Shipman v. State
| Decision Date | 31 October 1996 |
| Docket Number | No. 04-95-00285-CR,04-95-00285-CR |
| Citation | 935 S.W.2d 880 |
| Parties | Marvin SHIPMAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Joanne M. Eakle, San Antonio, for Appellant.
Lynn Ellison, District Attorney, Jennifer B. Rosenblatt, Allison Bryant, Assistant District Attorney, Jourdanton, for Appellee.
Before RICKHOFF and STONE, JJ., and CHARLES F. CAMPBELL, Former Judge. 1
Pursuant to a plea bargain agreement with the State, appellant pled guilty to the offense of attempted capital murder. In accordance with the plea agreement, the trial court sentenced appellant to forty years confinement in the Texas Department of Criminal Justice, Institutional Division. In harmony with TEX.CODE CRIM. PROC. ANN. art. 44.02 (Vernon 1979), appellant now appeals, in three points of error, an adverse ruling to his pre-trial motion to suppress evidence. We affirm.
Although the sufficiency of the evidence is not challenged, a brief summary of the facts adduced at the suppression hearing is necessary to the disposition of appellant's points of error. On February 8, 1994, at approximately 9:30 P.M., near Lytle, in Atascosa County, a taxi driver, Vasquez, was assaulted with a knife during the course of a robbery. Ten dollars was taken. Vasquez had given the four perpetrators a ride from San Antonio to a subdivision in Atascosa County. There he was robbed and stabbed by four men who wore "gang-type clothing." One of the suspects was described as a Hispanic male, another a white male with a "weird-type, short haircut." Officers with the nearby Lytle Police Department investigated the scene of the crime and interviewed the victim. A blood-soaked newspaper was found near the victim's taxi. Descriptions of the four suspects and their direction of flight from the scene of the crime were broadcast to the surrounding area and to Bexar County. Investigating officers theorized that, because of the amount of blood found at the crime scene, one or more of the suspects, in addition to the victim, had been cut. This information was also broadcast to the surrounding area.
An officer monitoring IH-35 was flagged down by two men who reported seeing two white male subjects, one with a cut hand and one wearing a red jacket, asking for a ride and for directions. They also reported seeing these two subjects join two other subjects and leave on foot. This additional information was broadcast over police radios around the area. At approximately 1:00 A.M., an officer stopped by a gasoline station/food store on IH 35, some five miles from the crime scene, and asked the clerks to be on the lookout for the suspects. Approximately three hours later, one of the clerks at the gas station saw two young men in the store, one with blood on his hand. The clerk saw two other young men standing outside the store. The two men in the store purchased four soft drinks and cigarettes. Five blood-stained one dollar bills were used for the purchase. The man with the blood on his hand attempted to conceal it with his shirtsleeve. The clerk called 911, and officers from Bexar County detained three of the suspects, then found a fourth hiding behind the store. The four suspects were handcuffed and kept in Bexar County squad cars until officers from Lytle arrived twenty minutes later. The suspects were then turned over to Lytle officers. Several hours later, between 10:00 and 11:00 A.M., appellant gave an oral statement that was audio-recorded, then reduced to writing. Appellant signed the written statement admitting his participation in the attempted capital murder of Vasquez.
In his first two points of error, appellant complains, in essence, that his seizure 2 by law enforcement officers was illegal under both state and federal constitutions, and under TEX.CODE CRIM. PROC. ANN. art. 1.06 (Vernon 1977). Because appellant has not separated his arguments under the United States Constitution and the Texas Constitution, we will only address these points under the United States Constitution, Texas decisions applying the U.S. Constitution and Texas statutory law. Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991).
The threshold issue is whether the seizure of appellant can be characterized as an investigative detention or a custodial arrest, because the nature of the seizure determines the constitutional parameters which apply to determine its legality. Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991). An investigative detention, to be constitutionally valid, may be founded upon a reasonable, articulable suspicion that the person detained is connected with criminal activity, but an arrest, to pass constitutional muster, must be supported by the greater conclusiveness of probable cause to believe that a particular person has committed or is committing an offense. Id.
In the federal jurisprudence, several non-exclusive factors have been identified as being determinative of whether a seizure has elevated into a custodial arrest: 1) the basis for the encounter; 2) whether the encounter was consensual; 3) the duration of the encounter; 4) investigative methods used to confirm suspicions; 5) an officer's statement that the suspect is/is not free to leave; 6) whether weapons are displayed or other force used; 7) the number and demeanor of the officers present at the seizure; 8) the extent of the suspect's restraint; 9) whether the suspect was transported to another location against his will; and 10) whether the suspect was free to leave. See United States v. Mendenhall, 446 U.S. 544, 555-56, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 503-04, 103 S.Ct. 1319, 1327-28, 75 L.Ed.2d 229 United States v. Novak, 870 F.2d 1345, 1352-53 (7th Cir.1989); United States v. Hammock, 860 F.2d 390, 393 (11 Cir.1988).
Texas law contains a statutory definition of an "arrest." Pursuant to TEX.CODE CRIM. PROC. ANN. art. 15.22 (Vernon 1977), a person is arrested under state law when he has been "actually placed under restraint or taken into custody." Our court of criminal appeals has been quite literal in its interpretation of this statute, particularly after its decision in Amores. In Amores, the court of criminal appeals held that an arrest occurs when a person's liberty of movement is restricted or restrained. 3 Amores, 816 S.W.2d at 411; see also Burkes v. State, 830 S.W.2d 922, 925 (Tex.Crim.App.1991); Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App.1987).
Clearly, the encounter between appellant and the officers was not consensual; the duration of the encounter was six to seven hours; at least one officer testified that appellant was not free to leave; appellant was continuously handcuffed beginning with Bexar County officers and continuing with his transfer to Lytle officers and to the Lytle police station; numerous law enforcement officers were involved in the seizure and ultimate transfer of appellant and his cohorts; and, appellant was interrogated for several hours at the police station. Under either federal or state jurisprudence, it is abundantly clear that appellant was under custodial arrest when he executed his confession. See Amores, 816 S.W.2d at 411; United States v. Mendenhall, 446 U.S. at 555-56, 100 S.Ct. at 1877-78; Florida v. Royer, 460 U.S. at 503-04, 103 S.Ct. at 1327-28.
The state argues that even if this court determines appellant's seizure is a custodial arrest, the arrest was based on probable cause and was authorized under TEX.CODE CRIM. PROC. ANN. art. 14.04 (Vernon 1977). In order for police officers to make a warrantless arrest, the State must show the existence of probable cause at the time of the arrest and the existence of circumstances 4 which made the procuring of a warrant impracticable. Crane v. State, 786 S.W.2d 338, 346 (Tex.Crim.App.1990). The test for the existence of probable cause is "whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." Rance v. State, 815 S.W.2d 633, 635 (Tex.Crim.App.1991)(quoting Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989)). In applying this standard, we are to look at the "totality of the circumstances" to determine if the officers had a substantial basis for concluding that probable cause existed at the time of the questioned action. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.1988).
Art. 14.04 provides one of the statutory exceptions to the general rule which requires that an officer obtain a warrant before effecting an arrest. See generally Dejarnette v. State, 732 S.W.2d 346, 349 (Tex.Crim.App.1987). Under Art. 14.04, there are four basic requirements that must be met: 1) the person who gives the information to the peace officer must be credible; 2) the offense must be a felony; 3) the offender must be about to escape; and 4) there must be no time to procure a warrant. Crane, 786 S.W.2d at 346.
and Police Broadcasts
The test for probable cause in the case of police broadcasts is the information known to the officer who made the broadcast request. Id. The requesting officer need not relate all of the relevant facts, but only such information as is necessary for the arresting officer to know who is wanted. Id. Police broadcasts, based on probable cause, reporting a felony and a description of the suspect satisfy the requirements for arrest under Art. 14.04. Id.; see also, Woodward v. State, 668 S.W.2d 337 (), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985).
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