Fry v. State

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The Green Leaf Nursery on Ben White Boulevard was burglarized by someone cutting the fence and entering the building on the night of January 17 or the morning of the 18th in 1970. Among other things taken were rings and costume jewelry. A ring was found on appellant’s person or in the interior of the car. Some of the items were found in the trunk of the car belonging to Larry Fry, the appellant, in the alley behind Kuykendall’s Drug Store in Burnet in the early morning hours of January 25, 1970. 1

For a better understanding of the case, a more detailed statement of the evidence is set out.

Elgin Shelburn, City Marshal of Burnet, testified that he had received a call from J. A. Presley, the City Marshal at Marble Falls, sometime after 2:00 p. m. on January 24th to be on the lookout for the car with the same description as the one later found in the alley. He was told that the car bore a California license plate and that Larry Fry would be driving it. Officer Presley also told him that a stolen citizen band radio would be in the car. Shelburn had driven through the alley some fifteen minutes before and the car was not there then.

. Officer Presley testified that at approximately 1:30 to 3:30 p. m. (January 24th) he had advised the officers of Bur-net to look out for the car near Kuyken-dall’s Drug Store in Burnet because he was told that Larry Fry would possibly burglarize that store that night. He also testified that he told the city marshal in Burnet that there would be stolen property in the car.

He testified that he was told by Johnny Yonnie that Yonnie saw the stolen goods in the car that day. He testified that he knew Yonnie and, as far as he knew, Yonnie’s reputation was good and considered him worthy of belief. Yonnie also told Officer Presley that Fry had a short time before burglarized Dave’s T.V. Store in Marble Falls and got a Lafayette citizen band radio and brought it to Yonnie’s *763 house where Fry was staying and later put it in the car and “that there were some rings that came from a nursery on Ben White Boulevard in Austin.” Yonnie also said that Fry was going to burglarize Kuy-kendall’s Drug Store in Burnet soon. Yonnie also told him Fry’s name and gave him a description of Fry’s car. Presley already knew the car and that it had a California license plate.

Johnny Yonnie testified that he told Officer Presley that Fry showed him the rings around the 18th of January and said that he got them by “hitting a place” in Austin, later shown to be the nursery. On cross-examination on the trial on the merits, Yonnie testified that Fry had told him he had broken into a place and stolen a citizen band radio. Further, Yonnie testified that he had told Officer Presley that Fry “was at my house and had the stolen merchandise in his possession.”

Mrs. Yonnie testified that Fry had been staying at their house in Marble Falls. While there, Fry told them that he was a professional burglar and showed them some rings which he said he had taken in the burglary at Austin. Some three or four days before the arrest, Mrs. Yonnie asked Fry to move and the day he left (or moved) he got in trouble and was arrested.

Officer Shelburn also testified that when he saw the car in the alley he called for assistance because he did not know how many people were in the car. He stopped the patrol car and kept the motor running with the lights shining on the California car. Within a few minutes, Officer Presley and a highway patrolman arrived. Shelburn did not know if the appellant was under the wheel and moved to the back seat at the time he drove up. He testified that he had seen drivers move from under the wheel rapidly on several occasions. He was of the opinion that Fry was not asleep when he was in the back seat covered with a blanket.

Officer Presley testified that at the time of the arrest the left door of Fry’s car could not be opened because it had “some of these big, superlong whip antennas run through the door handles on the driver’s side.” He saw a mounting bracket for a Lafayette citizen band radio under the dashboard with the power cable and antenna wire hanging loose. When they opened the trunk, “I found the radio that I was looking for, that was identified by the owner of the radio; it still had his call numbers on it. . ” and “There was another radio analyzer and two C.B. whip antennas, and quite a bit of information about C.B. radios, etc.” He also found rings and costume jewelry, later shown to have been taken in the burglary of the Green Leaf Nursery. In addition, two telephones that had been stolen in Austin were found.

The appellant testified on direct examination that he had been to the penitentiary on three separate occasions. 2 He testified that he had been to the Green Leaf Nursery in Austin on the 17th of January and inquired about some articles. While there he saw the items of jewelry in a showcase. He testified that he was still staying at Yonnie’s house on the 24th of January. When he had gone there earlier, he had two stolen citizen band radios in the car and had later sold one of them. He testified that one of them was stolen from him on the night of January 17 or Sunday morning, the 18th, and that he later bought a set from Yonnie. He also testified that he had a Lafayette Constat 25 radio in his car at the time he was arrested. According to his testimony, on the day before the arrest he had gone to Bergstrom Air Force Base in Austin and helped a citizen band radio operator take down an antenna and then met with another such radio operator at Truck City in Austin for coffee. He testified that he left there after midnight and arrived at Burnet at approximately 1:15 or 1:30 a. m. to stay with his grandmother and *764 to attend church the following day. When he drove by her house he saw no lights and drove to the alley and parked behind one of the buildings. He also testified that he then got in the bedroll in the back seat and assumed that he had just dozed off when spotlights were thrown on his car. He also testified that when he left the Yonnie’s house the previous night he told them that he was going to Burnet to see his grandmother.

On cross-examination, he testified that gloves found in the trunk were motorcycle gloves and that the fleece-lined boots were for washing cars. His explanation about the two stolen telephones found in the trunk was that he had found them in a telephone booth in Austin, but he knew that they belonged to the telephone company.

The opinion on original submission apparently questions the right of the officers to make the warrantless arrest of the appellant in the alley during the night, the opinion reversing because, for the purpose of writing on the search, it was assumed that the arrest was legal and the search of the interior of the car (but not the trunk) was legal.

I would hold outright that the officers had the right to arrest the appellant under Article 14.03, Vernon’s Ann.C.C.P., which provides as follows:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

The facts for a legal arrest in the present case are stronger than those of Baity v. State, Tex.Cr.App., 455 S.W.2d 305 , where Baity was seen walking through an alley at night under suspicious circumstances. The Court held that the officers had a right to investigate. There they had no information that Baity possessed stolen property before they investigated.

In the present case, the arrest was legal. Did the officers have probable cause to search the car ? If so, the evidence, including the stolen rings taken from the burglary, was admissible.

In my opinion, the testimony of Officers Presley and Shelburn sufficiently shows probable cause to search the car. This is supported by the testimony of Johnny Yon-nie. Yonnie told Officer Presley that the appellant possessed a Lafayette citizen band radio taken in a burglary of Dave’s T.V. Store in Marble Falls. The officer was primarily interested in the radio that he ultimately recovered in the search. Officer Presley testified that Yonnie was trustworthy. Yonnie told him that he saw the stolen citizen band radio in the car. This information was given to Officer Presley some ten to twelve hours prior to the arrest. This is not a case where an unnamed informant has given information to an officer and a search warrant has been obtained. Here we have no warrant. Had the information been set forth naming the informant, a magistrate could have issued a search warrant for the stolen goods provided the automobile was at some definite location.

In the recent case of Frazier v. State, Tex.Cr.App., 480 S.W.2d 375 (1972), this Court held:

“We, therefore, hold that the requirements of Aguilar v. Texas, supra, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 are met when hearsay information in an affidavit is derived from named persons who supply detailed information suggesting direct knowledge of the information which they have given. United States v. Evans, 447 F.2d 129 (8th Cir. 1971); United States v. Mahler, 442 F.2d 1172 (9th Cir. 1971) ; United States v. Jensen, 432 F.2d 861 (6th Cir. 1970); Gallagher v. United States, 406 F.2d 102 (8th Cir. 1969), cert. denied, 395 U.S. 968 , 89 S.Ct. *765 2117 , 23 L.Ed.2d 756 (19 ); United States v. Pascente, 387 F.2d 923 (7th Cir. 1967), cert. denied, 390 U.S. 1005 , 88 S.Ct. 1248 , 20 L.Ed.2d 105 (19 ); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966).” (Emphasis Supplied)

The officers had sufficient cause to believe that the appellant possessed the stolen radio (that was later found in the car). The officers arrested the appellant lawfully and the majority assumes that the search of the interior of the car was justified. One officer testified that the arrest was made under the suspicious persons ordinance. No ordinance was introduced, and it was not necessary because the Legislature adopted Article 14.03, V.A.C.C.P., in 1967, the “Suspicious Person’s Statute” which applies throughout the State. This arrest was not based upon a traffic offense. An arrest for a traffic offense without evidence of stolen property in the car and without seeing evidence of stolen property, contraband or that another crime had been committed, at the time of arrest, would present a different question.

I would not require the officers to obtain a search warrant for the search of the car under the circumstances of this case even if we had a statute authorizing the issuance of a search warrant for a car not located at any particular place.

Assuming, arguendo, that Yonnie was not shown to be reliable and probable cause was not shown at the time the officers first saw the car parked in the alley, the question of the search of the trunk will be discussed. The officers, while making the legal arrest, saw the mounting for a citizen band radio and superlong antenna whips wired through the door handle of his car in plain view at the time of the arrest. This would add to and substantiate the information received by the officers about the stolen radio. Such a radio and its antennae are evidently not the ordinary type of automobile radio and equipment. A ring was found in appellant’s pocket or in the interior of the car before the search of the trunk was made. At least part of the detailed information turned out to be true. The appellant was found in the car parked behind the drug store that Yonnie had told them would be burglarized. The radio equipment for the described radio was found in an unusual place in the car and the antennae were unconnected. Yonnie had told the officers that the radio was brought in the house and then put back in the car a short time before. This would be another instance for the officers to believe that the radio was disconnected and in the car.

Where officers make an arrest for one purpose and see evidence indicating the fruits of another crime, a further arrest and search may be made. In Taylor v. State, Tex.Cr.App., 421 S.W.2d 403 , the conviction was for the possession of marihuana. The arrest was made for passing in a no-passing zone, a traffic violation. Officers saw money wrappers, a large sum of money, then pistols. This Court in the original opinion upheld the search of the trunk of the car where marihuana was found after the car was taken to the courthouse at another town. On motion for rehearing, Judge Onion also upheld the search of the trunk upon probable cause even though the search was made after the occupants were in the courthouse. There the officers had no information that the car contained stolen property when the arrest was first made. See also Gutierrez v. State, Tex.Cr.App., 423 S.W.2d 593 , where the Court held sufficient probable cause to search a trunk of an automobile.

The original opinion suggests there were no exigent circumstances for making the search without a warrant. On cross-examination, Officer Presley testified that Yon-nie told him that the appellant had taken the radio out of his car, put it in Yonnie’s house and then put it back in the car. Yonnie said the appellant then “had gotten in his car and told him [Yonnie] that he was either going to burglarize Kuy-kendall’s drug store or another business establishment in Burnet and that it would be fairly soon, he [Yonnie] thought, and *766 we ought to keep watch at Burnet for the subject and the car.”

Mrs. Yonnie testified that the appellant left their house the day he was arrested. The appellant, by his own testimony, shows that he was not at Yonnie’s house in Marble Falls from at least noon on January 24 until 1:15 to 1:30 a. m. January 25. The appellant, according to his testimony, was in Austin at Bergstrom Air Force Base or at Truck City until after midnight when he drove to Burnet, ostensibly to spend the night with his grandmother. The car was not situated so that a magistrate could have issued a search warrant even if one had been requested. The car was not even in Burnet County from the time the officers heard about the stolen goods until sometime after midnight, a few minutes before appellant was arrested. The evidence shows that the officers did not have time to obtain a warrant.

The original opinion points out that Officer Shelburn had appellant’s car under observation in the alley and made no attempt to secure a warrant of arrest or search warrant. No arrest warrant was necessary under Article 14.03, supra. 3

Officer Shelburn testified that there were not many officers in that area. He was no doubt using good judgment in waiting some ten to twenty minutes for help because he did not know how many people were in the car. Would it be reasonable to require some of the officers under the circumstances here to leave the alley to get a search warrant? I think not. With the number of law enforcement officers limited, occupants of a car in an alley past midnight and bent on burglary or robbery might seek an opportunity to shoot their way out of such a situation and possibly cause- bloodshed, not only for themselves but for officers. It was common-sense and practical law enforcement for the officers to make the arrest as soon as sufficient reinforcements arrived. Officers should not be required to take more chances than are absolutely necessary.

The fact that the appellant was found in the back of the car, which by his own testimony as well as that of Officer Shelburn could not have been over fifteen or twenty minutes, did not keep the car from being movable. He could have easily moved from the back seat of the Corvair to the front seat and driven away had it not been for an officer present.

Whether a man is under arrest in a car, it is immobilized even if he is under the wheel. There is no valid distinction wherein a search of the car may be conducted under Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970), even though the car was not moving immediately before the arrest. The Supreme Court of the United States in Chambers v. Maroney, supra, pointed out, “[I]f an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.” The Court then went on to point out that “[f]or constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

In State v. Birdwell, 6 Wash.App. 284 , 492 P.2d 249 (Washington Court of Appeals, 1972), the seizure of a trunk containing marihuana from a parked automobile was upheld where the officers had followed the defendant in the car from the place where he picked the trunk up to the address where the trunk was scheduled to be *767 delivered. The Court pointed out that the officers only knew the identification of the automobile for about one-half hour prior to the time of the seizure and they did not know its destination. Furthermore, they did not know what the defendant, or the owner of the car, or anyone else, might do with the automobile. At the time of the seizure, the keys of the automobile had been taken from the car by the driver and given to the owner in the house, where he was arrested.

Chambers v. Maroney, supra, should not be limited to a situation wherein the officers have to stop an automobile to make an arrest. The mobility of the automobile is the key. Just as in Chambers, the automobile in the instant case, even though parked, was occupied and was mobile. It was a fleeting target for a search. Therefore, the search of the automobile, under probable cause, was valid. This is consistent with the interpretation by the Eighth Circuit Court of Appeals in White v. United States, 448 F.2d 250 (1971). In that case, the defendant was taken into custody while slumped over the steering wheel of the automobile. Even though the search of the automobile was under a warrant, the validity of the warrant was attacked. The Court found that it was not necessary to pass upon the question of validity of the warrant because the search was justified as a warrantless search based upon probable cause under the principles of Chambers v. Maroney. The Court pointed out that the car was in custody of the police, but were the defendant to be released the car might quickly disappear; therefore, the warrant-less search was valid. See also United States v. Belcher, 448 F.2d 494 (7th Cir. 1971).

The recent case of Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 , is distinguishable. Stoddard was arrested at his office in a building and taken away. The automobile was located outside the building. The car was kept under surveillance by an officer for about two and one-half hours while other officers obtained a search warrant. The search warrant was not based upon sufficient facts to show probable cause and was, therefore, defective. The marihuana seized as a result of the illegal search was inadmissible and for that reason the conviction was reversed.

It was noted that the facts in Stoddard’s case were somewhat like those in Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), where the arrest was made and a defective warrant was obtained for the automobile which was parked at the home of Coolidge where it had been for some time. The car was towed to the station sometime after the arrest, and it was searched for the first time two days after the arrest. The Supreme Court of the United States reversed Coolidge because there were no exigent circumstances for the search without a valid warrant.

Our Court reversed the conviction in the Stoddard case because “exigent circumstances” were not present to justify a search without a warrant. The Court noted: “This is not a case in which the officers, seeing a moving car in which they have probable cause to believe certain articles are contained, stop the car and search.” The Court stated: “We do not mean to hold that ‘exigent circumstances’ may never exist in the case of a parked car”, and, “The test is whether ‘exigent circumstances’ make the obtaining of a warrant impracticable.”

Under the circumstances of the present case, the obtaining of a search warrant in the late hours of the night for a car parked in the alley occupied by its owner and potential driver would have been impractical. Magistrates are not always available at midnight in a small town and as stated before the safety of the officers should be taken into consideration.

The prior concurring opinion is withdrawn.

No reversible error has been shown. The motion for rehearing should be granted and the judgment affirmed.

. There is some discrepancy in testimony concerning the dates involved, but it appears that the officers received information concerning Fry on January 24 and the arrest was made sometime after midnight on January 25.

. The State dismissed the two prior felony convictions alleged for enhancement. Many other prior convictions were proved.

. It is not to be understood that the writer would hold that the evidence found in the trunk can be used to bolster probable cause. Only the evidence related to the officer, plus the circumstances surrounding the arrest in the alley, before the trunk was searched, should be utilized.