Scott v. State

DOUGLAS, Judge

(dissenting).

The majority reverses the conviction on the ground that the evidence used against appellant was obtained as the result of an illegal search.

Testimony concerning the arrest and search was given by J. S. Williamson, a member of the Tactical Division of the Garland Police Department with six years’ experience. Officer Williamson was on patrol during the early morning hours of February 25, 1975. He was assigned to a high crime area in Garland known as Towngate. The high crime classification was based on a computer analysis of the probability of criminal activity occurring in that area during that particular time. Towngate was characterized as a complex of expensive townhouses.

Officer Williamson stated that there had been reports of hubcap thefts in the nearby Eastgate apartment complex earlier that evening. He stated that at approximately 1:30 a. m. he saw an automobile coming from an area where only a few of the homes were occupied and where some model townhouses were located. He had worked in that area for several months and knew that it was usually devoid of early morning activity. There were no cars on the street because the homeowners had rear-end garages which were entered through an alley. There were no street lights in the area from which the other car had come.

As a result of the conditions when then obtained, Officer Williamson pulled his car to the curb to observe the other vehicle. He determined that it was a white-over-blue 1974 Cadillac occupied by two males and that it contained four or five sheets of material propped up in the backseat. Lighting from the freeway opposite the Towngate area enabled Williamson to make these observations as the Cadillac passed within a few feet of his vehicle. The officer turned his car around and followed the Cadillac for approximately two blocks before stopping it. He stated that he had observed no traffic violations and that the Cadillac had proceeded at an average speed. He further stated that his investigatory stop was based solely upon the circumstances under which he had observed the car.

Williamson asked both occupants for their identification. The driver, Smith, produced an identification card. Appellant, without identification, told the officer his name and birthdate. As Williamson approached the Cadillac to request identification, he passed the rear window of the ear and determined that the “sheets of material” were oil paintings. They were in plain view. Williamson found the paintings to be similar to those he had observed in the townhouses. In response to Williamson’s questioning, Smith and appellant said that they had become lost while on their way to decorate a friend’s apartment with the paintings.

Officer Williamson returned to his car and called the radio dispatcher. Williamson asked the dispatcher to run a computer check for warrants on both Smith and appellant. At this point, Officer Aldridge arrived. Williamson directed him to return to the southwest section of the Towngate area to check the homes for signs of burglary. Approximately twenty minutes later, Al-dridge called Williamson to advise him that at least one of the townhouses had been burglarized and that there were bare spaces *174 on the walls where pictures had been hanging. Williamson then placed Smith and appellant under arrest. A subsequent search of the Cadillac’s trunk revealed other stolen items.

The legality of the search of the Cadillac and the seizure of the items therein turns on the justification for the initial stop of the automobile. Circumstances which are insufficient to establish probable cause for arrest may justify temporary detention for purposes of investigation since an investigation involves a lesser intrusion upon the personal security of an individual than does an arrest. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976). Such purposes may include determination of the identity of a suspicious individual or momentary preservation of the status quo in order to obtain more information. Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). In this connection an occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra. The officer must have specific and articulable facts which, in light of his experience and general knowledge, reasonably warrant such a stop. Terry v. Ohio, supra; United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. denied 400 U.S. 918 , 91 S.Ct. 180 , 27 L.Ed.2d 158 .

The case at bar is factually similar to Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976). In Thompson , two men were walking along a Port Arthur street at 1:00 a. m. This was a high crime area where prowlers had been recently active. Defendant was carrying what appeared to the officers as a woman’s type suitcase. The officers stopped the two men and requested some identification. Defendant told one officer that he had been convicted for burglary after that officer recognized his name.

The officers observed that defendant was carrying a blue suitcase with one metal tag reading “Western Electric Company” and a second tag bearing the name of a Beaumont woman. Defendant told them that he had found the suitcase in Baytown. He gave the officers conflicting accounts of his home address and said he did not know where he was going.

At that point the officers arrested the two suspects and took them to the police station. A subsequent search of the suitcase revealed two desk telephones. Later that morning a burglary was discovered at an elementary school in Port Arthur. A blue suitcase containing two demonstration telephones belonging to Southwestern Bell was reported stolen. The burglary took place a few blocks from where defendant and the other suspect were arrested. We held that the location and time of defendant’s detention by the police, coupled with the fact that the suitcase was evidently owned by someone other than defendant, and his inability to explain satisfactorily his possession of the suitcase were enough to warrant the arrest of defendant under Article 14.03, V.A.C.C.P.

In the instant case, the combination of the location, time, reports of recent criminal activity and the protruding sheets in the Cadillac was sufficient, in light of Officer Williamson’s experience and general knowledge, to permit him to stop and detain the automobile. The officer’s subsequent observation of the paintings, in conjunction with Officer Aldridge’s report that paintings had been recently stolen from a nearby home and the occupants’ inability to satisfactorily explain their possession of the paintings, provided Williamson with probable cause to arrest the two men pursuant to Article 14.03, supra. See Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975).

Appellant relies upon Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973). Talbert is distinguishable on its facts. There, defendant was stopped because he was driving his automobile near the University of Texas campus at 1:30 a. m. and the Austin policeman who spotted him wanted “to "make sure everything was in order.” During this investigative stop marihuana was discovered on the front seat. We held that *175 the officer had no probable cause to stop the automobile. Our holding turned on the inaccurate characterization of the arrest location as a high crime area. The record reflected that the officer’s high crime determination was based upon personal experience, not upon objective analysis. His definition of high crime area included collisions and violations of the uniform traffic act. The record also reflected that he held the opinion that the entire University area was a high crime area. We determined that blanket-labeling such a substantial portion of Austin as a high crime area could not justify the stopping of defendant’s automobile.

No error is shown; the judgment should be affirmed.

GUPTON, J., joins in this dissent.