Worley v. State

• Decision Date: 21 December 1995
• Docket Number: No. 2-94-141-CR,2-94-141-CR
• Citation: 912 S.W.2d 869
• Parties: Raymond Allen WORLEY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Appeals

Page 869

912 S.W.2d 869

Raymond Allen WORLEY, Appellant, v. The STATE of Texas.

No. 2-94-141-CR.

Court of Appeals of Texas Fort Worth.

Dec. 21, 1995.

Petiton for Discretionary Review Refused April 17, 1996.

Michael Logan Ware, Law Offices of Michael Logan Ware, Fort Worth, for Appellant.

Tim Curry, Criminal Dist. Attorney; Betty Marshall, Asst. Chief Appellate Section; Charles Mallin, Asst. Chief Appellate Section; Sylvia Mandel, Asst. Dist. Attorney, Lisa Amos, Asst. Dist. Attorney, Fort Worth, for Appellee.

Before DAY, DAUPHINOT and RICHARDS, JJ.

OPINION

RICHARDS, Justice.

Appellant Raymond Allen Worley appeals his conviction for the offense of possession of a controlled substance. After a pretrial hearing where the trial court denied his motion to suppress evidence, Worley, after reserving his right to appeal the suppression issue, entered a plea of guilty and was sentenced to three years' confinement. This appeal followed. We affirm.

In two points of error, Worley complains of the trial court's denial of his motion to suppress. His specific complaint is that illegal drugs found in his possession were seized in violation of his rights under article 1, section 9 of the Texas Constitution ¹ and the Fourth Amendment to the United States Constitution, ² and should have been suppressed as "fruit" of an illegal search.

The issue requires us to address the legality of a Fort Worth police officer's actions that ultimately culminated in the seizure of three gelatin capsules containing heroin and cocaine found in Worley's possession.

FACTUAL BACKGROUND

The officer whose actions are the subject of our review is Thomas Wiederhold, an eleven-year veteran of the Fort Worth Police Department. On a summer evening in 1993, Officer Wiederhold was working with the department's "Weed and Seed Unit," a special police unit created to assist in curtailing narcotics trafficking. Officer Wiederhold was driving a marked police vehicle and patrolling Missouri Avenue in an area known for its drug activity. Officer Wiederhold paid "special attention to" the house located at 1401 Missouri Avenue because of numerous previous narcotics arrests made at that location. Officer Wiederhold testified that he had become familiar with the residence during the year preceding the instant incident. He further testified he has previously established personal contact with the resident caretaker of that address, a man named Bill Henderson, who had confirmed the residence was used for drug activity. During prior visits to the residence, Officer Wiederhold learned the drugs used at that residence are packaged in small gelatin capsules.

On July 19, 1993, Officer Wiederhold drove to the residence and noticed a green Ford pickup truck stopped at the intersection of Missouri Avenue and Morphey Avenue. The general appearance of the vehicle and driver, according to Officer Wiederhold, was consistent with heroin and cocaine trafficking. As the officers approached the vehicle, the driver immediately moved the pickup and gave the officers "a good hard stare" as they drove by. At the suppression hearing, Officer Wiederhold explained the significance of the location of the pickup by stating that he had learned during his almost twenty years as a police officer that drug users purchasing illegal narcotics normally travel in pairs. As a general rule, one person operates the vehicle, drops off the passenger, then circles the block and retrieves the passenger. Based on his experience, Officer Wiederhold believed that a passenger retrieval was about to occur and that the location of the truck was consistent with someone who was circling the residence at 1401 Missouri.

While his partner wrote down the license number of the pickup, Officer Wiederhold began surveying the residence. When his patrol car was approximately fifteen feet from the curb in front of the residence, Officer Wiederhold observed a white male, later identified as Worley, walk out the front door and step onto the porch steps. Worley's head was down and his left hand was cupped and open. As Worley approached the street, Officer Wiederhold observed, from a distance of approximately twenty feet, three capsules in Worley's left hand. Officer Wiederhold testified that Worley was concentrating on what was in his hand and did not appear to realize that the police officers were present. Only after Worley neared the curb did he look up and see the officers. When he saw the officers, Worley froze and stared at them. Officer Wiederhold testified that Worley "was looking real nervous, looking scared."

Worley continued to stare at the officers as Officer Wiederhold exited the patrol car and began to approach him on foot. When Officer Wiederhold was within arm's length, Worley clenched his left hand and attempted to turn away. As he turned, Officer Wiederhold grabbed his left hand and asked him what was in it. Officer Wiederhold testified at the time he believed he knew what was in the hand and wanted Worley to open his hand. After what Officer Wiederhold described as "mild" resistance, Worley relinquished the gelatin capsules. Officer Wiederhold testified that when he was able to look at the capsules "close up," he concluded the capsules probably contained heroin and cocaine. He admitted he could never definitely determine from sight what substances the capsules contained and relied on lab reports for the definitive determination.

WAS THE SEIZURE REASONABLE?

The Fourth Amendment does not, of course, provide guarantees against all searches and seizures, but only against unreasonable searches and seizures. See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669, 1680 (1960).

Worley suggests Officer Wiederhold's seizure of the drugs in the instant case was unreasonable because it was preceded by his warrantless seizure of Worley's wrist. In Worley's view, the seizure of his wrist constituted an arrest. Because Officer Wiederhold admitted it was only after he grabbed Worley's wrist that he formed the belief the gelatin capsules contained heroin and cocaine, Worley argues the arrest was made without probable cause. In response, the State argues Officer Wiederhold had probable cause to arrest Worley from the moment he saw him in possession of a suspected controlled substance, i.e., the moment Officer Wiederhold saw the gelatin capsules in Worley's hand as he exited the residence. Alternatively, the State argues the seizure of Worley's hand was reasonable as an investigative detention under Terry v. Ohio, 392 U.S. 1, 11 n. 5, 88 S.Ct. 1868, 1874 n. 5, 20 L.Ed.2d 889, 900 n. 5 (1968).

For the reasons explained below, we do not agree with the State that Officer Wiederhold had probable cause to arrest Worley at the time he seized his wrist; however, we do believe the seizure was reasonable as part of a valid Terry stop.

The Fourth Amendment principles governing the resolution of Worley's claims are easily stated, but their application to the unique facts of many cases, including this one, are not quite so simple. We have no doubt--and the State does not contest--that the encounter between Officer Wiederhold and Worley constituted a Fourth Amendment event. By seizing Worley's arm and opening his hand to view what was in it, Officer Wiederhold clearly effected a "seizure" of Worley's person and effects within the meaning of the Amendment. Cf. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). The first contested question, therefore, is whether the State is correct in its argument that Officer Wiederhold possessed the requisite probable cause to arrest Worley at the time he grabbed his wrist.

Probable cause to arrest exists where the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332 (1959).

As authority for its position that Officer Wiederhold had probable cause to arrest Worley when he saw Worley carrying gelatin capsules in the palm of his hand, the State relies primarily on Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). In fact, in its brief the State argues "this case is clearly controlled by Texas v. Brown." We disagree. In Brown, following a lawful traffic stop, a police officer saw a tied off balloon in the defendant's possession. Based on his knowledge and experience, the officer was aware that narcotics were frequently packaged in such balloons. Significantly, testimony in Brown clearly established that the defendant was placed under arrest only after the officer reached into the car, picked up the balloon, and determined it contained a powdery substance. In our case, however, the record clearly indicates Officer Wiederhold seized Worley's wrist before he inspected the capsules:

Q [Worley's counsel]: At what point did you believe the gelatin capsules contained heroin and cocaine?

A [Officer Wiederhold]: When I was able to get his hand open and actually look at them up close.

Because probable cause for Worley's arrest did not arise until the seizure and inspection of the capsules, we decline the State's invitation to hold Officer Wiederhold's seizure of Worley's wrist constituted an arrest supported by probable cause.

Unfortunately for Worley, our inquiry does not end here. Instead, we must next determine whether Officer Wiederhold's seizure of Worley's wrist was permissible under the lesser "reasonable suspicion" standard required for investigative detention under Terry. ³

In Terry, the Supreme Court considered non-arrest seizures stemming from the "necessarily swift [police] action predicated upon the on-the-spot observations of the officer on the beat," and held that in order to justify "the particular intrusion the...