Merriweather v. State

• Decision Date: 28 November 1973
• Docket Number: No. 46663,46663
• Citation: 501 S.W.2d 887
• Parties: Virgil Lee MERRIWEATHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 887

501 S.W.2d 887

Virgil Lee MERRIWEATHER, Appellant, v. The STATE of Texas, Appellee.

No. 46663.

Court of Criminal Appeals of Texas.

Nov. 28, 1973.

Rehearing Denied Dec. 19, 1973.

Bill A. Davis, Lubbock, for appellant.

Blair Cherry, Jr., Dist. Atty., and Bob Odom, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from a conviction of robbery by firearms; the punishment was assessed at thirty (30) years.

Appellant contends in his initial ground of error that 'the district court erred in overruling defendant's objection to the introduction of the ring into evidence where there was no probable cause shown for the search and seizure by the arresting officers that produced the ring.'

Prior to trial, a hearing was held on appellant's motion to suppress evidence. Since the constitutional validity of a warrantless search can only be decided in terms of the concrete factual situation presented by each case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Brown v. State, 481 S.W.2d 106, a thorough recitation of the facts developed at the aforementioned hearing and at the trial is necessary.

On April 28, 1971, at about 10:00 A.M., two black males dressed as females entered the House of Alexander, a jewelry store located in Lubbock and, under the threat of firearms, proceeded to rob that establishment of jewelry worth approximately $112,000.

Mr. Alexander and two female employees were bound and gagged during the course of the robbery. After gathering the jewelry, the robbers left in an automobile parked near the jewelry store.

Immediately following the robbery, Lubbock Police Sergeant Hargrave obtained a description of the vehicle the robbers had used and he also obtained a description of the two robbers. Hargrave had the description of the getaway car, a 1962 brown and white Buick, four-door, and a general description of two black males dressed in female clothing broadcast over the police radio. Shortly after having caused this broadcast to be placed, Hargrave learned from one of the witnesses to the robbery that she recognized one of the robbers because he had approached her for a few days prior to the robbery to buy advertising in a local newspaper, and that his name was Virgil Merriweather. Hargrave then obtained a number of pictures of different individuals and the witness identified appellant as the robber. Hargrave then broadcast appellant's name on police radio as a suspect in the robbery.

Approximately two hours after the robbery, Lubbock Police Officers Bauman and McCandless observed a vehicle matching the general description of the automobile involved in the robbery approaching a stop sign at the intersection of 24th Street and Quirt Street. The officers noticed that the brake lights on the '62 Buick were defective. On the basis of the conclusion that the car was the one involved in the robbery and the traffic violation, Bauman and McCandless stopped the vehicle and approached it. Appellant was the driver of the car. Appellant provided his driver's license and Officer Bauman conducted a warrant check on appellant. Pursuant to this check Bauman was told that there was an outstanding traffic warrant for appellant. Appellant was then placed under arrest on the basis of the traffic violation, the outstanding warrant and suspicion of robbery. Bauman testified that following the arrest the officers searched appellant. During the search, appellant was required to remove his boots, and, as a result, a gold ring with twelve diamonds was found in his left boot, identified at the trial as part of the stolen jewelry.

Bauman and McCandless both stated that they believed that they had apprehended two suspects for armed robbery and thought that the suspects might possess weapons, and as a protective measure they conducted a weapons search.

After appellant's arrest, the passenger in the car informed the officers that appellant had come from a particular address in Lubbock prior to the arrest. The officers went to the apartment and obtained a written consent to search from the tenant who rented the apartment, Mary Robinson. In the apartment appellant's co-defendant was arrested and some of the proceeds of the robbery were found including the women's clothing worn by the robbers.

Appellant asserts that the arresting officers had only a mere suspicion that appellant was involved in the robbery and that no probable cause existed for the warrantless arrest and search of appellant.

While the inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause, Sibron v. New York, supra; Brown v. State, Tex.Cr.App., 481 S.W.2d 106, the facts and circumstances in the instant case warranted appellant's arrest. The officers testified that the vehicle appellant was driving had defective taillights and that the arrest was predicated on that fact plus the fact that the vehicle matched the description of the car involved in the robbery. Following the detention of appellant, the officers learned of an outstanding warrant authorizing appellant's arrest for another traffic offense. ¹ Appellant and his vehicle were searched. The arrest and search of appellant were authorized. Art. 6701d, Sections 111, 153, Vernon's Ann.Civ.St.

We are not faced with a search of appellant's vehicle incident to an arrest for a traffic violation. The issue is whether the search of appellant's person incident to the arrest was justified. It is well settled that when an officer sees a person violating a traffic law, he is authorized to stop him and incident to that arrest to search his person. Wallace v. State, Tex.Cr.App., 467 S.W.2d 608; Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.) and cases there cited. Cf. Amador-Gonzalez v. United States, 391 F.2d 308, 316 (5th Cir. 1968).

Appellant contends that the search of appellant exceeded the permissible scope articulated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Appellant's reliance on Chimel, supra, is misplaced. In Chimel, supra, the Supreme Court specifically stated:

'It is reasonable for the arresting officer 'to search the person arrested in order to recover any weapons that the latter might seek to use in order to resist arrest or effect his escape . . .' And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a dawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. . . .' Chimel, supra, at 763, 89 S.Ct. at 2040.

However, in Chimel, supra, the warrantless search included Chimel's entire house, including the drawers in his bedroom, the garage and workshop. The search went far beyond his person and the area within which he might have obtained weapons. In the instant case, the search was limited to appellant. The officers were not only investigating a traffic offense but also were investigating persons fitting the description of suspects in an armed robbery occupying a car described as being used in the robbery.

The arresting officers testified that it was standard procedure to search a person under arrest before he was taken to the police station and that it was normal to search a person's shoes for a concealed weapon. Appellant also admitted that a knife could possibly be concealed in his boot. We hold that the officers were reasonably justified in conducting a search of appellant's boot as a weapon could have been concealed therein. Chimel v. California, supra.

The fact that the diamond ring was found in appellant's boot rather than a concealed weapon does not render the evidence inadmissible. Since the search was reasonable, then the finding of the ring, totally unrelated to the purpose of the search, would be admissible. Seizable items, such as instruments of crime or contraband which come into the possession of an officer lawfully searching in connection with another crime or for another purpose, may be retained and used in the prosecution of the crime to which they relate. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; Taylor v. State, 421 S.W.2d 403.

The officers had probable cause to arrest appellant irrespective of the traffic arrest and the weapons search incident thereto.

The test for determining probable cause in this situation in the information known to the officer who requests another officer to effect an arrest. Brown v. State, Tex.Cr.App., 443 S.W.2d 261, and cases there cited. Based upon the radioed police broadcast, Bauman and McCandless had probable cause to arrest appellant. The officers had satisfactory proof that a felony had been committed, and that the offender had escaped. The officers had a description of the getaway car and a general description of the robbers with the possibility that female clothing would also be found. Under our holding in Brown v. State, Tex.Cr.App., 443 S.W.2d 861, and Green v. State, Tex.Cr.App., 470 S.W.2d 901, we hold that the information meets the test for determining probable cause. Art. 14.04, Vernon's Ann.C.C.P. Cf. Talbert v. State, Tex.Cr.App., 489 S.W.2d 309; Honeycutt v. State, Tex.Cr.App., 499 S.W.2d 662.

Appellant also argues that since the outstanding warrant for ap...