# Truitt v. State

> Court of Criminal Appeals of Texas · February 20, 1974 · 505 S.W.2d 594

URL: https://www.frixlaw.com/law-library/cases/9664643

## Case

- **Full name:** Alfred L. “Sonny” TRUITT, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 20, 1974
- **Citations:** 505 S.W.2d 594; 1974 Tex. Crim. App. LEXIS 1365
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Green, Douglas, Roberts
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664643

## Opinion text

DOUGLAS, Judge
(dissenting).
The appellant’s sole complaint is that his arrest was illegal and all of the evidence obtained as a result of the search of his car and his home was, therefore, inadmissible.
A summary of the testimony is necessary to determine the question of the right of the officers to arrest the appellant.
Officer Richard Trice, a dispatcher of the Greenville Police Department, testified that he knew the appellant and knew him to be a marihuana user. He had information that appellant supplied marihuana to others. He also knew that appellant owned a gold 1970 Firebird automobile. At approximately 8:20 p. m., the night in question, he received a long distance call from someone who did not identify himself. The caller reported to Trice that appellant was on his way from Dallas to Greenville with approximately ten pounds of marihuana in his car. The caller stated, “He’s in his gold Firebird and he left Dallas approximately fifteen minutes ago.” Trice told the caller that he knew the car. He asked the caller to give his name, but he would not. Trice then reported this to Officers Jimmy Jordan and John Lamb. Both of these officers testified that they knew appellant as being a known user and a supplier of marihuana to others. The two officers further testified that after they received the information from Officer Trice they went to the intersection of Interstate Highway 30 and Wesley Street in Greenville. Within a very short time, at approximately 8:30 p. m., they saw the appellant driving his gold Pontiac Firebird. They stopped the appellant. Officer Jordan testified that as he approached he observed a sack in the automobile.
Officer David Ewalt testified that at 9:29 p. m. the same evening the appellant, after being warned by a magistrate, executed a written consent to search his apartment in Greenville. This consent was introduced into evidence. The appellant first asked to go to his apartment for the search but later stated that he did not want to go.
The officers found marihuana and marihuana seeds in the apartment. The closest case in point by the United States Supreme Court is Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 .
There the arrest was made without a warrant. Information was given by an informer that Draper was dealing in narcotics ; that he would arrive on a certain train with narcotics. His description was given with particulárity.
In the present case the informer stated that appellant would be arriving in Green-ville with a large amount of marihuana in his gold Firebird. The officers knew the appellant and to them he was known as a user and distributor of marihuana. The officers also knew that he drove a gold Firebird automobile. He arrived in the gold automobile at the approximate time the informant said that he would.
In the Draper case, the officers did not know him and did not know except from a reliable informer that he was a dealer in narcotics. In the present case, the officers knew more about the appellant than the officers knew about Draper. There is no direct testimony in the present case that the informant was reliable.
Rangel v. State, Tex.Cr.App., 444 S.W.2d 924 , is somewhat analogous to the present case. There the informer told the officers that the defendant was at a certain location selling heroin and was about to sell out. When the officers arrived, they found the defendant was where the informer said she would be. The officers knew that she was a narcotics addict. The officers testified that their informer was *600 reliable. This Court held there was probable cause for the warrantless arrest. See Harris v. State, Tex.Cr.App., 486 S.W.2d 88 , where this Court held that it was not incumbent upon an officer to obtain a war-rent before proceeding further upon an informer’s tip which had ripened into probable cause. Here, as in Harris, the informant’s information was not corroborated until the time of the arrest.
In United States v. Acosta, 411 F.2d 627 (5th Cir. 1969), the court held that neither Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 , nor its interpretation as construed in Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 , detracted from the vitality of Draper, and the court held in a similar fact situation that probable cause was shown.
The Fourth Amendment to the Constitution of the United States provides, in part, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, . . . . ”
The present case is somewhat like Gomez v. State, Tex.Cr.App., 470 S.W.2d 871 , where no warrant had been issued. An informer that the officers knew to be reliable informed Officer Gann that Torres and Gomez were preparing heroin for distribution at an address on Holly Street and described the automobile to be used with particularity. The officers knew the blue and white 1960 Pontiac. This Court wrote, “There would appear to be some indication that the informer spoke with personal knowledge or had gained his information in a reliable way. Almendarez v. State, Tex.Cr.App., 460 S.W.2d 921 .”
As in the Gomez case, at the point of interception in the present case, every fact related by the informant except the presence of the narcotics was verified and “there was therefore underlying circumstances as to the officer’s conclusion that the informer was credible and his information reliable.”
Also in Gomez, the Court emphasized that, “The relevant test, in the case like that at bar, is whether the search was unreasonable under all of the circumstances, for it is only unreasonable searches that are prohibited by the Fourth Amendment.”
In United States v. Drew, 436 F.2d 529 (5th Cir. 1971), sufficient details were furnished to enable the officers to verify much of the information related by the informer. That court wrote: “The information supplied was sufficient in detail to allow adequate corroboration of its trustworthiness and enabled the officers to conclude that the informer spoke with personal knowledge or had gained the information in a reliable way.”
The search in the present case was not unreasonable under the Fourth Amendment. The officers had sufficient information for reasonable people to conclude that the appellant was in his gold Firebird and in the possession of marihuana and that they did not have time to procure a warrant. Even without testimony that the informant was reliable, the facts are stronger for a reasonable search in the present case than in Draper, supra, where the officers knew nothing of Draper’s background. In the present case, the officers knew the appellant and his dealings with marihuana. -
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). As Chief Justice Burger has said, “We cannot conclude that a policeman’s knowledge of a suspect’s reputation — something that policemen frequently know and a factor that impressed such a ‘legal technician’ as Mr. Justice Frankfurter — is not a ‘practical consideration of everyday life’ upon which an officer (or magistrate) may properly rely in assessing the reliability of an infor *601 mant’s tip.” United States v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971).
See Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 , where the Supreme Court discussed the question of consent to search and the concurring opinion discussed the exclusionary rule as applied to Fourth Amendment rights. Here, the appellant was warned before a magistrate that he did not have to consent to the search. In Schneckloth v. Busta-monte, supra, the Supreme Court held that such a warning was not required and that consent to search requirements would not be viewed as strictly as the requirements for voluntary confessions. This Court has held that an illegal arrest in itself does not prevent the officers from obtaining a voluntary confession. Does the present holding now rule but the possibility of a voluntary consent to search and a voluntary confession automatically if the arrest has been illegal?
The Supreme Court in the Schneckloth case wrote:
“In short, there is nothing in the purposes or application of the waiver requirements in Johnson v. Zerbst that justifies, much less compels, the easy equation of a knowing waiver with a consent to search. To make such an equation is to generalize from the broad rhetoric of some of our decisions, and to ignore the substance of the differing constitutional guarantees. We decline to follow what one judicial scholar has termed ‘the domino method of constitutional adjudication wherein every explanatory statement in a previous opinion is made the basis for the extension to a wholly different situation.” The footnotes cite Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 at 950.
The “domino method” should not be applied in the present case because of some of the explanatory language in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L. Ed.2d 723 (1964), and the language in Spinelli v. United States, 393 U.S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 , both referred to as “explicating” and “obfuscating” by the members of that Court. The question in the present case has not been before that Court. The arrest and the subsequent search of the automobile in the present case was not unreasonable. See the concurring opinion in Gaston v. State, Tex. Cr.App., 440 S.W.2d 297 .
The Supreme Court also noted in Footnote 36 that the case did not require a determination of what effect custodial conditions might have on a search authorized solely by an alleged consent. We should not apply the “domino method” to the search of his premises.
We are extending the exclusionary rule, to permit a defendant to go free because the majority holds that the officers blundered, far beyond any decision of the Supreme Court of the United States.
I would not reverse the conviction in this case. However, I would grant the appellant’s motion to abate the appeal for resentencing under Article 6.01(c), Controlled Substances Act, which became effective on August 27, 1973, after this case was tried. See the dissenting opinion in Ex parte Giles, 502 S.W.2d 774 (1973).
For the above reasons, I dissent to the reversal and the refusal to abate the appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664643. Public record. Not legal advice.