Lippert v. State

• Decision Date: 01 February 1984
• Docket Number: No. 023-83,023-83
• Parties: John L. LIPPERT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 712

664 S.W.2d 712

John L. LIPPERT, Appellant, v. The STATE of Texas, Appellee.

No. 023-83.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 1, 1984.

Michael M. Fricke, Port Lavaca, for appellant.

Dan W. Heard, Dist. Atty. and Mark R. Kelly, Asst. Dist. Atty., Port Lavaca, 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.

Appellant was convicted of the possession of a controlled substance, to-wit: methamphetamine, with intent to deliver. After the jury's verdict of guilty, the court assessed punishment at 10 years' imprisonment, probated.

On appeal appellant contended the trial court erred in overruling his motion to suppress evidence obtained in an unlawful search and seizure of his person in violation of the Fourth and Fourteenth Amendments. See also Article I, § 9, Tex. Const. Appellant argued that the search was unconstitutional because it was done without a warrant, without probable cause, without consent, and was not incident to a valid arrest. Appellant contends the search occurred after he entered premises where a search warrant was being executed.

Distinguishing Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and extending Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), to include a non-occupant under the circumstances, the Corpus Christi Court of Appeals upheld the validity of the search and seizure of the controlled substance and affirmed the conviction. Lippert v. State, 653 S.W.2d 460 (Tex.App.--13th Dist.--1982).

We granted appellant's petition for discretionary review to consider the correctness of such holding.

On March 25, 1981, Sgt. Melvin Blake of the Port Lavaca Police Department obtained a combination search and arrest warrant from a justice of the peace. The warrant authorized the search of a residence on North Virginia Street in Port Lavaca. The warrant also authorized the arrest and search of "each suspected party named in said affidavit." The affidavit for warrant, sworn to by Blake, after describing the place to be searched, reads: "Said suspected place is in charge of and controlled by each of the following named parties (hereinafter called 'suspected party,' whether one or more), to-wit: Sherry Fourtner, and Mike (last name unknown--but sound is phonetically similar to 'Euling'), and person or persons whose names, identities and descriptions are unknown to affiant." ¹

On March 27, 1981, Blake and Calhoun County deputy sheriffs Mike Gibson and Milt Smith went to a residence on North Virginia to execute the warrant. It was after 8:30 p.m. and dark. Receiving no response to their knocks at the back door, the officers forced entry into the kitchen. The room was dark. Without lights they proceeded into the dining room, the living room and down the hall to the front bedroom. Forcing the door, the officers found Sheri Fourtner, ² Michael Ulen and Bobby Myers. Deputy Gibson revealed that narcotics and narcotic paraphernalia were in open view. The two men were handcuffed and removed to the living room and the lights in the house were turned on. Fourtner was detained briefly in the bedroom ³ because she was identified as being in charge of the residence. She was later moved to the living room.

Sgt. Blake, who was not in uniform at the time of the search, testified that about 15 minutes after the officers commenced the execution of the warrant he was in the dining room when he turned and saw the appellant and Kathy Wise standing in the doorway between the kitchen and dining room. He did not know whether appellant and Wise had just come into the house or had been hiding therein. ⁴ Blake had seen appellant and his car at the residence on "several" occasions during his surveillance of the place. Appellant asked "What's going on?" Blake told appellant a drug raid was on and to assume the position--to place his hands on the wall. Appellant, wearing a brown jacket, was frisked. The frisk was fruitless. Blake found no weapons or narcotics. He expressly stated he was looking only for weapons. ⁵ Blake stated he did not arrest appellant, but detained him, told him he could not leave. Appellant and Wise were ordered to the living room to sit on the floor with the others who had been arrested. They were not handcuffed.

Wise, who was not frisked or searched, stated she had arrived in her car just behind appellant. She had come to the house to do her washing. They entered the house together, and were immediately confronted by Blake. Appellant was frisked, and she recalled that appellant then asked to leave and Blake refused.

Deputy Mike Gibson recounted details of the search. He related appellant and Wise were not in the house when the search commenced, but stated he did not see appellant enter the house. During his prior surveillance of the residence, he did not see appellant or his peach colored car.

Deputy Milt Smith testified that appellant arrived at the residence 15 to 30 minutes after the search began.

None of the officers executing the search saw appellant's car at the time of their arrival to execute the search warrant. ⁶

Deputy Vivian Richards was summoned to transport the prisoners to the police station. He arrived at the residence and found appellant in the living room. Richards had no knowledge of what had previously transpired. As a matter of routine procedure before placing a person in a squad car, and at officer Smith's instruction, Richards searched appellant for weapons in the living room "for my safety." In appellant's right front shirt pocket Richards found a hard red plastic or vinyl case, six or seven inches long. Richards opened the case and found two plastic bags with white powder and one brown glass vial with a gold chain and spoon attached containing a white substance. The chain of custody was established and the white powder or substance was shown by the chemist to be methamphetamine. It was this controlled substance that appellant claims was the fruit of the illegal second search.

Appellant initially argues that he did not specifically come within the provisions of the combination search and arrest warrant. ⁷ The warrant authorized the arrest of those persons named in the affidavit. The appellant was not named in the affidavit.

The State argues that a warrant need not contain the name of the offender whose name is unknown, if the warrant authorizes the arrest of unnamed persons for whom probable cause exists to believe are in possession of narcotic drugs. The State relies upon Dawson v. State, 477 S.W.2d 277 (Tex.Cr.App.1972), and Walthall v. State, 594 S.W.2d 74 (Tex.Cr.App.1980).

In Dawson this court wrote:

"Hence, a search warrant properly issued on the basis of probable cause for the search of certain premises for narcotic drugs, named or unnamed, for whom probable cause exists to believe are in possession of the narcotic drugs ...." (Emphasis supplied.) See also Pecina v. State, 516 S.W.2d 401 (Tex.Cr.App.1974).

In Walthall this court stated:

"Appellant's final contention regarding the validity of the warrant is that the warrant fails to describe the persons to be arrested in sufficient detail. The warrant orders the arrest of 'the person or persons commercially exhibiting the said motion picture film or possessing the same with the intent to distribute.' It is not necessary to include the name of the offender in the search warrant. If his name is unknown, it is sufficient to describe him, and if his identity is also unknown, it is sufficient to aver that the premises are in control of 'parties unknown to the affiants.' See 51 Tex.Jur.2d, Searches and Seizures, Sec. 23, pp. 664-665; Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Hernandez v. State, 437 S.W.2d 831 (Tex.Cr.App.1968). The warrant in this case sufficiently describes the offender, and the description is limited to those persons in control of the film in question. Appellant's contention is without merit. (Emphasis supplied.)

The combination search and arrest warrant and the supporting affidavit in the instant case do not contain any reference to appellant or any information which would constitute probable cause that he possessed methamphetamine or other controlled substance. Further, from the record it appears appellant was not one of those persons who was "in charge of and controlled" the described premises whose "names, identities and description are unknown to affiant" as set out in the affidavit. The warrant authorized the officers, inter alia, "... also to arrest and bring before me each suspected party named in said affidavit." There was no provision to bring before the magistrate all persons found on said premises or making escape therefrom. ⁸ We agree with the Court of Appeals that the warrant did not specifically authorize appellant's arrest.

Nevertheless, the State relies upon various Texas cases which hold that an officer executing a valid search warrant has the right and duty to search persons found on the premises during the execution of the warrant. Hernandez v. State, 437 S.W.2d 831 (Tex.Cr.App.1968); Johnson v. State, 440 S.W.2d 308 (Tex.Cr.App.1969); Guzman v. State, 461 S.W.2d 602 (Tex.Cr.App.1970); Guerra v. State, 496 S.W.2d 92 (Tex.Cr.App.1973); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973); Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974). And the cases have made clear that there can be no meaningful distinction between persons found on the premises by officers when they initiate their search and persons who enter the premises after the search commences. Johnson v. State, supra; Martinez v. State, supra; Fisher v. State, 493 S.W.2d 841 (Tex.Cr.App.1973); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977).

The continued validity of these cases has been cast in doubt by Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). See also Michigan v. Summers, 452 U.S. 692, 101...