Benton v. State

OPINION

This is an appeal from a conviction for possession of marihuana under two ounces. Art. 4476-15, Sec. 4.05(b)(3), Vernon's Ann.Civ.St. After finding appellant guilty, a jury assessed his punishment at one hundred twenty days in jail and a fine of one thousand dollars.

Appellant's first contention is that his motion to suppress the marihuana should have been granted because the search which resulted in the discovery of the marihuana was the product of and sequel to an unlawful stop. We agree and reverse.

Officer Austin Brown of the Amarillo Police Department testified that he stopped appellant at approximately 4:45 on a Sunday morning. There was little other traffic in that neighborhood. There had been perhaps three recent burglaries in that area. These burglaries had "usually" taken place between three and five in the morning.

Although Brown stated that he saw the appellant violate no laws, he testified that appellant and another individual had tried to "elude" two other officers just before Brown stopped him. When pressed, however, *Page 375 Brown conceded that by "eluding" he meant nothing more than a "zigzag" pattern of driving. The record makes it clear that this driving pattern was Not part of any overt attempt by appellant to avoid an explicit lawful detention.¹

Brown then admitted, and repeated several times, exactly what this record reveals that he stopped appellant "merely on suspicion."² This is not sufficient to constitute probable cause.

This case is governed by our holding in Tunnell v. State, 554 S.W.2d 697 (Tex.Cr.App. 1977). There the officer saw the defendant and two other men in a car with its lights off. The car was parked in a well-lighted hospital parking lot. The officer decided that this "activity" was suspicious, so he drove down the street, turned around, and returned to the area around the parking lot. The car had by that time turned on its lights and begun driving along the street. The officer then stopped the car. As in the instant case, the officer in Tunnell observed no traffic violation and stated that the defendant engaged in no criminal activity, made no furtive gestures, and took no evasive action after the officer began his pursuit. We held that the stop was constitutionally prohibited and required reversal.

The facts which allegedly support probable cause in this case are not even as strong as those in Scott v. State, 549 S.W.2d 170 (Tex.Cr.App. 1976). In that case the officer was patrolling at 1:30 a.m. in what he described as a "high crime area," the same designation given to the area of appellant's arrest in the case at bar. In Scott, there had been reports of hubcap thefts in the area.

The officer in Scott testified that he saw the defendant's car coming from an area of fashionable newer townhouses. He also stated that normally there were no cars on that street at that time. There were no street lights in the area. As the officer passed the defendant's car, he saw that it was occupied by two black males and that there was what appeared to be "sheeting material" propped up in the back seat of the car. The officer then stopped the car to investigate. We held that this stop was unjustified and the subsequent search was invalid.

Numerous other cases of this Court require that we reverse this case.³ It was nothing more than the product of an inarticulate hunch which led to an unconstitutional search. *Page 376

The judgment is reversed and the cause remanded.

¹ Compare V.T.C.A., Penal Code, Section 38.04 (Evading Arrest), and see Art. 6701d, Section 186, V.A.C.S. (Fleeing or Attempting to Elude a Police Officer). Brown explained this "zigzag" pattern as "go(ing) down approximately a block and turn(ing) and go(ing) another block and turn(ing), back and forth . . . ."

² The arresting officer's testimony at trial on the merits indicates that he considered such a stop proper police behavior:

"Q. (By Defense Counsel): All right. Now, as an officer patroling a beat, what gives you probable cause to stop an individual?

"A. Any particuAlR type of situation.

"MR. ROPER (Prosecutor): Objection, Your Honor. I believe that calls for a legal conclusion here

"THE COURT: Okay I'm going to sustain your objection. Mr.Busby, rephrase your question. I think you will get the same thing.

"MR. BUSBY: All right.

"Q. (By Mr. Busby) When you are driving down the street, and you stop someone, is it not correct that you have to have probable cause to make that stop?

"A. Yes, sir. It is.

"Q. And, how do you get probable cause to make an arrest?

"A. It can be a traffic violation.

"Q. All right. Anything else?

"A. Yes, sir. Vehicle driving in a part of town that I know shouldn't be there on my beat. I usually know a lot of the vehicles that belong there. If I see a subject I do know, and he's not usually out at that time, I may stop him just to see what he's doing."

³ See, e.g., Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App. 1976); Hinson v. State, 547 S.W.2d 277 (Tex.Cr.App. 1977); Phillips v. State, 548 S.W.2d 44 (Tex.Cr.App. 1977); Ceniceros v. State, 551 S.W.2d 50 (Tex.Cr.App. 1977); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App. 1977); Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App. 1976); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App. 1972); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App. 1973).

Cf. Amorella v. State, 554 S.W.2d 700 (Tex.Cr.App. 1977); Drago v. State, 553 S.W.2d 375 (Tex.Cr.App. 1977).