Woods v. State

• Decision Date: 12 March 1991
• Docket Number: No. 6-90-073-CR,6-90-073-CR
• Citation: 806 S.W.2d 351
• Parties: Weldon WOODS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 351

806 S.W.2d 351

Weldon WOODS, Appellant, v. The STATE of Texas, Appellee.

No. 6-90-073-CR.

Court of Appeals of Texas Texarkana.

March 12, 1991.

Edgar A. Mason, Dallas, for appellant.

Robert P. Abbott, Asst. Dist. Atty., Dallas, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Weldon Woods appeals from a conviction of burglary of a vehicle. Primarily, he contends that the trial court erred in overruling his motion to suppress evidence produced by an illegal search and arrest, and that the evidence is insufficient to support his conviction. We find sufficient evidence to support the conviction, but conclude that evidence seized as a product of an illegal arrest should have been excluded. We therefore reverse and remand the case for trial.

On the night of February 18, 1989, Highland Park police placed a radar detector inside a parked car. The radar detector contained a tracking device that transmitted a radio signal. The signal was activated at 12:44 in the morning when someone broke into the parked car and took the radar detector. The police tracked the signal from the device to Woods' home and arrived there fifteen minutes after the signal was activated.

Woods lived at the house with his two brothers and his father and mother, Dr. and Mrs. Channing Woods. When officers knocked on the door, Woods' brother, Preston, came to the door. Police officers told him that they were looking for the stolen radar detector and asked permission to search the premises. Preston woke his father, who was asleep upstairs.

Dr. Woods came to the door a few minutes later. The officers requested permission to search for the radar detector containing the tracking device, which had stopped sending its signal. After the police told Dr. Woods that if he did not consent to the search they would obtain a search warrant, he consented.

One of the officers stayed downstairs with the Woods family while the other officers searched the house. The search proceeded slowly because, in the words of one officer, the residence was a "maze of property." Officers testified that various items of personal property were "on every bed, stacked wall-to-wall," and that Weldon Woods' personal bedroom was cluttered with numerous wallets, vehicle radio equipment, and other radios and electronic equipment.

At about 3:30 a.m., police called a magistrate, Judge Pat Robertson, to the scene. The search for the stolen device continued unsuccessfully until about 6:00 a.m., when Woods led an officer to the basement of the home and retrieved the radar detector from underneath a workbench.

We must determine whether the trial court improperly overruled Woods' motion to suppress the radar detector because it was the product of an illegal arrest. The State contends that Woods was not arrested, but only justifiably detained. In order to properly consider this contention, we must first consider whether Woods was, in fact, arrested. Then we must decide whether that arrest was lawful. Finally, if we find that the stolen item was the product of an unlawful arrest, we must determine whether Woods' production of that item was sufficiently attenuated from the arrest to permit its introduction.

We first consider whether Woods was actually arrested as he maintains, or only justifiably detained as argued by the State. In determining whether an arrest has been made, the test is whether, in view of all relevant circumstances, there has been such a display of official authority that a reasonable person would believe he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Daniels v. State, 718 S.W.2d 702, 706 (Tex.Crim.App.1986). A person is arrested when he has been actually placed under restraint or taken into custody by an officer. Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); TEX.CODE CRIM.PROC.ANN. art. 15.22 (Vernon 1977). An arrest is complete when the person's liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App.1987).

Woods and his brother were given Miranda ¹-type warnings shortly after their father consented to the search. Officer H.D. Gilliam was assigned the duty of securing Weldon Woods and the rest of the family in the downstairs area of the home while the other officers conducted the search. Gilliam testified that he did not arrest anyone, but only stood by with the family in the downstairs area. However, he also testified that neither of the Woods brothers was free to leave. Captain Ben Milner, the officer in charge of the search, also testified that Woods was not free to leave.

Woods testified that he and his brother were placed under arrest after the police obtained consent to search the house. When questioned further concerning what he meant by arrest, Woods stated that "[w]e were read our Miranda rights and told that we could not leave the room." He also testified that he believed he was not free to leave. Additionally, Dr. Woods testified that his sons were both read their rights and then told "You're under arrest." Woods was placed under restraint within the meaning of Article 15.22. ² Accordingly, we conclude that Woods was arrested.

Woods' arrest was made without a warrant. In determining whether the warrantless arrest was lawful, we begin with the general premise that, subject only to specific statutory exceptions, all warrantless arrests are per se unreasonable. ³ Thus, the State, in this case, as in all cases where the police arrest without a warrant, bears the burden of establishing the legality of the warrantless arrest. See, e.g., Randall v. State, 656 S.W.2d 487, 490 (Tex.Crim.App.1983); Hooper v. State, 533 S.W.2d 762, 767 (Tex.Crim.App.1976) (opinion on rehearing); McVea v. State, 635 S.W.2d 429, 432 (Tex.App.--San Antonio 1982, pet. ref'd); see generally Reamey & Harkins, Warrantless Arrest Jurisdiction in Texas: An Analysis and a Proposal, 19 ST. MARY'S L.J. 857, 860-61 (1988). We conclude that the State failed to meet its burden of showing that Woods' arrest was made pursuant to any statutory exception. His arrest was, therefore, unlawful. Thus, Woods' act in retrieving the stolen device, which was tantamount to a confession, should have been excluded from evidence unless such act was sufficiently attenuated from the arrest that the causal connection was broken and the act was independent of the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

In deciding whether a confession or evidence obtained after an illegal arrest is sufficiently attenuated from the arrest to permit its introduction, we consider these four factors: whether Miranda-type warnings were given; the temporal proximity of the arrest and the production of the evidence; the presence of any intervening circumstances; and the purpose and flagrancy of any official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975); Self v. State, 709 S.W.2d 662, 666 (Tex.Crim.App.1986). Since Miranda-type warnings were given and the matter of any official misconduct is debated by the parties, our decision is limited to the remaining two factors.

Before moving to the discussion of the relevant factors, it is well to keep in mind where the burden of proof lies with regard to determining whether the evidence is admissible. There is an affirmative burden on the State to present evidence to show that the volunteered evidence was not the product of an illegal arrest. Beasley v. State, 674 S.W.2d 762, 769 (Tex.Crim.App. [Panel Op.] 1982); see also Taylor v. Alabama, 457 U.S. 687, 691-92, 102 S.Ct. 2664, 2667-68, 73 L.Ed.2d 314 (1982). We now look at the relevant factors as shown by the evidence presented.

Temporal Proximity

There was a five-hour gap between the arrest and production of the stolen radar device. What the time gap means is uncertain. However, because this was a continuing illegal arrest, the gap could be considered short. In Gregg v. State, 667 S.W.2d 125, 129 (Tex.Crim.App.1984), the court rejected the State's argument that a lapse of six hours between the time of arrest and the defendant's voluntary statement was sufficient to remove the taint where the defendant was continuously in police custody and subject to interrogation and unrepresented by counsel. Gregg v. State, 667 S.W.2d at 129; accord Taylor v. Alabama, 457 U.S. at 692-93, 102 S.Ct. at 2668-69. Even if the gap of five hours is viewed as considerable, we recognize that temporal proximity is "generally not a strong determining factor." Bell v. State, 724 S.W.2d 780, 788 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). However, the time between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one. Dunaway v. New York, 442 U.S. 200, 220, 99 S.Ct. 2248, 2260, 60 L.Ed.2d 824 (1979) (Stevens, J., concurring). The State has not shown that the evidence is attenuated from the illegal arrest by reason of the time between the arrest and production of the evidence. We then look to see whether the State showed any remarkable intervening circumstances which would purge the taint of the illegal arrest. Bell v. State, 724 S.W.2d at 788-89.

Intervening Circumstances

We consider whether the presence of the magistrate at the Woods' residence was an intervening circumstance. However, there is no indication that the magistrate acted in his official capacity. On the contrary, it appears that he was acting at the invitation and direction of the police officers. The magistrate's mere presence does not constitute an intervening event that would assist the State in establishing, as is its burden, "that...