# Armstrong v. State

> Court of Criminal Appeals of Texas · May 3, 1977 · 550 S.W.2d 25

URL: https://www.frixlaw.com/law-library/cases/9769549

## Case

- **Full name:** Lennie Keith ARMSTRONG, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 3, 1977
- **Citations:** 550 S.W.2d 25
- **Precedential status:** Published
- **Opinion:** On rehearing by Onion
- **Judges:** Brown, Onion, Douglas
- **Cited by:** 106 later opinions in the Frix Law Library

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## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.
In our opinion on original submission we reversed appellant’s conviction for the offense of burglary of a habitation based on the illegality of the search involved.
On rehearing the State urges we reconsider our position. It argues that illegality of the search was not raised as a ground of error by the appellant. This argument, of course, overlooks the provisions of Article 40.09, § 13, Vernon’s Ann.C. C.P., which requires this court to review unassigned error “in the interest of justice.” 1 Further, the overruling of a pretrial motion to suppress is sufficient to preserve error in admission of evidence which was the subject of the motion to suppress. Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976).
We shall, however, reexamine the search question. The record reflects that about 2:30 p. m. on January 5,1975, Lieutenant L. T. Murphy of the Ft. Worth Police Department, Patrol Division, stopped a car driven by the appellant on the east side of Ft. Worth. There was another man and a woman in the car. The purpose of the stop was for “identification” and “possible suspects in burglaries.” The appellant displayed his driver’s license upon request, and Murphy asked if he knew a “Willie Arthur” and appellant said he did not. The officer then asked the other man for identification, and upon learning he was Willie Arthur Sneed, arrested him on an outstanding warrant. He then asked the appellant to open the car trunk and there found a television set, a calculator, tape players, a trumpet and a case and other items which appellant claimed as his. Appellant and the woman, Alice Miller, were arrested for investigation of burglary and taken to jail. Later that evening Prince Charles Ray discovered upon his return home that his house had been burglarized and that items found in appellant’s trunk had been taken. This was reported to the police.
The question presented is whether Lt. Murphy was authorized to make the stop involved. The record reflects that a week or ten days before Murphy received information concerning several burglaries. He testified, “I had received information from the Records Bureau and other officers that *30 a certain vehicle and suspects were wanted on several burglaries. I went to the Records office at this time and looked up the record of the suspect and did see a ‘wanted’ on this suspect,” 2 which he indicated was Willie Arthur Sneed. He related that his .information included the fact that Sneed was “possibly” driving a light blue 1966 Plymouth and that he received only the last three digits of the license number. Murphy stated at the time he knew Sneed only by name and did not know what he looked like.
The original source of the information about the burglaries and the car that Murphy received was not revealed. Whether it came from some informer’s tip or merely reflected the suspicions of other officers is not shown. Nor was it reflected when or where the burglaries occurred.
On January 4, 1975 Murphy observed a light blue 1966 Plymouth parked in the 2700 block of Dillard Street. The next day about 2:30 p. m., while on patrol, he saw a 1966 Plymouth being driven in the 2600 block of Dillard Street. The car was black over blue and appeared to have been “painted over with spray cans like you buy in the store.” It appeared to Murphy to be the same car he had seen the day before, and when he checked the license plate it was. Whether, however, the license plate involved the last three digits that Murphy had earlier received is not reflected by the record.
Upon observing the car in the 2600 block of Dillard Street, Murphy decided to make a stop to check identification of possible burglary suspects.
It is well settled that “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612, 617 (1972); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In such circumstances the prosecution need not demonstrate that probable cause to arrest a suspect existed at the inception of the detention, although such a detention is within the protection of the Fourth Amendment of the United States Constitution, Davis v. Mississippi, 394 U.S. 721 , 89 S.Ct. 1394 , 22 L.Ed.2d 676 (1969), and Article I, § 9 of the State Constitution. This court has frequently said that circumstances short of probable cause for arrest may justify temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. den., 400 U.S. 918 , 91 S.Ct. 180 , 27 L.Ed.2d 158 . And it has been held that an occupant of an automobile is just as subject to a brief detention or stop as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra; Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976).
The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct was reasonable. State v. Hooker, 113 Ariz. 450 , 556 P.2d 784 (1976); State v. Gastelo, 111 Ariz. 459 , 532 P.2d 521 (1975). While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. In order to justify the intrusion, the law enforcement officer must have specific, articulable facts, which in the light of his experience and general knowledge, together with other inferences from *31 those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra; Ablon v. State, supra; Mann v. State, supra; Hernandez v. State, supra. Thus, even in the absence of bad faith, detention based “on a mere hunch” is illegal. There must be a reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. State v. Fortier, 113 Ariz. 332 , 553 P.2d 1206, 1208 (1976); State v. Hooker, supra; Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423 , 82 Cal.Rptr. 484 , 462 P.2d 12 (1969). Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Irwin v. Superior Court of Los Angeles County, supra.
In addition to the lack of reliability of the information Lt. Murphy had received, it is observed that at the time of the stop in the instant case there was no traffic violation, and Murphy did not observe any other offense being committed nor was there any evidence of suspicious criminal activity afoot. There was no suggestion of any illegality. Murphy did not know appellant or Alice Miller and had not received any information about them. He did not know Sneed except by name and did not know he was in the car until he produced identification. Although Murphy may have been acting in good faith, a detention based on a mere hunch is illegal. We hold that under the circumstances the detention here does not satisfy the above test. The detention here was just the sort of fishing expedition the Fourth Amendment and Article I, § 9 of the State Constitution, were designed to prohibit.
The State argues that even if the stop was illegal the appellant consented to the search of his car trunk and therefore the trial court did not err in overruling the motion to suppress evidence of the items found therein. The State urges that the consent to search, voluntarily made, dissipated the taint of the detention and made the fruits of the search admissible. See Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1973).
The “fruit of the poisonous tree” doctrine explained at length in Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), serves to exclude as evidence not only the direct products but also the indirect products of Fourth Amendment violations. Evidence is not classified as a fruit requiring exclusion, however, merely because it would not have been discovered “but for” the primary invasion.
“Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. at 488 , 83 S.Ct. at 417 , 9 L.Ed.2d at 455 .
When it has been established that there was an illegal seizure, the State “has the ultimate burden of persuasion to show that its evidence is untainted . . . [B]ut at the same time [the defendant] must go forward with specific evidence demonstrating taint.” Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969).
By consenting to a search, an individual may waive his constitutional right and dispense with the question of the legality of an arrest or detention. Cf. Potts v. State, supra.
And it has been said that consent by the defendant, if sufficiently an act of free will to purge the primary taint of the unlawful arrest or detention (Wong Sun v. United States, supra, 371 U.S. at 486 , 83 S.Ct. at 416 ) may produce the requisite degree of “attenuation.” See State v. Fortier, 113 Ariz. 332 , 553 P.2d 1206 (1976); People v. Sesslin, 68 Cal.2d 418 at 428 , 67 Cal.Rptr. 409 at 416 , 439 P.2d 321 at 328 (1968), cert. *32 den., 393 U.S. 1080 , 89 S.Ct. 850 , 21 L.Ed.2d 772 .
Before consent is deemed effective, however, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given, Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788, 1792 , 20 L.Ed.2d 797 (1968); Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972), and neither physically nor psychologically coerced. Potts v. State, supra; 51 Tex. Jur.2d, Part 1, Searches and Seizures, § 42, p. 722. See also Phelper v. Decker, 401 F.2d 232 (5th Cir. 1968).
The issue of whether consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975); Potts v. State, supra; United States v. Pike, 449 F.2d 191 (5th Cir. 1971); State v. Jensen, 111 Ariz. 408 , 531 P.2d 531 (1975); State v. Fortier, supra.
In the instant case there was some conflict in the testimony about how the trunk of the car was opened. At the hearing on the motion to suppress Lt. Murphy, who related he was in uniform and armed at the time, stated he asked the appellant to open the car trunk and he did. He stated he had just finished arresting Willie Sneed and handcuffing him, and from his trial testimony it appears he had placed the appellant under arrest prior to his request to have the trunk opened. No warnings were given as to appellant’s right to refuse to consent. At the hearing on the motion to suppress Willie Sneed testified that after his arrest Murphy asked for the keys and opened the trunk himself. The appellant testified that Murphy handcuffed Sneed and placed Sneed in the police car and then asked for the keys, which he gave the officer as he felt he had no other choice. He related that the preceding November he had been arrested by police officers and taken on the other side of a police car and beaten up.
The fact that a person is under arrest does not, in and of itself, prevent a frée and voluntary consent from being given, Potts v. State, supra; Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973); Weatherly v. State, 477 S.W.2d 572 (Tex.Cr.App.1972); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969), and there is no requirement that a person be informed of his right to refuse to consent before the consent can be held to be free and voluntary. Schneckloth v. Bustamonte, supra; DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971). 3 While this is true when the fact of the illegal detention is considered in the light of all other circumstances, we conclude the evidence was seized through exploitation of the illegal stop rather than “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, supra. The State did not sustain its burden.
The State’s motion for rehearing is overruled.
. On original submission from the record before us it clearly appeared that there was a serious question as to the legality of the search and there was evidence that there had been a hearing on a motion to suppress which it was concluded might shed some light on the search question which is of constitutional dimension. Fourth Amendment, United States Constitution; Article I, § 9, Texas Constitution. The judge assigned the cause requested the transcription of hearing on suppression motion from the trial court through a staff member of this court. When this matter was brought to the attention of the entire court, the majority approved the action taken in light of the original record forwarded to this court. In Guzman v. State, 521 S.W.2d 267, 272 (Tex.Cr.App.1975), this court approved the State placing material in the record almost three months after the approval of the record by the trial court and relied upon such material in affirming the conviction. In Schroeder v. State, 543 S.W.2d 382 (Tex.Cr.App.1976), the record was supplemented after the approval of the record and after the appellate briefs had been filed. This was without notice to the appellant. The conviction was affirmed. See also Ellis v. State, 543 S.W.2d 135, 137 (Tex.Cr.App.1976); Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976). In Davis v. State, 499 S.W.2d 303 (Tex.Cr.App.1973), the cause was reversed because the court failed to make findings of fact and conclusions of law as to the voluntariness of the confession as required by Article 38.22, Vernon’s Ann.C.C.P. While the case was pending rehearing, the trial court who had lost jurisdiction of the case made such findings which had not previously been in existence and forwarded a supplemental transcript to this court. On rehearing the findings were considered, the reversal was set aside and the conviction affirmed. The supplemental material in all these cases benefited the State’s case. Judge Douglas frequently writes, “A good rule works both ways.” We find adequate precedent for consideration of the search question.
. At the trial on the merits Murphy stated there was an outstanding warrant for Sneed, but the warrant was not otherwise described. We do not know for what offense the warrant was issued.
. In DeVoyle v. State, supra, it was held to be good police practice to give such warnings although not required.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769549. Public record. Not legal advice.