Hoag v. State

• Decision Date: 15 April 1987
• Docket Number: No. 943-85,943-85
• Citation: Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App. 1987)
• Parties: Michael David HOAG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 375

728 S.W.2d 375

Michael David HOAG, Appellant, v. The STATE of Texas, Appellee.

No. 943-85.

Court of Criminal Appeals of Texas En Banc.

April 15, 1987.

Stephen E. Van Gaasbeck, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., and Beth Taylor, Linda C. Anderson & Barbara Hervey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

The appellant was convicted, in a nonjury trial, of the offense of burglary of a habitation. V.T.C.A., Penal Code § 30.02(a)(1). Punishment, enhanced by a prior felony conviction, was assessed at thirty years' imprisonment in the Texas Department of Corrections. The San Antonio Court of Appeals affirmed the conviction. Hoag v. State, 693 S.W.2d 718 (Tex.App.--San Antonio 1985).

We granted the appellant's petition for discretionary review to determine the legality of the detention of the appellant and of the resulting search of his car. We will reverse.

I.

On July 26, 1983, Officer Roger Miller, a burglary detective for the San Antonio Police Department, received a telephone report of a burglary. Witnesses to the burglary gave a general description of the burglar, a description of the burglar's car and the license number of the car. Investigation revealed that the appellant was the owner of the car and that he was on parole for burglary. The witnesses picked the appellant's picture from a photo array as being that of a person who "looked like the one that was involved in the burglary," but they were unable to identify the appellant positively.

Rather than obtaining a warrant to arrest the appellant for burglary, Miller contacted detectives assigned to the burglary task force and asked them to place the appellant under surveillance "to see if [they] could apprehend him in a burglary." On July 27, task force detectives observed the appellant leave his apartment at 10:30 a.m. and drive slowly down several streets in a residential area. After about 45 minutes, the officers lost contact with the appellant.

The next day, July 28, the task force detectives resumed their surveillance of the appellant outside his home. The appellant left his apartment at 10:40 a.m. and drove to another residential area. He parked behind an apartment complex and walked down two blocks to a neighborhood. He approached a house, knocked on the door, and looked around "very suspiciously." He then walked around the side of the house into the back yard, returned in a few minutes and walked back to his car. Two officers checked the house for signs of burglary and found none.

At some point during the surveillance, an officer saw the appellant approach another house, look around, and then "look at the garage door and see if it would open."

The appellant drove to another apartment complex and went inside for three to five minutes. When the appellant returned to his car, the officers did not observe him carrying anything in his hands.

Next, the appellant drove to a third apartment complex, pulled into the parking lot behind the complex, and went in. After about thirty minutes, the appellant came out of the complex carrying a newspaper and a canned drink. He opened the car door, took something out of his pocket and put it on the floor on the driver's side. After the appellant drove away, two officers went into the apartment complex and looked, without success, for an apartment that might have been burglarized. The appellant was pulled over by a patrol car a few blocks away from the apartment complex.

Officer James Eigner approached the appellant and asked him to get out of the car. The appellant was taken, at gunpoint, to the rear of the car, where the officers read him his Miranda ¹ warnings. Eigner then went back to the driver's side of the car. He looked inside and saw an orange-handled diving knife sticking out from under the driver's seat and a "fairly large size lump" under the rubber floormat on the driver's side. Eigner picked up the knife, flipped back the floormat and discovered jewelry and coins. At no time did the police officers obtain a warrant to arrest the appellant or to search his car.

The trial court denied the appellant's pre-trial motion to suppress. The items discovered in the search were admitted in evidence. At the end of the hearing on the appellant's motion to suppress, the trial judge made the following ruling: "I think that based on the evidence that I've heard that there were sufficient facts for the police officers to go ahead and stop your client. So your motion to suppress is denied." From this statement, it is not clear whether the trial court found that those "sufficient facts" constituted sufficient articulable facts for an investigative stop or probable cause for an arrest. However, the Court of Appeals held that either finding could be supported by evidence in the record, and, therefore, it addressed the validity of the stop on both grounds. Hoag, 693 S.W.2d at 721.

II.

The Court of Appeals justified the search on two independent grounds. First, it found that the officers were justified in temporarily detaining the appellant while other officers sought to locate evidence of an attempted burglary in the apartment complex. After the appellant was stopped, the knife and the bulge in the floormat were seen in plain view, thereby justifying a full search of the car. ² Id. at 720. Second, the Court of Appeals opined that a warrantless arrest of the appellant was proper under either of two theories: (1) that the appellant had committed a burglary or was in possession of stolen property in the officers' presence, see Article 14.01(b), V.A.C.C.P.; or (2) that the appellant was in a suspicious place under circumstances which reasonably showed that he had committed a felony, see Article 14.03(a), V.A.C.C.P. Therefore, a search of the appellant's car was permissible as having been conducted pursuant to a valid arrest. ³ Id. at 722.

In his petition for discretionary review, the appellant challenges the legality of his detention and the subsequent search of his car. He argues that the stop in his case was an illegal warrantless arrest rather than an investigative detention. He also contends that even if the stop was a proper investigative detention, the search of his car was not justifiable as being within the scope of a permissible search. We will first address the issue of whether the search was conducted pursuant to a valid arrest.

A.

In his second ground for review, the appellant contends that "[t]he [Court of Appeals'] opinion is in error because it finds that [his] arrest was only an investigative detention." In essence, the appellant argues that the circumstances surrounding his stop point to an arrest, that the arrest was improper, and that the fruits of the search incident to that arrest should not have been admitted. We agree.

Detective Eigner, after describing the detention of the appellant and the search of his car, stated that he felt that the appellant was under arrest when his car was stopped. We acknowledge that the question of whether a person is under arrest is not to be determined solely by the opinion of the arresting officer. See Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979); Boone v. State, 629 S.W.2d 786 (Tex.App.--Houston [14th Dist.] 1981, no pet.). Rather, the officer's opinion is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place.

Article 15.22, V.A.C.C.P., states, in pertinent part, that "[a] person is arrested when he has been actually placed under restraint or taken into custody ... by an officer ... arresting without a warrant." An arrest is complete when a person's liberty of movement is restricted or restrained. Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973).

Here, the police officers removed the appellant from his car at gunpoint, took him to the rear of the car and gave him the Miranda warnings. Given these facts, along with the officer's testimony that he believed that the appellant was under arrest, we find that the appellant was "placed under restraint" within the meaning of Article 15.22. Accordingly, we find that the appellant's detention constituted a warrantless arrest. Next, we turn to the question of whether the arrest of the appellant was proper.

The Court of Appeals held that the appellant's arrest was proper under Article 14.01(b), supra, because it was reasonable for the officers to believe that the appellant had committed a burglary or was in possession of stolen property in the officers' presence. However, the record does not support either of these conclusions.

The officers observed the appellant park his car and enter an apartment complex. When the appellant emerged from the complex, he was carrying a newspaper and a soft drink. The officers saw the appellant take something out of his pocket and put it on the floor of the car. Suspecting that a burglary had taken place, the officers checked the complex for signs that an apartment had been burglarized and found none. We are unable to conclude that these facts indicate in any way that the appellant had committed a burglary or possessed stolen property in the officers' presence. Hence, we find that the arrest can not be justified on the basis of Article 14.01(b), supra.

In upholding the appellant's arrest, the Court of Appeals also relied on Article 14.03(a)(1), supra, which authorizes police to arrest without a warrant "persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony...." Again, this conclusion is not supported by the record.

In his testimony on cross-examination, Officer Morales, a member of the surveillance team was asked the following questions:

Q: Without the supposition in your mind...