Reed v. State

• Decision Date: 15 May 1991
• Docket Number: 05-90-00777-CR,Nos. 05-90-00776-C,s. 05-90-00776-C
• Citation: 809 S.W.2d 940
• Parties: Phillip REED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 940

809 S.W.2d 940

Phillip REED, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-90-00776-CR, 05-90-00777-CR.

Court of Appeals of Texas Dallas.

May 15, 1991.

Kenneth G. Wincorn, Dallas, for appellant.

Yolanda M. Joosten, Dallas, for appellee.

Before WHITHAM, KINKEADE and WHITTINGTON, JJ.

OPINION

WHITHAM, Justice.

Appellant appeals a conviction for unlawful possession of cocaine. Appellant's probation was revoked on a prior conviction for unlawful possession of cocaine. In two points of error, appellant contends that the trial court erred in overruling his motion to suppress and admitting the evidence seized. We disagree. Accordingly, we affirm.

The question is whether the police officer presented specific articulable facts which justified appellant's temporary detention. The State insists that appellant's detention was lawful and that once outstanding warrants for appellant's arrest were verified, appellant's arrest was also valid, as was the seizure of the cocaine during the inventory search. The facts are as follows.

When on patrol at 7:26 p.m., January 26, 1990, Dallas Police Officer R.E. Duff observed a large number of young males standing on the street corner engaging in what appeared to Duff to be a drug transaction. Duff testified that he has had experience in making drug arrests and makes approximately eight to ten such arrests each week. Duff described the persons at the corner as being in a "huddle." One person had his hand out and it appeared as if he was exchanging something. Duff identified appellant as the man holding his hand out. Duff and his partner pulled their car directly in front of the group and asked them to put their hands on the car. The officers then conducted a pat-down search on the individuals. Duff testified that he had made many drug arrests at that same location. In Duff's experience, people are often heavily armed in that area and vacant shops in the area are used for firearm target practice.

Duff and his partner asked for identification. Appellant gave them a false name. The officers ran the name through the computer for outstanding warrants. Appellant had told Duff that he had a driver's license but did not have it with him. The computer, however, indicated that there was no license assigned to that name. Duff and his partner took appellant to the identification section to obtain a correct name. As they approached the identification section of the police department, appellant gave the officers his real name. Appellant's correct name produced outstanding warrants for appellant's arrest; the police then placed appellant under arrest and transported appellant to jail. During the book-in procedure and the inventory search, appellant's hat was searched and a baggie containing two rocks was found. The packet was field tested for the presence of cocaine; the test was positive.

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered a lesser intrusion upon the personal security of the individual. Gearing v. State, 685 S.W.2d 326, 328 (Tex.Crim.App.1985). In such circumstances, the State need not demonstrate that probable cause to arrest a suspect existed at the inception of the detention, although such a detention falls within the protection of both the federal and state constitutions. Dickey v. State, 716 S.W.2d 499, 503 n. 4 (Tex.Crim.App.1986). In order to justify an investigative stop, the police officer must have specific, articulable facts that, in light of his experience and general knowledge, together with the rational inferences from those facts, would reasonably warrant the intrusion. Anderson v. State, 701 S.W.2d 868, 873 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986).

In the present case, we conclude that Duff had specific, articulable facts that, in light of his experience and general knowledge, together with the rational inferences from those facts, would reasonably warrant the intrusion upon appellant. However, that intrusion resulted in appellant's removal from the scene and a trip to the police department identification section in the custody of the police. The protection of the Fourth and Fourteenth Amendments is triggered when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985). Such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause. Hayes, 470 U.S. at 816, 105 S.Ct. at 1647. See also Lanes v. State, 767 S.W.2d 789, 791 n. 4 (Tex.Crim.App.1989). We note that Terry and related Supreme Court decisions created only a limited exception to the general rule that seizures require probable cause to arrest. Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App.1983). A detention for investigatory purposes must be limited; it must be temporary and last no longer than necessary to effect the progress of the stop. Ussery, 651 S.W.2d at 770. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest. Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1988). In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of appellant in this case was in important respects indistinguishable from a traditional arrest. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). Appellant was not merely briefly questioned where he was; he was taken in a police car to the police station so he could be identified; he was not free to leave. Because of these factors, we conclude that appellant was under arrest at the time he gave the police officers his real name. Because the arrest was not supported by probable cause, we conclude that the arrest was illegal. However, we also conclude that the cocaine found on appellant's person would have been inevitably discovered by legal means, derived from an independent source, or that there were intervening circumstances which attenuate the connection between the illegal detention and the discovery of contraband. In the present case, appellant ultimately gave Duff appellant's correct name. Appellant's correct name produced outstanding warrants for appellant's arrest. Appellant's arrest on those warrants resulted in the book-in procedure and inventory search in which the cocaine was found on appellant's person.

The fruit of the poisonous tree doctrine forbids the use of evidence obtained as a result of an illegal arrest. The Fourth Amendment to the United States Constitution applied to the states through the Fourteenth Amendment and Article I, Section 9 of the Texas Constitution forbid unreasonable searches and seizures. Appellant contends that his detention and transportation to the police identification section constituted an unreasonable seizure and that the cocaine, as the fruit of the unreasonable, and therefore illegal, seizure was inadmissible as evidence against him. See TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon Supp.1991); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). The fruit of the poisonous tree doctrine explained at length in Wong Sun serves to exclude not only the direct products, but also the indirect products of Fourth Amendment violations. Armstrong v. State, 550 S.W.2d 25, 31 (Tex.Crim.App.1977) (on reh'g). Evidence is not classified as a fruit requiring exclusion, however, merely because it would not have been discovered "but for" the primary invasion. Armstrong, 550 S.W.2d at 31. The more apt question to ask is whether, granting the establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of the primary illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Armstrong, 550 S.W.2d at 31; Starkey v. State, 704 S.W.2d 805, 810 (Tex.App.--Dallas 1985, pet. ref'd) (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417). Three doctrines, which have been labeled independent source, attenuated connection, and inevitable discovery have been recognized as exceptions to the fruit of the poisonous tree doctrine and justify admission of evidence even though it is derived from information obtained in violation of the Fourth Amendment. See Garza v. State, 771 S.W.2d 549, 550 n. 1 (Tex.Crim.App.1989); Vanderbilt v. State, 629 S.W.2d 709, 722 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). Under the independent source exception, the unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was also discovered by means independent of the illegality. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92, 40 S.Ct. 182, 182-83, 64 L.Ed. 319 (1920); Autry v. State, 626 S.W.2d 758, 764 (Tex.Crim.App.1982). The attenuation doctrine provides that the tainted evidence may be admitted if the prosecution can show that the connection between the...