holding “that where ... officers who reasonably believe that further investigation of an offense may be necessary in order to justify the issuance of a warrant, and where those officers undertake that investigation lawfully and without impinging upon reasonable expectations of privacy, and where that investigation leads to the receipt of information which in combination with their other information constitutes probable cause to arrest the suspect, but that information is obtained in the presence of the suspect under circumstances which would lead the officers reasonably to believe that the suspect would take flight if given the opportunity to do so, the officers are authorized by article 14.04 to arrest the suspect without first procuring a warrant.”
How later courts described this case
- holding “that where ... officers who reasonably believe that further investigation of an offense may be necessary in order to justify the issuance of a warrant, and where those officers undertake that investigation lawfully and without impinging upon reasonable expectations of privacy, and where that investigation leads to the receipt of information which in combination with their other information constitutes probable cause to arrest the suspect, but that information is obtained in the presence of the suspect under circumstances which would lead the officers reasonably to believe that the suspect would take flight if given the opportunity to do so, the officers are authorized by article 14.04 to arrest the suspect without first procuring a warrant.”
- holding that appellant failed to meet his burden to attack collaterally prior convictions because he did not produce all 2 records to show absence of jury waiver or evidence that law requires such waiver to be reflected on face of judgment
- holding that in a collateral attack, the burden is on the party attacking the validity of a conviction to show that the entire record is silent as to jury waiver
- declining to view information given by citizens who report a crime and freely share information with police with the same suspicion usually reserved for anonymous police informants with an unproven record of reliability
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
Batten down the statutory law hatches! Get momma and the kids inside! The aggressive and assertive majority of this Court now believes that it is a super-legislature. 1
In this instance, not only does a majority of this Court act much like a super-legislature might act, but it also teaches us that probable cause to make a warrantless arrest pursuant to Art. 14.04, V.A.C.C.P., may arise merely from “eyeball-to-eyeball” contact between the arresting officer and the accused. Orwell, even though 1984 is now past, are you still listening?
Today, a majority of this Court orders that Art. 14.04, supra, should be rewritten. It rewrites the statute because that is the only way the conviction of Robert Wallace West, Jr., appellant, can be affirmed. I say to the majority: If you do not like the statute as it is presently written, go to the next session of the Legislature and see if you can get it legally repealed. But, please, in the meantime, stop acting like a super-legislature of this State.
The facts leading to the arrest of the appellant reflect that the police were notified that a murder had occurred inside of a motel room. After arrival, the police interviewed several persons, obtaining a description of a suspect and where he might be located — “upstairs in room 447A.” The police then went to that room, knocked on the only door to the room, and, after the door was opened, had “eyeball-to-eyeball” contact with appellant, who fit the description of the suspect. The majority opinion *522 holds that at that moment in time, when the police had “eyeball-to-eyeball” contact with appellant, “it was reasonable for [the police] to believe ... that their suspect, having been alerted to their interest in him, would [then] attempt to flee.” In light of the fact that there was only one door to the room, which was then blocked by police officers, I must ask: Flee to where?
All of the parties in this cause appear to agree that Art. 14.04, supra, controls whether the warrantless arrest of the appellant was lawful. Before a majority of this Court ordered the statute rewritten, it provided:
Where it is shown by satisfactory proof to a peace officer, 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.
A clear reading of the statute should make it obvious to anyone that before a warrant-less arrest can be sustained it is incumbent upon the prosecution to satisfy at least three different requirements, all of which must be satisfied
A majority of this Court rewrites the statute so that it now reads as follows:
ARTICLE 14.04, V.A.C.C.P.
ARREST WITHOUT WARRANT BASED UPON EYEBALL-TO-EYEBALL CONTACT WITH SUSPECT
Where it is represented to a peace officer by a credible person that a felony offense has been committed, and the whereabouts of the offender is known, it is not then necessary for the peace officer to go and procure an arrest warrant, if he reasonably believes that further investigation of the offense is necessary. If, during his additional investigation, he has eyeball-to-eyeball contact with the suspect, and regardless where the eyeball-to-eyeball contact might take place, he then has the right to arrest the suspect without a warrant.
It should be obvious to anyone that the statute, as rewritten, now provides that a warrantless arrest may occur based upon nothing more than a peace officer’s inarticulate hunch or suspicion. Of course, by rewriting the statute, the majority implicitly overrules many, many past decisions of this Court, as well as the Supreme Court of the United States. See, for example, Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Fatemi v. State, 558 S.W.2d 463 (Tex.Cr.App.1977); Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973); and Beck v. Ohio, 379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964). What audacity!
Before this Court commenced acting as a super-legislature and rewriting, rather than interpreting, the law as it was enacted by the Legislature of this State, the law governing warrantless arrests was unequivocal: “The right to arrest without warrant is conferred and controlled in this state only by statute, which must be construed in subordination to the constitutional guarantees against unreasonable seizure.” (Citations omitted.) (My emphasis.) See Giacona v. State, 298 S.W.2d 587, 589 (Tex.Cr.App.1957). Also see Burton v. State, 152 Tex.Cr.R. 444 , 215 S.W.2d 180 (Tex.Cr.App.1948).
Art. 14.04, supra, as enacted by the Legislature of this State, clearly establishes an objective standard that is designed to control police conduct, i.e., when it comes to the police arresting a suspect without a warrant under the statute, the State has the burden to present articulable facts that would reflect or indicate the following: (1) a credible person represented to a peace officer, by satisfactory proof, that a felony offense had been committed, (2) from that same source, the peace officer was given satisfactory proof that the offender was about to escape, which denotes imminence, and (3) based upon objective and articula-ble facts, there was no time for the arresting officer to procure a warrant of arrest.
Appellant asserts on appeal that his war-rantless arrest cannot be sustained under Art. 14.04, supra, as it was enacted by the Legislature, because the arresting officers did not articulate facts that might have reflected or indicated probable cause that *523 he was about to escape from the motel room. The majority opinion, in spite of the fact that the record does not contain any facts that might reflect or indicate probable cause that appellant was about to escape from the room, leaps to the following conclusion: “When their [the police officers’] knock was answered and they saw appellant inside the room, it was reasonable for them to believe ... that their suspect, having been alerted to their interest in him, would attempt to flee.” Again, in light of the facts of this cause, I must ask: Flee to where?
Just recently, in Early v. State, 635 S.W.2d 532 (Tex.Cr.App.1982), this Court held: “[T]he legislative proscription of what must be shown by satisfactory proof, [to establish flight pursuant to Art. 14.04, supra], is the legal equivalent of constitutional probable cause.” Also see Fry v. State, 639 S.W.2d 463 (Tex.Cr.App.1982); Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978); Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978); Pearson v. State, 657 S.W.2d 120 (Tex.Cr.App.1983); Honeycutt v. State, supra. “Constitutional probable cause,” to believe that a suspect is about to escape, is established when the facts reflect or indicate a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the suspect is about to escape. Cf. Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983). It should be obvious to anyone that the facts of this cause do not reflect or indicate “constitutional probable cause” to make a warrantless arrest pursuant to Art. 14.04, supra.
In sustaining the warrantless arrest of the appellant, the majority opinion gives birth to a rule of law that has long been alien to our law: Citizens of this State are secure in their persons, houses, papers, and effects subject only to the discretion of the police!!!
I respectfully dissent to the majority opinion sustaining the appellant’s warrant-less arrest. Staff, please lower the Art. 14.04 flag. Thank you. Now that that has been done, I can say “30” to Art. 14.04.
. Cf. the old saying, “No man’s life, liberty or property are safe while the Legislature is in session.” 1 Tucker (N.Y.Surr.) 249 (1866). A decision like this one also causes me to exclaim, “no statutory or legal precedent of this Court is safe while this Court is in session."