Scott v. State

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

The majority denies leave to file the State’s Motion for Rehearing. The State’s brief in support of the motion, prepared by Ron Hinds, Assistant District Attorney for Dallas County, is adopted in part as a dissent in the failure to grant such motion. With page numbers omitted, it is as follows:

“. . . The police officer had made an investigatory stop under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and, upon seeing plain view evidence in the back seat of the automobile, further detained the two subjects for a brief period of time until a rapid investigation for criminal activity in the area could be completed by another police officer. It was only after the completion, with affirmative results, of this additional investigation, that Officer Williamson placed the two subjects under arrest and made a search of the vehicle. An outline of all facts and circumstances bearing upon the officer’s decision to make the initial stop of the vehicle would read as follows:

“(A) A computer is used by the Garland Police Department to evaluate crime rate statistics according to particular areas, particular nights, and particular times of night, in order to pinpoint probable criminal activity and assign a special six man tactical unit to these areas.

“(B) In order to effectively combat this anticipated activity, the police units were in plain clothes and unmarked cars, and were to be specifically on the look-out for burglaries and various forms of theft.

“(C) Officer Williamson had worked in that area off and on for five years, first as a patrol officer and later as a tactical officer. .

“(D) As a tactical officer he had worked among these townhomes for a period of several months prior to this occurrence.

“(E) Officer Williamson first saw the subject’s vehicle at about 1:00 a. m. . The vehicle was first seen on a street in a new section of the townhomes which is without street lights and is ‘totally dark’.

“(F) The officer’s experience was that at that time of night there were normally no cars out on that particular street and in fact, ‘there is never any activity out there at night.’ .

“(G) Further, only six or seven families were living on that particular street at that time and all had rear entry garages and, normally, never used that particular street at night. .

“(H) If anyone was encountered there at that particular time of night, ‘they are either going to be thieves, lovers or police.' .

“(I) At the time the subject’s vehicle was first observed, there were no other cars in this residential area nor were there any people on the streets. .

“(J) As the vehicle passed his parked police car, he observed two black males in a vehicle he did not recognize as belonging in the area.

“(K) He further observed four or five sheets of material, some two or three inches thick, which may have been building material, sticking up in the back seat of the automobile. . *176 It is finally observed that the police officer indicated he would have stopped the vehicle regardless of whether the occupants were white or black. .

“It is again emphasized that at this point no arrest nor search had been made. The subjects had simply been pulled over for an investigatory stop. When Officer Williamson approached the vehicle to request driver’s license identification, he observed that the sheeting material was actually a collection of several large oil paintings. . This information in combination with the foregoing facts and circumstances were sufficient to acceptably raise the officer’s suspicions to the point of requesting a rapid investigation of the townhomes, along the street from which the subject vehicle had appeared, by a fellow officer. ... At this point, Appellant and the other occupant of the vehicle were still not under arrest nor had they been searched. They were simply being momentarily detained while the second officer checked out the town-homes. Approximately fifteen to twenty minutes passed and Officer Williamson received radio communication from the second officer that he had indeed found forced entry into one of the townhomes and that, further, paintings similar to those in the subject vehicle were missing from the townhome. . . . Only now did Officer Williamson, with this new and further information, arrest the subjects and search their vehicle. .

“A review of several similar cases is instructive in evaluating the quality of the above described activity:

“(A) In Moses v. State ([Tex.Cr.App.] 1971) 464 S.W.2d 116 (no dissent), the provisions of Article 14.03, C.C.P., were invoked in an opinion by Judge Odom to control a situation wherein a police officer patrolling a business-residential area saw a panel truck ‘coming from behind some buildings without its lights on.’ Because it was about 3:40 a. m., the officer stopped the vehicle for a brief investigation and, upon approaching it, he saw in plain view various burglary tools. The officer then felt he had sufficient probable cause to arrest Appellant and search him, finding the fruits of a burglary. “(B) Judge Douglas, in writing for the Court in Thompson v. State (1976) 533 S.W.2d 825 (no dissent), dealt with a case in which officers observed two individuals in ‘a high crime area where many prowlers had been recently reported. Appellant was carrying what appeared to the officers as a woman’s type suitcase.’ This was deemed sufficient probable cause to justify a momentary, stop and request for identification. Once stopped, Appellant provided suspicious and inconsistent name and address information and the officers observed in plain view suspicious suitcase tag information. This justified the ultimate arrest and search of the pair.

“(C) In an opinion by Judge Roberts, Castillo v. State ([Tex.Cr.App.] 1973) 494 S.W.2d 844 (no dissent), it was shown that while patrolling an alley at approximately 12:35 a. m., police officers ‘observed an automobile parked near the alley. There had been several burglaries in the area recently. Two men were seen exiting the alley, walking at a rapid pace toward the parked vehicle. That car drove off and the officers followed. They soon stopped the car and sought identification.’ Once this investigatory stop had been made, the police officers received inconsistent information from the two and observed that the appearance of the suspects was consistent with criminal activity. This provided justification to detain them until a second police unit could be ‘dispatched back to the alley and the officers discovered a side of beef, still cold, an adding machine and a calculator, all on one side of the alley. The back door to a meat company had been forced open.’ At this point, ‘Appellant and his companion were arrested.’

“(D) In Baity v. State ([Tex.Cr.App.] 1970) 455 S.W.2d 305 (no dissent), Judge Onion discussed a situation involving a police officer with much experience ‘patrolling in the down town business area on a routine building check.’ The officer ‘observed a man enter the alley . *177 then suddenly turn back out of the alley.’ It being 4:56 a. m., the officer ‘sped up his vehicle and observed the man on Eighth Street “walking fast with his coat pulled up tight . . . walking real fast.” ’ The officer recognized the person as one with a record of arrests for theft and burglary and at this point made an investigatory stop. When the Appellant turned in response to the officer’s call, the officer then observed in plain view a burglary tool and some other object, which proved to be a coin box. The officer then detained Appellant until he could determine that a nearby cafeteria had been burglarized. At this point Appellant was arrested.

“(E) In an opinion by Judge Dally, Hernandez v. State ([Tex.Cr.App.] 1975) 523 S.W.2d 410 (no dissent), it was noted that at 3:00 p. m., two officers on patrol ‘saw an automobile parked in front of a motel; in the open trunk he saw a piece of furniture partly wrapped with a blanket.’ One of the officers further recognized Appellant and his companion as having prior arrests, made a U-turn and started back toward the motel. As they followed the vehicle, the officer noted that the furniture seen earlier was a console television set. They made an investigatory stop of the vehicle, and only then did the officer observe ‘in plain view on the rear floor board an adding machine that looked like the adding machine that he knew had been stolen from a lawyer’s office in a recent burglary.’ The suspects were then placed under arrest.

“(F) In another opinion by Judge Dally, Onofre v. State ([Tex.Cr.App.] 1972) 474 S.W.2d 699 (no dissent), an officer, saying that ‘he was “suspicious of any car behind a business at nighttime; at 2:00 a. m. in the morning” ’, observed two men in a parked car at 2:30 a. m. behind a bar. As he approached, he saw Appellant ‘dump something under the seat or appear to dump something under the seat.’ Ordering the two to stop, he approached the car and observed in plain view cigarette papers and marijuana. He then searched the vehicle, finding more marijuana, and arrested the suspects.

“(G) Judge Jackson, writing for the Court in Anderson v. State ([Tex.Cr.App.] 1974) 504 S.W.2d 507 (no dissent), discussed facts indicating that ‘Appellant was found attempting to enter a parked automobile on the University campus.’ His suspicions aroused, a security officer requested identification. When this request was refused, Appellant was arrested and searched with the ultimate disclosure of a prohibited weapon.

“(H) In Denham v. State ([Tex.Cr.App.] 1968) 428 S.W.2d 814 (no dissent), another opinion by Judge Onion, ‘at approximately 2:00 a. m. . . . Officer Pappas had his suspicions aroused when he observed the Appellant near a coin operated news stand rack.’ When the officer approached to investigate, Appellant got into a nearby vehicle and ‘immediately drove off.’ ‘Pappas followed and having determined that Corbin was speeding and having called for assistance, stopped the vehicle in which Appellant was a passenger.’ On approach of the vehicle, the officer observed in plain view various burglary tools. Placing emphasis upon ‘Appellant’s actions at or near the coin operated news stand and his immediate departure upon the approach of the officer,’ the opinion found sufficient circumstances to justify the officer’s suspicions. “(I) In a somewhat older ease, Ringo v. State (1955) [ 161 Tex.Cr.R. 93 ] 275 S.W.2d 121 (no dissent), police officers were patrolling an area with a bad reputation at 1:30 a. m. when they ‘observed an automobile with the lights off, on the wrong side of the street, pulling away from or circling a restaurant and beer joint.’ The officers then followed the car and made an investigatory stop. The occupants of the vehicle were unable to produce identification and gave inconsistent information concerning registration of the automobile. They were arrested and searched.

“It should also be noted that footnote 1 of the Court’s opinion in this case is factually *178 incorrect. The project superintendent spoken of, and called as a defense witness, testified in answer to a question concerning parties, late hours, and the entertainment of - guests in the neighborhood, that ‘I’m sorry, I can’t answer that. I generally leave there in the afternoon and I don’t know what happens.’ ... He further stated in response to a question concerning how frequently the residents used the streets, that ‘that’s a hard question . I don’t know.’ . . . His testimony concerning awareness of whether this was a high crime area consisted simply of T don’t recall. I don’t believe — I was not notified by the police department.’ .

“Of course, the whole question of whether his testimony tends or does not tend to rebut that of the police officer is one to be decided by the fact-finder. Acting in this role, the trial court judge evaluated the evidence and concluded that the officer did everything he could to protect the rights of the subject consistent with protecting the rights of the general public, and consequently, the evidence was admissible and Appellant’s motion was overruled. This placed the burden on Appellant to show this court that these facts, taken in the light most favorable to the State, were not sufficient to support the judge’s findings. A careful evaluation of the above outlined facts in combination with the summarized cases can lead to no other conclusion than that Appellant has not satisfied his burden.”

It appears that Officer Williamson should be commended for good police work and the case should not be reversed. The motion for rehearing should be granted and the judgment should be affirmed.

ONION, P. J., joins in this dissent.