Truitt v. State

• Decision Date: 20 February 1974
• Docket Number: No. 46059,46059
• Citation: 505 S.W.2d 594
• Parties: Alfred 'Sonny' TRUITT, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 594

505 S.W.2d 594

Alfred 'Sonny' TRUITT, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 46059.

Court of Criminal Appeals of Texas.

Feb. 20, 1974.

Frank S. Wright, Dallas, for appellant.

Larry Miller, Dist. Atty., Greenville, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from a conviction of possession of a narcotic drug, to-wit: marihuana. Following a trial before the court, appellant was found guilty and punishment was assessed at four years' confinement.

Appellant contends in his sole ground of error that 'the trial court committed reversible error by allowing the introduction of evidence seized pursuant to an illegal search and seizure of appellant's automobile.'

Prior to trial, a hearing was held on appellant's motion to suppress evidence. Since the constitutional validity of a warrantless search can only be decided in terms of the concrete factual situation presented by each case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed. 917 (1967); Brown v. State, Tex.Cr.App., 481 S.W.2d 106, a thorough recitation of the facts developed at the aforementioned hearing is necessary.

Richard Trice, an employee of the Greenville Police Department, testified that on or about August 27, 1970, he was assigned to the dispatch office of the Greenville Police Department. Acting in that capacity, he took incoming telephone calls to the Police Department. At approximately 8:20 P.M., he received a telephone call relating to Alfred L. 'Sonny' Truitt, Jr. The caller did not identify himself but advised Officer Trice that appellant was enroute from Dallas to Greenville with approximately ten pounds of marihuana in his gold Firebird automobile. The anonymous informant also said that appellant had left about fifteen minutes before the call was placed.

Officer Trice dispatched Patrolman Lamb, Sergeant Jordan and Officer Carroll, who were present in the dispatch office, to intercept appellant at the intersection of Interstate 30 and Highway 24. Soon after reaching the point of anticipated interception, Officers Jordan and Lamb observed a gold Firebird slow and leave the expressway at the Greenville exit. Thereupon, the officers stopped the car.

Officer Jordan testified that he had a description of the appellant's automobile but not the license number. Officer Jordan further testified that he observed appellant get out of his car from the driver's side as he approached him. After asking another person in the front passenger seat to step out of the car, Officer Jordan said that Officer Lamb informed appellant that 'we had information that he had in his possession a quantity of marihuana and they were going to search his vehicle for the same.' While the officers searched the vehicle. Officer Jordan observed Officer Lamb take a light green sack from the front floorboard of the car, open it, and take out several plastic bags filled with a substance that appeared to be marihuana. Officer Jordan also testified that they were not searching for weapons.

Although Jordan said he could see the green sack inside the car, on direct examination Officer Lamb testified that he could not see the marihuana until he opened the sack. Additionally Lamb stated that appellant had not committed any traffic offense and that he stopped appellant solely because he had been dispatched to do so by Officer Trice. Lamb also stated that he searched the car without appellant's consent and without a search or arrest warrant. Further testimony reflected that at the time of the search appellant was in custody, and if appellant had attempted to remove the car, he would have been restrained. At the motion to suppress Officer Trice stated that he had never received any information from the informant before, and that at the time he received the information he had no way of knowing whether or not the informant was credible.

During the actual trial ¹ further testimony established that appellant was taken immediately before a magistrate where a complaint was filed against him, and he was given the Miranda warning. Subsequently, he was taken to the Greenville Police Department. At the police station it was agreed by the officers that they had reason to search appellant's apartment for narcotics, and Officer Ewalt was asked to draw up a search warrant. However, Ewalt testified that while he was typing the search warrant appellant was brought into the office. At that time Ewalt asked appellant if he would sign a consent to search as 'I was drawing up a search warrant, to save time and effect.' Appellant executed the consent to search, but later refused to accompany the officers to his residence. Officer Lamb and two other officers then proceeded to appellant's apartment where they recovered marihuana seeds in a plastic bag hidden behind a picture in the dining area of the apartment.

The officers had neither an arrest warrant or a search warrant at the initial arrest. This Court thoroughly articulated the elements that must exist to justify a warrantless search in Brown v. State, Tex.Cr.App., 481 S.W.2d 106 at page 109:

'In order for a warrantless arrest or search to be justified, the state must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of a warrant impracticable. E.g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923); Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744. Where probable cause is lacking, the challenged search will not be upheld merely because the exigencies of the situation precluded the obtaining of a warrant. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed. 917 (1967); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).'

The issue thus becomes whether probable cause for an arrest and search exists merely on the basis of an anonymous informer's tip alone.

The standards applicable to determining whether the facts of a case support an officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied when reviewing the decision of a magistrate. Whitely v. Warden, Wyoming Penitentiary, 401 U.S. 450, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Brown v. State, supra.

Officer Trice testified that he had never received any information from the informant before and had no way of knowing whether or not the informant was credible. Likewise, the record reflects that in the brief conversation between the anonymous informant and Trice the informant did not relate any circumstances by which he came to know that appellant possessed contraband. It is clear that the informant's tips in the instant case fail to satisfy either of the two prongs of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ² Unless some of the underlying circumstances upon which the informant based his conclusions are before the reviewing court, the informant's tip, standing alone, is insufficient to constitute probable cause. Cole v. State, supra; Aguilar v. Texas, supra.

The State concedes that this is not a case involving a 'credible, reliable and trustworthy informer,' but contends that the warrantless arrest was necessitated because of the lack of time in which a search warrant could be obtained. Article 14.04, Vernon's Ann.C.C.P., provides:

'Where it is shown by satisfactory proof to a peace officer that, upon the representation of a Credible person that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.' (emphasis added)

Thus, it can be seen that in order to justify an arrest without a warrant the State must establish that the information must be received from a credible person, that the accused is about to escape, and further that there was not sufficient time to secure a warrant. The first two requirements were clearly not satisfied.

The State also contends in essence that the case at bar falls within the ambit of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1957) and Almendarez v. State, Tex.Cr.App., 460 S.W.2d 921, because the informant provided specific information describing appellant's automobile and subsequent route. In that line of cases the police had some other basis for believing that the informant was truthful, and the specificity of his information served only to demonstrate that, in all likelihood, he had gained his information in a reliable manner. In the case at bar, the informant was completely anonymous and not shown to be credible. To allow the informant's brief conversation to constitute probable cause would be in effect allowing it to serve as the 'underlying circumstance' for determining his veracity. This is not permissible because at the point of interception of appellant the credibility of the informant was not and could not be verified. Aguilar v. Texas, supra; Cf. Mendoza v. State, Tex.Cr.App., 492 S.W.2d 489. The State's reliance on Draper v. United States and Almendarez v. State, supra, is misplaced. See also Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744.

The District Attorney asked each officer, over strenuous objection by appellant's counsel, whether they had information in their possession that appellant was a known marihuana user and also whether appellant associated with known marihuana users. Each officer merely answered the aforementioned questions with the answer, 'Yes, sir.'

While it is clear that where an initial impetus for an arrest is an informer's tip information gathered by arresting officers prior to the point of interception can be used to sustain a finding of...