Farmah v. State

McCORMICK, Presiding Judge,

dissenting on appellant’s petition for discretionary review.

Because the majority opinion will unduly hamper legitimate and constitutionally per*682missible local law enforcement efforts, I dissent. The majority holds appellant’s arrest was without probable cause, and the illegal arrest tainted appellant’s confession. In reaching this conclusion the majority fails to give fair leeway to legitimate law enforcement efforts.

Appellant confessed soon after his arrest. He filed a pretrial motion to suppress the confession. Johnson, a West University law enforcement officer, testified at the suppression hearing that the victim was abducted by three black males who robbed and sexually assaulted her. She said the attackers were in an older model Buick with a white top and maroon bottom. Eight days after the offense, Johnson received information from a U.P.S. truck driver that he witnessed the victim’s abduction. This witness said two black males were involved, and he gave Johnson a description of the car used in the offense that was consistent with the victim’s description of the car. This witness also provided Johnson with the specific license plate number of the car.

Johnson ran a registration check on the license plate number, and discovered the car was registered to a woman who said she sold the car several years before but she did not have the name of the person to whom she sold it. Johnson entered the description and license plate number of the car with the National Crime Information Center (NCIC) which distributes information to the Houston Police Department (HPD) and all other law enforcement agencies in Harris County. Johnson described the car as a “wanted” car in connection with a sexual assault.

The next day, HPD officer Horn saw the car, broken down by the side of the road, and only appellant sitting on the car. Appellant testified Horn pulled up behind him, got out of his ear, spoke to appellant, and then got back into his car. Shortly after that, Horn got out of his car a second time, handcuffed appellant, and placed him in the back of the police car. Around this time, an HPD dispatcher notified Johnson’s dispatcher that HPD had the car with one individual. Horn did not testify at the suppression hearing.

Johnson testified he soon arrived at the scene and spoke with Horn. Johnson testified the car had the same license plate number described by the U.P.S. driver, and the car fit the description given by the victim. Johnson testified appellant was not able to provide a “fixed address.” Appellant had a driver’s license with an address on it but Johnson did not cheek the address because addresses on driver’s licenses frequently are incorrect. Appellant said he owned the car, but the car was not registered in his name.

Johnson told appellant he was a suspect in a sexual assault investigation. Johnson testified he was afraid to release appellant because appellant knew he was a suspect, and Johnson did not know if he could find appellant again. Johnson testified he believed it would have been irresponsible to release appellant, so he took him to the West University Police Department. Johnson began interrogating appellant after he waived his Miranda 1 rights. Appellant confessed approximately four hours later soon after Johnson told him the victim had identified him from a photospread when she really had not. Johnson testified he did this to get appellant to confess.

To justify an arrest under Article 14.04, V.A.C.C.P., the State must prove the police had probable cause to believe the suspect committed a felony offense and had satisfactory proof the suspect was about to “escape” so there was no time to get a warrant. See Dejarnette v. State, 732 S.W.2d 346, 349-53 (Tex.Cr.App.1987). We are supposed to examine the totality of the circumstances in determining whether probable cause exists for a warrantless arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Cr.App.1991). Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. See id. The determination of whether probable cause exists concerns “the factual and practical consideration's of everyday life on which reasonable and prudent [people], not legal technicians, act.” (Emphasis added). See Woodward v. State, 668 S.W.2d 337, 345 (Tex.Cr.App.1982) *683(op. on reh’g), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). Probable cause means more than bare suspicion but less than beyond a reasonable doubt. See id. And, the rule of probable cause seeks to accommodate the often opposing interests of safeguarding citizens from rash and unreasonable police conduct and giving fair leeway to legitimate law enforcement efforts. See id., 668 S.W.2d at 345-46.

The test of probable cause for a warrant-less arrest by an officer on the strength of a request by other law enforcement authorities is the information known to the requesting authorities. Webb v. State, 760 S.W.2d 263, 275 f.n. 17 (Tex.Cr.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989); see also Tarpley v. State, 565 S.W.2d 525, 529-30 (Tex.Cr.App.1978). The applicable rule here is radioed police broadcasts, based on probable cause, reporting a felony and a description of the suspect and the vehicle are sufficient to satisfy Article 14.04. See Esco v. State, 668 S.W.2d 358, 360 (Tex.Cr.App.1982).

We have upheld warrantless arrests under Article 14.04 on facts similar to those here. See Esco, 668 S.W.2d at 360; Myre v. State, 545 S.W.2d 820, 825-26 (Tex.Cr.App.1977), overruled on other grounds, Rabbani v. State, 847 S.W.2d 555 (Tex.Cr.App.1992); Mabry v. State, 492 S.W.2d 951, 952-53 (Tex.Cr.App.1973) (police radio broadcast about robbery-murder and the description of two black suspects in a green 1965 car with Florida license plates provided officers with probable cause to arrest the defendant who was black and had been seen near the above-described car); Rose v. State, 482 S.W.2d 219, 220-21 (Tex.Cr.App.1972); Mathis v. State, 469 S.W.2d 796, 802-04 (Tex.Cr.App.1971) (op. on reh’g). Here, private citizens provided Johnson with a reliable description of the car used in the offense including the specific license plate number, and appellant fit the general description of one of the suspects. See Esco, 668 S.W.2d at 360; Mabry, 492 S.W.2d at 952-53; Rose, 482 S.W.2d at 221. Under our prior cases, appellant’s war-rantless arrest was valid because it was based on probable cause under circumstances excusing the requirement of a warrant.

The majority opinion does not cite, discuss, distinguish or overrule the above-cited cases except Esco which the majority discusses in a footnote. The majority finds Esco distinguishable because the officers in Esco had probable cause to arrest. With all due respect to the majority, this begs the question. In Esco, the police had probable cause to arrest because, as in this case, they had a reliable description of the car involved in the offense, including the license plate number, and the defendant was in the car when the police stopped him. I submit that in all material respects this case is indistinguishable from Esco.

The only major distinction between this case and the above-cited “police broadcast” cases is appellant was arrested nine days after the commission of the offense; the defendants in the “police broadcast” cases were arrested shortly after the commission of the offenses, usually on the same day. However, under the facts and circumstances of this ease, this distinction should not invalidate the existence of probable cause for appellant’s arrest. Compare Mitchell v. State, 482 S.W.2d 221 (Tex.Cr.App.1972) (arrest occurred three days after the offense), with, Hill v. State, 692 S.W.2d 716, 718, 720, 722-23 (Tex.Cr.App.1985) (arrest occurred approximately one year after the offense). Under the totality of the circumstances, it would not have been unreasonable for Horn and Johnson to believe that appellant owned the car when Horn initially confronted him, and that he owned the car nine days earlier when the offense was committed; therefore, it was not “rash or unreasonable” for Horn and Johnson to believe appellant was involved in the commission of the offense based on his connection to the car.

The majority relies on Garrison v. State, 726 S.W.2d 134 (Tex.Cr.App.1987), for its holding that the police lacked probable cause to arrest appellant. That case is clearly distinguishable. In Garrison, the record contained gaps on what the police knew and when they knew it at the time of the defendant’s warrantless arrest. Garrison, 726 S.W.2d at 137. Since the State carries the burden of proving the validity of a warrant-less arrest, we held the record failed to show *684the State sustained this burden. Id. Here, the record shows what the police knew and when they knew it.

The majority opinion also states the police lacked probable cause to connect appellant to the offense even though they “may have had probable cause to believe the car was involved in the offense.” Cars do not commit offenses; people do. It is appellant’s connection to the car that helps establish probable cause for his arrest, see, e.g., Esco; if the police had probable cause to believe the car was involved in the offense, then appellant’s connection to the car also helped to establish' appellant’s connection to the offense. Am I to understand that under the majority’s analysis the police could have arrested the car but they had to let appellant go, and is this the rule we are announcing to the bench and bar? If so, Texans can rest easier secure in the knowledge that police are now empowered to arrest cars based on probable cause.

The majority opinion also suggests appellant’s race was an improper factor to consider in determining whether probable cause existed for his arrest. I disagree. Since the victim described her assailants as black males, appellant’s race, together with the other circumstances outlined above, helped to establish probable cause for his arrest. See, e.g., Mabry, 492 S.W.2d at 952-53.

The majority opinion fails to identify any “rash and unreasonable police conduct.” And, it certainly fails to give any leeway to legitimate law enforcement efforts. See Woodward, 668 S.W.2d at 345-46. I would uphold appellant’s arrest under Article 14.04.

The majority also concludes appellant’s confession was tainted by the illegal arrest. Assuming appellant’s arrest was illegal, I would hold the illegal arrest did not taint appellant’s subsequent confession. In applying the Brown attenuation of the taint analysis, the majority concludes the “flagraney of misconduct” does not favor a “finding of taint attenuation,” primarily because the police lacked probable cause to arrest appellant. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The “purpose and flagraney of police misconduct” is the most important Brown factor to consider in an attenuation of the taint analysis. See Bell v. State, 724 S.W.2d 780, 789 (Tex.Cr.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).

Here, at the very least, the police had some level of objective, articulable suspicion of appellant’s involvement in the offense. This record shows no outrageous, “willful, or at the very least negligent” police conduct which rises to the level of the flagrant police misconduct in Brown, 422 U.S. at 606, 95 S.Ct. at 2263. Under the circumstances, what else were the police going to do? Probably what any other reasonable police officer would have done under the circumstances. The fourth, and most important, Brown factor favors the State, and, applying the other Brown factors, the confession is admissible.

Moreover, excluding the confession in this case will not promote the underlying policy of the exclusionary rule which is to deter police misconduct. See Green v. State, 615 S.W.2d 700, 709-13 (Tex.Cr.App.1981) (McCormick, J., dissenting). On the contrary, the majority. opinion penalizes and discourages reasonable law enforcement efforts.

I dissent.

CAMPBELL, WHITE and MEYERS, JJ., join this dissent.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).