Houlihan v. State

• Decision Date: 25 May 1977
• Docket Number: No. 54269,54269
• Citation: 551 S.W.2d 719
• Parties: Robert Emmett HOULIHAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 719

551 S.W.2d 719

Robert Emmett HOULIHAN, Appellant, v. The STATE of Texas, Appellee.

No. 54269.

Court of Criminal Appeals of Texas.

May 25, 1977.

Rehearing Denied June 22, 1977.

Dick DeGuerin, Houston, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Richard H. Cobb, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. The appellant waived a jury trial and entered a plea of guilty before the court to the offense of possession of marihuana. After finding the appellant guilty, the court assessed punishment of imprisonment for 5 years. The imposition of sentence was suspended and on October 13, 1972, the appellant was placed on probation, subject to certain conditions, among which was that he "commit no offense against the laws of this or any other state or the United States."

On April 18, 1973, the State filed a motion to revoke probation alleging that the appellant had violated a condition of probation by committing the offense of possession of marihuana on or about April 15, 1973. On November 25, 1975, after hearing the State's motion to revoke probation, the court entered an order revoking probation and sentenced the appellant.

Appellant contends the court abused its discretion in revoking his probation because the marihuana admitted in evidence and which formed the basis for the revocation of probation was obtained as a result of an unlawful search and seizure. Appellant argues that the arrest and search were unlawful because the officers did not have probable cause to arrest him without a warrant and that, if the officers had probable cause, such knowledge was obtained as the result of illegal electronic surveillance.

The State asserts that the officers had probable cause to arrest and search the appellant and to search the van he was driving, that probable cause was not obtained as a result of an illegal electronic surveillance, and that in any event there was sufficient evidence to show that appellant possessed marihuana prior to the arrest and search.

Robert Parsons was an agent of the Federal Drug Enforcement Administration working in an undercover capacity in April of 1973. At that time Parsons was engaged in negotiations to purchase five hundred pounds of marihuana from the appellant. On April 13, 1973, Parsons met the appellant at an apartment in Houston. At that meeting the appellant told Parsons that he had the marihuana and that it was located out in the country. The appellant had a sample of the marihuana and showed it to Parsons. Parsons agreed that the marihuana was satisfactory and they made arrangements for the appellant to deliver the marihuana on the following day, April 14th.

On April 14, 1973, Parsons met the appellant at a motel in Houston. Another undercover agent, Don Perry, accompanied Parsons to the motel and showed the appellant $45,000, the purchase price for the marihuana. Parsons obtained a white Dodge van for the appellant to use in transporting the marihuana. This van was owned by the Houston Police Department and was equipped with an electronic device that transmitted an electrical impulse (beeper). Another police car was equipped with a receiver for tracking the van. With the receiver the officers could determine the approximate direction and distance they were from the beeper. The appellant left the motel in the Dodge van to pick up the marihuana. The law enforcement officers involved in the surveillance of the appellant were in three vehicles. Federal agent Oakum and Officer Avilla were in one car. Officers Wells, Huerta, and Zavalla were in another car. Officers Blalock and Rose were in the third car. Officer Blalock's car was the only car equipped with a receiver for tracking the location of the van which had the beeper attached.

When the appellant left the motel driving the van all of the officers followed him. As they were following the appellant out of town on Westheimer Road in Houston they lost visual contact with the van. Officer Blalock in the car with the tracking receiver also lost contact with the van. He stated that a thunderstorm was in progress and every time lightning would strike the electrical impulse from the lightning would register a false reading on the receiver. As a result of the weather Officer Blalock also lost electronic contact with the van.

After the officers all lost contact with the appellant, Officer Wells continued driving out Westheimer Road into the country. As they were driving along Westheimer Road, which was a farm-to-market road outside the city, they saw a white van backed into the door of a barn near a farmhouse. Officer Wells radioed the other officers that they had possibly found the appellant and set up surveillance of the barn and farmhouse where the van was parked. Although the evidence is uncontradicted that Wells first observed the van at the barn by visual observation only, the evidence was conflicting as to whether the electronic device was used to verify that the white van was the same one the appellant was driving. Wells' car was not equipped with a tracking device and he testified that they did not use the beeper to verify that the van was the one in question. They did not observe anyone load or unload anything from the van and did not observe any activity around the van. When the van left the farm and entered the highway, Wells was able to verify that the van was the one the appellant was driving by reading the license plates with binoculars. He denied that Officer Blalock, by use of the electronic tracker, told them on the radio that the van was the one appellant was driving.

Officer Blalock, who was driving the car with the tracking device, said that when they heard over the radio that the appellant had possibly been located, they drove out Westheimer Road. As they approached the barn the tracking device indicated that the van was the same one appellant was driving. Blalock testified that he was sure he called Wells on the radio and verified that the van was the one in question. Officer Zavalla, who was in the car with Wells, testified that as Blalock's car approached the farm, Blalock said the beeper was strong. When Blalock reached the location where Wells and Zavalla were, Zavalla said they pointed out to Blalock the location of the van. Zavalla testified that Blalock said that must be the van. "That's our signal. It's got to be the truck."

After the appellant left the barn the officers in the three unmarked cars followed him back into Houston. They never lost visual contact with him again. According to plans discussed earlier in the day, if the negotiations for the purchase of the marihuana were successful, the officers would arrest the appellant before he returned to the motel in order to attempt to preserve the undercover identity of Parsons. After following the appellant into town, Agent Oakum attempted to stop the appellant. Oakum drove his car alongside the van and Officer Avilla held his badge out of the window and signaled for the appellant to stop. When the appellant would not stop the van, Officer Zavalla shot one of the van's tires with a shotgun. The appellant was arrested and the van was searched. The officers found in the van what was proved to be 460 pounds of marihuana.

After hearing the evidence, the court overruled appellant's motion to suppress and revoked appellant's probation. The court found that electronic surveillance was used by the law enforcement officers, but that the electronic device did not in fact lead to the recovery of the contraband.

In support of his argument that the electronic tracking device rendered the arrest and search unlawful, appellant relies upon United States v. Holmes, 521 F.2d 859 (5th Cir. 1975), affirmed on rehearing by an equally divided court sitting en banc, 537 F.2d 227 (5th Cir. 1976). Holmes negotiated a sale of 300 pounds of marihuana to an undercover agent. While Holmes and the agent were negotiating the sale in a lounge another agent attached an electronic surveillance beeper, like the one in the case at bar, to Holmes' van. The agents began a visual surveillance of Holmes' van but lost track of it. An airplane equipped with a tracking receiver was used to search for the van. The pilot of the plane was never able to visually spot the van; however, by using the tracking receiver he was able to approximate its location in a wooded rural area of Florida. As a result of the electronic beeper law enforcement officers on the ground were able to locate the van, later stopping it and discovering 1200 pounds of marihuana in the van. The Fifth Circuit Court of Appeals affirmed the Federal District Court's order suppressing the evidence. The Court held that the installation of the electronic tracking device on Holmes' van was a search within the meaning of the Fourth Amendment of the United States Constitution. Relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court said that when a person parks his car on a public way he does not give up all expectation of privacy. The Court said:

"No rational basis occurs to us for distinguishing the violation of the expectation of privacy involved in the installation of a 'beeper' on a car, in order to trace its movements, from the placing of a tap on the outside of a telephone booth in order to overhear and record conversations, Katz, supra."

United...