Spring v. State

• Decision Date: 02 December 1981
• Docket Number: No. 60160,No. 2,60160,2
• Citation: 626 S.W.2d 37
• Parties: Raymond Duane SPRING, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 37

626 S.W.2d 37

Raymond Duane SPRING, Appellant, v. The STATE of Texas, Appellee.

No. 60160.

Court of Criminal Appeals of Texas, Panel No. 2.

Dec. 2, 1981.

Rehearing Denied Jan. 20, 1982.

Tom E. Hill, Fort Worth, for appellant.

Tim Curry, Dist. Atty., William Kane, Steve Chaney and James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal is taken from a conviction on May 18, 1978 for the offense of burglary of a habitation. Trial was before a jury that returned a verdict of guilty and subsequently found the allegations of two prior felony convictions as contained in the indictment to be true. Punishment was accordingly set at life imprisonment.

By his first two grounds of error appellant complains of the trial court's denial of his motion to suppress certain evidence introduced at his trial that was seized from his apartment while he was confined in the Bedford City jail. He argues first that the initial intrusion was conducted without a search warrant in violation of his Fourth Amendment rights and, secondly, that the search warrant that was later obtained failed to comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We agree for reasons about to be discussed, with the first contention, and we find it subsumes the second.

The record reflects that the alleged burglary occurred in Arlington on November 12, 1977. Appellant and his wife were arrested at approximately 4:00 a. m. on December 12, 1977 in Bedford and were confined in the Bedford City jail. Later that same morning a Bedford police officer telephoned Fort Worth police officer Woods and asked that appellant's apartment be kept under surveillance until the Bedford police arrived with a search warrant. ¹ Detective Woods and Detective Camfield drove near and identified appellant's apartment at approximately 11:30 a. m., parked their vehicle some 75 to 100 yards away where they could view the front door of appellant's apartment, and waited.

After an hour passed they saw a man, soon to be identified as appellant's father, Duane Spring, approach the door. Mr. Spring removed a United Parcel note from the door and was returning to his car when Woods and Camfield stopped him, identified themselves as policemen, and asked him for identification. Mr. Spring said he was there to pick up some baby things for his grandchild, the small baby of appellant and his wife.

Meanwhile a Bedford police officer had also called Ms. Shirley Crites, manager of the complex that included appellant's apartment. She was told that appellant had been arrested for burglary and was then in the Bedford jail. As to the remainder of the telephone conversation, Crites testified:

"Q: Did they ask you in the course of that telephone conversation to search the apartment, or to look at the apartment number 119 to see if there were any stolen items?

A: They told me to go over-they asked me if I could legally go over and inspect the apartment to see if there was anything wrong there, if anything looked out of order, anything unnormal.

Q: Well, you wouldn't have gone over there otherwise that day and that morning, would you?

A: If he hadn't have called, I wouldn't have known there was a problem. But since I was manager of the property, it was up to me to see, you know, to get an opinion of what was going on in that apartment, because it was on my property.

Q: (By Defense Attorney): The question I asked you that was not answered was, as a result of the telephone conversation, the Bedford Police Department, where you got the idea that you were, that there may be some stolen items in the apartment, you proceeded to that apartment, did you not?

A: Right. Had they not called, you know, I would not have been aware of anything, you know.

Q: Okay. Fine. So then you proceeded to the apartment, is that not correct?

A: Right.

Taking her maintenance man along, Crites went to carry out her mission. As she neared apartment 119, the way she remembered it, Duane Spring approached her and told her he was appellant's father, was going to be taking care of his grandbaby and needed some baby things, formula, clothes, diapers and the like, from the apartment. ² According to Detective Woods, Crites replied "that she thought it would be all right and I assumed it would." ³ Crites recalled:

"So then I knocked on the door too, you know. I didn't know if there was anyone there or not. I assumed there wasn't, but I still liked to knock on the door. I knocked on the door two or three times and no one came to the door.

Q: Which gave you the impression that no one was there?

A: Right. Then I told, I hollered 'manager, maintenance man,' because I had my maintenance man with me also. And still no one came to the door, so I hollered the name again. Still no one came to the door, so I opened the door to see-

Q: Did you go in first?

A: No, sir, when I opened the door Mr. Spring passed by me, went into the apartment and opened up the refrigerator to get the bottles of formula out."

Thus Crites was in fact on her way over to "inspect" appellant's apartment when she met appellant's father and the two detectives. ⁴

After Crites unlocked the door to appellant's apartment, Detective Camfield, following Spring inside, spotted what he believed to be marihuana in a container on the living room floor. Detective Woods testified:

"A: ... When she unlocked the door and pushed it open, her and Mr. Spring and Detective Camfield were all there, and I was standing toward the left side of the door. And Mr. Spring went around Mrs. Crites and Detective Camfield went with him.

Q: Okay. Now, was there some marijuana in the apartment?

A: Yes, sir.

Q: And where was that marijuana that you first saw?

A: It was in the living room on the floor directly in front of the door."

Shortly after the two detectives entered appellant's apartment and saw several items they suspected to be stolen property, they called Narcotic Officer R. L. Huling of the Fort Worth Police Department. With his partner, H. T. Wyatt, Huling arrived at the apartment at 2:00 p. m., stayed about ten minutes looked around the premises, ⁵ talked to the detectives, and returned to the police station, where he drafted and both officers signed the supporting affidavit for the search warrant. He then obtained a search warrant from a municipal judge directing the officers to search appellant's apartment for marihuana, and returned to the apartment at approximately 4:30 p. m. This search warrant for marihuana was then used to search appellant's apartment, and some items subsequently seized were introduced at appellant's trial for burglary of a habitation. ⁶

We now attempt to sort out the facts and apply the law. In the first place the initial intrusion into appellant's apartment occurred without a search warrant. It is well established that an invasion of privacy conducted without a warrant issued on the basis of a neutral determination of probable cause is per se unreasonable, and that the warrant requirement is subject only to a few well delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The State points to none, but seeks to fashion a rule of laying siege to suspected premises. That is, without citing any authority whatsoever, the State characterizes the situation as "nothing more than a careful and routine police matter," and then selectively phrases and shades its version of the operative facts underlying the initial intrusion. Thus, the detectives are said to have been sent to appellant's apartment "to place it under surveillance and secure it" until Bedford police came with their warrant "to search for stolen or burglarized property;" they were doing that "until faced with the intrusion of Appellant's father who wanted to "The manager of the apartments opened the door, not at the request of these officers, and the Appellant's father entered. To maintain the integrity of the place and its contents, one officer went in behind him, the other remained at the door. Both saw just inside the door a box of marijuana (sic) and as a result, a search warrant was obtained to allow a search of the premises ... for the marijuana (sic)." ⁷

gain entrance to the apartment," according to the State. Then the State would have it:

The assumption throughout this recitation is that police officers surveilling at the bare request of another law enforcement agency somehow are authorized to "secure," to "maintain the integrity" of the place being watched and its contents. Again, the State does not support that assumption with judicial precedent to that effect. We venture the thought that there is none.

"(P)hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), and "(i) n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house," Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). Neither may that threshold be reasonably crossed without a warrant by police officers, ibid., nor may the locked door be opened by the landlord or his agent to permit them to do so, Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964), for "to uphold such an entry, search and seizure 'without a warrant would reduce the (Fourth) Amendment to a nullity and leave (tenants') homes secure only in the discretion of (landlords).' Johnson v. United States, (333 U.S. 10) at 14 (68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) )," Chapman v. United States, 365 U.S. 610, 617, 81 S.Ct. 776, 780, 5 L.Ed.2d 668 (1961). Crites, acting at the instance of the Bedford Police Department, became...