Randall v. State, s. 66813
| Decision Date | 14 September 1983 |
| Docket Number | 66814,Nos. 66813,s. 66813 |
| Citation | 656 S.W.2d 487 |
| Parties | Earl Floyd RANDALL, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant appeals the revocation of his probation for burglary of a building and his conviction for possession of more than 4 ounces of marihuana which was the basis for the revocation. Punishment was assessed by the trial court at four years confinement and a $200 fine in the burglary case and at four years confinement in the marihuana case, sentences to run concurrently.
Appellant complains on appeal that the trial court erred in denying his motion to suppress the marihuana since it was obtained as a result of an illegal arrest. He contends that the arrest and search violated Art. 14.04, V.A.C.C.P. We agree.
The record reflects that on March 24, 1980, Detective J.R. Greve briefly spoke with Manuel Soria, a witness to an attempted burglary of a building which occurred on the night of March 22, 1980. Greve said he talked to Soria for three or four minutes to confirm the report Soria had given to the investigating officers. According to Greve, Soria told him that when he saw a pickup truck drive through the glass door of a store on Westheimer in Houston, he drove his vehicle toward the truck which fled the scene. Soria chased the truck, noted the license number, and described the driver as a white male, with "medium-type" dark hair and a beard. Greve had never received information from Soria before this conversation and had never met him. He did check to make sure that Soria did not have a prior criminal record. None of Soria's statements were reduced to writing or sworn to in any manner.
The license number given by Soria belonged to a pickup truck registered to appellant. Greve obtained appellant's criminal record and discovered that appellant was on probation for burglary of a building. He also obtained information that appellant had committed a burglary by driving a vehicle through a glass door of a store.
Greve testified that he drove by appellant's home twice on March 23rd and once on the 24th, but the truck was not there and no one was at home. On March 26, 1980, Greve issued a "pick-up" order for appellant's truck and any occupants for "investigation" of burglary. At no time did Greve request or seek an arrest or search warrant.
On March 27, 1980, prior to roll call, Officers Michael Houser and Larry Savat were given a teletype of the "pick-up" order on appellant's truck. Because appellant's home was in their patrol area, they drove by several times. The third time, they saw appellant's truck in the driveway. They then drove two blocks down the street to a telephone and called Greve who described appellant and told them "to remain where we were, to go ahead and keep the pickup in sight and wait to see if it moved, and then at that time stop him whenever it moved, while it was rolling." Pursuant to Greve's instructions, the officers waited about one hour until appellant came out of the house, got into his truck, drove towards the officers, and then turned right on a cross street. The officers followed him for a couple of blocks, then turned on their emergency lights. Appellant pulled over to the side of the road. According to the officers, he made no attempt to flee or escape. Prior to being stopped by the officers, appellant was not speeding, driving erratically, or committing any offense. One of the officers did testify that appellant may have waited "a little longer than usual" at a stop sign, but he conceded that this action was not a traffic violation. They both testified they pulled appellant's car over solely on the basis of Greve's pick-up order.
As appellant was pulling his truck to the side of the road, he made a "leaning forward type motion, or a downward type motion." He then exited the truck and walked to the rear of the truck where Savat requested his driver's license and immediately "told him he was being arrested for questioning of a burglary." (Emphasis supplied) Appellant was then searched by the officers, handcuffed, and placed in the patrol car. While Savat was placing appellant in the car, Houser searched appellant's vehicle and found two baggies of marihuana under the seat. At the time Houser searched the truck, appellant had been arrested for the "investigation" and was handcuffed and in the patrol car; the officers testified they had no fear for their safety. They also testified that appellant was cooperative and gave them no problems.
Houser drove appellant's pickup and Savat drove the patrol...
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