Ebarb v. State

DOUGLAS, Judge,

dissenting.

In this case there was no arrest. Even though the appellant gave consent to a *846 search, there was no search. The majority holds that even though the officers did not stop the automobile in which the appellant was riding, it will be considered as a stop. The car was already stopped when the officers arrived. There was no detention of appellat until after the officers saw the pistol on the seat of the car where she had been sitting.

After receiving information that the appellant was selling pills, uppers and downers, to children and that she had a pistol, the officers began to look for her. Sheriff Maddox testified that he never got within a half block of the car until it stopped in a driveway at a garage apartment and he drove up to the side of the car and asked if he could search. Appellant said, “Certainly.” He made no search but as she got out of the car he saw the pistol on the front seat near where she had been sitting. She was convicted for carrying this pistol.

The majority points to no evidence that the officers made a stop. There is no evidence that the officer detained appellant in any way. The only thing about a stop in this case is the statement made by the majority that it will be considered a stop. Appellant’s son testified and he did not testify that the officer stopped the car. He testified that the gun was in the car and that the gun belonged to the appellant and that she knew it was in the car.

The majority assumes that the sheriff had no right to be on a driveway near a garage apartment. The sheriff had sufficient information to have stopped the automobile under the “stop and frisk” doctrine of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968). See Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970).

In Terry , the Supreme Court recognized that, because the “stop” is more limited in scope than an arrest and because the “frisk” is more limited in scope than a full blown search, such actions, though not undertaken arbitrarily, may be reasonable within the contemplation of the Fourth Amendment. Upon a predicate less substantial than “probable cause”, Terry made it clear that the “stop and frisk” rationale was to be judged not by the warrant clause of the Fourth Amendment, but rather by the reasonableness clause. It said at 392 U.S. 20 , at 88 S.Ct. 1879 :

“If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether ‘probable cause’ existed to justify the search and seizure which took place. However, that is not the case. * * * [W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.”

In Terry , it was assumed, from the outset, that the “stop” was reasonable. The nub of the case was whether the followup “frisk” had also a reasonable predicate. In Terry , the Court wrote:

“The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation.” 392 U.S. 23 , 88 S.Ct. 1881 .

The governmental interest which permits a limited restraint upon a citizen’s freedom — something more than mere accosting but less than formal arrest — is that of preventing and detecting crime. This interest is served by the “stop.” In Terry , the Court wrote:

“[W]e consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person *847 for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”

Even though there was not a stop in the present case, the officer had more reason to stop the appellant than there was in the Terry case. The officer had received information that the appellant was selling uppers and downers to children and that she had a pistol.

Even though there was no frisk in the present case, after the car was stopped the officers had a right to “frisk” or look for a weapon. The weapon was seen when appellant got out of the car. No frisk was necessary. A well-reasoned opinion by Justice Moylan in Williams v. State, 19 Md. App. 204 , 310 A.2d 593 (1973), involved the stop and frisk of a motorist. In that case the officers had received information that a shooting had occurred an hour and a half before. A police bulletin notified the officers to be on the lookout for a “dark automobile with chrome mag wheels.” Acting on this information, an officer observed a “black ’62 Chevrolet with chrome mag wheels sitting on Walter’s [Parking] Center Lot.” The officer made a U-turn to follow the automobile and stopped it. It developed that neither the automobile nor any of its occupants had been involved in the shooting at Chino’s. The Court wrote:

“It is unnecessary for us to face the issue of whether Sgt. Baker had probable cause to search the automobile or had probable cause to arrest any of its occupants, and our forbearance intimates nothing in those regards. It is enough to hold that the similarity between the car he stopped and the car described in the police bulletin gave him at least ‘a reasonable suspicion’ or ‘a reason to believe’ that the car and its occupants may have been ‘connected with criminal activity.’ This was ample reason to ‘stop’ the occupants of the automobile and to detain them ‘briefly for questioning’ under the rationale of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968). Gibbs v.

State, 18 Md.App. 230 , 306 A.2d 587 . Sgt. Baker was not acting upon ‘his inchoate and unparticularized suspicion or “hunch” ’ but rather was ‘able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the] intrusion.’ Terry, supra, 392 U.S. at 21-22 , 88 S.Ct. at 1880 .

“Initially it is to be noted that an occupant of an automobile is just as subject to a reasonable ‘stop’ and to a reasonable ‘frisk’ as is a pedestrian. Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). And see People v. Cassese, 47 Misc.2d 1031 , 263 N.Y.S.2d 734 . We believe that when Sgt. Baker spotted four individuals on a parking lot late at night in an automobile which matched the description of one recently involved in a nearby ‘shooting,’ he came within the Supreme Court’s ‘recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ Terry, supra, at 392 U.S. 22 , 88 S.Ct. 1880 . The ‘stop’ was reasonable and, therefore, constitutional.”

In Crawford v. State, 544 S.W.2d 163 (Tex.Cr.App.1976), an officer was talking to a suspect whom he believed had committed the crime of theft. He had no right to make an arrest. He had a right to stop her from grabbing her purse because he had been informed that she carried a pistol. He was justified in making a weapon’s check for the purse and the pistol found in the search was admissible.

In Ablon v. State, 537 S.W.2d 267 (Tex. Cr.App.1976), the officers lacked probable cause to stop Ablon. They had been informed that a suspicious person wearing a cowboy hat and boots, blue jeans and a green tank type shirt was in the fenced back yard when no one was at home. Later the officer saw Ablon near that location and he was wearing the clothes that were given in the description by the person calling. When Ablon told the officer that he *848 did not live there, the officer asked for identification. The officer asked Ablon to step to the squad car and patted him down for a weapon’s search and noticed a bulge in his pants’ pocket. Ablon took the bottle out and the officer took it. It contained pills which were diazepam, which has a trade name of Valium. There the Court held:

“Circumstances falling short of probable cause for an 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 an individual than is an arrest.”

That opinion cited many cases, including Baity v. State, 455 S.W.2d 305 (Tex.Cr.App. 1970), and Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). The officer had less information in the Ablon case than he did in the present case.

In Greer v. State, 544 S.W.2d 125 (Tex.Cr. App.1976), an officer saw an automobile being driven on the wrong side of Seventh Street in Austin and was possibly driving while intoxicated. An officer received a radio broadcast for any police unit in that area that they had a “possible dwi.” An officer saw a car that fit that description and stopped it. This Court, in that case, held the Fourth Amendment has been held not to require policemen who lack a precise level of information necessary for probable cause to arrest to simply shrug their shoulders and allow crime to occur or a criminal to escape, citing many authorities. The Court also held that an occupant of an automobile is just as subject to a brief detention as is a pedestrian.

Even assuming, as the majority does, that there was a stop of appellant in the present case, the officers had a right to stop appellant for an investigation. See Dodd v. Beto, 435 F.2d 868 (5th Cir. 1970). In Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App. 1971), the trial judge permitted evidence to be introduced where the officers went on the premises of an apartment complex and looked through a window and saw some stolen goods. This was before a warrant was issued. The trial judge ruled that the officers had a right to investigate and this Court affirmed. The officers had more right in the present case, especially after consent, to look into an automobile than the officers did to look into the apartment without consent in the Johnson case. The home is entitled to more protection than the automobile.

The majority opinion, if followed, would unreasonably curtail legitimate investigation of crimes.

There were at least two housing units on the premises. Before this opinion, there had been no holding that officers could not go upon the parking area or driveway of apartment complexes to ask questions or ask for permission to search.

If it could be conceived that any Fourth Amendment rights were violated, those rights were waived when Mrs. Ebarb gave consent for the officers to search. As stated before, there was no search.

In Sutton v. State, 519 S.W.2d 422 (Tex. Cr.App.1975), a detective, after talking to an informer, went to the apartment rented by Ellen Given. When the detective knocked at the door, Sutton opened the door and invited him in. When asked if anyone else was there, Sutton told him that his son was in the room. The detective looked through the door and saw a boy on the bed and also saw a .357 pistol on the bedside table. The detective knew that a .357 pistol was on the list of stolen property. He went to the next room and examined the pistol and was able to identify it as the one stolen. He also found a dummy pistol made out of plastic or wood under another bed in the room. This gun was identified by the complaining witness as the one stolen in a robbery. The Court cited many authorities that where one has been invited in they are not trespassers and have a right to seize articles in open view.

Even if the officers had no right in the present case to be in the driveway or on the parking lot, the appellant consented to a search. After this consent, the sheriff saw the pistol. Any Fourth Amendment right was waived.

In Barnett v. State, 447 S.W.2d 684 (Tex. Cr.App.1969), the officers had no right to *849 arrest. They asked for consent to search the car and an attache case in it. Barnett consented. The search was held to be legal.

In Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975), a tip was provided by an anonymous caller. The officers investigated and obtained some evidence. The Court wrote:

“The anonymous telephone call did not constitute probable cause for an arrest or a search of appellant or his car. However, circumstances falling short of probable cause for an arrest may justify temporary detention for purposes of investigation, since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. See Hernandez v. State, Tex. Cr.App., 523 S.W.2d 410 ; Brown v. State, Tex.Cr.App., 481 S.W.2d 106 (fn., page 110), citing Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 ; Baity v. State, Tex.Cr.App., 455 S.W.2d 305 . See also Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 .

“Officers Price and Broussard, upon receiving the anonymous call, were justified in initiating an investigation by proceeding to hunt for a car and occupants fitting the description given over the phone. See George v. State, Tex.Cr.App., 509 S.W.2d 347 ; Onofre v. State, Tex.Cr. App., 474 S.W.2d 699 ; Moses v. State, Tex.Cr.App., 464 S.W.2d 116 ; Baity v. State, supra. Upon locating a car fitting the description given them, with three men helping another whose vehicle had broken down, proper police work called for them to continue their investigation. The officers were called to the car by the driver of the injured vehicle, who sought a ride to work. Officer Price testified that the officers did not search the car; the identification papers were voluntarily handed to him by appellant, who was not at the time under arrest. The remainder of the officers’ proceedings, as summarized above, was proper police work under the circumstances. . . . ”

See Texas Digest, Arrest, ®=>631.

The Mann case and many others should not be ignored by the majority; they should be followed or overruled.

Under the decision by the majority in this case, an officer who has been informed that a crime is being committed and he does not have sufficient probable cause to make the arrest cannot ask any questions or go up to the door of a house or up to an automobile and ask an occupant if he might talk to him or ask to be invited in a house if he does not have probable cause. The Fourth Amendment only prohibits unreasonable searches and seizures. The officers’ conduct in this case was not unreasonable.

Until a few years ago, the general rule was that the admission of substantially the same testimony by an accused or another witness makes any error harmless. See Hart v. State, 447 S.W.2d 944 (Tex.Cr.App. 1969). See also Ehrman v. State, 580 S.W.2d 581 (Tex.Cr.App.1979).

Robert Ebarb testified that the gun belonged to his mother and that he put it in her car and that it was there at the time the officers saw it.

It is not necessary to rely upon harmless error in this case.

There was no “stop” by the officers; there was no arrest or detention until after the gun was seen. There was no search and, therefore, no unreasonable search or seizure under the Fourth Amendment.

The judgment should be affirmed.

Before the court en banc.