Nastu v. State

• Citation: 589 S.W.2d 434
• Decision Date: 03 October 1979
• Docket Number: No. 58059,No. 3,58059,3
• Parties: Mircea Alvin NASTU, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 434

589 S.W.2d 434

Mircea Alvin NASTU, Appellant, v. The STATE of Texas, Appellee.

No. 58059.

Court of Criminal Appeals of Texas, Panel No. 3.

Oct. 3, 1979.

Rehearing En Banc Denied Nov. 28, 1979.

Marvin O. Teague, on appeal only, Houston, for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and Don Stricklin, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, PHILLIPS and W. C. DAVIS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed at 20 years' imprisonment and a $10,000 fine. Appellant asserts error was committed when the trial court refused to exclude evidence seized as the result of allegedly improper searches, refused to sustain his challenge for cause to a prospective juror, admitted certain oral statements made after arrest, refused to dismiss the indictment when it was learned the police had destroyed certain evidence, and refused to grant a mistrial after improper jury argument.

At 10:00 a. m. on August 11, 1975, Houston police officer Thomas, operating undercover, received information from a confidential informant that appellant was going to bring a large quantity of heroin to his apartment for the purpose of cutting and bagging it. Thomas had never seen appellant but had been getting information about him from this informant since February. He had been told that Nastu was a Turkish-American with a wife from Thailand and that he obtained his heroin by making trips to Thailand, buying the heroin and shipping it back through Hong Kong in stereo equipment. Thomas had begun his investigation of Nastu at that time and learned that he had been checking in and out of hotels and motels and changing rent cars. On the eleventh, the informer told Thomas that Nastu had just arrived back from Thailand and had bragged about picking up 2.2 pounds of heroin. The informant stated that appellant did not keep a large amount of heroin in his house. He described Nastu as a short, fat, Turkish-looking man with no teeth in his head who dressed shabbily and who stared at everyone with piercing eyes. The informer stated that appellant would be arriving at his apartment in the late afternoon carrying a large amount of heroin for the purpose of cutting it and that he usually carried his heroin in a suitcase. Thomas also testified that the informer stated that Nastu bragged about a machine gun and that the informer had seen a machine gun in Nastu's apartment.

Thomas went to the apartment complex where appellant lived to wait for him. While checking out the apartment complex's parking lot, he saw a rent car in the parking slot for appellant's apartment. He called the apartment to see if anyone was home and there was no answer. The officer waited from approximately 4 p. m. until 7 p. m. when a yellow cab bearing appellant and his wife pulled into the parking lot and stopped behind the rent car. As appellant and his wife got out of the right hand passenger door, Thomas walked by on the sidewalk approximately 10 or 15 feet away. Appellant was carrying in his right hand a blue woman's overnight suitcase, and in the crook of his left elbow, a mortar and pestle and a large paper bag. He put the mortar and pestle on the trunk of the rent car and stuck his hand in the paper sack and stared at Thomas. His hand pulled a little way out of the bag so that the officer could see the butt of a large caliber revolver which Nastu was pointing at him while keeping it largely concealed in the sack. Thomas walked on by and as he walked away Nastu opened the trunk of the rent car and put the mortar and pestle and the overnight bag into it. When Nastu walked around the cab and began paying the cab driver, Thomas turned around and walked up to him whereupon appellant stuck his hand back in the bag. Thomas asked him where the apartment manager's office was. Nastu stared at him for a few seconds, took his hand from the bag and turned as if to point. The officer then drew his pistol and told Nastu he was under arrest. A furious struggle ensued. Nastu stuck his hand back in the bag but Thomas grabbed his hand and he dropped the bag. Thomas threw him across the hood of the cab, stuck the gun to the head of the screaming and struggling Nastu and told him to hold still. Eventually appellant was subdued with the help of the apartment complex's security guard who was attracted by the commotion. Appellant's wife ran to their apartment when the struggle began. The officer and the security guard dragged appellant to the apartment manager's office where they handcuffed him and read him his rights. In the parking lot, Thomas had removed methadone, 77 white pills, a bag of marihuana, $770 in cash and the car keys from Nastu's pockets. He also found a 357 magnum pistol in the paper bag. The paper bag was left behind but Thomas went to get it after appellant was handcuffed and found some clothes and food. He called the police dispatcher for help. Officer Thomas testified that, after he made the phone call, appellant attempted to bribe him by offering to give him up to $4,000 in cash and a pound of heroin that he had as well as the pistol. The security officer testified that he too had been offered a bribe of $1,000 for release and overheard Nastu attempt to bribe Thomas. The officer sent the security guard out to watch the car while he called once again for help. He testified that he became worried about being there alone because appellant's wife was still at large and he remembered being told by his informant that Nastu kept a machine gun in his apartment. He decided to get the heroin out of the car and took Nastu to the car and opened the trunk using the keys. Thomas opened the overnight bag and found 4 one ounce bags of heroin underneath the cosmetic tray. He asked Nastu where the rest was and appellant replied, "Stupid, there is a pound of heroin in that bag." Thomas looked further and found a larger sack of heroin further down in the overnight bag. As the officer prepared to leave, additional police began to arrive on the scene and he felt relieved of the necessity of leaving.

Thomas asked appellant if the police could have permission to search his apartment. Appellant agreed on the condition that he be allowed to go to the door first and talk through it to his wife to calm her down. He was allowed to do this and the officers entered the apartment. He later signed a written consent form as well. Approximately $4670 was found in the apartment as well as a number of bottles of methadone.

Appellant asserts that the heroin found in the trunk of the car should have been excluded from evidence as it was the fruit of an unlawful warrantless search. It is well established that a search conducted without a warrant issued on probable cause is Per se unreasonable and that the warrant requirement is subject only to a few well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of these exceptions arises, under certain circumstances, when there is probable cause to search an automobile. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). This exception exists in part because the circumstances that furnish probable cause to search a particular auto are most often unforeseeable and the opportunity to search is fleeting since a car can be readily moved. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). But this exception is not absolute. Chambers and Carroll teach us that the expectation of privacy, and hence the protection afforded it, is lower in automobiles than it is in houses or offices. But automobiles are still protected by the Fourth Amendment and there must be probable cause to search And exigent circumstances which make acquisition of a warrant impracticable in order to search without one. Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.). When one of these elements is not present, the warrantless search is unlawful and the evidence obtained as a result of that search must be excluded. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.).

"The question of whether a warrantless search is constitutionally valid can only be decided in terms of the concrete factual situation presented by each individual case." Rivas v. State, 506 S.W.2d 233, 235 (Tex.Cr.App.).

In the instant case, Thomas went to the apartment complex to investigate a tip from an informer who had given him reliable information in the past. The information was that Nastu was bringing a relatively large quantity of heroin to his apartment for the purpose of cutting it. The informant described Nastu carefully in appearance and mode of dress and the fact that he routinely carried the heroin in a suitcase. Nastu appeared at approximately the time he was supposed to according to the informant and matched in every particular the description given by the informant. He was also carrying a woman's overnight bag and a mortar and pestle. He was observed to place the bag in the trunk of the car. There is some question whether the information given was adequate to give rise to probable cause to search or arrest absent additional information to insure reliability such as how the informant came by this information. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, hearsay information, inadequate to constitute probable cause by itself, can become sufficient if corroborated by independent observation of the arresting officer provided the information is detailed enough and adequately corroborated by observation. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958); Rivas v. State,supra. There is also some...