Roldan v. State, 09

• Decision Date: 16 October 1985
• Docket Number: No. 09,09
• Citation: 698 S.W.2d 741
• Parties: Gustavo Alberto ROLDAN, Appellant, v. The STATE of Texas, Appellee. 84 122 CR.
• Court: Texas Court of Appeals

Page 741

698 S.W.2d 741

Gustavo Alberto ROLDAN, Appellant, v. The STATE of Texas, Appellee.

No. 09 84 122 CR.

Court of Appeals of Texas,

Beaumont.

Oct. 16, 1985.

Rehearing Denied Nov. 7, 1985.

Carl Masztal, Miami, Fla., for appellant.

John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.

OPINION

BROOKSHIRE, Justice.

A jury convicted Appellant of possession of more than 400 grams of cocaine and sentenced him to life imprisonment. A $50,000 fine was assessed.

On November 2, 1983, a drug enforcement officer received information in his Houston office from a confidential informant. The confidential informant had been reliable, credible, and accurate in prior cases. The informant advised that a 1983 light blue Chevrolet pickup truck with Texas License YF-9212 was presently located at a certain restaurant in southwest Houston. The informant said this pickup contained cocaine and money. The contraband would have been stored in a secret welded compartment below the bed of the Chevy pickup. The informant advised that, because of this secret compartment, the spare tire of the truck would be placed at an unusual angle. Further, the truck was scheduled to leave for Florida within possibly fifteen minutes time. The informant related that the pickup would be occupied by one to three Columbian males. The informant had not actually seen the cocaine or the secret welded compartment. He had received this information from another person whose identity was not revealed. The reliability and credibility of the unidentified subinformant was unknown. Upon receiving this information, the drug enforcement agency dispatched enforcement personnel to the Los Brazos Restaurant in southwest Houston. By the time the dispatched agents arrived the truck had departed.

The Houston enforcement officer contacted Agent David Hammonds of the Department of Public Safety. He was stationed in Beaumont. Hammonds was given a detailed description of the truck. Hammonds was requested to set up an intensive lookout on IH 10 and to have the truck stopped if he identified the truck. The truck was stopped at 6:22 p.m. on Interstate 10 at the College Street overpass in Beaumont on November 2, 1983. The Appellant was driving the truck. He was the only occupant. The Appellant was ordered to exit the truck. He complied. He was handcuffed and arrested. There was nothing illegal or unlawful about the manner in which the truck was being driven. The appearance of the truck was normal except for the tilted spare tire which was at an unusual angle. No contraband or cocaine was seized or removed either from the cab or the open bed of the truck.

Following the arrest of the Appellant, a California driver's license was produced. The California license revealed the picture and description of Appellant, but bore the name of Victor Ramon Franqui, rather than Gustavo Alberto Roldan. From this record it is clear that Gustavo Alberto Roldan is the correct name of the Appellant.

The D.P.S. officer said that for the safety of the motoring public and the safety of the stopped truck, as well as the security of the same, it was removed to headquarters of the Department of Public Safety in Beaumont. Thereafter, certain officers called for a narcotics detection dog and his handler. The dog and his handler were obtained from the Beaumont Police Department. The narcotics detection dog located the cocaine by his actions and scratches. The canine alerted and located the concealed, secret welded compartment underneath the truck.

The officers obtained the assistance of a Spanish-speaking agent attached to the Texas Alcohol Beverage Commission. He was John Aleman. He identified himself to the Appellant, asking in Spanish if the Appellant was the same person on the license. Aleman said he advised Roldan of his Miranda rights in Spanish. Appellant acknowledged understanding these Miranda rights. Aleman stayed with Appellant while some of the officers obtained a search warrant after the dog located the cocaine. When the other officers returned with the search warrant and actually began to search the truck, the Appellant asked Aleman if he could: "[S]how him where his boss hid the drugs". It was then approximately 11:00 p.m. Aleman said the Appellant told him the picture on the California driver's license was that of the Appellant, but that his name was not Victor Ramon Franqui.

The officers had obtained a search warrant for the entire truck from a district judge in Beaumont. In executing the same a welded compartment underneath the bed of the pickup truck was found. Four metal bolts were removed. The officers recovered 30 packages of cocaine, weighing approximately two pounds each, totalling 60 pounds of cocaine which was later analyzed as nearly pure cocaine.

The officers also found an Eastern Airlines ticket inside the cab of the truck. The ticket was for a certain flight from San Francisco to Houston International Airport, arriving in Houston at 7:16 a.m. The boarding pass, dated November 2, which was also found, indicated the same flight number as the ticket. The name appearing on the boarding pass and the ticket was Victor Franqui. The original informant gave the information to the drug enforcement officer in Houston on November 2, 1983. Appellant was given a copy of the search warrant written in English. In December of 1983 the Jefferson County Grand Jury, by indictment, charged the Appellant with aggravated possession of cocaine in excess of 400 grams on November 2, 1983, contrary to TEX.REV.CIV.STAT.ANN. art. 4476-15, sec. 4.02(b)(3)(D) and sec. 4.03(c)(d)(3), effective August 29, 1983.

Counsel for the Appellant timely filed a motion to suppress all statements made by Roldan and all physical evidence, including the cocaine seized from the welded compartment under the truck bed. The first ground of error contends that all physical evidence seized should have been suppressed by the trial court, since it was obtained as a result of an unconstitutional seizure or arrest.

The State contends, or at least argued at oral submission, that the Appellant was merely stopped. Appellant contends that he was arrested and subjected to a "seizure". We agree with the Appellant. The enforcement officers testified they arrested the Appellant. Appellant vehemently argues that since there was an impermissible arrest and seizure, then all evidence obtained after that time could not be introduced before the jury. Appellant argues this includes the physical evidence, including the cocaine, found after the search warrant was obtained.

In essence, Appellant says that an arrest or seizure or a police confinement that extends further than a limited stop and frisk cannot be constitutionally permissible unless justified by probable cause. The arrest and the seizure of the Appellant was admittedly without written warrant.

We find that the arrest or seizure of the Appellant was made with probable cause, because all the surrounding facts and circumstances that were within the enforcement personnels' knowledge and of which the enforcement agents had reasonably trustworthy information, were sufficient to warrant a man of reasonable and prudent caution to hold the belief that an offense had been committed or was presently being committed by the person arrested and seized. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See also Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

In Carroll, supra, the court wrote, at page 149, 45 S.Ct. at 283:

"On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The 4th Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens."

In Brinegar, supra, the court wrote 338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. at page 1890:

"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

" 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt' ... as Marshall, Ch.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch (US) 339, 348, 3 L ed 364, 367. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267...