yellow papers. Davis conducted a field test which indicated the presence of cocaine.

Davis admitted that they did not have a warrant for appellant or Carter. Davis also acknowledged that appellant's furtive gesture, of reaching beneath his seat, could have been innocent.

Lara testified that on December 2, 1990, he and Davis were patrolling the 1700 block of Avenue B, an area of town known as "the flats." The officers parked their cars and went to interview appellant and Carter. As Davis walked to the driver's side, Lara walked to the passenger side of the vehicle. Lara asked Carter to step out of the car and place his hands on the vehicle. Lara conducted a pat-down search and discovered a wad of money in Carter's right front pocket.

Lara acknowledged that before the frisk he had no reason to believe that Carter had committed a crime. Davis then walked to the passenger side and took Carter to his patrol car. Lara explained that he was trained to separate any subjects. Furthermore, he frisked Carter for his own safety.

As the three walked toward the patrol cars, Davis asked Lara to check on the driver. Lara noticed appellant look at him, move his head down, and place something in his mouth. Lara walked to appellant, held out his hand, and waited. Appellant then took the plastic out of his mouth and put it in Lara's hand. Lara then had appellant exit the car. Lara said the plastic contained some yellow papers, commonly used in packaging cocaine.

Lara admitted that he did not know what they were going to do when Davis stopped his car. Lara had no idea they were going to stop or frisk the men.

Appellant testified that on December 2, 1990, he was parked on Avenue B in Lubbock. Appellant and Carter were seated in the car. When Lara started to walk toward the car, appellant stepped out. After he exited, Davis told him to get back in the car. Eventually, Lara came to talk to him and asked him to get out of the car. Lara asked him what he had in his mouth. At first, appellant denied having anything in his mouth. When Lara instructed him to open his mouth, appellant spit out the cocaine.

Appellant denied carrying a weapon or, for that matter, having been convicted of a weapons charge. Appellant also denied making any furtive movements in the car. Finally, appellant denied putting anything in his mouth after the officers started talking to them.

Carter testified that on the night in question, appellant was sleeping in the car. Carter had just returned to the car, when suddenly "lights were everywhere." Upon the officer's request, Carter exited the car. The officers asked what he was doing and looked in his pockets. They took him to one of the patrol cars. Then, one of the officers got appellant out of the car. Carter testified that while one of the officers was talking to appellant, something fell out of appellant's mouth. Carter admitted that he had been selling drugs out of the car that night.

In a pretrial hearing on a motion to suppress evidence seized as a result of an illegal arrest or a warrantless search, we are mindful that the trial court is the exclusive trier of fact and his findings will not be disturbed if supported by the evidence. Green v. State, 615 S.W.2d 700, 707 (Tex.Cr.App.1981); McCallum v. State, 608 S.W.2d 222, 225 (Tex.Cr.App.1980); Walker v. State, 588 S.W.2d 920, 924 (Tex.Cr.App.1980). It is the duty of the trial court to resolve conflicts in the testimony at the suppression hearing. Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Cr.App.1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980).

The burden of demonstrating the legality of a warrantless arrest is on the State. Wilson v. State, 621 S.W.2d 799, 804 (Tex.Cr.App.1981). State law governs the legality of arrest so long as it does not violate federal constitutional protections. The states are free to impose greater restrictions on police conduct. Texas law governing warrantless arrests is generally more protective than the federal constitution. Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977). A warrantless arrest or search must be justified by what is known by the police officers at the inception of the search or arrest and cannot be justified by evidence seized as a result of the arrest and search. Colston v. State, 511 S.W.2d 10, 13 (Tex.Cr.App.1974).

Law enforcement officers are not required to look the other way and permit a crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Milton v. State, 549 S.W.2d 190, 193 (Tex.Cr.App.1977). There are circumstances short of probable cause that justify temporary detention for purposes of investigation because an investigation is less intrusive upon personal security. Milton v. State, 549 S.W.2d at 193. The detention is justified if the police have specific, articulable facts, which in the light of general knowledge and experience, together with rational deductions from those facts that would reasonably warrant an intrusion on the freedom of a citizen stopped for further investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Milton v. State, 549 S.W.2d at 193. A peace officer has the right to detain a suspect for questioning in a criminal investigation if, the detention is based on reasonable suspicion and restricted in obtrusiveness, time of detention, and scope of the investigation. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607 (1975); Ussery v. State, 651 S.W.2d 767, 770 (Tex.Cr.App.1983).

Also, temporarily detaining suspects, while officers attempt to verify or dispel suspicions in a manner that does not exceed the limits of an investigative detention, can be authorized. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, 239 (1983). The officer may question a suspect during a temporary detention, although the suspect need not answer the questions. Id. at 498, 103 S.Ct. at 13. Obviously, a temporary detention is not merely confined to a momentary, on-the-street detention accompanied by a frisk for weapons. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).

When an officer validly delays a person for investigation, he may conduct a narrow search for his safety. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. The determination of the rights of Texas citizens under Article I, section 9 of the Texas Constitution on the scope of a search for weapons following an investigatory detention is the same as the Fourth and Fourteenth Amendments to the United States Constitution. Davis v. State, 829 S.W.2d 218, 219 (Tex.Cr.App.1992); Worthey v. State, 805 S.W.2d 435, 437 (Tex.Cr.App.1991).

The Supreme Court recognizes that (1) protection of police and others can support protective...