Rushing v. State

• Citation: 500 S.W.2d 667
• Decision Date: 17 October 1973
• Docket Number: No. 47092,47092
• Parties: David RUSHING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 667

500 S.W.2d 667

David RUSHING, Appellant, v. The STATE of Texas, Appellee.

No. 47092.

Court of Criminal Appeals of Texas.

Oct. 17, 1973.

Rehearing Denied Nov. 14, 1973.

Philip R. Lane, San Angelo, for appellant.

Royal Hart, Dist. Atty., Wm. J. Stroman, Asst. Dist. Atty., San Angelo, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This an appeal from an order revoking probation. Appellant was convicted of the offense of sale of phenmetrazine, a dangerous drug. Punishment was assessed at three years, probated. Subsequently, the State made application to revoke that probation.

In the motion to revoke, the State alleged that (1) appellant had failed to pay his probationary fees and costs incurred in connection with his probation and (2) that appellant violated his probation by possessing marihuana on or about the 22nd day of September, 1972. The State offered absolutely no evidence of a violation of the first allegation. Therefore, if appellant's probation was properly revoked, that revocation must stand on the charge of marihuana possession.

Appellant contends that the trial court abused its discretion by revoking his probation based on evidence seized as the result of an illegal arrest and search on the ground that the officers did not have sufficient probable cause to arrest him without a warrant.

The evidence shows that Officer Walter Pierce of the San Angelo Police Department received a tip from an informer and arrested appellant. Pierce testified that the informer had told him that he had seen appellant that evening with marihuana and that he and a companion, Richard Lawler, would be in a two-tone green Ford pickup. When he found appellant at approximately 11:45 p.m., he was with Lawler in a two-tone green Ford pickup, parked in the parking lot of the Radio Shack business establishment and that the business was closed at that hour of the evening. Officer Pierce also testified that earlier in the evening he had answered a disturbance complaint at the Der Wiener Schnitzel Cafe and that the persons reported causing the disturbance were in a two-tone green pickup.

An examination of the possible theories upon which the search might be justified is now in order.

I.

Article 14.03

The record wholly fails to support any reliance upon this 'suspicious persons' article as a basis for the arrest and search of appellant.

When arrested, the appellant and his companion were parked in a pickup truck in the parking lot of the Radio Shack. The time was approximately 11:45 p.m. Neither of the two arresting officers testified to the effect that their suspicions were aroused by the truck being parked at that place at that time of night. To the contrary, all the evidence in the record indicates that this lot was used by the young people of the town as a gathering place at night. One of the arresting officers, upon questioning by the Prosecutor, stated:

'Q Had you observed other cars park on the radio shack parking lot after the establishment was closed?

'A Yes, sir, several times.

'Q Is this parking lot generally used by young people at night for just parking and not connected with the business of the radio shack?

'A Yes, sir.'

Another witness testified that 'a lot of kids park there after the radio shack is closed' and that 'this is the kind of place where kids generally park.' The record does not reflect any testimony whatsoever that the arrest was predicated upon a 'suspicious persons' basis. Rather, the officers made it quite clear, as will be shown later, that they specifically sought out and searched Appellant's person and his companion because of the tip that they had received. Appellant and his companion were both known in the town--in fact, both arresting officers testified that they knew that appellant was a resident of the town and not just passing through.

Even assuming, arguendo, that the officers' questioning of appellant could be justified under 14.03, which it obviously cannot under these circumstances, the subsequent search fails to measure up to legal standards. Certainly, this Court has recognized the legality of searches Incident to arrests under Article 14.03, Vernon's Ann.C.C.P.; e.g., Crawford v. State,478 S.W.2d 456 (Tex.Cr.App.1972); Lara v. State, 469 S.W.2d 177 (Tex.Cr.App.1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 724, 30 L.Ed.2d 732 (1972). However, this Court has never held that 14.03 gives police officers an unlimited right to search.

The facts relating to the search in the present case are these: appellant and his companion were located on the parking lot of the Radio Shack; the officers conducted a search of the two men; marihuana was found in appellant's Right boot. There was no testimony that this was found as a result of a search incident to arrest, such as perhaps a weapons search. ¹ Instead, all testimony shows that the two men were detained for the very purpose of searching their persons for marihuana.

Therefore, the search must be justified, if at all, under some basis other than Article 14.03, V.A.C.C.P.

II. No Search Warrant

No warrant was obtained before the search occurred. There was approximately a two-hour lapse between the time the 'tip' was received until the time that appellant was arrested and searched. One of the two arresting officers testified that it 'wasn't up to him to get the warrant.' The other officer stated that no attempt was made to obtain a warrant. As previously stated, both officers testified that they knew the appellant and knew that he was a resident of the town and not just passing through. One of these officers did state that ordinarily it would take him about one hour to obtain a warrant.

III. Probable Cause for the Warrantless Arrest and Search

Was there sufficient probable cause to make the arrest and search, based upon the informer's tip and the officers' knowledge of appellant's reputation? Also, was there sufficient corroboration of the informer's tip so as to justify the arrest and search?

(1)

The 'Tip'

The arresting officer testified that the informant had Never given any information before and was completely unknown prior to this occasion. Nothing about him or his character was known. His occupation was not known. His reputation was unknown; one of the officers stated that the informant could have been convicted of murder the day before for all he knew. Thus, the informant's reliability and credibility had never been tested. The standards applicable to the factual basis supporting an officer's probable cause assessment at the time of a challenged warrantless arrest and search are at least as stringent as the standards applied with respect to a magistrate's assessment as a prelude to issuing an arrest or search warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Appellant recognizes, as do we, that hearsay information, insufficient to constitute probable cause under Aguilar v. Texas, ² may nevertheless become sufficient if adequately corroborated by independent observation of the arresting officer. Whiteley v. Warden, supra, citing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, the information gained by observation must in some sense be corroborative of the informer's tip that, in the present case, The appellant possessed marihuana. Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.1972).

(2)

The Corroboration of the Tip

The unidentified informant told the officers that appellant had marihuana in his possession and that he and a named companion were in a certain color and make pickup. The record does not reflect that the informer named a location where the appellant might be found in possession of that marihuana. The ultimate issue to be decided at this point is whether or not the officers' seeing appellant and his companion, some two hours later, parked in a parking lot, in a vehicle which matched the informant's description, satisfies the test of sufficient corroboration. We conclude that it clearly does not.

We refer the reader to Cole v. State, supra. In that case, a previously unproven informant told police officers that the defendant had committed a certain robbery with a shotgun and that he had a Buick automobile. In addition, the informant recited a residential address where the defendant would be found, and the fact that he was to leave immediately and participate in another robbery. The officers acted upon this information, proceeded to the designated address, and found the accused, along with his shotgun and shells. A Buick automobile was found outside this location.

This Court concluded that these facts were not sufficiently corroborative of the tip to justify the warrantless intrusion. ³ As in Cole, where it was held that the facts were not corroborative of the tip That appellant had committed the robbery, it is likewise true that in the present case, preceding the illegal search, there was absolutely No corroboration of the tip that appellant Had marihuana in his possession. All that was corroborated was the fact that on this evening appellant would be found somewhere in the town with a named companion in a certain vehicle. The informer had not stated that a drug transaction would take place on this parking lot or that it would take place at a certain time; neither did he relate that the two men were planning to use this particular vehicle to deliver or transport the marihuana. Further, the record is silent as to the circumstances surrounding the informant's knowledge that appellant possessed marihuana. ⁴

(3)

The Officers' Knowledge of Appellant's Reputation

Using the case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), one might argue that the reputation of appellant and his companion should be used to test the reliability of the informant's tip. However, the only knowledge...