Hawkins v. State

• Decision Date: 21 September 1988
• Docket Number: No. 194-83,194-83
• Citation: 758 S.W.2d 255
• Parties: Charles Douglas HAWKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 255

758 S.W.2d 255

57 USLW 2262

Charles Douglas HAWKINS, Appellant, v. The STATE of Texas, Appellee.

No. 194-83.

Court of Criminal Appeals of Texas En Banc.

Sept. 21, 1988.

Frank W. Sullivan, III, Fort Worth, for appellant.

Tim Curry, Dist. Atty. & C. Chris Marshall, David H. Montague, Paul Connor, Steve Wallace & James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of possession of a controlled substance, to-wit: heroin. After the jury found as "true" the allegation of two prior felony convictions, the punishment was assessed at life imprisonment. On appeal the conviction was affirmed by the Ft. Worth Court of Appeals. Hawkins v. State, 644 S.W.2d 764 (Tex.App.-Ft. Worth 1983). That court found the trial court did not err in failing to suppress the introduction of contraband abandoned in the course of what appellant avers to have been an illegal arrest, detention or stop. We granted appellant's petition for discretionary review to determine the correctness of that decision, given the facts of this particular case.

On March 12, 1981, about 8:30 p.m. uniformed Ft. Worth police officer D.L. Marlow, an eight year veteran, was on routine patrol alone on the east side of Ft. Worth, the Stop Six area. This had been his "beat" for three years. In the 2500 block of Stalcup Street Marlow pulled into a parking lot apparently common to the Green Parrot Lounge and the Maddox Club. The area was described as a high crime district and in the particular parking lot abandoned guns and narcotics had been frequently found by the police. As Marlow entered the parking lot, he observed appellant standing in front of the "Maddox Dining Room." Marlow knew appellant's name and his street name of "Hawk," and may have spoken to him in the past. Although Marlow had never arrested appellant, he had heard from narcotics officers that appellant dealt in "dope." The officer admitted he had no arrest warrant, no search warrant and had received no tip from an informant or others concerning the appellant. He was making a routine check of the parking lot. Officer Marlow did not state that he observed any criminal activity. In fact, he did not testify that any person other than appellant was in the parking lot.

As Marlow got out of his patrol vehicle appellant looked toward the police car and started walking north on Stalcup. Officer Marlow called out: "Charles, I want to talk to you. Come here a minute." Appellant hollered "something" back which Marlow did not understand, and continued to walk. Marlow followed on foot, and using a hand radio called the police patrol unit on the next beat stating, "Charles Hawkins is down here and he's walking away from me ... Can you make the Maddox Club?"

Marlow disclaimed any intention to apprehend or arrest appellant, but only desired to talk to appellant and to look to see if he could see whether appellant was carrying a pistol.

Officer Harold T. Maples received and responded to Marlow's call appellant was walking north on Stalcup. He related Marlow did not ask him to stop the appellant, but he thought that was what Marlow meant, "that Marlow needed to talk to Mr. Hawkins for some reason." Maples and a reserve officer, both in uniform, turned their patrol vehicle onto Stalcup and immediately saw appellant walking. Maples pulled the vehicle into a driveway, stepped out and walked four or five steps over to appellant and said, "How are you doing Mr. Hawkins?" ¹ Marlow was fifty or sixty feet away at the time on the opposite side of the appellant.

When confronted by Officer Maples, appellant jerked his hand out of his pant pocket and threw a paper bag into a nearby drainage ditch. Maples, thinking he was being attacked, grabbed the appellant and pushed him against the patrol car. When Maples realized what had happened he asked Marlow and the reserve officer to watch the appellant, and he retrieved the paper bag and 35 gelatin capsules from the drainage ditch. While he was in the process of doing so, the appellant broke and ran, climbed a fence and escaped.

Appellant was arrested the next day in a hotel room. A chain of custody was established and a chemical analysis of the capsules recovered revealed they contained cocaine and heroin. It is this contraband the appellant contends the trial court erred in failing to suppress. ²

In addressing appellant's contention that the trial court failed to suppress the paper bag and its contents, the Court of Appeals initially held "that the evidence clearly show[ed] that Hawkins was not illegally arrested or illegally detained." Hawkins, supra, at 765. The Court of Appeals then noted: "The relevant issue here is whether abandonment of contraband by an accused renders this contraband admissible as evidence at his trial for possession of that contraband." Hawkins, supra, at 765. After briefly discussing four cases, the Court of Appeals concluded that Hawkins had in fact abandoned the contraband and that the contraband was not obtained as a result of his arrest or a search incident thereto.

The general rule in Texas with respect to abandoned property has been that "[w]hen police take possession of abandoned property, there is not a seizure under the Fourth Amendment." Clapp v. State, 639 S.W.2d 949, 953 (Tex.Cr.App.1982); see also Comer v. State, 754 S.W.2d 656, 658 (Tex.Cr.App.1988) (Opinion on Rehearing); Rodriguez v. State, 689 S.W.2d 227, 230 (Tex.Cr.App.1985) (Heroin thrown from automobile was not "product of a search," despite police pretext to stop the accused); McClain v. State, 505 S.W.2d 825, 827 (Tex.Cr.App.1974) (Goods thrown from automobile were in open view and not recovered as a result of unlawful search and seizure); Tatum v. State, 505 S.W.2d 548, 550 (Tex.Cr.App.1974) (Heroin thrown to the ground by the accused not found as the result of a search). Other cases, as Judge Teague points out in Comer, supra, have limited the inquiry to the accused's intent to abandon the property. See also Sullivan v. State, 564 S.W.2d 698, 702 (Tex.Cr.App.1978) (Opinion on Rehearing) [citing and quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) ]; see also Smith v. State, 530 S.W.2d 827, 833 (Tex.Cr.App.1975); Hudson v. State, 642 S.W.2d 562, 565 (Tex.App.-Forth Worth 1982, PDR ref'd); French v. State, 636 S.W.2d 749, 750 (Tex.App.-Corpus Christi 1982).

However, in Comer, supra, at 659, this Court recently distanced itself from the aforementioned line of cases and held "that to resolve abandonment issues there must be a determination of whether the accused voluntarily abandoned the property independent of any police misconduct." Comer, supra, thus establishes the following standard for reviewing abandonment cases: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide to abandon the property; the decision must not merely be the product of police misconduct. See also United States v. Beck, 602 F.2d 726, 729-30 (5th Cir.1979); United States v. Morin, 665 F.2d 765, 770 (5th Cir.1982); Tankoy v. State, 738 S.W.2d 63, 67 (Tex.App.-Houston [1st] 1987); Garcia v. State, 704 S.W.2d 512, 516 (Tex.App.-Houston [14th] 1986, PDR ref'd).

The Fifth Circuit has noted that abandonment, like consent, must be freely given to be effective. United States v. Morin, supra, at 770.

"The issue is not abandonment in the strict property sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search."

United States v. Colbert, supra, at 176; see also United States v. Morin, supra, at 770; Tankoy, supra, at 67. Although a voluntary abandonment of evidence can remove the taint of an illegal stop or arrest, "it is equally true that for this to occur the abandonment must be truly voluntary and not merely the product of police misconduct." United States v. Beck, supra, at 729-30; see also United States v. Maryland, 479 F.2d 566, 568 (5th Cir.1973).

Similar standards have been applied in other jurisdictions. For example, a New York Court recently noted "that an examination into a defendant's response to police conduct must be conducted to determine whether abandonment of an article has occurred." People v. White, 92 A.D.2d 1033, 461 N.Y.S.2d 515, 516 (A.D.3d 1983). That court's memorandum decision decreed:

"If an article possessed by a defendant is discarded as a spontaneous reaction to police conduct which is illegal, no abandonment will be found and the article will be inadmissible (citation omitted). However, if the discard is an 'independent act involving a calculated risk,' abandonment will be found and the article is admissible even though the police conduct which preceded the discard may have been illegal." People v. White, supra, at 516-17.

The New York court concluded, under the facts of that case, that the defendant's act of throwing a revolver into an empty lot was calculated rather than spontaneous and that the weapon was therefore admissible. Cf. People v. Baldwin, 25 N.Y.2d 66, 302 N.Y.S.2d 571, 573, 250 N.E.2d 62, 64 (1969) ("It is axiomatic that, in the absence of a valid abandonment of the property, a search, not authorized by consent or a search warrant, is reasonable only if conducted as incident to a lawful arrest.")

In State v. Reed, 284 So.2d 574, 575 (La.1973), overruled on other grounds, State v. Harvill, 403 So.2d 706, 710, n. 3 (La.1981), it was written:

"Abandoned property does not fall within the protection of the Fourth Amendment, and police have the right to retrieve it. (Citations omitted) Property is not considered abandoned when a person throws away incriminating articles due to...