McVea v. State

• Decision Date: 07 April 1982
• Docket Number: No. 04-81-00045-CR,04-81-00045-CR
• Citation: 635 S.W.2d 429
• Parties: Alfred Washington McVEA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 429

635 S.W.2d 429

Alfred Washington McVEA, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00045-CR.

Court of Appeals of Texas, San Antonio.

April 7, 1982.

Petition for Discretionary Review Refused July 7, 1982.

Albert W. Van Cleave, III, San Antonio, for appellant.

Bill White, Dist. Atty., Douglas V. McNeel, Asst. Dist. Atty., San Antonio, for appellee.

Before ESQUIVEL, BUTTS and CANTU, JJ.

CANTU, Justice.

Appeal is taken from a jury conviction for burglary of a building. The court assessed punishment, enhanced by two prior convictions, at life imprisonment.

Appellant asserts in his first ground of error that the trial court erred in failing to suppress evidence discovered as a result of an allegedly illegal search which resulted in his arrest. It thus becomes necessary to evaluate the testimony adduced at the hearing on the motion to suppress the evidence.

The two arresting officers, Arthur Trevino and Richard Asher, both of the San Antonio Police Department's Crime Task Force, were the only witnesses called to testify at the hearing. Their testimony reveals that on October 31, 1977, at approximately 11:00 a. m., they were working undercover, driving an unmarked police car westbound on Waverly Street when they spotted appellant in a car being driven eastbound. Only officer Trevino recognized appellant. He stated:

I had seen him on the street before; also had mug shots of him in the car; also had knowledge from my partner that I used to work with. Officer Black told me who he was.

I had been told by my partner, Bob Glenn, that the subject had been arrested for burglary several times, on narcotics violations.

Officer Asher testified that he was not familiar with appellant's past history and that he did not recognize the man. They decided to follow the car in which appellant was a passenger. The car proceeded eastbound on Waverly Street and turned onto a street which intersects Culebra Street. The officers observed the car back up into the parking area of "Pete's Air Conditioning Service." The officers pulled into a car wash across the street and continued to observe appellant's activities.

The location had previously been placed under surveillance as a result of a "tip" received by Officer Trevino from an unidentified informant. ¹ The informant had told Trevino "that the person that operates Pete's Car Air Conditioning Service buys stolen property from just about anybody who wants to sell it." On cross-examination he again stated that this unidentified informant told him "that this guy here at the shop there (sic) would buy anything from anybody." Trevino received this information the week before the arrest in the instant case. Officer Asher, in response to a question by appellant's attorney as to how long this location had been under surveillance, stated that "(m)y partner had gotten the information that day, or the day before, something (sic) that there were people in this air conditioning place that were buying stolen property." Asher testified that he did not know the informant.

During their surveillance of this location, which Trevino estimated occurred three hours daily after receiving the tip, "questionable characters" were observed on different occasions entering and leaving the premises. When asked what he meant by "questionable characters," Trevino stated that "(m)ostly the persons we saw arrive at the location known to us to be drug addicts, didn't have any occupation, just generally run the streets all day." However, Trevino testified both on direct and cross-examination that he never saw any property being exchanged. Based upon his observations and what informants had told him, Trevino stated that he "surmised" that these people were going first to the "fence" to make arrangements for the price and then would later bring in the property. Officer Asher did not testify as to what he observed during the time that this location was placed under surveillance prior to October 31.

During the officers' observation from the car wash, appellant was seen getting out of the passenger side of the vehicle, the driver remaining in the car. Appellant walked around to the back porch of the building and approached a man whom Officer Trevino "believed" was the person who runs the business. ² Appellant and this man, whom Trevino thereafter referred to as "Pete," walked to the back of the car, appellant opened the trunk and pulled out "what appeared to be a green laundry bag" with a drawstring at the top. He placed the bag on the ground, opened it, and allowed Pete to look into it. After looking, Pete nodded his head affirmatively. It was at this point that Trevino told his partner, "It's time to move."

The unmarked police car was backed up into the driveway, blocking the exit of the car in which appellant had been. The officers got out of the car "with badge in hand," advised the driver to remain where she was, and proceeded to the back of the car. As they approached appellant and Pete, Pete grabbed the bag, walked to an abandoned orange truck, placed the bag in the truck, slammed the door and began to walk away. Officer Trevino stopped him and ordered him to come back and get the bag out of the truck. The officer opened the bag and found an assortment of radio equipment which appeared to him to be new, because some of the items still had tags on them from a communication company. Appellant made no furtive gestures during this whole time but remained frozen in the position he had been in when first approached by the officer.

While Trevino was attending to the bag, Officer Asher was holding the trunk of the car open to prevent the appellant from possibly closing it. A fairly nice, new telephone answering machine was observed in the trunk. When asked about this property, appellant told the officer he had come "to leave it with Pete for some money that he needed." Trevino believed that appellant had said he was to receive $40.00.

Based upon his training and past experience, Trevino testified that he felt that this was a "transaction where properties were being sold to a known fence, and decided to place the (appellant) under arrest for having the property in his possession." The officers had never procured a warrant. After placing appellant and the driver of the car under arrest ³ and reading them their Miranda ⁴ rights, the property was seized and transported to the police department where it was turned over to the Task Force Office.

We begin with the well established proposition that a warrantless search or arrest is per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971); Honeycutt v. State, 499 S.W.2d 662, 664 (Tex.Crim.App.1973). It is the State's burden to prove the legality of a warrantless arrest or search. Coolidge v. New Hampshire, supra; Hooper v. State, 533 S.W.2d 762, 767 (Tex.Crim.App.1975). Since in the instant case, no warrants had issued, the State was required to show the existence of probable cause at the time the arrest or search was made, as well as the existence of circumstances which made the procuring of a warrant impracticable. Reed v. State, 522 S.W.2d 916, 917 (Tex.Crim.App.1975); Brown v. State, 481 S.W.2d 106, 109 (Tex.Crim.App.1972).

The standard applicable for determining whether the facts of the case support an officer's probable cause assessment at the time of the challenged arrest and search is no less stringent than that required to be shown a magistrate for the issuance of a warrant. Barber v. State, 611 S.W.2d 67, 68 (Tex.Crim.App.1981); Ochs v. State, 543 S.W.2d 355, 357 (Tex.Crim.App.1976) cert. denied 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977). It has been held that probable cause to search or arrest exists where the facts and circumstances which are within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime, or that the person to be arrested has committed or is committing a crime. Brown v. State, supra, at 110; see also Lewis v. State, 598 S.W.2d 280, 284 (Tex.Crim.App.1980); Jones v. State, 565 S.W.2d 934, 935 (Tex.Crim.App.1978). However, the mere inarticulable hunch, suspicion or good faith of the officer is insufficient to constitute probable cause. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Barber v. State, supra, at 68.

The State argues in its brief that the officers were justified in entering the premises and detaining the appellant because this was part of an investigation into suspected criminal behavior. The officers, the State asserts, had sufficient specific and articulable facts to justify a temporary detention of appellant. Terry v. Ohio, supra; Hernandez v. State, 523 S.W.2d 410 (Tex.Crim.App.1975). We do not believe, under the circumstances of this case, that the arresting officers had an "articulable suspicion" ⁵ or a "particularized and objective basis" which entitled them to interfere with appellant's activities or detain him in order to investigate the suspected "fencing" operation, much less to conduct a search of this magnitude. Compare United States v. Cortez, 499 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The evidence discloses that the officers had no reasonable and articulable facts implicating appellant, or any of the other persons present at the scene, to a crime. According to Officer Trevino, the person who operated Pete's Air Conditioning Service was allegedly buying stolen property from anybody who wanted to sell. In fact, from an examination of his testimony, it is revealed that he only "believed" the man who spoke with appellant to be Pete because of information received from an undisclosed informant a week prior to the arrest in the instant case. It is true that the officer set up a surveillance of this location; however, ...