Love v. State

Decision Date28 February 1985
Docket Number01-84-0244-CR,Nos. 01-84-0243-C,s. 01-84-0243-C
Citation687 S.W.2d 469
PartiesChristopher M. LOVE, Appellant, v. The STATE of Texas, Appellee. Houston (1st Dist.)
CourtTexas Court of Appeals

Clinard J. Hanby, Haynes & Fullenweider, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Winston E. Cochran, Jr., Dan Krocker, Harris County Asst. Dist. Attys., Houston, for appellee.

Before EVANS, C.J., and COHEN and SMITH, JJ.

OPINION

COHEN, Justice.

The appellant pleaded guilty to possession with intent to deliver a controlled substance in cause no. 392,502, and the Court assessed his punishment at 12 years imprisonment. In addition, the Court revoked his probation in cause no. 380,570 and assessed punishment of 10 years. The probation, for the offense of delivery of a controlled substance, was revoked solely because of the offense committed in cause no. 392,502.

He asserts that the controlled substance used against him was obtained during a warrantless arrest and search which were illegal because Pasadena city police lacked authority to arrest and search outside of Pasadena, in Houston. Thus, we must decide whether city officers have countywide 1 or statewide power to make warrantless arrests.

A. The Facts

On November 14, 1983, Pasadena Officer Williams learned from a reliable informant that the appellant would be buying and selling mandrax tablets that night. The informant, who had talked with the appellant in the preceding 24 hours, stated where the appellant resided and identified the car that he drove. Officer Williams knew these statements were accurate, based on other information he had regarding the appellant. During the preceding year, Williams had heard from several sources that the appellant was dealing in narcotics. Williams ordered Officers Stewart and Standley to watch the appellant's Houston residence. Stewart saw the appellant and a female leave the residence and, as the informant had stated, they drove a blue 1982 Chevrolet Camaro hatchback automobile registered to the female. They went to a restaurant, stayed one hour and then drove to another house in Houston, followed by the officers who parked 200 yards away and watched with binoculars. The appellant approached a man standing in the yard, whereupon a tan car pulled up. The man in the yard walked to it, handed the driver money, and the driver handed him a large Fiesta grocery store bag. The tan car drove away, and the man put the grocery bag in a truck parked in his driveway. He talked to the appellant and then moved the grocery sack from the truck to the rear of the appellant's Camaro. The appellant then drove back to his residence, followed by at least three officers, and parked his car outside. He and the female entered the residence, leaving the grocery bag and its contents in the parked Camaro. Officer Williams believed that the appellant kept drugs in his car on occasion, because another informant, named in testimony, had admitted stealing 6,000 mandrax tablets from the appellant's vehicle.

One officer then left to return to Pasadena and obtain a search warrant for the parked car; however, the appellant and the female soon thereafter left the house and drove off, whereupon this officer returned in order to help pursue and arrest them. The appellant's car was heading in the general direction of the home of a suspected drug purchaser, who was a regular customer of the appellant according to other informants, when four Pasadena police in three cars stopped the appellant, arrested him and the female, searched the car, and found a Fiesta grocery store bag filled with 3,000 mandrax tablets. Officer Stewart had seen that the bag was a Fiesta bag before the arrest, and Officer Williams testified that Fiesta grocery store bags were often used to carry pills, and that he had made four arrests where the drug was contained in a Fiesta bag.

All of the surveillance, as well as the arrest and the automobile search, occurred inside Harris County and inside the Houston city limits. The appellant's residence, the scene of a great deal of surveillance, was 5-6 miles outside the city limits of Pasadena. The appellant was never in Pasadena on November 14; nevertheless, the Pasadena officers were in Houston solely to pursue this investigation. No officers from the city of Houston, Harris County, or any other authority were involved. The officers testified that the appellant, who drove the Camaro at all times, was not stopped because he committed any traffic offense, but solely for the purpose of searching the car. The Pasadena officers had no search warrant and no arrest warrant, and they were aware that they were outside their city. In short, the entire narcotics division of the City of Pasadena Police Department was knowingly operating 5 to 6 miles outside of Pasadena, in Houston, for a period of 3 to 4 hours, without a warrant, without assistance from City of Houston, Harris County or State peace officers, while not in hot pursuit, and solely in order to investigate the appellant.

B. The Common-Law Rule

Under the common law, a city police officer's power to arrest, with or without a warrant, ends at the city limits. Buse v. State, 435 S.W.2d 530 (Tex.Crim.App.1968); Irwin v. State, 147 Tex.Cr.R. 6, 177 S.W.2d 970 (1944); Henson v. State, 120 Tex.Cr.R. 176, 49 S.W.2d 463 (1932); Jones v. State, 26 Tex.App. 1, 9 S.W. 53 (1888); Ledbetter v. State, 23 Tex.App. 247, 5 S.W. 226 (1887). If the Code of Criminal Procedure, which generally governs warrantless arrests (see Chapter 14), fails to provide a rule of procedure, the rules of the common law apply and govern. Tex.Code Crim.P.Ann. art. 1.27 (Vernon 1977); see also Tex.Rev.Civ.Stat.Ann. art. 1 (Vernon 1963).

There are exceptions to the common-law rule that a city officer cannot arrest without warrant outside his city; however, they do not apply to this case. These officers were not engaged in "hot pursuit," see Minor v. State, 153 Tex.Cr.R. 242, 219 S.W.2d 467 (1949), nor did they observe the appellant commit any traffic offense within the statutory exceptions to the common-law rule. See Christopher v. State, 639 S.W.2d 932, 937 (Tex.Crim.App.1982) (op. on reh'g); Hurley v. State, 155 Tex.Cr.R. 315, 234 S.W.2d 1006 (1950).

C. The Lopez Decision

In Lopez v. State, 652 S.W.2d 512 (Tex.App.--Houston [1st Dist.] 1983), a panel of this Court held that city police officers had general countywide authority to make warrantless arrests. Lopez was reversed on other grounds by the Court of Criminal Appeals. Lopez v. State, --- S.W.2d ---- (Tex.Crim.App.1984) No. 509-83, March 28, 1984 (State's motion for rehearing pending).

The appellant asks that we reconsider our holding in Lopez, which was based on Tex.Rev.Civ.Stat.Ann. arts. 998 and 999 (Vernon Supp.1984). Article 998 provides that city police officers have the same authority as city marshals, and article 999 provides that city marshals have the same authority as sheriffs. Since sheriffs have countywide authority to make warrantless arrests, Tex.Code Crim.P.Ann. art. 2.17 (Vernon 1977), we reasoned that city marshals and city police officers also had countywide authority to make warrantless arrests. Lopez did not rely on exceptions to the common-law rule. Rather, it held that arts. 998 and 999 abrogated the common-law rule and permitted city officers to arrest countywide without warrant for any offense.

Irwin v. State, supra, which applied the common-law rule limiting a city officer's warrantless arrest power to the city limits, was distinguished in Lopez on the basis that it was decided in 1944, before the 1967 "enactment" of art. 999. Lopez, 652 S.W.2d at 513. This was error because article 999 was not enacted in 1967.

Article 999 was amended in 1967; it was enacted in 1875. See Acts 1875, p. 122; Tex.Rev.Civ.Stat.Ann. art. 999 (Vernon 1963). The 1911 enactment contained language identical to the present version, providing that, "in the prevention and suppression of crime and arrest of offenders, [the city marshal] shall have, possess, and execute like power, authority and jurisdiction as the sheriff." See "Historical Note" following art. 999 (Vernon 1963). This language, which was contained both in the 1875 enactment and in the 1967 amendment, was apparently contained in art. 999 at all times from 1876 to the present time.

Similarly, art. 998 was originally enacted in 1907 and provided that, "such officers [city police] shall have like powers, rights, and authority as are by said title vested in city marshals." Acts 1907, p. 299. The 1967 amendment added only the words "and jurisdiction" after the word "authority" in this sentence.

Thus, both articles 998 and 999 were enacted long before the 1944 Irwin decision. In fact, article 999 was cited in Weeks v. State, 132 Tex.Cr.R. 524, 106 S.W.2d 275, 276 (1937), where the Court wrote, "Article 999, R.C.S. 1925, seems to limit the legal authority of peace officers to their own bailiwick." This statement was criticized in Minor v. State, 219 S.W.2d at 471; however, despite the criticism, Weeks in 1937, Irwin in 1944, and Buse in 1968, all reversed convictions because city police officers lacked authority to arrest outside their city limits. More recently, in Rozell v. State, 662 S.W.2d 634, 636-37 (Tex.App.--Houston [14th Dist.] 1983, no pet.), the Court affirmed a conviction, but recognized the common-law limitation on a city officer's power, citing Irwin as authority. These decisions all recognized and applied the common-law rule, despite the fact that statutes very similar or identical to the present articles 998 and 999 were then in effect. None held, as we did in Lopez, that articles 998 and 999 gave city officers general countywide warrantless arrest powers.

The Texas rule prohibiting warrantless arrests and the reasons for that rule were stated by the Supreme Court in Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214 (1943):

Art. 1, sec. 9, of the Constitution of Texas,...

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    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
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    • August 17, 2018
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